Nambucca Valley Conservation Association v Nambucca Shire Council

In accordance with the provisions of Clause 13 of SEPP 44 - Koala Habitat Protection, a copy of the KPoM and supporting documentation is enclosed for the consideration of the Director." 41 On 14 January 2008 a council officer's assessment included the following: "The original development application proposed an 11 lot rural-residential-subdivision which was referred to H&B on 27 October 2003. However, due to site constraints a community title subdivision has now been proposed as a more appropriate form of development. The proposed development will create 6 development lots of approximately 1 hectare, a community lot of 6.85 ha and a residual lot of 55.7 ha. Access will be via an internal access road linked to East West Road." 42 On 20 May 2008 the Department of Planning wrote to the council to advise that approval had been given to the 2007 Darkheart KPoM conditional upon compensatory replanting of lost koala food trees at a ratio of 10:1 and upon preparation of an environmental management plan (EMP) to the satisfaction of the council: "The KPoM gives a figure of twenty-three (23) feed trees to be removed around the dwelling sites (page 27). However, this total is likely to be far greater (given the likely requirement by the RFS to remove more trees for the additional road works and for the Asset Protection Zone (APZ) within the Community Title 'koala habitat' lot). The KPoM gives a compensatory replanting ratio of 3:1 - this is well below the Department's accepted standard of 10:1. Accordingly, 230 koala feed trees should be replanted. In addition, the KPoM needs to be more specific regarding protection measures for retained vegetation on the subdivided lots. Under scrubbing of development lots outside the APZ should be prohibited (thus encouraging a continuing natural regeneration of those areas for future koala use). Building envelopes should be determined early and mapped within the KPoM.

In the circumstances, it is necessary that a detailed Environmental Management Plan (EMP) be prepared as part of the KPoM providing necessary details regarding the replanting, management, monitoring and reporting requirements listed below (including appropriate replanting density and a revegetation plan). Approval of the KPoM is subject to the preparation of this EMP to the satisfaction of the Council … Council should consider whether the subject land is suitable for such proposed development and whether it is consistent with the principles for rural residential development listed within Schedule 1 of the Nambucca LEP1995. It is noted that the KPoM acknowledges the importance of the site to koalas in an already fragmented landscape and that it also acknowledges the importance of the site to koalas, in terms of both its use for foraging habitat and corridor function." Third Amendment 43 On 11 July 2008 the proponent amended the proposal by the deletion of one rural-residential lot (Third Amendment). The proposal now was for seven lots consisting of five rural-residential lots ranging from 1.04 to1.3 hectares, a community title lot of about 7.82 hectares which contained the internal road, and a large residual lot of about 56 hectares.

44 The Third Amendment was not re-advertised. Land owners of adjacent properties to the development were re-notified of the Third Amendment. By letters dated 18 August 2008, persons who had objected to the Second Amendment were notified that the Third Amendment was being reported to the council. Development Consent 45 On 21 August 2008 the council resolved to determine the amended development application by granting consent "subject to conditions of consent attached to" the council report before the council and subject to a condition that a private internal road be provided as part of the community title.

46 Condition 1 provided that the development be implemented generally in accordance with the plan of subdivision, the Darkheart KPoM of December 2007, the Darkheart ecological assessment report of September 2005, and the neighbourhood management plan: see [22] and [38] above. 47 The council report, by the council's Director Environment and Planning, noted that the determination was of the application lodged in October 2003. It said that only three submissions, which it annexed, were made on the "amended application". It did not include any reference to or annex submissions made with respect to the original application and earlier amendments. The council report attached conditions on which it recommended approval should be given. The council report said that the Department of Planning's requirement for an EMP which details the planting and regeneration program and uses a compensatory planting of koala food trees at a ratio of 10:1 rather than 3:1 (proposed by the proponent) "have been incorporated as conditions of consent". In fact, the EMP requirements did not appear in the conditions attached to the council report although they appeared in the council's later notice of determination. 48 On 28 August 2008 the council issued to the proponent a Notice of Determination by way of granting conditional consent. GROUND 1: REFUSAL 49 The first ground of challenge to the validity of the development consent is that on or about 8 July 2004 the development application was refused actually or constructively, and that all else done thereafter was inconsistent with the refusal. The council says that there was no refusal and, in any case, the council officer who allegedly refused it had no authority to do so. Refusal 50 On 7 July 2004 Mr Hannavy, the council's Manager Planning and Assessment, wrote the following file note concerning his discussion with the proponent: "I spoke to Ken today re message I left for him last week that DA was to be refused. He advised that he had been waiting for revised flora and fauna report from Wayne Brennan, since May but had still not received it.

I indicated that Council's concern was with the significance of the vegetated area and that subdivision would involve substantial incursions into what could be an important corridor/habitat area.

I also advised Ken that I had held of [sic] on sending a letter of request for further information re: DIPNR Part 3A requirements, I had intended to have notice of refusal finished by now. I said the notice was on my desk ready to be signed and would probably be sent out today.

Ken said he would collate all required information once it had been prepared to a better standard and would resubmit DA. He stated he would advise his client that DA was to be refused. I advised him that prior to submitting any new DA, he should talk to NPWS as the area is obviously of habitat significance, and Council would consider seriously all comments made by NPWS."

51 On 8 July 2004 Mr Meyers, the council's Director Environment and Community Planning and Mr Hannavy's superior, wrote the following file note concerning his discussion with the proponent: "I attended a meeting with the applicant Mr Joseph and the Mayor regarding his DA.

I advised that I had infact [sic] signed a refusal Notice but had not yet sent the Notice as I had to change the date.

Mr Joseph produced a letter from Amos and McDonald to Council dated 11 May 2004 providing some outstanding information and advising that the Flora and Fauna report (revised) and an Aboriginal Cultural Heritage Assessment are currently being attended to and will be submitted as soon as possible.

Therefore as advice had been received that they were endeavoring [sic] to provide the information they have in fact complied with Council Policy for outstanding DA's.

I have therefore conceded that the Notice of refusal will not be issued provided the outstanding Information is submitted shortly.

I advised that further additional information has been requested from DIPNR regarding the 3A permit and will be forwarded to the applicant."

52 Attached to Mr Meyers' file note is a notice of determination dated 2 July 2004 signed by him stating that the application had been refused for a number of reasons. Across the front of the notice there was handwritten, apparently by Mr Meyers, "Withheld see file note 8/7/04". The notice of determination was not sent to the proponent but remained on the council file.

53 The applicant submits that: (a) once Mr Meyers signed the notice, it was effective as a determination by refusal; (b) the combination of Mr Meyers' decision to refuse and communication of that decision to the applicant means that the council had validly exercised its power under s 80 of the EPA Act to determine the application by refusal; (c) consequently, any further act with respect to the application was ultra vires.

54 The council submits that: (a) sections 80 and 81 operate together such that execution of a determination by the council or its delegate is not the making of the determination in the absence of notification under s 81(1); (b) Mr Hannavy and Mr Meyers only had delegated power to sign notices of determination but not to determine development applications; (c) the council had power to grant the extension of time sought by the proponent on 8 July 2004 and defer making its final decision until the reports were received. That is what Mr Meyers did on 8 July 2004. The entirety of the conduct of the proponent and the council thereafter is consistent with the development application, as amended, remaining on foot. 55 Sections 80, 81 and 83 of the EPA Act are relevantly as follows: " 80 Determination

(1) General A consent authority is to determine a development application by: (a) granting consent to the application, either unconditionally or subject to conditions, or (b) refusing consent to the application.

(1) The consent authority must, in accordance with the regulations, notify its determination of a development application to: (a) the applicant, and (b) in the case of a development application for consent to carry out designated development, each person who made a submission under section 79 (5), and (c) such other persons as are required by the regulations to be notified of the determination of the development application. (2) If the consent authority is not the council, the consent authority must notify the council of its determination. (3) In the case of a development application for consent to carry out designated development, the consent authority must also notify each person who made a submission under section 79 (5) by way of objection of the person's rights to appeal against the determination and of the applicant's rights to appeal against the determination."

(1) Subject to subsections (2) and (3), if a determination is made by the granting of consent, the consent becomes effective and operates from: (a) except as provided in paragraph (b) - the date that is endorsed on the notice given to the applicant in accordance with section 81 (1) of the determination of the development application or under section 82A (7)…" 56 For the purposes of s 81(1), cl 100 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) prescribes much information that a notice of determination of a development application must contain, including the consent authority's reasons for a refusal. Clause 102(1) mandates that a notice under s 81(1) must be sent to the applicant within 14 days of the date of the determination of the application. Clause 102(3) provides that failure to send within the 14 day period does not affect the validity of the notice or any development consent to which it relates. That provision validates a late notice of determination but does not dispense with the requirement to send the notice: Townsend v Evans Shire Council [2000] NSWLEC 163, 109 LGERA 336. 57 The statutory provisions show that: (a) there is no effective determination of a development application until the prescribed statutory notice of determination is sent to the applicant: Hamod v Minister for Urban Affairs and Planning [2009] NSWLEC 24 at [15] (Lloyd J); Townsend v Evans Shire Council (2000) NSWLEC 163, 109 LGERA 336, (Lloyd J); Shanahan v Strathfield Municipal Council [1973] 2 NSWLR 740 at 744 (Street CJ in Eq); Ex parte Renouf [1924] 24 SR (NSW) 463 at 467 (Street ACJ, James J concurring); Panagopoulos v Willoughby City Council (1992) 78 LGERA 270 at 272-273 (Bignold J); (b) a council can revoke determination of a development application before it is formally communicated to the applicant: Townsend at 341-342; Shanahan at 742-744; Renouf at 466-467. It may be open to argument whether the power to revoke continues until the applicant has acted on the faith of the approval after formal communication; Shanahan at 742. (c) in contrast, it has been held that determination of an application to modify a development consent may be notified to the applicant orally because there are no statutory notice requirements in such a case: Panagopoulos . 58 The application of these principles is illustrated in Townsend. There the council resolved to grant consent to a development application. At the conclusion of the meeting the mayor in effect told the applicants, who were present at the meeting, that consent had been granted. A week later, the applicants contacted the council staff to obtain the notice of determination, but were told that it would not be available because a rescission notice was coming in. Subsequently the council rescinded the consent resolution and notified the applicants. It was held that the rescission notice was valid. 59 Under the statutory scheme, the sending of a statutory notice of determination of a development application to the proponent is essential. In the present case it was not sent to the proponent until 2008, after the amended application was determined by consent. 60 The high point of the applicant's case on ground 1 is that on 8 July 2004 Mr Meyers told the proponent that he had signed a refusal notice but had not sent it as he had to change a date. The proponent immediately successfully dissuaded him from sending it by indicating that overdue information would soon be provided. The proponent and the council proceeded then and for years thereafter on the basis that the application had not been determined until 2008 when consent was granted.

61 I am inclined to think that Mr Meyers did not refuse the application by signing the notice of determination because it was still a draft that was not finally settled and because he communicated an intention that refusal depended on sending the notice to the proponent. However, assuming that he refused the application by signing the notice of determination, it was open to the council to rescind the refusal before it was formally notified in accordance with the statute. Mr Meyers did so, at the proponent's instigation, moments after the alleged oral refusal.

62 On this basis, the first ground of challenge must be rejected. Authority 63 I turn to the council's contention that, in any case, Mr Meyers and Mr Hannavy ("for" whom Mr Meyers signed the notice of determination) had no authority to determine the development application, nor to sign the notice of determination, in the absence of a determination by the council or its delegate, the General Manager. 64 Mr Meyers signed the notice of determination next to the printed words "Director, Environment and Community Planning" and above the words "for C Hannavy, Manager Planning and Assessment".

65 The authority issue turns on the construction of instruments of delegation. The earliest instrument of delegation, adopted in or about 1996, indicates in its heading that the council delegated certain functions to the General Manager who sub-delegated them to the Director Environmental Services - who, at the relevant time, was Mr Meyers. It does not record any sub-delegation to the Manager Planning and Assessment - who, at the relevant time, was Mr Hannavy. The 1996 instrument relevantly states: "That in accordance with the provisions of Sections 377 and 381, Local Government Act 1993 and regulations thereunder, the following powers, authorities, duties and functions of Council be delegated to the General Manager.

A DEVELOPMENT CONTROL 1 Consider and issue all development and/or subdivision consent notices (including modification of consents) pursuant to the provisions of: a Environmental Planning and Assessment Act". 66 The 1996 instrument does not refer to development applications, determination of development applications or refusal notices. Even if there were to be read into it a power to consider development applications, the word "consider" cannot be construed as "determine". I conclude that this instrument did not empower Mr Meyers, let alone Mr Hannavy, to determine development applications or issue refusal notices.

67 If the 1997 instrument could be construed as a delegation of power to determine a development application by consenting to it (contrary to my opinion), there would be the further difficulty that the statutory power of determination is indivisible so that delegation of a power to consent without a power to refuse is invalid: Belmorgan Property Development Pty Ltd v GPT Re Ltd [2007] NSWCA 171, 153 LGERA 450.

68 The second delegation instrument, adopted in 2003, relevantly delegates the following limited authority to the General Manager: "DELEGATION TO GENERAL MANAGER FOR REFUSAL

Where an application for Development Consent is incomplete; and the applicant has not provided adequate additional information as requested and no other requests have been made by the applicant, the General Manager shall be authorised to issue a Notice of Refusal in accordance with the provisions of the Environmental Planning and Assessment Act 1979." 69 It does not record any sub-delegation. The applicant submits that the 1996 instrument sub-delegates the power in the 2003 instrument to Mr Meyers. I am unable to agree. Accordingly, the 2003 delegation instrument is irrelevant. 70 I conclude that Mr Meyers had no authority to refuse the development application.

71 Further, instruments of sub-delegation from the General Manager issued in 2002 delegated authority to "sign" notices of determination for development consent to the Director Environment and Community Planning (Mr Meyers at the relevant time) and the Manager Planning and Assessment (Mr Hannavy at the relevant time). These instruments did not empower them to determine development applications. Mr Meyers may have had authority to sign "for" Mr Hannavy. However, they only had power to sign if a determination had been made. As no determination had been made under s 80(1) by the council or its delegate, the General Manager, in my opinion neither Mr Meyers nor Mr Hannavy had power to sign the notice of determination. 72 For these reasons, ground 1 fails. GROUND 2(a): SPECIES IMPACT STATEMENT 73 Ground 2(a) is that the development consent is invalid because the council did not have before it a species impact statement, as required by s 78A(8)(b) of the EPA Act. 74 The applicant contends that s 78A(8)(b) of the EPA Act applied because the development application was in respect of development that was likely to significantly affect the following threatened species or ecological communities: (a) two endangered ecological communities ( EEC ): River-Flat Eucalypt Forest on Coastal Floodplains of the New South Wales North Coast, Sydney Basin and South East Corner Bioregions; and Subtropical Coastal Floodplain Forest of the New South Wales North Coast Bioregion; and (b) a threatened species, the koala, or its habitat. 75 The applicant's case is supported by the evidence of its expert ecologist, Dr Stephen Phillips, but is contrary to the evidence of the proponent's expert ecologist, Mr Jason Berrigan, who prepared the 2005 and 2007 Darkheart KPoMs and the 2005 Darkheart ecological impact assessment: see [22] and [38] above. In closing submissions, the applicant abandoned a contention, based on Dr Phillips' evidence, that a species impact statement was also required because of the development's likely affect on a certain bat. 76 This contest is between the applicant and the proponent. Mindful of what it says is its proper role in the proceedings, the council confines its submissions to its powers and procedures and no longer pleads to, nor makes any submission in relation to, this ground: The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13, 144 CLR 13. The legislative scheme 77 Section 78A(8)(b) provides: " 78A Application

(8) A development application must be accompanied by: …

(b) if the application is in respect of development on land that is, or is a part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats - a species impact statement prepared in accordance with Division 2 of Part 6 of the Threatened Species Conservation Act 1995." 78 The reference in s 78A(8)(b) of the EPA Act to "development…that is…or is likely to significantly affect threatened species, populations or ecological communities, or their habitats" is a jurisdictional fact in the sense that if the court decides, on the evidence before it, that that was the situation, and if the development application was made without an accompanying species impact statement, then the power to grant development consent was not enlivened: Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43, 236 CLR 120 at [43];Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8, 46 NSWLR 55 at [34], [94]; Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422, 61 NSWLR 707 at [105], [188]; Corowa v Geographe Point Pty Ltd [2007] NSWLEC 121, 154 LGERA 117 at [35], [51] (Jagot J). In this sense, the Court is the judicial ecologist. 79 Section 4(1) of the EPA Act defines terms appearing in s 78A(8)(b) by reference to definitions in the Threatened Species Conservation Act 1995 (TSC Act). Section 4(1) of the TSC Act defines "threatened species, populations and ecological communities" to mean species, populations and ecological communities specified in Schedules 1, 1A and 2 of the TSC Act. "Habitat" means "an area or areas occupied, or periodically or occasionally occupied, by a species, population or ecological community and includes any biotic or abiotic component". Schedules 1, 1A and 2 of the TSC Act categorise threatened species, populations and ecological communities as "endangered", "critically endangered" or "vulnerable". A threatened species, population or ecological community is eligible to be listed as "endangered" if, in the opinion of the Scientific Committee constituted under the TSC Act, it is facing a very high risk of extinction in New South Wales in the near future, as determined in accordance with criteria in the regulations: ss 10(3), 12(2) TSC Act. The objects of the TSC Act are stated in s 3 as follows: "(a) to conserve biological diversity and promote ecologically sustainable development, and (b) to prevent the extinction and promote the recovery of threatened species, populations and ecological communities, and (c) to protect the critical habitat of those threatened species, populations and ecological communities that are endangered, and (d) to eliminate or manage certain processes that threaten the survival or evolutionary development of threatened species, populations and ecological communities, and (e) to ensure that the impact of any action affecting threatened species, populations and ecological communities is properly assessed, and (f) to encourage the conservation of threatened species, populations and ecological communities by the adoption of measures involving co-operative management." 80 Section 78A(8)(b) operates at all times between lodgement and determination of the development application. If the consequence of amending the application is to bring the development within or outside s 78A(8)(b), the section operates in its terms on and from the amendment. Any ameliorative measures proposed in the application as determined are to be taken into account in deciding that question: Corowa at [50], [56]. 81 In the present case, the "development" of which s 78A(8)(b) speaks was for a subdivision into five rural-residential lots of a little over one hectare each and a community title lot of about 7 hectares, together with an access road. 82 In s 78A(8)(b), "likely" means "a real chance or possibility", whereas "significantly" means "important", "notable", "weighty" or "more than ordinary": Corowa at [52]; Plumb v Penrith City Council [2002] NSWLEC 223 at [22] (Pearlman J); B T Goldsmith Planning Services Pty Ltd v Blacktown City Council [2005] NSWLEC 210 at [59] (Pain J); Oshlack v Richmond River Council (1993) 82 LGERA 222 (Stein J). 83 In deciding whether the development is likely to significantly affect a threatened species or ecological community, it is mandatory to take into account the matters listed in s 5A of the EPA Act. However, the Court is not limited to those matters nor does a positive finding on any matter in s 5A require a finding that a species impact statement was required: Corowa at [52]; Plumb at [36] - [37]. In the present case, there is an issue as to whether the previous version of s 5A or the current version, which commenced on 31 October 2005, applies in the Court's assessment of whether a species impact statement was required. 84 The previous s 5A, with its eight part test, was as follows: " 5A Significant effect on threatened species, populations or ecological communities, or their habitats

For the purposes of this Act and, in particular, in the administration of sections 78A, 79C (1) and 112, the following factors must be taken into account in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats:

(a) in the case of a threatened species, whether the life cycle of the species is likely to be disrupted 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 population, whether the life cycle of the species that constitutes the endangered population is likely to be disrupted such that the viability of the population is likely to be significantly compromised, (c) in relation to the regional distribution of the habitat of a threatened species, population or ecological community, whether a significant area of known habitat is to be modified or removed, (d) whether an area of known habitat is likely to become isolated from currently interconnecting or proximate areas of habitat for a threatened species, population or ecological community, (e) whether critical habitat will be affected, (f) whether a threatened species, population or ecological community, or their habitats, are adequately represented in conservation reserves (or other similar protected areas) in the region, (g) whether the development or activity proposed is of a class of development or activity that is recognised as a threatening process, (h) whether any threatened species, population or ecological community is at the limit of its known distribution."

(emphasis added in s 5A(c)) 85 The current (substituted) s 5A, with its seven part test, provides: " 5A Significant effect on threatened species, populations or ecological communities, or their habitats

(1) For the purposes of this Act and, in particular, in the administration of sections 78A, 79B, 79C, 111 and 112, the following must be taken into account in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats: (a) each of the factors listed in subsection (2), (b) any assessment guidelines. (2) The following factors must be taken into account in making a determination under this section: (a) in the case of a threatened species, whether the action proposed 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 population, whether the action proposed is likely to have an adverse effect on the life cycle of the species that constitutes the endangered population such that a viable local population of the species is likely to be placed at risk of extinction, (c) in the case of an endangered ecological community or critically endangered ecological community, whether the action proposed: (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, (d) in relation to the habitat of a threatened species, population or ecological community: (i) the extent to which habitat is likely to be removed or modified as a result of the action proposed, 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 action, and (iii) the importance of the habitat to be removed, modified, fragmented or isolated to the long-term survival of the species, population or ecological community in the locality, (e) whether the action proposed is likely to have an adverse effect on critical habitat (either directly or indirectly), (f) whether the action proposed is consistent with the objectives or actions of a recovery plan or threat abatement plan, (g) whether the action proposed constitutes or is part of a key threatening process or is likely to result in the operation of, or increase the impact of, a key threatening process."

(Emphasis added in s 5A(2)(b) and (c)) 86 I have emphasised the word "regional" in the previous s 5A(c) and the word "local" in the current s 5A(2)(b) and (c) because they suggest a change to a more rigorous, local test. The questions 87 The applicant and the proponent agree that the following questions arise in this case: (a) does the current s 5A of the EPA Act , which came into force on 31 October 2005 apply, or does the previous s 5A apply? (b) in assessing whether there was likely to be a significant effect on the EEC, what is the extent of the EEC on the development site? (c) if the previous s 5A applies, what is the meaning of the term "known habitat" in s 5A(2)(c), particularly as applicable to an EEC? (d) is there likely to be a significant effect on the EEC arising out of: (i) clearing of native vegetation on the development site, and/or (ii) a failure to include in the application a buffer between the development site and the EEC? (e) is there likely to be a significant effect on a threatened species or population, being koalas, or their habitat, arising out of: (i) the loss of koala food trees from the development; or (ii) the lack of an effective ameliorative measure due to a failure to prohibit dogs from the residential lots? Background 88 In 2005 Darkheart's ecological impact assessment report and KPoM were provided to the council in support of the First Amendment to the development application. In 2007, following advice from the Department of Planning and the council, a new KPoM by Darkheart was provided to the council which took into account the requirements of the Department of Planning. It accompanied the Second Amendment, as did a neighbourhood management plan. The Department of Planning gave conditional approval to the 2007 KPoM. In 2008 the council granted conditional development consent. Condition 1 was that the 2007 development be implemented generally in accordance with Darkheart's 2007 KPoM, Dearkheart's 2005 ecological impact assessment report and the neighbourhood management plan: see [22], [38], [42] and [45] above.

89 A council report was before the council when it granted development consent: see [45] above. It included the following statement: "The design and layout of the subdivision has been substantially amended from the initial proposal which consisted of an 11 lot torrens title subdivision accessed by a new public road.

The main concern with the development of the land was the loss of vegetation required to facilitate road construction, building envelopes and asset protection zones, and the potential impacts on native flora and fauna. Bearing this in mind, the final subdivision design has adopted a community title subdivision which incorporates the majority of the significant vegetation and habitat within the community lot. The initial impacts of vegetation clearing and disturbance is limited by the design of the subdivision which locates the new road over the alignment of the existing track and positions building envelopes within existing cleared areas. The advantages of community title subdivision in these circumstances is that it better protects native vegetation and wildlife habitat and promotes an ongoing environmental management regime over the whole of the development site." 90 On the five rural-residential lots, the dwellings and asset protection zones are to be centred in existing clearings only with clearing kept to the minimum. In total, dwelling envelopes and asset protection zones will affect approximately 1.78 hectares, much of which is already cleared. The asset protection zones have been configured conservatively using a large house footprint as the base for calculation, and hence may be reduced if a smaller house is erected.

91 The area of the approximately one hectare private lots (a total of 5.97 hectares) is to be kept as is (minus weeds). In addition, if any koala browse species are removed, they are to be replanted in currently cleared sections of the community title land with natural vegetation allowed to reform forest identical to adjacent areas as an offset.

92 The approximately 7.35 hectare community title land (excluding the 0.47 hectare access road reserve) is to perpetually remain in a natural condition (ie no underscrubbing, dams, internal fencing, stock keeping/grazing and so on is to be allowed) other than for a replacement boundary fence or fire tracks. This protected area includes the majority of the potential koala habitat including the highest concentration of preferred food species, and significant areas of major koala activity.

93 Permissible and prohibited land uses and activities on the subdivision will be specified and governed by a neighbourhood management agreement and title covenants.

94 The access road will be within a 10 metre wide road reserve (the total reserve is 0.47 hectares). Most of the road will be only four metres wide (on a six metre foundation) with four passing ways widening to six metres (on an eight metre foundation) for a distance of 20 metres per bay. The latter have been located to avoid any loss of trees. The access road follows the community track for almost all of its length, requiring minimum additional clearing. Which version of s 5A (eight part test or seven part test) applies? 95 The first question is whether the previous s 5A, which contained an eight part test, or the current s 5A, which contains a seven part test, applies in the Court's assessment of whether a species impact statement was required. The current s 5A was substituted on 31 October 2005, after the 2003 development application and the First Amendment but before the Second and Third Amendments and the 2008 development consent. There is substantial overlap in elements of the new seven part test and the old eight part test. 96 Which version of s 5A applies depends on the construction of cl 286C(2)(a) of the EPA Regulation, which provides: " 286C Transitional - species impact statements and determination of significant effect

(2) The substitution of section 5A (Significant effect on threatened species, populations or ecological communities, or their habitats) of the Environmental Planning and Assessment Act 1979 by the Threatened Species Conservation Amendment Act 2002 does not apply to or in respect of: (a) development that is the subject of a development application lodged under Part 4 of the Act before or within 6 months after the substitution of that section (but not so as to affect the application of that section as substituted in respect of any part or aspect of that development that is the subject of a subsequent development application lodged more than 6 months after the substitution of that section)." 97 The applicant submits that the current s 5A (seven part test) applies because:

(a) the phrase "subsequent development application" in cl 286C(2)(a) of the EPA Regulation is wide enough to include a modification of a development application of the kind that occurred in December 2007, that is, the Second Amendment: see [37] above. Under the Second Amendment what was previously a development application for an 11 lot subdivision with 9 rural-residential lots was amended to be a development application for an 8 lot subdivision with 6 rural-residential lots and a community title lot. New supportive material supplied with the Second Amendment included new drawings, a revised statement of environmental effects, a new KPoM and a proposed neighbourhood management statement. The Third Amendment in 2008 reduced the number of rural-residential lots to five; (b) the Second Amendment in December 2007 occurred well after the six month "moratorium" provided for under cl 286C(2)(a), which would have expired in about April 2006. Under the moratorium, for six months after the new s 5A was substituted environmental assessment could still occur under the previous eight part test; (c) once that 6 month period had expired, it was intended that all applications would then be determined on the substituted test; (d) the amendment of the development application in December 2007 was a "subsequent" application for consent in that context. The environmental assessment of that application needed to occur under the law as it was and as it had then been for over two years. 98 The proponent submits that the previous s 5A (eight part test) applies because the Second Amendment in December 2007 was not a new development application but an amendment.

99 In my opinion, the phrase "a subsequent development application" in cl 286C(2)(a) cannot be stretched to include an amendment such as the Second Amendment. Consequently, in my opinion, the previous s 5A, with its eight part test, applies when determining whether a species impact statement was required. The extent of the EEC 100 Dr Phillips, the applicant's ecologist, and Mr Berrigan, the proponent's ecologist, agreed that the two EECs on the development site can be regarded as a single ecological entity because the processes that threaten the integrity and long term viability of the remaining stands are identical. 101 Mr Berrigan's conclusion in his 2005 ecological impact assessment was that the proposed development layout required the removal of 400m2 of EEC for the required road crossing and that the EEC occupied a total of approximately two hectares in the drainage lines. Some areas of the EEC are in relatively good condition, while others show signs of degradation by weed invasion, erosion and sedimentation, and may have been regenerating since earlier land clearing and agricultural activity.

102 In these proceedings Mr Berrigan reduced that two hectares estimate to about 400m2. Dr Phillips did not contest the reduced estimate. Nevertheless, the applicant contests it. Based on Mr Berrigan's analysis of large scale soil landscape maps and his own site inspection where he excavated soil profile to undertake an assessment, Mr Berrigan concluded that his original estimate of two hectares of EEC on the site did not have the right soil type except for about 400m2. He considered that his analysis was consistent with the decisions in Motorplex (Australia) Pty Ltd v Port Stevens Council [2007] NSWLEC 74 and Gales Holdings Pty Ltd v Tweed Shire Council [2008] NSWLEC 209 (Preston CJ). He was also influenced by his observation that non-indicator species dominate much of the area that he now excluded.

103 The maps, of themselves, are insufficient to support his opinion given their large scale and the fact that the Scientific Committee, constituted under the TSC Act, and the Department of Environment and Climate Change have advised that they should be used with caution. 104 The applicant submits that in cross examination Mr Berrigan disqualified himself as an expert in soil sampling and therefore his reduced EEC area cannot be accepted. It is true that at one point in cross examination Mr Berrigan said that he did not have the professional experience to qualify himself as a soil scientist. However, he also indicated that consideration of the maps coupled with his knowledge as an ecologist and as a scientist with academic qualifications in geology and soil science gave him enough information about soil testing to advise on the point. In my opinion, this is sufficient to qualify him to express an opinion on the point: s 79 Evidence Act 1995. I would add that in his 2005 report Mr Berrigan appeared to take soil type into account in arriving at his original two hectare estimate. It is difficult to then say that he cannot be heard to take soil type into account when later reducing that estimate. In the absence of competing evidence, I am prepared to accept Mr Berrigan's revised estimate.

105 However, I do not think it matters in this case whether the EEC occupies about 400m2 or two hectares of the site. Habitat 106 The expert witnesses took differing approaches to the relevant "habitat" referred to in the previous s 5A(c) of the EPA Act and to the comparison it invited. 107 Section 4 of the TSC Act defines "region" as: "region means, for the purposes of the provision in which it is used, a bioregion defined in a national system of bioregionalisation that is determined (by the Director-General under subsection (4)) to be appropriate for those purposes. If the bioregion occurs partly within and partly outside New South Wales, the region consists only of so much of the bioregion as occurs within New South Wales." 108 These bioregions are defined in the Interim Biogeographic Regionalisation of Australia, of which 17 are in NSW. The relevant habitat is thus the area within the relevant bioregion occupied, periodically or occasionally occupied, by the threatened species, population or ecological community, as identified in the notice of final determination issued by the Scientific Committee under the TSC Act: Corowa at [58], s 4(1) TSC Act. The comparison which s 5A(c) invites is between that area - not the area of the bioregion itself - and the area occupied by the community which the development is to modify or remove. The comparison is both quantitative and qualitative. 109 In the present case, the relevant bioregion identified in the final notices of determination relating to the EEC is the NSW North Coast bioregion, which has an area of about 5.6 million hectares. However, the final notices record that the extent of the subject ecological community in that bioregion is likely to be less than 800 to 1400 km2, being less than 30 per cent of their original extent. It is with the latter area that a comparison should be made under the former s 5A(c). 110 As I understand it, that was Dr Phillips' approach (although he did not express it clearly) but Mr Berrigan's comparison was with the area of the entire bioregion. However, Mr Berrigan also said in oral evidence that even on Dr Phillips' comparison the area of EEC affected by the proposal was not significant. I agree. 111 The final notices of determination record that very few examples of the EEC remain unaffected by weeds. The causes of weed invasion include physical disturbance to the vegetation structure of the community, dumping of landfill rubbish and garden refuse, polluted runoff from urban and agricultural areas, construction of roads and other utilities, and grazing by domestic livestock. Whether development likely to significantly affect the EEC or its habitat 112 The statutory test is not whether the development is likely to impact to any extent on threatened species, populations or ecological communities, or their habitats. It is whether the development is likely to "significantly affect" them: Corowa at [81]. 113 Mr Berrigan stated in his 2005 Darkheart ecological impact assessment report that the development will result in the loss of 400m2 of EEC for the required road crossing and that there were about two hectares of EEC on the site along the drainage lines. He concluded that the loss of 400m2 of EEC, in a regional sense, was not a significant area of known habitat; and that, provided recommendations in his report were implemented and legislation enforced, the remaining EECs on the site should be retained post development in a condition very similar to their current state. As discussed earlier, in these proceedings he reduced his two hectare estimate to about 400m2, which I am prepared to accept, but I do not think it matters which estimate is accepted.

114 Dr Phillips agreed that the loss of 400m2 is regionally insignificant but disagreed that the remaining EECs on the site will be retained post development in a condition very similar to their current state because there was no provision for a buffer. 115 The debate between the experts in relation to the EEC focussed on the previous s 5A(c) of the EPA Act: "in relation to the regional distribution of the habitat of a threatened species, population or ecological community, whether a significant area of known habitat is to be modified or removed". The other factors in s 5A, in my view, are either irrelevant or not indicative of a likely significant affect on the EEC or its habitat.

116 The concept of "significant" in s 5A(c) is relative, quantitatively and qualitatively, to the regional distribution of the EEC: Corowa at [73] per Jagot J; Plumb at [41] per Pearlman J. 117 These cases turned on their facts. In Corowa it was held that 9,000m2 of a community was not a "significant area" of known habitat in the context of its distribution throughout the North Coast bioregion (an area of about 5.6 million hectares) and its degraded condition: at [73]. In Plumb it was held that the removal of up to 7 hectares of a threatened species, Cumberland Plain Woodland, would be insignificant compared with the area of that species across the relevant region, the Cumberland Plain: at [44]. A different conclusion was reached on the facts in BT Goldsmith Planning Services Pty Limited v Blacktown City Council [2005] NSWLEC 210 at [73] where uncertainty in the evidence as to the extent of the EEC led Pain J to invoke the precautionary principle, which is one of the principles of ecologically sustainable development referred to in the objects of the TSC Act. 118 In the present case 400m2 of EEC will be lost and there is a debate as to the potential impact on the balance of, at most, about two hectares of EEC. 119 The experts' disagreement primarily related to whether or not, by virtue of the ameliorative measures proposed, the integrity of the remaining EEC will be sustainable over the medium to long term following development consent. 120 Dr Phillips considered that if the ameliorative measures did not "guarantee" sustainability, then a significant impact will result from the development. I do not accept his "guarantee" criterion. It is higher than, and distracts attention from, the s 78A(8)(b) criterion as to whether the development is "likely to significantly affect" threatened species, populations or ecological communities notwithstanding the proposed ameliorative measures. 121 Dr Phillips considered that to assist coastal floodplain EECs to maintain the essential ecological processes for which they are responsible (water quality, flood mitigation and biodiversity support), it is necessary to effectively buffer them against adverse impacts such as clearing, fragmentation, degradation, landfills and earthworks associated with urban development, pollution from urban and agricultural runoff, and weed invasion. 122 Dr Phillips disagreed with Mr Berrigan's conclusion that the EEC will be retained post development in a condition very similar to its current state because, in his opinion, the lack of provision for an ecological buffer to this EEC remnant significantly compromises its longer term ecological viability and ability to survive as a functioning ecosystem. That, he said, was because (a) tree removal for the purpose of creating building envelopes and associated asset protection zone requirements is to be undertaken; (b) underscrubbing of development lots by residents in order to increase general utility of their land will occur; and (c) as a direct consequence of (a) and (b) there will be an increase in nutrient and sediment loads due to increased surface runoff, the keeping of domestic livestock and effluent. Dr Phillips recognised that these impacts will not necessarily bring about the localised extinction of the EEC, but in his opinion they have the potential to significantly diminish the associated ecological processes that are a key component of the ecosystem function that the EEC currently provides, and hence should be minimised or avoided if possible. In short, Dr Phillips has little faith in the ability of the proffered ameliorative measures to achieve their stated aims of protecting the long term integrity of the EEC. Consequently, he considered that a 35 metre wide vegetated buffer should be established. 123 Mr Berrigan considered, as did the Department of Planning and the council, that the measures provided in his 2005 assessment and adopted in consent conditions are practical and enforceable and thus can ensure that the development does not result in impacts that would negate the ecological sustainability of the site's habitats. He noted that enforcement of consent conditions is a characteristic of all development approvals. He considered that a buffer is not essential for this proposal due to:

(a) the small rural-residential subdivision having almost negligible polluting potential as only two dwellings are proposed in close proximity to a watercourse; (b) a relatively minimum extent of additional existing vegetation is to be removed or modified; (c) periodic high velocity flows and the extent of retained vegetation to buffer the effects of runoff, along with existing statutory protections for on-site effluent licensing and inspections; (d) the history of disturbance to the entire land and adjoining lands; and (e) the positive impacts of active management. 124 In my view, Mr Berrigan's assessment is persuasive and should be accepted. I accept that a buffer is unnecessary for the reasons he gives. 125 In terms of s 5A(c), I am satisfied on the evidence, in relation to the regional distribution of the EEC, that only an insignificant area of its known habitat is to be modified or removed. 126 Taking all relevant factors into account, I am satisfied on the evidence that the development is not likely to significantly affect the EEC or its habitat. Accordingly, s 78A(8)(b) did not require the development application to be accompanied by a species impact statement on account of the effect on the EEC or its habitat.

Whether likely to significantly affect the koala? 127 The next issue is whether the development is likely to significantly affect a threatened species, the koala, or its habitat by reason of: (a) the loss of up to 23 koala food trees from the development site; and (b) the failure to prohibit domestic dogs in the residential area. 128 The 13.57 hectare development site supports an area of "core koala habitat", which is defined in cl 4 of the Koala SEPP as "an area of land with a resident population of koalas, evidenced by attributes such as breeding females (that is, females with young) and recent sightings of and historical records of a population". Before the council could grant development consent, if it was satisfied it was a core koala habitat, there had to be a plan of management prepared in accordance with the Koala SEPP and the council determination could not be inconsistent with the plan of management: cl 9. Clause 3 states the aims of the Koala SEPP: " 3 Aims, objectives etc

This Policy aims to encourage the proper conservation and management of areas of natural vegetation that provide habitat for koalas to ensure a permanent free-living population over their present range and reverse the current trend of koala population decline: (a) by requiring the preparation of plans of management before development consent can be granted in relation to areas of core koala habitat, and (b) by encouraging the identification of areas of core koala habitat, and (c) by encouraging the inclusion of areas of core koala habitat in environment protection zones." 129 The Land forms only a small part of the home range of one female koala, with potential intermittent, seasonal presence of other koalas most likely being that of dispersing sub-adults or breeding males. This was evidenced by the sighting only once of a female koala during the three weeks of Darkheart's survey of the development site in 2005 and failure of previous surveys by others to detect any individual koalas. The koala high use was at opposite edges of the Land with generally low use, with some medium use, recorded on some other areas of the Land. A single koala's home range, commonly occupied throughout its life, varies from a hectare to hundreds of hectares according to (among other things) the habitat. Mr Berrigan concluded, justifiably, that the local population is obviously not dependent on the site. 130 Loss of habitat (delivered by preferred food trees) and attacks by domestic dogs are two of the most important processes threatening the viability of free-ranging koala populations.

131 Some 3-23 koala food trees, out of hundreds if not thousands on the whole Land, are to be removed. They are not currently used by koalas and are required to be replaced at a ratio of 10:1. Domestic dogs are to be permitted on the five residential lots subject to ameliorative measures. The vast majority of dog attacks on koalas are by breeds that weigh more than 10 kilograms, which are to be prohibited. 132 Many of the ameliorative measures are provided for through condition 1 of the development consent which required the development to be implemented generally in accordance with Darkheart's 2007 KPoM, and 2005 ecological impact assessment report and the neighbourhood management plan. These documents include ameliorative measures relevant to the koala.

133 Ameliorative measures in the neighbourhood management plan include the following: (a) domestic dogs must be confined to the building envelopes in a koala-proof fenced enclosure or house yard; (b) any domestic dog must be sterilised; (c) no domestic dog shall be permitted to roam and must be restrained by a competent person; (d) domestic dogs must not be allowed to come into contact or be found threatening a koala; (e) any dog which does not belong to a resident must be reported to council rangers for removal; (f) a domestic dog must be a companion dog weighing less than 10 kilograms; (g) no fencing shall be allowed which is not constructed of koala permeable materials; (h) any development of any lot must be carried out in a manner which does not pose a threat to koalas; (i) all owners and occupiers of lots must be made aware of their responsibilities to ensure minimal threats to koalas and of the policies adopted for koala safety and protection; (j) no burning off shall be permitted without first carrying out a search to ensure that no koalas are present or, if present, they are to be removed from the area. (k) no clearing of any native vegetation shall be permitted on any lot for the purposes of pasture improvement, construction of drains or primary production activities; (l) native vegetation may be removed in accordance with the Native Vegetation Act 2003 from the neighbourhood lot only for the purpose of construction of boundary fences between the neighbourhood lot and adjoining privately owned properties. 134 Other ameliorative measures proposed in Darkheart's 2007 KPoM included the following:

(a) native vegetation outside existing cleared areas and asset protection zones on the private lots are to be protected by title covenants which state they are not to be removed from any area outside the asset protection zones for any purpose other than a boundary fence, and underscrubbing or conversion of land outside the asset protection zones into parkland is to be prohibited; (b) koala habitat enhancement will involve the removal of lantana which currently inhibits koala movement, impairs regeneration of disturbed habitat and impairs recruitment of primary browse species; (c) there are to be title covenants that dogs be confined to a dwelling or enclosed yard (which excludes koala food trees) when unleashed, that no dogs will be allowed to come into contact with or be found threatening a koala, and that all non-resident dogs are to be reported to council rangers for removal. 135 The environmental management plan, which is required as a condition of consent (see ground 2(b) below), has to be prepared by a suitably qualified environmental consultant approved by the council, and has to include a comprehensive planting and vegetation program that details:

(a) the actual area proposed for compensatory planting and how it relates to and connects with the koala habitat. A compensatory replanting ratio of 10:1 is required; (b) an annual monitoring program of koala usage of the site for a minimum of five years from completion of construction of a dwelling; (c) a contingency plan in the event of failure of the planting or other potential occurrences which may affect koalas on the site. 136 Dr Phillips considered that the loss of 3-23 preferred food trees was unacceptable and that the keeping of domestic dogs on the site should be prohibited. He considered that the potential residence of up to five domestic dogs did not guarantee a secure future for the site's resident koalas or any others that move through or into the immediate areas. He thought that people, however well intended, would not confine their dogs to enclosures in the longer term. 137 The debate between the experts focussed on the former s 5A(a) of the EPA Act. The other s 5A factors, in my view, are either irrelevant or do not indicate that the development is likely to significantly affect the koala or its habitat. 138 As regards s 5A(a), Dr Phillips considered that the loss of 3-23 preferred koala trees and the introduction of domestic dogs could potentially take out the entire koala population if it was small. 139 In Mr Berrigan's assessment, the loss of 3-23 preferred koala food trees out of so many and the relatively minor increase in anthropogenic impacts did not have the capacity to place the local population at risk of extinction. Mr Berrigan disagreed with Dr Phillips that the suggestion of dog ownership in a core koala habitat should be considered a trigger for a species impact statement.

140 Mr Berrigan considered that the following ameliorative measures as recommended in his KPoM, which incorporated the recommendations of the Department of Planning, will be effective in ensuring the koala is not likely to be disrupted such that a local population is likely to be placed at risk of extinction: (a) the koala's medium and high use areas will remain post-development; (b) 80 per cent of the 13.57 hectare development site will remain as intact forest (minus weeds) and be effectively protected under legislation; (c) there will be no loss of currently used koala food trees; (d) the overwhelming extent of habitat use by the local koala population extends well beyond the site into adjoining habitats and the proposal has no potential to detectably impact this adjacent habitat and the remaining members of the local population to the extent that it would be likely to lead to the decline of the local population; (e) the provision for a significant increase in the number of koala food trees removed (10:1 replacement) ensures a net increase in habitat. For example, if the maximum of 23 koala trees were to be removed, compensatory replanting of 230 koala trees would be required. 141 In Mr Berrigan's assessment, threats to the site's values as core koala habitat, which is the essence of the objectives of the Koala SEPP, will be controlled by:

(a) no loss of currently utilised food trees; (b) minimal potential loss of primary preferred koala trees, with 10:1 replacements resulting in a net increase in koala food trees; (c) effective protection of 80 per cent of the site including all known, and the overwhelming majority, of potential koala habitat, ensuring sufficient habitat is retained for present and future koalas, with minimal reliance on habitat restoration for any offset; (d) provisions for control of existing threats (uncontrolled bushfire, weed invasion and wild dogs); (e) provisions approved by the Department of Planning for control of dog ownership, including prohibition of dogs with a body weight in excess of 10 kilograms which dominate the breeds responsible for koala mortality attacks; (f) provisions to minimise the risk of vehicle strike; (g) effective retention of habitat linkage throughout the site to allow intra and inter-habitat movement and to minimise the need for koalas to cross open grounds and yards. 142 Mr Berrigan's analysis is persuasive and I accept it. 143 In terms of s 5A(a) I am satisfied that the life cycle of the koala is not likely to be disrupted such that a viable local population of the koala is likely to be placed at risk of extinction. 144 Taking all relevant factors into account, I am satisfied that the development is not likely to significantly affect the koala or its habitat. Accordingly, s 78A(8)(b) of the EPA Act did not require the development application to be accompanied by a species impact statement on account of the effect on the koala or its habitat. Conclusion 145 For these reasons, I do not accept ground 2(a). GROUND 2(b): ENVIRONMENTAL MANAGEMENT PLAN 146 Ground 2(b) is that the development consent is invalid because the council did not have before it an environmental management plan (EMP) required by the Director-General of the Department of Planning (Director) when giving conditional approval pursuant to cl 13(2) of the Koala SEPP or a draft condition requiring preparation of an EMP. 147 The proposed development is on land which is a core koala habitat to which the Koala SEPP applies. Clauses 9 and 13(2) of the Koala SEPP provide: " 9 Step 3 - Can development consent be granted in relation to core koala habitat?

(1) Before a council may grant consent to a development application for consent to carry out development on land to which this Part applies that it is satisfied is a core koala habitat, there must be a plan of management prepared in accordance with Part 3 that applies to the land. (2) The council's determination of the development application must not be inconsistent with the plan of management.

… (2) A plan of management prepared by a person other than the council has no effect unless it is approved by the council and by the Director." 148 The reference to the "Director" is to the Director-General of the Department of Planning: ss 4, 13(5) EPA Act. 149 The new KPoM prepared by Mr Berrigan for Darkheart in December 2007 was submitted to the Director for consideration for approval under cl 13(2): see [40] above.

150 On 20 May 2008 the Director notified conditional approval to the council in a letter that included the following: "The Department has examined the draft Koala Plan of Management (KpoM) and, in accordance with clause 13 of SEPP 44, conditional approval has been granted .

The KpoM gives a figure of twenty-three (23) feed trees to be removed around the dwelling sites (page 27). However, this total is likely to be far greater (given the likely requirement by the RFS to remove more trees for the additional road works and for the Asset Protection Zone (APZ) within the Community Title 'koala habitat' lot). The KpoM gives a compensatory replanting ratio of 3:1 - this is well below the Department's accepted standard of 10:1. Accordingly, 230 koala feed trees should be replanted. In addition, the KpoM needs to be more specific regarding protection measures for retained vegetation on the subdivided lots. Under scrubbing of development lots outside of the APZ should be prohibited (thus encouraging a continuing natural regeneration of those areas for future koala use). Building envelopes should be determined early and mapped within the KpoM.

In the circumstances, it is necessary that a detailed Environmental Management Plan (EMP) be prepared as part of the KpoM providing necessary details regarding the replanting, management, monitoring and reporting requirements listed below (including appropriate replanting density and a revegetation plan). Approval of the KpoM is subject to the preparation of this EMP to the satisfaction of the Council . A copy of the plan should be forwarded to the Department for information.

The Environmental Management Plan (EMP) is required to include a comprehensive planting/regeneration program for the site that details: The actual area proposed for compensatory replanting and how it relates to and connects to other koala habitat; The flora species/vegetation communities to be planted (and the basis for choosing such) and the relationship to habitat that will be lost; The final density to be achieved within the area through compensatory plantings (and the basis for choosing such density); Management and monitoring activities to be undertaken to ensure the successful establishment of the plantings at the targeted density (including watering, mulching, use of tree guards, replacement of failed plants, fencing of the area, etc) and their ongoing protection, and to determine koala use; An annual monitoring program of koala usage on the site, for a minimum period of five (5) years (the period to be set by the Council), from completion of the construction of the dwellings; The length of the proposed monitoring and management period, the establishment and time frame for key milestones and reporting requirements (including koala sightings, injuries and mortalities); Measurable performance indicators that can be used to determine success and compliance; The value of the proposed replating works and the method of financial assurance to be provided to ensure work is completed to set requirements; and A contingency plan for application in the event of failure of the plantings or other potential occurrences which may affect koalas on the site."

(emphasis added) 151 The applicant submits that the Director's conditional approval should be construed as mandating that the EMP had to be prepared and approved by the council before the council determined to grant consent. I disagree. In my view, it permitted the council to impose a condition of consent for the EMP which met the Director's requirements. 152 On 21 August 2008 the council passed a resolution that consent for the development application be granted "subject to the conditions of consent attached to this report": see [45] above. 153 The reference to "this report" was a reference to a report to the council annexed to the minutes, authored by a council officer: see [47] above. This council report attached a number of proposed conditions, but none of them referred to the EMP required by the Director. Therefore, the applicant submits, the council determination did not incorporate that condition.

154 The council report contained a section under the heading "SEPP 44 - Koala Habitat" that included in the following passage two statements to the effect that the preparation of an EMP in accordance with the Department of Planning's requirements had been incorporated as a condition of consent: "An ecological assessment undertaken by Darkheart Ecological Consultancy concluded that the land satisfied the criteria for core koala habitat and a KpoM was therefore required. Two KpoM were subsequently prepared by Darkheart for the proposed development of the land.

The first KpoM was for the subdivision of the land into 9 rural residential lots with the construction of a new public road. The plan was referred to the DoP, but was not approved on the basis that the development of the land would have an unacceptable impact on native vegetation and specifically koala habitat.

Following discussions with Council staff, the applicant agreed to amend the subdivision by incorporating community title and reducing the number of lots. A further KpoM was prepared for the 6 lot community title subdivision.

The DoP raised concerns regarding the suitability of the land for rural residential subdivision, given the lands value to several threatened species and two endangered ecological communities. To address their concerns, the DoP have given conditional approval subject to the preparation of an EMP as part of the KpoM which details the proposed planting and regeneration program and uses a compensatory planting ratio of 10:1 , rather than 3:1. The department's requirements have been incorporated as conditions of consent .

Primary koala habitat and a large proportion of secondary habitat have been retained in the community property, with clearing restrictions on private lots.

The magnitude of vegetation loss and disturbance has been significantly reduced from the original estimates of 5.5 ha. The approved KoPM indicates that tree removal will now be within the range of approx 20-30 Grey gums and Tallowwood trees may need to be removed to accommodate a wider road in accordance with Council's requirements. However, the additional clearing will still be well below the original estimate of 5.5 ha. Habitat replacement and enhancement

The KpoM recommends a replacement ratio of 3 new plantings for each tree removed. The Department have advised Council that this figure should be increased to 10 new plantings for each tree removed. In addition there are requirements for ongoing environmental management regimes including periodic weed control. The preparation of an EMP which details the proposed planting, regeneration program and compensatory planting at a ratio of 10:1, have been incorporated as a condition of consent ."

(emphasis added) 155 On 28 August 2008 the council sent notice of its determination of the development application to the proponent. The notice included a condition which reflected in detail the Director's requirements for an EMP.

156 The applicant submits that as the council determination recorded in its resolution did not incorporate that EMP condition, the notice did not correctly record the council's determination. 157 It is the determination of the consent authority under s 80(1)(a) of the EPA Act to grant consent to a development application which constitutes the development consent, the notice of determination is no substitute for the determination, and if a notice of determination does not reflect the council's decision the notice is invalid so that the consent does not become operative for the purpose of s 83(1): Pselletes v Randwick City Council [2009] NSWCA 262, 168 LGERA 59 at [44] - [50]. 158 The issue is one of construction of the council resolution.

159 The consent was expressed to be conditional on the conditions of consent "attached" to the report. The Director's requirements relating to an environmental management plan were not attached to the report.

160 The respondents submit that the resolution should be construed as imposing the Director's requirements relating to an environmental management plan as a condition of consent. The respondents invoke the principle that "the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. This principle of beneficial construction was expressed to apply to reasons of the decision-maker, not to the decision itself. The respondents submit that the council report constituted the council's reasons and that this principle of construction is therefore attracted. There is no authority for the proposition that such a report constitutes the council's reasons, so far as I am aware, and I do not accept it. The issue here is one of construction of the council's determination, not its reasons.

161 A development consent is to be construed fairly and liberally in context according to its written terms but having regard to its enduring function: House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44, 48 NSWLR 498 at [37], [41]. When construing a development consent, one looks at the terms of the consent and any documents incorporated in it expressly or by necessary implication: see the authorities reviewed in Neighbourhood Association DP 285249 v Watson [2008] NSWSC 876, 162 LGERA 322 at [388] - [397] by myself.

162 Only the conditions "attached" to the council report were expressly incorporated in the council resolution. As the Director's requirements for an environmental management plan, which the council report said had been incorporated as conditions of consent, were not in fact attached to the report, they were not expressly incorporated in the resolution.

163 However, the following matters are sufficient, in my opinion, to establish that the Director's requirements were impliedly incorporated as a condition of the consent. First, the resolution referred to the council report, which stated that the Director's requirements "have been incorporated as conditions of consent". That indicated an intention to incorporate them in the conditions attached to the report. Secondly, the council report proposed a resolution in the terms in which the council in fact passed it. Thirdly, the council must be taken to have considered the Koala SEPP as required by s 79C(1) of the EPA Act and to have known that before it could grant consent there had to be a KPoM approved by the Department with which its determination was not inconsistent (cll 9, 13 Koala SEPP). The council knew from the council report that the Director had given conditional approval. Material in possession of a council will generally be treated as being in the possession of the councillors and the prima facie presumption is that the councillors have read such material: Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 at [67], [72]; Castle Constructions Pty Ltd v North Sydney Council [2008] NSWLEC 137 at [57], [59] (Lloyd J). Contextually, it would have been irrational for the council to determine to grant consent without imposing a condition that met the Director's EMP requirements (or without approving an EMP that met those requirements). Fourthly, the Director's requirements were sufficiently identified by reference in the council report such that it was not essential (although it would have been preferable) for a draft condition to be before the council when it passed the resolution. 164 That EMP condition prevailed over the 2007 KPoM to the extent of any inconsistency: see condition 1 attached to the council report. The formulation of the condition in the notice of determination was true to the Director's requirements.

165 The applicant then challenges the council's power to impose such a condition. It would be anomalous if the Director could give conditional approval in the way that she did under the Koala SEPP but the council could not do so in the same way on the same subject matter when granting development consent. In my view, the council had power to impose such a condition under s 80A(1)(a), (2) and (4) of the EPA Act, which provide: " 80A Imposition of conditions

(1) Conditions - generally A condition of development consent may be imposed if: (a) it relates to any matter referred to in section 79C (1) of relevance to the development the subject of the consent, … (2) Ancillary aspects of development A consent may be granted subject to a condition that a specified aspect of the development that is ancillary to the core purpose of the development is to be carried out to the satisfaction, determined in accordance with the regulations, of the consent authority or a person specified by the consent authority. … (4) Conditions expressed in terms of outcomes or objectives A consent may be granted subject to a condition expressed in a manner that identifies both of the following: (a) one or more express outcomes or objectives that the development or a specified part or aspect of the development must achieve, (b) clear criteria against which achievement of the outcome or objective must be assessed." 166 For these reasons, I do not accept ground 2(b). GROUND 3: MANDATORY CONSIDERATIONS 167 The third ground of challenge to the validity of the development consent is that the council failed to consider three relevant mandatory considerations under s 79C(1) of the EPA Act. First, cl 13 of the Nambucca Local Environmental Plan 1995 (LEP). Second, the objectives of the relevant zone in cl 11 of the LEP. Third, public submissions. 168 Section 79C(1) relevantly provides: " 79C Evaluation

(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

… (d) any submissions made in accordance with this Act or the regulations" LEP 169 Clause 11 of the LEP established rural and environmental zones. It gave the objective of each zone, described each zone and described the development that may be carried out without consent, or only with consent, or that was prohibited. It also contained the following prohibition: "The Council must not grant development consent if in the opinion of the Council the proposed development is inconsistent with any of the objectives of the zone in which it is intended to be carried out." 170 The Land on which the proposed development is to be carried out is partly in Zone 1(a1) Rural and partly in Zone 1(a2) Rural (Prime/Flooding). The objectives and descriptions of these zones are set out in cl 11 of the LEP, as follows: " Zone 1 (a1) Rural

The specific objectives for that part of the zone not designated for rural-residential development are: (a) to encourage the productive and efficient use of land for agriculture, and (b) to protect commercial agricultural enterprises, and (c) to permit appropriate agriculture-related land uses, and certain non agriculture-related land uses, that will not adversely affect agricultural productivity.

The specific objectives for that part of the zone designated for rural-residential development are:

(a) to provide for small holding rural-residential living opportunities where appropriately located, and (b) to control the density of rural-residential development and to ensure proper regard is given to suitable siting in regard to access, natural hazards, landscape quality and physical environment.

(a) to protect, conserve and enhance natural and scenic resources and wildlife habitat refuges and corridors, and (b) to control development that could: (i) have an adverse impact on rural character, or (ii) create unreasonable or uneconomic demands for the provision or extension of public amenities and services, or (iii) cause adverse physical effects such as erosion hazard, bush fire risk, flooding and other similar effects.

This zone identifies land which is of secondary agriculture value and includes localities identified as appropriate for rural-residential development.

The objectives of this zone are: (a) to protect commercial agricultural enterprises and land of prime agricultural value, (b) to permit appropriate agriculture-related land uses and certain non agriculture-related land uses which will not adversely affect agricultural productivity, (c) to prevent inappropriate development of prime crop and pasture land for purposes other than agriculture, and to discourage further subdivision, (d) to ensure that development of land in that part of the zone which is liable to flooding is carried out in a manner appropriate to the flood hazard, (e) to protect, conserve and enhance natural and scenic resources, wildlife habitat refuge areas and corridors, and (f) to control development that could: (i) have an adverse impact on the rural character of the land in the zone, (ii) create unreasonable or uneconomic demands for the provision or extension of public amenities and services, or (iii) be subjected to physical limitations such as erosion hazard, bush fire risk, flooding and the like.

This zone identifies land which is of prime agricultural value and/or is flood prone." 171 Clause 13 of the LEP mandates that the council must not consent to relevant development without taking into consideration listed matters, as follows: " 13 What general considerations apply to development?

(1) The Council must not consent to development on rural land (except where shown inside the indicative broken black line on the map) without taking into consideration the effect of the carrying out of that development on: (a) the present use of the land, the potential use of the land for the purpose of agriculture and the potential of any of the land which is prime crop and pasture land for sustained agricultural production, (b) vegetation, timber production, land capability (including soil resources and soil stability) and water resources (including the quality and stability of water courses and ground water storage and riparian rights), (c) the future recovery of known or prospective areas of valuable deposits of minerals, coal, sand, gravel or other extractive materials, (d) the protection and conservation of areas of significance for nature conservation (including wildlife habitat areas and corridors, significant wetlands, dunes or remnant rainforest vegetation systems) or of high scenic or recreational value, and places and buildings of archaeological or heritage significance, including Aboriginal relics and places, and (e) the cost of providing, extending and maintaining public amenities and services to the development. (2) As well as the matters referred to in subclause (1), the Council must take into consideration the relationship of the proposed development to development on adjoining land or on other land in the locality.

(3) Subclause (1) does not apply to development, being: (a) an addition to a building or work that will not significantly increase its size or output, or (b) development ancillary to a land use for the purpose of which development may be carried out under this plan without the consent of the Council, or (c) the erection of a dwelling-house or two dwellings on an allotment of land created in accordance with this plan primarily for the purpose of a dwelling-house or dual occupancy." 172 Clause 16 of the LEP prescribes controls: " 16 What controls apply to rural-residential development?

(1) This clause applies to development which consists of subdividing land and erecting dwelling-houses within Zone No 1 (a1) identified for rural-residential development purposes (being the land shown inside the indicative broken black line on the map).

(2) The Council must not consent to a subdivision to which this clause applies unless the Council is satisfied that the subdivision design complies with the general principles set out in Schedule 1.

(3) The Council must not consent to a subdivision of land to which this clause applies which creates allotments in a cluster housing development (whether to be effected under the Strata Titles Act 1973, or otherwise) unless the average area of land for each dwelling to be erected in carrying out the development will be at least 0.5 ha (where sewered) and at least 1 ha (where unsewered).

(6) The Council must not consent to development pursuant to this clause where the approval would result in a total number of lots created pursuant to this clause in a 5-year period exceeding the number specified by the Council." 173 Clauses 13 and 16 refer to "development", which is defined to include the use of land, the subdivision of land and the carrying out of a work: s 4 EPA Act. 174 In the present case, development, as defined, is intended on land to which cl 13 applies, as well as on other land to which cl 16 applies. 175 The proponent's revised statement of environmental effects, which accompanied the 2007 Second Amendment, contained an erroneous statement to the effect that cl 13 of the LEP was inapplicable: see [38] above.

176 The 2008 council report's discussion of the LEP (see [47] above) was as follows: " MATTERS FOR CONSIDERATION - SECTION 79C(1) EP&A ACT

a(i) The Provisions Of Any Environmental Planning Instruments

The subdivision of the land for rural residential purposes is permissible with Council's development consent pursuant to clause 16 of NLEP 1995. All of the proposed lots satisfy the minimum lot size of 1 hectare.

The main concern with the application was its consistency with clause 16(l) which states:

(l) The proposed development will maintain, where possible, the existing amount, diversity and form of native vegetation and wildlife habitat areas;

It is reasonable to conclude that the original proposal would have resulted in significant clearing of native vegetation and did not satisfy the above requirement. However the amended proposal is a substantial improvement on the original proposal, which limits clearing and provides an effective mechanism for future conservation and environmental improvement by the operation of an environmental management plan (EMP) contained within the neighbourhood management statement.

The proposed new road will follow the alignment of the existing track. To limit additional clearing required to provide an acceptable standard of access, it is recommended that Council's Aus-Spec Design standards be reduced in this instance.

The private lots will each contain a building envelope and APZ's within existing cleared areas. Further clearing of these lots outside of the identified building envelopes and APZ's, will not be allowed under the terms of the EMP and KPoM.

The community lot will include the main concentration of preferred koala feed tree species as well as EEC's and will be retained in its natural condition. The land will have no dwelling entitlement and will be protected and regenerated as recommended by the EMP and KPoM." 177 The council report did not refer to cl 13 of the LEP, referred to cl 11 without more, and discussed cl 16 only by reference to paragraph (l) of Schedule 1 (referred to in cl 16), which the report misdescribed as cl 16(l).

178 In Currey v Sutherland Shire Council (1998) 100 LGERA 365 clause 19 of a local environmental plan prohibited certain development within a foreshore building line unless the council was satisfied as to specified things. Stein J said at 375: "Was it enough that the officer's report contained a reference to cl 19 and the foreshore building line? In my opinion, it was not…cl 19 was never identified as an issue for the council. Far from it, any councillor coming to the report (read with the appendices) would be likely to assume that there was no issue arising under cl 19 necessary to be addressed. Councillors would most likely be unaware of the prohibition contained therein or of the need to consider the possible exception under cl 19(6). Both cl 19(5) and (6) require the council to be satisfied. The rolled-up conclusion to the report would also be likely to lead members of the council to believe that the application complied with the LEP." 179 In Manly Council v Hortis [2001] NSWCA 81, 113 LGERA 321 a local environmental plan provided that a council shall not grant consent to the carrying out of development unless it is of the opinion that the carrying out of development is consistent with the zone objectives. The council officer's report made no mention of zone objectives and the Court of Appeal held that the inference was open that they were not considered. It was said at [54]: "…Both Currey and Franklins ([31]-[35]) demonstrate that an inference that a consent authority considered a specific precondition to its power to grant a development consent will not normally be derived from material which demonstrates no more than that the consent authority was aware of the issues which were relevant to its decision whether or not to grant consent if it had power to do so. In the present case, it is unnecessary to do more than emphasise a point made by Stein JA in Currey (at 375). In the absence of express reference to the effect of cl 17 of the LEP in the extensive information available to the council, that material was unlikely to assist it. The extent of the available information combined with the absence of any reference to cl 17 was more likely to cause the council to overlook that cl 17 prohibited the council from granting consent to the development unless it was satisfied that it would not have a detrimental effect on the Foreshore Scenic Protection Area." 180 The failure to consider cl 13 was significant because it is in mandatory terms, requiring consideration of the matters that it lists before the council gives consent to development. The council reports absence of reference to cl 13 of the LEP was, I think, likely to lead the council to conclude that it was inapplicable. 181 This is reinforced by the representation in the applicant's statement of environmental effects that cl 13 was inapplicable, and by the fact that it is difficult to work out on the zoning map whether it applied to the development site. The latter fact was reflected in the initial confusion at trial on the part of the parties' experienced counsel as to whether, and if so what, part of the development site was subject to cl 13.

182 Councillors reading the council report would also be likely, from the absence of anything but a fleeting reference, to assume that there was no issue under cl 11 necessary to be addressed. In particular, they would be unlikely to turn their minds to the prohibition therein, which was not mentioned in the report, or the need to form an opinion on the question of inconsistency to which it referred which was a precondition to council's power to grant development consent. Public Submissions 183 The council report attached three submissions by objectors. There were earlier submissions received in September 2006 (prior to the 2007 Second Amendment) that were not attached to the report. 184 By reference to s 79C(1)(d) of the EPA Act, the council report referred to the submissions that had been received as follows: "The application as initially submitted and subsequently amended has been notified and exhibited in accordance with Council's requirements on two separate occasions. On both occasions several submissions were received, objecting to the development of the land. The objections have been submitted by private landowners as well as environmental community groups including Nambucca Valley Conservation Association and National Parks Association of NSW. Some of the objections submitted to the current amended proposal have argued that the application is both 'significant and controversial' and have requested that council not determine the application while in a caretaker role leading up to the election of a new council.

The issues raised in the objections are generally concerned with the loss of vegetation and adverse impacts on the flora and fauna which occur over the site.

Council's response to these concerns has been detailed in other areas of this report." 185 In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 30-31 Gibbs J held: "Of course the Minister cannot be expected to read for himself all the relevant papers that relate to the matter. It would not be unreasonable for him to rely on a summary of the relevant facts furnished by the officers of his Department. No complaint could be made if the departmental officers, in their summary, omitted to mention a fact which was insignificant or insubstantial. But if the Minister relies entirely on a departmental summary which fails to bring to his attention a material fact which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial, the consequence will be that he will have failed to take that material fact into account and will not have formed his satisfaction in accordance with law." 186 One of the submissions received by the council in September 2006 was from Mr Paul Davies. The issues raised in his submissions included water pollution and water management. There was no reference to those issues in the council report. They were relevant matters for consideration. If the council failed to consider his 2006 submissions, then the council failed to comply with the mandatory requirement to consider "any submissions": s 79C(1)(d) EPA Act. 187 It should be presumed, as the respondents submit, that the councillors read the earlier submissions. In Castle Constructions Pty Ltd v North Sydney Council [2008] NSWLEC 137 at 59 Lloyd J held that "there was a prima facie presumption that the councillors had at least the opportunity to read the material in the council's possession: Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 at [72]". In Schroders at [72] it was held that: "…the prima facie presumption was that the councillors had read the opinion (which was in the Council's files) and it was for Schroders to rebut that. No evidence was led establishing that the councillors had not read the opinion. There was therefore no need for the Council to lead any affirmative evidence concerning the inspection of the files by individual councillors."

Similarly, see Gunning Sustainable Development Association Inc v Upper Lachlan Council [2005] NSWLEC 23, 138 LGERA 281 at [75]. 188 The applicant submits that it has rebutted the presumption by its tender of a notice to produce to the council and two letters from the council's solicitors in response. The notice relevantly required production of the following documents: "2. All documents which the First respondent says were actually before and accessed by councillors at its meeting of 21 August 2008 regarding, relating or referring to DA 2004/136. 3. All other documents which the First Respondent says were available to councillors at its meeting on 21 August 2008 and relevant to the determination of DA 2004/136." 189 In answer to category 2 in the notice, the council produced the council report, which its solicitors indicated had been provided to all councillors in the business papers for the meeting of 21 August 2008. In relation to category 3 in the notice, the solicitors indicated that the council's complete file for the development application was available for councillors throughout the council meeting. The solicitors also said in further response to both categories that they were instructed that one councillor "perused the complete file for DA 2004/136 prior to the council meeting on 21 August 2008". 190 The respondents submit that the presumption is not rebutted because (a) the notice to produce was restricted to the time of the council meeting, (b) the presumption extends to all prior material times, and (c) it is to be presumed that the 2006 submissions would have been read by the council before the meeting and at about the time they were received.

191 In my opinion, the applicant has rebutted the presumption by its tender of the notice to produce and the two letters. The letter of the council's solicitors indicated that only one councillor perused the file "prior" to the council meeting. The council did not lead any affirmative evidence that any other councillors had read the 2006 submissions. The evidence is sufficient to rebut the presumption and to establish that the councillors, with one exception, did not read the 2006 submissions. Since at least one of those submissions raised issues that were not addressed in the council report, there was a failure to comply with the mandatory requirement of s 79C(1)(d) of the EPA Act to consider "any" submission. Conclusion 192 For these reasons, I uphold ground 3. GROUND 4: DEFERRAL 193 Ground 4 is that the council impermissibly deferred for later consideration two important matters of environmental assessment. One was the matters to be contained in the EMP, which I have disposed of under ground 2 above. The other, to which I now turn, was the size and placement of building envelopes in cleared areas. This was dealt with in condition 2 of the development consent, in the following terms: " Design Changes: Amended plans required

The design of the development is to be modified as set out in the following table. Amended plans and specifications incorporating the following design amendments must be incorporated in the plans and specifications submitted with the application for a Construction Certificate:

Design Amendment Reason for Amendment Survey plan confirming that building envelopes for each lot are located wholly within existing cleared areas. To ensure vegetation clearing is minimised in the provision of building envelopes and asset protection zones."

194 The plans, which were the subject of the development consent, contained a note that the areas and dimensions were subject to final survey. The council report addressed the matter of building envelopes. 195 The issue is whether the council had power to impose condition 2 under s 80A of the EPA Act. The applicant submits that the answer is in the negative. I disagree. In my opinion, the council had power to impose this condition under s 80A(2) and (4) of the EPA Act, which are set out at [165] above. As regards s 80A(4), the right hand side of the table in condition 2 identified the express outcome or objectives that this aspect of the development must achieve. The left hand side of the table identified clear criteria against which achievement of the outcome or objective must be assessed.

196 The applicant cites Weal v Bathurst City Council [2000] NSWCA 88, 111 LGERA 181 at [96], [97] and Cameron v Nambucca Shire Council (1997) 95 LGERA 268 at 274 - 275 (Talbot J) where it was held that there had been no proper consideration of mandatory relevant matters of assessment. The failure could not be overcome by imposing a condition which deferred consideration. That is not the issue under ground 4, which is concerned with power. 197 For these reasons, I do not accept ground 4. GROUND 5: ADVERTISING 198 The fifth ground of challenge to the validity of the development consent is that the development application to which consent was eventually granted was never advertised as required by s 79A(2) of the EPA Act. 199 This ground is bedevilled by consideration of provisions of legislation and development control plans whose content and relationship are generally unclear. They would benefit from the attention of a skilled draftsperson.

200 The importance of advertising and other notification requirements is clear from the object of the EPA Act "to provide increased opportunity for public involvement and participation in environmental planning and assessment": s 5(c).

201 In a number of cases a development consent has been held to be void where there has been a failure to properly comply with advertising or notification requirements: see Boral Resources (Country) Pty Ltd v Clarence Valley Council [2009] NSWLEC 81 and the cases cited at [40]; and Boral Resources (Country) Pty Ltd v Clarence Valley Council (No 2) [2009] NSWLEC 133 and the cases cited at [18]. Background 202 The development application was lodged in 2003 and advertised once in a local newspaper, in December 2003. The advertisement described the proposal as an eleven lot subdivision resulting in the creation of ten rural-residential lots on the western side of the land ranging in size from 1.01 hectares to 2.19 hectares, and one rural residual lot. The advertisement stated where and when the development application and supporting documents could be inspected, and that written submissions or objections should be lodged by 19 January 2004. 203 The development application was thrice amended, in 2005, 2007 and 2008: see [21], [37] and [43] above. None of the amendments were advertised.

204 The development application was amended in 2007 by the Second Amendment to an eight lot community title rural residential subdivision, in an altered layout, comprising six rural-residential lots, a community title lot and a large residual lot. The proponent had earlier written to the council asking if a new development application was required. The council replied indicating that an amendment to the existing application was sufficient: see [35] - [36] above. A form of development application was then lodged by the proponent but it had the same DA number as the existing development application and was evidently intended to be an amendment: see [37] above. 205 Substantial new documentation was provided with the Second Amendment including new plans, a koala habitat management plan, a statement of environmental effects and a neighbourhood management statement. As the Second Amendment was not advertised, the community was not invited to inspect and comment on it and the accompanying documents.

206 Following the Third amendment, the development consent in December 2008 was for a seven lot subdivision comprising five rural-residential lots ranging from 1.04 to 1.3 hectares, a community title lot of over seven hectares and a large residual lot. 207 The evidence of the President of the Valla Coastal Protection Group, which I accept, was that he did not recall seeing the advertisement for the original development application, but that as at December 2008 if he had seen an advertisement about the proposed residential subdivision which stated that submissions could be made to the council, he would have written a submission. 208 In December 2007, a council officer, Arthur Tsembis, sent an email to his superior council officer, Greg Meyers, with a copy to a third council officer, Ben Oliver. It proposed a meeting between the council officers and stated: "We also need to decide if we should advertise the amended application and/or notify adjoining owners. I suggest that we do both and also notify these people to put in submissions". Mr Meyers' email reply was "Yes to the meeting and also the proposed re-notifications". EPA Act 209 Section 79A of the EPA Act provides: " 79A Public participation - advertised development and other notifiable development

(1) Notice of a development application for consent to carry out advertised development is to be given in accordance with this Act, the regulations, the relevant environmental planning instrument and any relevant development control plan. (2) A development application for specified development (other than designated development or advertised development) must be notified or advertised in accordance with the provisions of a development control plan if the development control plan provides for the notification or advertising of the application." 210 Section 79A distinguishes between "advertised development" and "specified development". "Specified development" is not defined. "Advertised development" is defined in s 4 as follows: " advertised development means development, other than designated development, that is identified as advertised development by the regulations, an environmental planning instrument or a development control plan." 211 Sections 79A and 4 direct attention to any relevant development control plans. Two advertising development control plans applied at different times during the life of this development application:

(a) the Nambucca Development Control Plan No 12 - Advertising Development 2000 ( 2000 DCP ), which commenced in 2000, prior to the lodging of the development application in 2003; (b) the Nambucca Development Control Plan No 12 - Notification and Advertising 2004 ( 2004 DCP ), which replaced the 2000 DCP from 15 March 2004. Thus, the 2004 DCP commenced after the lodging of the original development application in 2003 but before any of the amendments. 212 Section 79A(1) applies to "advertised development" which, as defined in s 4, is development that is "identified" in (among other things) the regulations or a development control plan. "Advertised development" as so "identified" must be different from "specified development" where a development control plan "provides" for advertising or notification because the latter is expressly covered by s 79A(2). 213 Under s 79A(1), "notice" - which I take to include notice by way of advertising - of "advertised development" must be given in accordance with (among other things) the regulations and any relevant development control plan. In the event of any inconsistency between the regulations and any relevant development control plan, presumably the regulations would prevail. As discussed below, the regulations provide for advertising.

214 Section 79A(2) provides that an application for "specified development" must be advertised in accordance with any provisions of a development control plan if the development control plan provides for advertising. In contrast to s 79A(1), the regulations appear to be irrelevant under s 79A(2). EPA Regulation 215 Clause 5 of the EPA Regulation is titled "What is advertised development?" Clause 5(1) says that "for the purposes of section 4(1) of the Act, the following types of development (not being designated development) are identified as "advertised development". Four types of development are then listed, none of which is the subject type of development. Clause 6(2) says that "for the purposes of this Regulation", three other types of development are referred to in the Regulation as "other advertised development", including "any development that is identified as advertised development in a development control plan". The latter specific type of development is, I note, also "advertised development" as defined in s 4 of the EPA Act and thus covered by s 79A(1). 216 Division 7 (cll 86-91) of the EPA Regulation is titled "Public participation - other advertised development" and applies to "other advertised development": cl 86. Clause 87 includes an advertising requirement for other advertised development: " 87 How must a development application be publicly notified?

As soon as practicable after a development application for other advertised development is lodged with the consent authority, the consent authority must: (a) give written notice of the application (referred to in this Division as a written notice), and (b) cause notice of the application to be published in a local newspaper (referred to in this Division as a published notice). 217 Clause 90 of the EPA Regulation prescribes the circumstances in which the consent authority may decide to dispense with (among other things) advertising of an amended development application in compliance with Division 7: " 90 Circumstances in which notice requirements may be dispensed with

(1) This clause applies to a development application that before being determined by the consent authority, has been amended or substituted , or that has been withdrawn and later replaced, where: (a) the consent authority has complied with this Division in relation to the original application, and (b) the consent authority is of the opinion that the amended, substituted or later application differs only in minor respects from the original application , referred to in this clause as a replacement application. (2) The consent authority may decide to dispense with further compliance with this Division in relation to a replacement application and, in that event, compliance with this Division in relation to the original application is taken to be compliance in relation to the replacement application. (3) The consent authority must give written notice to the applicant of its decision under this clause at or before the time notice of the determination of the replacement application is given under section 81 of the Act."

(emphasis added) 2000 DCP 218 Paragraph 6 of the 2000 DCP was headed "Development to which this plan applies". Paragraph 6.1 was headed "Other Advertised Development" and para 6.2 was headed "Advertised Development". Paragraphs 6.1 and 6.2 each commenced with the words "Advertised Development is" and then listed various types of development. The paragraph 6.1 list included "subdivision, where in excess of two additional allotments will be created (excludes residue allotment)". That describes the subject development application. Given the opening words of para 6.1 and para 6.2, in my view they both identified the development they listed as "advertised development" within the definition of "advertised development" in s 4 of the EPA Act. In addition, the subject type of development identified in cl 6.1 was "other advertised development" within the definition of "other advertised development" in cl 5(2) of the EPA Regulation. 219 The 2000 DCP cl 9 prescribed the circumstances in which the council may dispense with advertising of an amended or substituted development application: " 9 CIRCUMSTANCES IN WHICH COUNCIL MAY DISPENSE WITH ADVERTISING AND/OR NOTIFICATION

Council may decide to dispense with advertising and/or notification in the following circumstances:

Where Council determines that an application for development consent will have no impact upon the amenity of adjoining land; or Where a development application has been publicly advertised or notified in accordance with this Plan, and the application is amended or substituted in response to submissions received; or Where a development application has been publicly advertised or notified in accordance with this Plan, and the application is amended or substituted in response to Council's assessment; or Where a development application has been publicly advertised or notified in accordance with this Plan, is withdrawn and later resubmitted in the same or similar form; and Council is of the opinion that the amended, substituted or resubmitted application differs only in minor respects from the original and will have no greater environmental impact than that originally submitted .

In all other circumstances the development application must be notified/advertised or renotified/readvertised in accordance with the provisions of this Plan.

(emphasis added) 2004 DCP 220 The 2004 DCP commenced on 15 March 2004 and replaced the 2000 DCP. Paragraph 1.4 of the 2004 DCP states that the plan applies to all development in the Nambucca Shire with some exceptions, which are irrelevant in the present case. Paragraph 3 contains the following advertising provisions: " 3 ADVERTISING

3.1 Development to be Advertised Council will advertise applications for the developments listed in Schedule 1.

3.2 Advertising and Submissions Council shall publish a notice of all applications for advertised development in a local newspaper, in accordance with Section 79A of the Act and clause 65 of the Environmental Planning and Assessment Regulation 2000. The notice shall indicate that the application is to be publicly exhibited and submissions accepted for a period of not less than 21 days.

Council shall acknowledge, in writing, receipt of any submission. Any submissions, received during the advertising period, are to be considered by Council prior to determining any development application. Council may, solely at its discretion, consider submissions received after the end of the advertising period.

3.3 Notification of Advertised Development Advertised development is to be notified to adjoining landowners in accordance with Clause 2 of this Plan, with submissions being accepted for 21 days. Where major development is involved, Council may, at its discretion, extend the advertising period to 28 days, where significant environmental impacts are anticipated. Council shall also extend the advertising period to 28 days for major subdivisions (20 or more allotments) and multi-dwelling housing (more than 20 dwellings or greater than 3 storeys in height)."

(emphasis added) 221 The reference in para 3.2 to cl 65 of the EPA Regulation is an error because cl 65 did not relate to advertising. The explanation for the error may lie in the fact that cl 65 of the earlier EPA Regulation 1994 contained an advertising provision. The reference was probably intended to be to cl 87 of the EPA Regulation. 222 Paragraph 3.1 of the 2004 DCP required the council to advertise applications for the developments listed in Schedule 1. The developments listed in Schedule 1, which is titled "development to be advertised", includes: "subdivision, where three or more additional allotments will be created". That describes the subject amended development application. 223 The 2004 DCP contains no dispensation provision. Submissions 224 The applicant submits that:

(a) the 2003 advertisement of the original 2003 development application cannot reasonably be classified as an advertisement pertaining to the development eventually granted consent in 2008 because of the substantial change in the interim and the unreasonable passage of time; (b) if the 2000 DCP applied, then advertising was required, subject to a discretionary power to dispense with advertising of substitutions or amendments provided the council formed the prescribed opinion, but it did not form that opinion; (c) if the 2004 DCP applied, then advertising was required and there was no discretionary power to dispense with that requirement. 225 The respondents submit that:

(a) the 2000 DCP applied; (b) there was no obligation to advertise the amended application; (c) even if there was, the council had power to dispense with such advertising, which it exercised, under cl 9 of the 2000 DCP; (d) alternatively, if the 2004 DCP applied, the council had power to dispense with such advertising, which it exercised under cl 90 of the EPA Regulation . Discussion 226 The original development application was advertised in 2003. It was amended in 2005, 2007 and 2008. The amended development application was not advertised. 227 The 2004 DCP applied to the exclusion of the 2000 DCP from 15 March 2004. Therefore only the 2004 DCP was capable of applying to amendments to the subject development application. 228 The 2004 DCP identifies the subject type of development as advertised development. Paragraphs 3.2 and 3.3 prescribe how applications for "advertised development" are to be advertised and how "advertised development" is to be notified to adjoining landowners. Given that they appear in the same paragraph as para 3.1, I think they identify "advertised development" as development referred to in para 3.1, which includes the subject type of development. 229 Therefore, the subject development is:

(a) "advertised development" as defined in Section 4 of the EPA Act ; and (b) "other advertised development" as defined in cl 5 of the EPA Regulatio n . 230 Therefore,

(a) section 79A of the EPA Act applied to the amended development application and required advertising in accordance with (inter alia) the regulations and the 2004 DCP; (b) clauses 87 and 90 of the EPA Regulation applied to the amended development application. 231 Clause 87 of the EPA Regulation required the development application to be advertised in a local newspaper. Construed in light of cl 90, cl 87 required the advertising of an amended development application. Paragraph 3 of the 2004 DCP prescribed how it was to be advertised. 232 Clause 90 of the EPA Regulation empowered the council to dispense with advertising the amended development application if the council was of the opinion that it differed only in minor respects from the original application. 233 On the evidence, as analysed below, I am satisfied that the council did not form that opinion. 234 The onus rests on the applicant as the challenger of the development consent to establish that the council did not form the opinion required by the dispensation provision. In GPT Ltd v Belmorgan Developments Pty Ltd [2008] NSWCA 256, 72 NSWLR 647 at [83] per Basten JA (Bell JA and Young CJ in Eq concurring) held that: "a party challenging the validity of an exercise of statutory authority must demonstrate, by appropriate evidence, some basis for a finding of invalidity. Furthermore, that party must affirmatively satisfy the Court that there has, for example, been a failure to comply with some necessary precondition to the exercise of the power."

235 The applicant can discharge the onus by reference to documentary evidence if it is sufficient to support the inference that the council did not form the opinion: Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 2) [2010] NSWLEC 1 at [69] (Preston CJ). Judicial mechanisms including interrogatories and directions for statement of reasons are available under r 4.2 of the Land and Environment Court Rules 2007: Austral Monsoon Industries Pty Ltd v Pittwater Council [2009] NSWCA 154, 166 LGERA 436 at [99] per Spigelman CJ (McColl and Handley JJA concurring); Caroona at [70].

236 The relevant evidence comprises two emails between council officers in December 2007. A council officer, Arthur Tsembis, sent an email to another council officer, his superior Greg Meyers, stating: "we also need to decide if we should advertise the amended application and/or notify adjoining owners. I suggest that we do both and also notify these people to put in submissions". Mr Meyers' email response was "yes to the meeting and also the proposed re-notifications". If (as the respondents suggest) Mr Meyers' response is to be understood as including "no to advertising", it is odd, to say the least, that he did not say so since Mr Tsembis suggested there should be advertising and in effect sought Mr Meyers' response to that suggestion. Given the context, I am inclined to read Mr Meyers' word "re-notifications" as including notification by way of advertising of the amended application. In fact, there was no advertising of the amended application. Possibly, that was an oversight.

237 However, assuming that Mr Meyers' email should be understood as evidencing a decision not to advertise, the emails expose the council officers' mental state concerning dispensation yet are silent as to the required opinion that was an essential prerequisite to the dispensation power.

238 Clause 90(a) of the EPA Regulation and cl 9 of the 2000 DCP tie together the power to dispense with advertising and the power to dispense with notice to adjoining owners in the sense that both are conditional upon the council forming the opinion that the amendments differ only in minor respects from the original application. It is clear that Mr Meyers decided that the adjoining owners should be notified. Prima facie, that suggests he did not form the opinion that the amendments differed only in minor respects from the original application. That is understandable given the nature of the amendments and the substantial supporting documentation: see [204] - [205] above. Absent the required opinion, there was no power to dispense with advertising. In the absence of any other evidence (including from the council officers), I infer that the council probably did not form the required opinion.

239 Accordingly, I uphold ground 5. OTHER CONSIDERATIONS 240 The respondents ask rhetorically and briefly, with specific reference only to the council's failure to consider the matters listed in cl 13 of the LEP as required by s 79C of the EPA Act (ground 3 above), whether it is the legislative intention that non-compliance with the legislation should result in invalidity of the development consent: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, 194 CLR 355. In my opinion, that is the legislative intention in relation to the non-compliance that I have found. Public advertising and consideration of mandatory, relevant matters are fundamental to the operation of the EPA Act. 241 It is the duty of the Court to consider making an order under s 25B of the Land and Environment Court Act 1979 instead of declaring that a development consent is invalid: s 25E. Section 25B provides: " 25B Orders for conditional validity of development consents

(1) The Court may, instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part, make an order: (a) suspending the operation of the consent in whole or in part, and (b) specifying terms compliance with which will validate the consent (whether without alterations or on being regranted with alterations). (2) Terms may include (without limitation): (a) terms requiring the carrying out again of steps already carried out, or (b) terms requiring the carrying out of steps not already commenced or carried out, or (c) terms requiring acts, matters or things to be done or omitted that are different from acts, matters or things required to be done or omitted by or under this Act or any other Act." 242 There is no submission that an order should be made under s 25B and I do not think that it should be made. Relevant considerations in relation to s 25B were canvassed in Aldous v Greater Taree City Council [2009] NSWLEC 17, 167 LGERA 13 at [97] - [100] by myself; and in Boral Resources (Country) Pty Ltd v Clarence Valley Council (No 2) [2009] NSWLEC 133 by Pain J. This Court has generally found it inappropriate to make a s 25B order in cases of failure to consider a mandatory relevant matter under s 79C of the EPA Act: Aldous at [100] and the cases there cited. In Boral Pain J declined to make a s 25B order where there had been a failure to advertise a development application in accordance with a development control plan. 243 There is no submission that relief should be declined in the general discretion of the Court.

COSTS 244 The applicant has succeeded in the action. Prima facie, costs should follow the event but there should be some reduction in the costs awarded to the applicant to reflect its failure on a number of discrete issues. On a broad approach, I propose that the applicant should have 60 per cent of its costs. ORDERS 245 The orders I propose are as follows:

(1) Declaration that the development consent granted by Nambucca Shire Council on 21 August 2008 to development application DA 2004/136 for a subdivision at 346 East West Road, Valla, is void. (2) The respondents are to pay 60 per cent of the applicant's costs. 246 The orders will be as I have proposed unless by 4 pm on 22 March 2010 a party delivers competing short minutes of proposed orders to me. The exhibits may be returned.

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