Northwest Residential Pty Limited v Minister for Planning

Land and Environment Court (NSW)|2008-11-18

Introduction 1 COMMISSIONERS: A traveller approaching Hawks Nest from the west rises up and then descends the span of the Singing Bridge over the Myall River and approaches the village through a vegetated corridor along Kingfisher Avenue.

2 The land on either side of this corridor, immediately after coming off the Singing Bridge, is in common ownership and is the subject of these proceedings. At present, the land is a single parcel divided by Kingfisher Avenue. The northern element comprises undisturbed vegetation and open saltmarsh flats. The southern portion, the larger element of the allotment, comprises, at its northern and eastern end, largely undisturbed vegetation whilst there has been a significant past disturbance of the western approximately two thirds portion of this element of the site. The reasons for the disturbance at the western end of the site are discussed later in this decision.

4 As a consequence of the conciliation conference conducted by Bly C, the Minister and the applicant in those proceedings reached agreement on the terms of a development consent to be granted for those residential flat buildings. The applicant in the conciliation conference proceedings conducted by Bly C is also the applicant in these proceedings.

The present application 5 The present appeal involves an application to subdivide the existing parcel into three allotments. Each of the resulting allotments is to have a different use.

6 The elements of the application that is the subject of this appeal are: o The subdivision of the existing parcel of land into three new allotments; with o The northern proposed allotment comprising the land to the north of Kingfisher Avenue. This allotment is not proposed to be developed and, subject to a dispute about setting-off of development contribution costs, is to be transferred to Great Lakes Council (the council) for addition to the adjacent koala protection reserve; and o The western proposed allotment south of Kingfisher Avenue. This comprises the land upon which the residential flat buildings are approved to be erected (but not the land upon which access to those buildings from the east has been provided for in the agreed consent between the Minister and the applicant); and o The eastern proposed allotment south of Kingfisher Avenue (to the north and the east along Kingfisher Avenue and generally bounded by Eagle and Flamingo Avenues along its southern and south-eastern boundaries). This proposed allotment (containing the approved access from the east to the residential flat buildings) is proposed to be further subdivided, by community title subdivision, into 25 new allotments. One of these is to comprise the northern and eastern portion of the site and is to be part of the community lands of the subdivision. This allotment is proposed to be managed, pursuant to a voluntary conservation agreement, for conservation purposes. The purpose of the voluntary planning agreement is, predominantly but not exclusively, to protect this allotment's value as koala habitat. 7 Part of the residential community title element of the application also includes the construction of the basic infrastructure for the proposed residential subdivision comprising a loop road, guttering, drainage and water supply and effluent disposal reticulation works. The western elements of the proposed loop road to service this proposed community title residential subdivision coincide with the eastern access elements already approved in the s 34(3) agreement between the parties in the residential flat building proceedings.

8 The consequence of this agreement, as discussed later, is that there is an existing development consent that authorises the removal of a number of Swamp Mahogany trees in the vicinity of an existing council drainage line traversing the property towards the western end of the proposed community title subdivision allotment. The existing approval for the removal of these trees has some significance in these proceedings; as such trees are a major food source for koalas. Although there is some disagreement between the experts in these proceedings of the extent of the exclusivity of koala diets, Swamp Mahogany trees, generally, are undoubtedly important food sources for koalas in the Hawks Nest area. The relevant planning framework 9 The land to the north of Kingfisher Avenue is zoned 7(a) Wetlands and Littoral Rainforest. No development is proposed on this land. The land to the south of Kingfisher Avenue is partially zoned 2(a) Low Density Residential and partially zoned 2(b) Medium Density Residential. The proposal is permissible in these zones.

10 A variety of planning instruments, development control plans, policies and guidelines apply to the application. It is not necessary, for the purposes of this decision, to list them all.

11 In addition, the council has prepared an amendment to its LEP which would have, if made, the effect of rezoning portion of the site for environmental protection. No particular attention needs to be paid to this proposed amendment to the LEP for two reasons. The first is that it is neither imminent nor certain. The second is that Mr Bell, the council's ecologist, does now not press the proposed environment protection zone boundary. Mr Bell has given evidence in these proceedings that he has adopted the same line as proposed by Dr Smith (the koala expert on behalf of the Minister) as the appropriate sub-division on the site..

12 As a consequence of the fact that, at the time of the application, the proposal was classified as State significant development, the Minister became the consent authority for the proposal. The proposal is also integrated development for the purposes of the Environmental Planning and Assessment Act 1979. The issues 13 As a consequence of the evidentiary path which these proceedings have followed, it became clear that the principal issue we were required to determine was not whether the broadacre subdivision into three allotments should be approved (as we do not understand there to be any controversy about that issue), but the extent to which land should be required to be set aside for conservation purposes in the allotment that is proposed for community title residential subdivision.

14 Equally, as it has transpired, for reasons which will emerge, the consequence of the agreement between the Minister and the applicant, in the residential building proceedings, Dr Phillips, the koala expert for the applicant, Dr Smith and Mr Bell agreed that a residential subdivision is acceptable on the western portion of the eastern of the two proposed allotments south of Kingfisher Avenue. However, there is a vigorous disagreement between Dr Phillips, on one hand, and Dr Smith and Mr Bell, on the other hand, as to how much of this allotment should be given over to any community title residential subdivision.

15 A consequence of the agreed consent for the residential flat buildings was the authorisation of the removal of a significant number of immature but nonetheless modestly substantial Swamp Mahogany trees at the western end of the site. The expert evidence given by Dr Smith and Mr Bell, on behalf of the Minister, was that it was appropriate to refuse to permit any residential development on the whole of the central area of this allotment.

16 The consequence of this agreement is that the matters that need to be considered and determined by us are now more confined than at the commencement of the proceedings. The principal issue which we need to determine is whether the extent of the residential development in the central area should be as laid out in the final plans for which the applicant seeks consent or whether the developable area of the site should be more confined to the west of the line drawn by Dr Smith and tendered in evidence to us. A copy of a marked plan showing that line and the general nature of the proposed development layout for which consent is sought appears below: General area of Eastern Chestnut Mouse observations (marked by aqua circle by us) - see (81 - 82) below

17 There are, on our understanding of the evidence, two reasons for this disagreement. First, is that Dr Phillips does not consider that the trees in area to be cleared for the loop perimeter road and within that road's north-eastern end warrant retention for koala habitat value whilst Dr Smith and Mr Bell hold a contrary view. Second, Dr Phillips considers that koala habitat tree replanting can appropriately take place in the cleared area he has identified within the boundaries of the proposed conservation allotment. In contrast, Dr Smith and Mr Bell propose that the koala habitat tree replanting should be located on areas generally adjacent to Eagle Avenue that are identified presently for residential allotments (being, at least, Lots 2, 3, 4, 5 and 6 and portion of the proposed perimeter road at its eastern end to Eagle Avenue).

18 If we were minded to adopt the general scope of the developable area supported by Dr Phillips for the applicant, a number of subsidiary issues would arise for determination. These subsidiary issues would be: o Whether the asset protection zones for bushfire protection on the two allotments separated from the group of allotments enclosed by the loop road (and being, generally, to the south-east of the main developed area) should be permitted to have their asset protection zones extend into the proposed conservation area on community title Lot 1 (the conservation allotment); o Whether the developed areas should be fenced from the conservation allotment in order to prevent koalas from entering the proposed residential allotments and the residential loop road from the consolation allotment; and o Whether or not the requirement for dedication to the council of the land to the north of Kingfisher Ave and the conservation status of the conservation allotment should entitle the applicant to a discount of the contributions which would otherwise be required under the council's contribution plan made pursuant to s 94 of the Environmental Planning and Assessment Act 1979.

The site inspection 19 On the first day of the hearing, we had the opportunity to inspect the site in the company of the party's legal representatives and those advising and assisting the parties with expert opinion. We heard, informally, the evidence from a range of residents who had made submissions concerning the proposal. We also had the opportunity to walk around the site and along Kingfisher Ave. and Eagle Avenue. At the suggestion of the parties, we also drove, unaccompanied, around parts of the settled area of Hawks Nest which had been identified to us urban koala habitat.

Previous Land and Environment Court proceedings 20 A number of the residents who opposed the present community title residential subdivision proposal raised objections on the basis that a number of remediation orders made by the Court had not been observed. These orders were binding on Mr Maurice Albert Brancourt and were not directed at the present applicant, which is a separate corporate entity. Those orders were made by Lloyd J in Carmody v Brancourts Nominees Pty Limited; Carmody v Brancourt [No. 2] [2003] NSWLEC 84 - being prosecutions by the National Parks and Wildlife Service for unlawful land clearing. The principal of the company, Mr Brancourt, pleaded guilty to one charge and the prosecutor presented no evidence on the other charges which were, as a consequence, dismissed.

21 Set out below are a number of extracts from Lloyd J's judgement which provide an outline of the unlawful clearing which had been undertaken by Mr Brancourt:

3 The clearing of vegetation by the defendant resulted in damage to the core habitat of a population of koalas at lot 1 in deposited plan 546852, between Kingfisher Road and Eagle Avenue at Hawks Nest ("the land"). The total area of land cleared was about 2.5 hectares, of which about 1.2 hectares was core koala habitat.

6 As noted above, the defendant's land is approximately 2.5 hectares in area, with 1.2 hectares recognised as containing core koala habitat. The habitat was identified by a threatened species and koala habitat report prepared by Ecotone Ecological Consultants Pty Ltd for the defendant when he applied to have the subject land rezoned. This particular koala population is listed under Sch 1 Pt 2 of the Threatened Species Conservation Act 1995 as an endangered population due to the rapid decline in numbers, which in this area have declined from 21 individual koalas in 1989 to 12 in 1998.

12 The clearing took place between 28 July 2000 and 31 July 2000. The understorey vegetation was completely under-scrubbed and several trees were removed. ……………..

22 Lloyd J made a number of orders in the prosecution to which the guilty plea had been entered. The third of the orders made in those proceedings against Mr Brancourt was in the following terms: Pursuant to s 118E of the National Parks and Wildlife Act 1974 , the defendant shall carry out the works described in and in accordance with the remediation plan prepared by Dr S S Phillips dated March 2003, being annexure "C" to the affidavit of Dr Phillips sworn 13 March 2003

23 The Dr Phillips referred to in the order above is the same Dr Phillips who has given expert koala evidence on behalf of the applicant in these proceedings.

24 As we understand it, the scope of the required works in the remediation plan was threefold. The first element required the spraying of a weed, Bitou Bush, which was infesting the understorey of the cleared area. The second element required the removal of a number of self-sown Pinus radiata wildings that had seeded from a small number of substantial Pinus radiata already on the site. The final element required the planting of 150 nursery stock tree seedlings.

25 The resident objectors who raised this issue asked us to conclude that the orders had not been complied with. The present opinion of the Department of Environment and Climate Change, as expressed in a letter in evidence before us, is that the orders have, in fact been satisfied.

26 The remediation plan contained no requirements for: o ongoing maintenance of the tree seedlings; or o monitoring for the emergence of and removal of any further Pinus radiata wildings; or o ongoing spraying of any Bitou Bush which might re-emerge. 27 The absence of any such requirements has meant, to the extent that we were able to observe it during the course of the site view, there is a significant reinfestation of the cleared area by Bitou Bush and the regrowth of further Pinus radiata wildings. Although we were not able to make any direct observation of the survival of any of the tree seedlings, we did not observe any trees in what had been the cleared area which would be consistent with any such survival. In addition, it is the uncontested evidence of a number of the resident objectors (supported by the present observations of the Department of Environment and Climate Change) that none of these tree seedlings appear to have survived and that the rehabilitation goals have failed.

28 However, our examination of the various documents in evidence concerning the terms of the remediation plan ordered in 2003 and its subsequent modification (being modification in a fashion not presently relevant) leads us to conclude, based on our own observations on site and the comments of the Department of Environment and Climate Change, that the orders have nevertheless, in fact been satisfied.

29 It seems to us that the present state of the site may be a direct consequence of what might be regarded as significant defects, noted in (26), in the remediation plan prepared by Dr Phillips in the proceedings against Mr Brancourt. However, we have concluded that, as the orders have been satisfied, we do not need to consider what, if anything, would be the consequence in these proceedings of any non-compliance by a person who is not a party to these proceedings and against whom orders have been made in unrelated proceedings.

Changes to the proposed community title subdivision 30 The subsequent hearing extended over a considerable number of days because of the necessity for the applicant to provide greater precision of information concerning the proposed design for which consent has ultimately been sought. This has necessitated a number of revisions of the plans in response to evidence from experts that emerged during the course of the hearing. These relate to the design of drainage; layout of the alignment of the loop road in its north-eastern curvature; and where piping for water reticulation and effluent disposal was to be made. The necessity for assessment of this additional information prior to leave being granted to the applicant to rely on the final version of the plans for which consent is sought led to the applicant giving an undertaking to the Court to meet the Minister's additional assessment costs, up to a maximum of $5000, to be paid within 28 days of the final hearing day on the application.

The giving and the scope of the expert evidence 31 During the course of the hearing, we had extensive competing written and oral evidence presented with a significant degree of vigour by Dr Phillips and Dr Smith. Indeed, some of the language used in one of documents prepared by Dr Phillips took exception, in language going well beyond the style usually found in scientific discourse, to material prepared by Dr Smith. However, we have ignored the vigour of this disagreement and focused, solely, on the wide range of technical documents and information. These include the written statements and oral evidence of the expert witnesses, concerning the primary issue in dispute and the reasons for that dispute.

32 In the end, as we explain below, we consider that the conclusion we must reach (to reject the present community title residential subdivision proposal) is derived from broad issues of an ecological nature. These do not require us to make any assessment of or express any opinion about the statistical or operational validity of the sampling and assessment techniques used by Dr Phillips (although these issues were those which gave rise to the greatest heat during the course of the concurrent expert evidence from these witnesses).

33 There is, however, as we understand it, no dispute about the appropriateness of the three allotments subdivision element of the present application. As a consequence, the orders that we propose in these proceedings will provide for the applicant to obtain that subdivision, if it wishes, but the application for the community title residential subdivision element is refused.

Koala habitat and relevant trees 34 In 1999, Ecotone Ecological Consultants Pty Ltd wrote a report concerning the site that said that portion of the land south of Kingfisher Avenue should be zoned according to its identified conservation value. It is considered imperative to completely reserve the Blackbutt and Swamp Mahogany open forest communities. In addition, the area of open disturbed grassland that is situated in the centre of these communities should also be incorporated into the koala habitat preservation area. This small area of disturbed grassland has the potential to be rehabilitated thereby increasing the size of the Koala habitat.

35 Ecotone's report included a diagram showing its recommended protection area. A copy of that diagram appears below:

36 In our opinion, there are two matters of significance to be observed from this diagram. In making these observations, we accept that this diagram is not one drafted with cadastral precision as is also the case with the line which Dr Smith has drawn on the plan which is reproduced earlier. The first is that the element of the recommended protection area running to the west along Kingfisher Avenue extends somewhat further to the west than the western extremity of the conservation allotment supported by Dr Phillips. The second is that the area identified in this diagram as disturbed grassland is, broadly coincident with the area within the boundaries of the conservation allotment identified by Dr Phillips where koala habitat tree replanting can appropriately take place.

37 The extract and diagram from Ecotone's report are taken from a letter from the council to the Department of Infrastructure, Planning and Natural Resources, dated 22 October 2004. We have no evidence in these proceedings that the extract and diagram from Ecotone's report cited in the council's letter are not faithfully reproduced from that report.

38 Paragraph 6 of Lloyd J's judgement includes the following sentence, referring to koala habitat cleared by the owner of the site: The habitat was identified by a threatened species and koala habitat report prepared by Ecotone Ecological Consultants Pty Ltd for the defendant when he applied to have the subject land rezoned.

39 It is clear, therefore, that the elements of Ecotone's report cited above came from a document prepared for the owner of the land.

40 Also in 1999, the NSW Scientific Committee established by Threatened Species Conservation Act 1995 (the Threatened Species Act) made a final determination listing the Hawks Nest and Tea Gardens koala population as an endangered population. 41 Paragraph 5 of the final determination reads relevantly: 5. The decline of the Phascolarctos cinereus [koala] population has been attributed to continuing sub-division and associated clearing of food and habitat trees, road mortality and attacks by dogs.

42 The significant element of this paragraph of the Hawks Nest and Tea Gardens determination by the Scientific Committee is that the vegetation clearing activities identified are not confined to food trees but is also linked to the clearing of habitat trees - this clearly being a class of vegetation broader merely being Swamp Mahogany trees.

43 The council's letter cited in (37) also refers to a Species Impact Statement prepared for the owner of the land by Harper Somers in 2001. The council's letter includes the reproduction of a marked-up aerial photograph of the site. The council's letter says that this marked-up aerial photograph indicates what the Harper Somers' SIS said was the core koala habitat and movement corridor on the site. The poor quality photocopy in evidence of the council's letter means that it is not possible to reproduce in this judgement the marked-up aerial photograph in a fashion, which could be interpreted. However, we are satisfied that a consideration of this marked-up aerial photograph shows that the core koala habitat and movement corridor marked on this photograph appears, at least, to coincide virtually precisely with Ecotone's recommended protection area. Indeed, it appears that the area to the south-west of the dotted boundary of Ecotone's recommended protection area to the unbroken line immediately below may have been incorporated by Harper Somers as an extension to the protection area. The council's letter makes no reference to the Harper Somers' SIS identifying any area for habitat tree replanting.

44 We have no evidence in these proceedings that the references to and diagram from Harper Somers' SIS cited in the council's letter are not faithfully reproduced from that document.

45 As earlier noted at (20-22), the unlawful land clearing took place in July 2000. Since the date of the Ecotone report and the Harper Somers' SIS show that these documents were prepared before and after the unlawful land clearing, respectively, we consider it is relevant to note that there does not appear to have been any significant amendment made by Harper Somers, post-clearing, to the koala habitat area identified by Ecotone, pre-clearing. Indeed, as noted earlier, it is possible that the koala habitat area identified by Harper Somers is more extensive than that identified by Ecotone. However, we consider it appropriate, given the poor quality of the copy of the marked-up Harper Somers' aerial photograph, to treat this photograph on the best basis for the applicant - namely that the Ecotone report and the Harper Somers' SIS koala habitat areas are the same.

46 Volume 27 (2000) of a journal known as Wildlife Research, published by CSIRO Publishing, included an article discussing tree species preferences of koalas in the Port Stephens area (being an area on the other side of Port Stephens to the Hawks Nest/Tea Gardens locality). Dr Phillips is one of the authors of this article. 47 The introduction to the article, omitting references, includes the following: As a consequence, uncertainty about how best to define koala habitat and which are the most preferred tree species in a given area tends to overshadow and undermine the more pressing need to effectively conserve it, an issue which is exacerbated by the absence of an approach to habitat assessment that is broadly accepted by the scientific community.

48 Whilst the data concerning food tree use by koalas contained in this article is not relevant to our consideration of the issues concerning the land in this appeal, the absence of a broadly accepted approach to habitat assessment referred to is, from the debate between the experts in these proceedings, clearly alive and continuing. It is also relevant to note, for the purposes of our consideration, that the continuing debate between the two koala experts, in these proceedings, does not provide us with sufficient confidence that there is a definite and fundamental criterion to use for the protection of koala habitat on the site. Such a criterion would enable us to determine unequivocally the benefit of retaining the Swamp Mahogany trees located on it in the site's eastern portion. It is our qualitative assessment, based upon the evidentiary material presented to us that the smaller Swamp Mahoganies are more likely than not to provide useful and functional habitat for koalas.

49 In November 2003, Dr Phillips prepared a report for the National Parks and Wildlife Service. The report was prepared for the Court proceedings concerning the unlawful land clearing prosecutions discussed earlier. The conclusions presented by Dr Phillips in this report were as follows: i. Independently of the recent disturbance, the tall-open woodland on the site constitutes an important area of primary koala habitat; ii. recent clearing activities on the site has [sic] effectively removed some elements of the overstorey, the entire mid-stratum and shrub layers; iii. that prior to the disturbance, the site was being utilised by minimum of two koalas; iv. based on the distribution of koala faecal pellets, it is also evident that the entire site was being utilised by koalas, and v. SAT results confirm that the extent of habitat utilisation by koalas on the site was consistent with that exhibited by koalas in socially stable breeding aggregation.

50 This report continued its conclusion with an account of the likely impacts associated with this disturbance caused by the unlawful land clearing. Two of these likely impacts are relevant in these proceedings, in our view: iii. a reduction of important roosting and supplementary browse opportunities associated with removal of some overstorey elements in the mid-stratum vegetation layer; iv. damage to mature E. robusta and M. quinquenervia stems remaining on the site

51 The final sentence of the conclusion of this report by Dr Phillips was in the following terms: Because of these considerations, it is my considered opinion that the consequences of the above activities are significant in terms of their ability to negatively influence the longer-term survivorship and recovery potential of the Hawks Nest and Tea Gardens koala population.

52 In July 2003, the Department of Environment and Conservation (now the Department of Environment and Climate Change) published a local Recovery Plan for the Hawks Nest and Tea Gardens Endangered Koala Population (the local recovery plan). The land subject of these proceedings falls within the area covered by this local recovery plan. In 4 Threats and Management Issues, the local recovery plan nominates a number of current threats. The relevant sections for these proceedings are Habitat loss and fragmentation and Habitat degradation. With respect to this latter threat, the commencing comments of the local recovery plan say:

Degradation of koala habitat can occur through underscrubbing, alteration of forest structure, weed invasion, tree dieback or senescence, and bushfire. 53 In this application, there will be a modest alteration of the forest structure at the western end of the forested area if the community title subdivision were to be approved. There will also be the removal of a number of trees, but no Swamp Mahogany trees, for the construction of the eastern end of the perimeter loop road.

54 The local recovery plan notes, on page 1, that, at the time of making the plan: Critical Habitat has not been declared for the Hawks Nest and Tea Gardens Endangered Koala Population under the TSC Act . An assessment of Critical Habitat will be undertaken as part of the recovery actions included in this plan.

55 The local recovery plan says, on page 5: Possibly the most important factor influencing Koala occurrence in an area is the suite of tree species available as habitat. In any one area Koalas rely predominantly on varying combinations of primary and/or secondary habitat (see Appendix 3).

56 Appendix 3 is reproduced below as it appears in the local recovery plan:

57 It is clear to us that whichever of the definitional hierarchies shown above were to be adopted, the woodland area at the northern and eastern end of the site, including the disputed area between the lines identified by Dr Smith and Dr Phillips, is to be classified as Secondary habitat (class A) for the purposes of the local recovery plan.

58 The local recovery plan also says, on page 5, concerning feed tree species: Favoured feed tree species (primary feed trees) within koala habitat are of great importance for the conservation of koala populations. Koalas will utilise other tree species (secondary feed trees) if primary feed tree species are not present or occur at low densities. However, the carrying capacity of an area with only secondary feed tree species present is inevitably lower (Reed et al. 1990). Primary and secondary feed trees are fundamental to koala survival. (emphasis added)

59 Both of these food sources are present in the area to the east of Dr Smith's line, which would be removed under the current proposal.

60 In July 2004, Dr Phillips prepared a koala plan of management for the site. It discusses, amongst other things, tree preferences for koalas on the site. We quote from the February 2006 version of the document at page 13: PART B

The tree use data set obtained for this study is not adequate to unequivocally confirm the importance of individual tree species on the site to the area's koala population. The generally low levels of habitat use that are currently evident have brought about this result, a phenomena [sic] that often creates uncertainty. However, trends in the data allude to elevated levels of use for both Swamp Mahogany and Broad-leaved Paperbark. While the importance of Swamp Mahogany as a resource koalas is irrefutable (Phillips et al., 2000; Phillips 2000), use of Broad-leaved Paperbark, a common associate of the former species, is less well understood. However, Phillips et al., 2000 confirmed elevated levels of use of Broad-leaved Paperbark when growing close to Swamp Mahogany individual trees, suggesting that proximity to the former was a major factor.

While there is no argument that species such as Broad-leaved Paperbark will [emphasis In original] be browsed by koalas, the need to distinguish between those tree species that are fundamental to the survival of koalas and those that are of lesser importance is a necessary precursor to effective management and conservation. Thus effective conservation of the Swamp Mahogany food resource within the study area should be seen as a primary consideration in terms of koala habitat management. 61 Dr Phillips prepared a further revision of this document in June 2008 for these proceedings. The relevant quotation from this document equivalent to that appearing immediately above is on page 17 and is in the following terms: B. PLANNING AND MANAGEMENT Tree preferences

Swamp mahogany trees on the site serve as the key food resource for resident and/or transient koalas that may make use of the area. While the importance of Swamp Mahogany as a resource for koalas is irrefutable (Phillips et al., 2000; Phillips 2000a), use of other non-food tree species is less well understood. To this end, while there is no argument that species such as Blackbutt E. pilularis and Broad-leaved Paperbark M. quinquenervia - both of which occur on the site - will [emphasis In original] be browsed by koalas, the need to distinguish between those tree species that are fundamental to the survival of koalas and those that are of lesser importance is a necessary precursor to effective management and conservation. Hence effective conservation of the Swamp Mahogany food resource within the study area should be seen as a primary consideration in terms of koala habitat management.

62 In November 2008, the Department of Environment and Climate Change published its Approved Recovery Plan for the koala. This plan has effect state wide and, therefore, is considerably more general in its terms than the local approved recovery plan cited at (52).

63 This Approved Recovery Plan has been prepared in accordance with the provisions of Part 4 of the Threatened Species Act. At the broad level, koalas are listed as vulnerable under the Threatened Species Act rather than as endangered. However, some local populations, including the koala population at Hawks Nest/Tea Gardens, have been listed as endangered. The Threatened Species Act also includes provisions to the identification of threatening processes to such species. The Approved Recovery Plan notes that, as at November 2008, 33 key threatening processes had been identified. That which is relevant in our consideration of the issues described earlier is that of Clearing of Native Vegetation.

64 There are a number of comments and passages in this document that are relevant to our consideration.

65 First, at 6.2 feeding requirements, the first sentence commences: The diet of the koala, primarily comprising eucalypt leaves,…………..

66 This, we are satisfied, is an acknowledgement, consistent with earlier material we have cited, that koala food trees are not confined exclusively to eucalyptus species of which the Swamp Mahogany is one.

67 This section of the Approved Recovery Plan continues to note that: The field of koala nutrition remains an active area of research, and relevant to koala tree selection …………………….

68 The disagreement between Dr Phillips, on one hand, and Dr Smith and Mr Bell on the other hand, concerning the habitat and food source significance of the trees proposed to be cleared (as noted in their joint expert report, Exhibit 7, at pages 3-10 and 32-34) confirmed this.

69 Indeed, 6.2 of the Approved Recovery Plan notes, on page 21: To date there has been little agreement on the relative importance of the majority of tree species used by koalas (Phillips 2000b). The confusion is compounded by the fact that koalas may use trees other than food trees, including non-eucalypts, for either incidental browsing or for other purposes, for example daytime resting or for shelter in unfavourable weather (for example white cypress pine, Smith 1992).

70 We note that the Phillips citation given in the extract reproduced immediately above, as with other Phillips citations in the material to which we have referred, is a reference to Dr Phillips who has given evidence in these proceedings. In addition, for completeness, we note that the Smith citation immediately above is not a reference to Dr Smith who has given evidence in those proceedings.

71 The Approved Recovery Plan says, later in the same section: In an attempt to resolve the uncertainty surrounding important food trees and to distinguish those species which are of 'fundamental importance to long-term survival of free-ranging koala populations' (Phillips 2000b), the Koala Recovery Team initiated a project to identify regionally-based tree species of fundamental importance to koala survival. The method of identifying primary and secondary food tree species refutes the long held assumption that 'occupancy of a given tree species equates to its importance as a food tree' (Phillips 2000), by recognising that daytime records of tree species used does not necessarily indicate which trees koalas are feeding on.

72 Appendix 2 of the Approved Recovery Plan lists the species of koala food trees for the various geographic areas comprising the koala management areas identified by the plan adopting those identified by Dr Phillips in his paper cited as Phillips 2000b. These koala food trees are categorised as primary, secondary and supplementary. Those identified for Koala Management Area 1: North Coast are exclusively eucalyptus species as are all food tree species identified for other koala management areas.

73 However, the Approved Recovery Plan also continues to list a number of actions to be undertaken. Part 11 of the Approved Recovery Plan is entitled Recovery actions. It contains: Specific objective 1c: Integrate koala habitat conservation into local and state government planning processes

74 In support of this objective, the Approved Recovery Plan sets out a number of actions and performance measures to assess what has been achieved by those actions. A number of those are relevant in these proceedings. They are: Action 1.14 DECC will encourage the revision and/or production of a regional list of koala food and shelter trees for catchment management authorities, local government areas and other local/regional koala plans that deal with specific issues and/or locations.

Performance criterion 1.14 Regional lists of koala food and shelter trees developed and disseminated, as appropriate.

Action 1.15 Consideration will be given to having a single definition of koala habitat, instead of 'core' and 'potential' habitat and to expanding the list of koala food trees.

Performance criterion 1.15 Tree species list amended for SEPP 44 and the definition of 'koala habitat' determined and disseminated.

75 Part 11 of the Approved Recovery Plan also includes: Action 1.18

Consideration will be given to amending SEPP 44 to: 1. allow for other koala plans to be developed by councils on a regional or local government basis 2. allow for Schedule 2 (Feed Tree Species) to SEPP 44 to include additional koala food tree species.

Performance criteria 1.18 DECC initiated discussions with the NSW Department of Planning (DoP) over amendments to SEPP 44 on the basis of this recovery plan. SEPP 44 amended as considered appropriate by the Minister for Planning.

76 These various elements of the Approved Recovery Plan, in our view, provide evidence that this plan also takes a cautious view to issues relating to habitat composition and the utilisation of various species of trees as either food or habitat trees.

77 In his further statement of evidence of 15 January 2009, Dr Phillips says, on page 2: Affects [ sic ] of the amended plans on the koala 1. Extent of habitat loss The primary determinants of koala habitat in this instance are individual Swamp mahogany trees, more so than any other tree species on the site. Because of this knowledge, it remains my opinion that there will be no loss of significant koala habitat on the site, and that overall utility of the site to koalas will be improved through measures detailed in the associated koala plan of management.

Defining koala habitat The amended plans were not required to apply any definitions of koala habitat, while my planning considerations were entirely consistent with the approved recovery plan (DECC 2008) in focusing solely on Swamp Mahogany as the primary determinant of koala habitat. Regardless, Figure 12 on page 88 of the SIS has already acknowledged that the majority of the site is potential koala habitat, a determination made quite independently of SEPP 44 criteria (and exceeding requirements therein) to include areas without preferred koala food trees that based on knowledge that koalas could make use of any area of the site while traversing between such trees.

78 The focus in Dr Phillips' most recent document suggesting that focusing solely on Swamp Mahogany as the primary determinant of koala habitat is consistent with the Approved Recovery Plan or, indeed, with the general thrust of long-term discussion of these issues is, in our view, erroneous. This is evidenced clearly in the earlier quotations from other literature - including literature authored by Dr Phillips.

79 Finally, for completeness, we note that the various steps required by SEPP 44 have been followed and that, on the basis of this policy, the development could be granted consent had we been satisfied on the broad basis of appropriateness of permitting interference with the portion of the site between Dr Smith's line and the conservation area advocated by Dr Phillips. Eastern Chestnut Mouse habitat 80 The Scientific Committee has listed the Eastern Chestnut Mouse in Part 1 Vulnerable Species of Schedule 2 Vulnerable Species and Ecological Communities under the Threatened Species Act.

81 The extract from Mammals of Australia 3rd edition says: Some individuals have been observed to move up to 250 metres, but most show strong site attachment and have home ranges of less than 0.5 hectares. 82 The habitat of the Eastern Chestnut Mouse is described in the context of this application, as being in heathland.

83 The area of this habitat where the occurrence of this animal has been identified is, in broad terms, similar to that in the open grassland areas within the proposed conservation lot which areas are proposed to be revegetated for the purposes of establishment of further koala habitat. Although of secondary importance, we remain not satisfied that the area proposed to be revegetated under the current proposal will not modify significantly or eliminate Eastern Chestnut Mouse habitat on the presently cleared areas of the proposed conservation allotment on the site. Therefore, we cannot be certain that there will not be an adverse impact on this vulnerable animal.

Assessing the expert evidence and the competing positions 84 The joint expert report provided to us it comprises 52 pages - largely comprised of complex scientific argument, including a series of graphic depictions of statistical analyses. Three and a half pages are appended that list the documents supporting the various opinions cited by the experts (most but not all of which documents are peer reviewed research articles). Matters relating to koalas were the subject of 39 of the joint report pages.

85 Although we will refer to other elements of the joint report to illustrate the extent of the disagreement between the experts, it is appropriate to set out, in full, the areas of general agreement and general disagreement concerning koalas. General Agreements

It is agreed by all parties that since the koala population on the site is part of a listed endangered population that any development of the site should " maintain or improve " koala populations and habitat.

The major area of disagreement between Dr. Phillips, Dr. Smith and Mr Bell are as follows:

Dr. Smith considers that proposed clearing and modification of primary and secondary koala habitat on the site (as shown Figure 1 where habitat overlaps proposed residential lots and APZs) will reduce the extent of koala habitat (by approximately 1.1 ha.) and the size of the endangered Hawks Nest and Tea Gardens koala population, because it replaces natural habitat with urban habitat that is likely to act as a "sink" in which koala mortality exceeds reproduction.

Mr Bell agrees with Dr Smith and says that the development proposal unreasonably and inappropriately removes and harms important koala habitat and is fundamentally contrary to the statutory provisions of the Approved Recovery Plan for the Endangered Koala population of Hawks Nest and Tea Gardens. It converts important koala habitat to a filled and developed residential subdivision and serves to worsen the status of the endangered koala population and hasten its trajectory to local extinction. The development proposal does not appropriately or reasonably consider or respond to the ecological constraints on the land and needs to be further reduced in footprint.

Dr. Phillips considers that the extent of koala habitat and the size of the endangered koala population will be maintained following modification of the site in the areas shown in Figure 1 because koalas will continue to use retained habitat within residential lots and because proposed amelioration measures will be adequate to prevent mortality exceeding reproduction, and that the resulting matrix of "urban" and "natural" habitat will not act as a "sink".

86 We have also been provided with supplementary statements of evidence from Dr Smith and Mr Bell and two supplementary statements of evidence from Dr Phillips. These supplementary statements continued the vigorous disagreement between the experts noted earlier. Some of the written material provided to us, particularly in Dr Phillips' supplementary statements of evidence, used language that we consider inappropriate in the presentation of expert evidence to this Court.

87 However, having noted that, we consider it appropriate to incorporate a diagram provided in Dr Smith's supplementary statement to assist with understanding of our consideration of the koala-related evidence that follows. Dr Smith's diagram is in the following form:

88 This diagram depicts, visually, the way Dr Smith understood and analysed Dr Phillips' approach to surveying areas for their use by koalas as habitat and transit corridors. Dr Phillips' approach, known as the Spot Assessment Technique (SAT), is a sampling and analysis method devised by Dr Phillips and applied by him over a number of years. The SAT method does not appear to been peer reviewed and published in the scientific literature. Although part of the argument between Dr Smith and Mr Bell on one hand and Dr Phillips on the other hand was over the validity of Dr Phillips' Spot Assessment Technique, we have concluded that we do not need to express any opinion on this disagreement.

89 We should note that Dr Smith derived the orientation of the grid cells in this diagram from his analysis of Dr Phillips' material. The assumptions made by Dr Smith caused him to assume, incorrectly, the orientation of the grid pattern to be laid out in the fashion shown in the diagram. It was Dr Phillips evidence, which we accept (as did Dr Smith when it was explained to him), that Dr Smith misunderstood the orientation of the grid pattern and inadvertently rotated it through 45°.

90 In our view, nothing particular arises from this element of the diagram. The item of importance, in our view, comes from the relationship of the comparative shading in a number of the adjacent cells covering the central and western portion of the proposed community title subdivision allotment.

91 The shading of the sampling areas in this diagram represents an estimate of the comparative degree of use made of those areas by koalas. From the diagram, there are two areas towards the western end of Eagle Avenue, commencing at Eagle Avenue and extending into the site, which are coloured white, because no sampling was undertaken in these areas. As we understand the position, the lack of sampling undertaken in these areas is as a consequence of the basis upon which Dr Phillips' sampling method is founded. This arises because, in those areas, there were no or insufficient trees of a relevant type or size to bring his sampling method to bear. By making this observation, we are not making any critical assessment or statement of Dr Phillips' underlying method.

92 However, in the course of the evidence given in Court, it was agreed by Dr Phillips and Dr Smith that, despite the absence of sampling results from these areas, because they fell between the areas that had, to varying degrees, demonstrated levels of koala usage, it was reasonable to infer that these two areas, although unsampled, were at least used by koalas for the purposes of transiting between adjacent areas for which koala usage data had been derived.

93 The consequence of this is that the relevant portion of the site should be regarded, we accept, as having varying shades of grey across the whole of it rather than the diagrammatic inference that suggests there is no usage by koalas.

94 There was also a disagreement between Dr Phillips and Dr Smith about the extent to which species, other than Swamp Mahogany, might be being used as food sources. In addition, it was Dr Smith's evidence that trees other than Swamp Mahogany might be used by koalas as ladders or arboreal scaffolding to permit them to browse on new growth on a preferred food tree at its upper or outer levels, Such browsing techniques enable koalas to access new growth that would not be possible by climbing the food tree itself.

95 Reproduced below is an extract from one of the applicant's plans which shows the trees within the road reserve of the perimeter loop road together with the trees located on the allotments to the west of that road, Lots 4, 5, 6, 7, 23 (part), 24 and 25.

96 We are satisfied that it is likely, taking a cautious approach, based on the early literature which does not confine the species of trees used by koalas (and significant for such usage) to swamp mahogany and the fact that, properly categorised, the whole of the site comprises koala habitat, that the removal of these trees is unacceptable.

Findings 97 As a result of all of the foregoing material, we consider it appropriate to set out our findings on four separate matters. These are: o The approach to be taken to the extent to the west of the conservation area necessary to be delineated on the allotment for the proposed community title residential subdivision; o The range of the species of trees appropriate to be considered for retention as being trees significant for koala habitat; o The appropriate locations for revegetation works to be undertaken so that, in the longer-term, additional compensatory koala habitat can be provided on the site; and o The adequacy or otherwise of the sampling and assessment technique used by Dr Philips to reach the conclusions that he has reached about koala utilisation of the site.

98 We turn, first, to the question of the evidence about the appropriateness of a western boundary line and the extent to which it should be located as a basis for fixing the portion of the proposed community title residential subdivision allotment to be set aside for conservation purposes.

99 Although there is broad agreement between the earlier plans commissioned by the owner of the site (both before and after the unlawful land clearing in 2000) and, more latterly, the plan by Dr Phillips concerning the exclusion of portions of this component of the site along Eagle Avenue in the general vicinity which comprises Lots 2 and 3 and of the southern element of the eastern portion of the proposed perimeter loop road where it leaves Eagle Avenue, there is no such an agreement concerning the western extent of such conservation area or part of the loop road.

100 Although the information which we have on the boundary marked in the 1999 pre- unlawful land clearing diagram [reproduced at (35)] and the subsequent post- unlawful land clearing marked-up aerial photograph [not produced because of the quality of the copy available to us], it is clear that, in general terms, the western extension identified in these two earlier studies commissioned by the owner of the property generally coincides with western extent of the line drawn by Dr Smith and adopted by Mr Bell.

101 We note that all three of these lines have not been drawn at precisely surveyed locations, contrary to the survey plan location of the development proposal that is based on Dr Philips' advice. However, we are satisfied that there is sufficient accuracy in and coincidence between the western extent of these three lines compared to the location of the line drawn by Dr Phillips to show that those who have adopted the more western extent of the conservation area have, prima facie, taken a more cautionary approach to the designation of the extent of this area. Given that there is a significant and unresolved (and, as discussed, unresolvable by us) disagreement between Dr Smith and Dr Phillips about the validity of Dr Phillips' sampling techniques, we consider that the more conservative line is the appropriate one to adopt in this regard, and that this should be adopted on the basis of the coincidence of the three representations available about the appropriate western extent of the northern element of the conservation area.

102 Second, we are satisfied that the material set out in (46) to (60) and (62) to (75) shows a more expansive view, either expressly or by necessary implication, of the range of species of trees which are appropriate to be considered as requiring conservation for the protection of koala habitat than the more limited and less prescriptive dominant focus on Swamp Mahogany trees asserted by Dr Phillips in these proceedings.

103 Indeed, the conservative nature of this approach, we consider, is consistent with the approach advocated by Dr Phillips, in our view, by necessary implication, from the citations of his own earlier material to which we have referred and which has been set out earlier in this decision.

104 This conservative approach, including, in other literature contexts, the approach taken by Dr Phillips himself, contrasts with the more permissive approach Dr Phillips has adopted in these proceedings to the removal of non-Swamp Mahogany species of trees. Given the status of the koala it is prudent to adopt a precautionary approach to the preservation of its habitat. Further, it is appropriate on the preponderance of evidence from the earlier quoted literature coupled to the evidence of Dr Smith, that we take a more inclusive approach to the range of trees that should conserved and protected to provide maximum koala habitat.

105 Because of this, it is not appropriate to permit removal of any of the trees shown the plan following (95).

106 Third, we turn to the question of the appropriate location for compensatory revegetation works. In this regard, there is greater agreement between the earlier 1999 and 2001 proposals prepared for the owner of the property and that advocated by Dr Phillips in these proceedings.

107 However, the extent that we have information concerning the basis for locating revegetation proposals arising in the earlier studies is limited. We cannot say with any certainty whether or not these have been assessed only on the basis of providing for the re-establishment and extension of koala habitat trees or whether some broader ecological consideration was also undertaken.

108 Particularly, we have no information about the extent to which in those earlier studies may have considered the question of the impact of such revegetation on the habitat of the Eastern Chestnut Mouse. In this context, we again note that the Eastern Chestnut Mouse is listed as a vulnerable species in Part 1 of schedule 2 of the Threatened Species Act. We, however, have not been able to ascertain the date of gazettal of the Final Determination of the Scientific Committee to list this animal. This animal has, as earlier discussed, been recorded in parts of the site proposed to be conserved, on any version of a boundary line which we might adopt for conservation purposes.

109 However, we also have a significant contrast between the positions adopted by Dr Phillips and that adopted by Dr Smith and Mr Bell concerning the desirability or otherwise of undertaking revegetation works within the area identified by Dr Phillips as appropriate to be set aside for conservation purposes. The area presently proposed by Dr Phillips for such revegetation is in the open grassland areas of the site proposed to be set aside to conservation purposes. Such revegetation areas, when successful, would fill in the gaps in the upper canopy and will have the effect of modifying ground level vegetation, which presently is consistent with habitat for the Eastern Chestnut Mouse.

110 Dr Smith and Mr Bell advocate that the additional area for such revegetation should be to the south of the east-west lines of the Ecotone 1999 and Harper Somers 2001 studies as well as that advocated by Dr Phillips in these proceedings. (In these latter reports, the lines were generally consistent with each other). Revegetation works undertaken at the locations as proposed by Dr Smith and Mr Bell would require the elimination of a number of allotments in the proposed community title subdivision (being, at least, Lots 2, 3, 5 and 6 and the southern portion of Lot 7 - and probably encompassing lot 4 and the northern portion of Lot 7) and portion of the proposed perimeter road at its eastern end to Eagle Avenue.

111 Although we accept that the various revisions which have taken place to the design of the perimeter loop road, where it turns at its north-eastern corner to commence running generally parallel with Kingfisher Avenue, have now protected the area where there has been past detection of the presence of the Eastern Chestnut Mouse, we are satisfied that we should also take a cautious attitude to habitat protection for this animal.

112 Although we have limited information concerning this animal [see (108)] and its habitat range, the proximity its identified occurrence in relation to the area where Dr Phillips proposes that the revegetation should be undertaken (adversely modifying its potential habitat value for this animal) is a matter of concern. The adoption of a precautionary approach to the protection of Eastern Chestnut Mouse habitat causes us to conclude that we should prefer the locations identified by Dr Smith and Mr Bell for koala habitat revegetation in preference to the area proposed by Dr Phillips.

113 We do not understand there to be any disagreement between Dr Phillips, Dr Smith and Mr Bell about the desirability of such revegetation activities in principle. Consequently, it follows logically that the subdivision supporting structures such as the road, drainage and service provision along with residential building development on the allotments identified above are inappropriate because of their likely impact on habitat and its occupants.

114 Finally, we turn to the vigorous disagreement between Dr Smith and Dr Phillips concerning Dr Phillips' Spot Assessment Technique as a scientific tool for identifying location and frequency of koala activity across this (or any other) site.

115 Although there is this unresolved and fundamental disagreement about the validity of Dr Phillips' sampling technique and the precision with which inferences can be drawn from it, we accept that his is the only relevant sampling data available to us and that it is appropriate to be used to draw a broad inferences about utilisation by koalas across all of the site. To that extent, we are satisfied that it is appropriate to regard the whole of the relevant portion of the site as koala habitat in the sense that it is used by koalas for a variety of purposes including food sources, resting places or as transit paths between areas that are used for these two purposes. Conclusion 116 The conclusion that we have reached on the principal issue is that the present proposal should be refused because the line drawn by Dr Smith is the appropriate boundary for any development at the western end of the allotment. We have also concluded that it would not be possible for us, within the scope of the present application, to permit a redesign of the subdivision to confine it to the west of that line (if the applicant wished to do so), because, in our view, such a redesign would be such a significant change to the present proposal that a fresh assessment of it would be warranted.

117 It follows, therefore, it is not appropriate, as discussed by Bignold J in Manzie v Willoughby City Council [1996] LEC 26, for us to express any opinion on the subsidiary issues noted at (18) because doing so would merely constitute providing gratuitous advice to some possible future decision maker about a hypothetical possible future application of which we can have no detail.

118 However, as we noted at (13), we do not understand there to be any objection to the three-allotment subdivision. As a consequence, although we reject the proposed community title residential subdivision, we do not consider it appropriate to deny the applicant the three-allotment subdivision if the applicant wishes to take up such a limited consent. Therefore, the orders that we make in these proceedings will permit that to occur, should the applicant so wish, but will provide that, if this has not taken place within 14 days of the date of this decision, the appeal will be dismissed in its entirety.

Orders 119 The orders of the Court, therefore, are that: 1. Development Application 201-8-2004 is granted consent for the subdivision of the existing allotment into three allotments (subject to the settlement and electronic filing of conditions of consent agreed to by the applicant and the Minister to give effect to this and filing of a plan of subdivision confined to this subdivision); 2. The proposed further subdivision to create a community title residential subdivision on proposed Lot 28 is refused development consent; 3. If conditions of consent are not agreed to by the applicant and the Minister to give effect to the three allotment subdivision within 14 days of the date of this decision, the applicant has liberty, on two days notice, to relist the matter to deal with any dispute over such conditions as are necessary to give effect to the approved three allotment subdivision; and 4. If no agreed conditions of consent and plan of subdivision to give effect to the three-allotment subdivision are filed within 14 days of the date of this decision and the applicant has not exercised its liberty to relist by giving notice to the Minister and the Court, by the close of business on 20 March 2009, the appeal is dismissed; and 5. The exhibits are returned.

Tim Moore Dr Mark Taylor Commissioner of the Court Commissioner of the Court

09/03/2009 - Typographic error - Paragraph(s) 83 10/03/2009 - 1. Typographic errors2. Formatting corrections - Paragraph(s) 1. 19, 22, 51, 1102. 48 and 49

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Northwest Residential Pty Limited v Minister for Planning [2009] NSWLEC 1065 This decision has been amended. Please see the end of the judgment for a list of the amendments.

CASES CITED: Carmody v Brancourts Nominees Pty Limited; Carmody v Brancourt [No. 2] [2003] NSWLEC 84 Manzie v Willoughby City Council [1996] LEC 26

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Judgment (129 paragraphs)

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Cases Cited (2)