Providence Projects Pty Ltd v Gosford City Council

Land and Environment Court (NSW)|2006-02-17|Before: Bignold J, Ms J

CITATION : Providence Projects Pty Ltd v Gosford City Council [2006] NSWLEC 52

APPLICANT: Providence Projects Pty Ltd PARTIES : RESPONDENT: Gosford City Council

FILE NUMBER(S) : 11626 of 2004; 10101 of 2005

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 97

BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; BT Goldsmith Planning Services Pty Limited v Blacktown City Council [2005] NSWLEC 210; CASES CITED: Murrumbidgee Ground-water Preservation Association v Minister for Natural Resources (2004) NSWLEC 122; NSW Land and Housing Corporation v Campbelltown City Council (2002) 126 LGERA 348; Vaw (Kurri Kurri) v Scientific Committee (2003) 128 LGERA 419

DATES OF HEARING: 02-03/06/2005, 06/07/2005, 12-13/12/2005

APPLICANT: Ms J Jagot, Barrister SOLICITORS McKees Legal Solutions LEGAL REPRESENTATIVES: RESPONDENT: Mr M Fraser, Barrister SOLICITORS P J Donnellan and Co

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11626 of 2004; 10101 of 2005 PROVIDENCE PROJECTS PTY LIMITED v GOSFORD CITY COUNCIL

JUDGMENT HIS HONOUR: A. INTRODUCTION 1 These are two related appeals pursuant to the Environmental Planning and Assessment Act 1979, s 97 (the EP&A Act) against the refusal by Gosford City Council (the Council) of two related development applications concerning land having frontages to Hillview and Veron Roads at Woy Woy known as Lot 17 DP 833218. The ancillary application proposes the creation of an allotment (the development site) upon which the principal development (comprising a retirement village) is to be located. The proposed lot is located to the east of a drainage channel which bisects the existing parcel upon the western sector of which is developed an existing Catholic Church School.

2 The development site is 1.166 hectares in area, being rectangular in shape with a frontage of 156 metres to Hillview Street. It is zoned Residential 2(a) under the Gosford Planning Scheme Ordinance (the LEP).

3 To the north of the site are a number of residences which have frontages either to Hillview Street or to Dulkara Road, the east-west running street, immediately to the north of the site. These residences have boundaries to the site which are fenced. To the south of the site is a small Council reserve fronting Veron Road.

4 The site is significantly vegetated but it is agreed that there has been, in the past, some degree of clearing that had taken place in the centre on the site. The soils can be described as sandy although their technical characterization, discussed later in this judgment, is a matter requiring consideration in light of the determination of the Scientific Committee made pursuant to the Threatened Species Conservation Act 1995 (the TSC Act) which is relevant to these proceedings.

B. THE DEVELOPMENT PROPOSALS 5 The ancillary application proposes the creation of a lot comprising the development site out of an existing larger parcel of land. The proposed residue portion of the larger parcel of land is located to the west of the drainage channel, and is developed by the St John the Baptist Primary School. The proposed residue portion has a major frontage to Veron Road.

6 The major application proposes the construction on the site of a managed retirement village comprising 39 residential units and associated communal recreational facilities. Although the managed retirement village is not a permissible use in the zone under the LEP, because the proposed development is to be erected on land which is residentially zoned, the over-riding and facultative provisions of State Environmental Planning Policy Seniors Living render the proposal permissible. The proposed development on the proposed development site is illustrated on the plan annexed hereto and marked "A" (As will presently be revealed that plan represents the revised plan of the original proposal.)

7 Although these proceedings involve these two separate applications, the parties have agreed that there is nothing controversial concerning the subdivision application, but as it is to be appreciated as entirely ancillary or subordinate to the major development proposal, the parties agree that if the managed retirement village application fails, the subdivision should not be permitted as a separate consent. I shall determine both matters on the basis that, if the application for the managed retirement village development is unsuccessful, both appeals are to be dismissed. Of course, the converse also applies.

C. THE ISSUES RAISED 8 The sole determinative issue raised by the Council (and supported by community submissions) concerns the impact that the proposed managed retirement village would have on an endangered ecological community known as Umina Coastal Sandplain Woodland (UCSW) which is present on the site. 9 As discussed later in detail, there were significant and irreconcilable differences between the opinions of the various ecological experts as to the extent of the presence of UCSW on the site. There were also significant differences between the parties as to the status and legal adequacy of a species impact statement (SIS) prepared on behalf of the Applicant in support of the principal development application.

10 The only issue, raised by the Council, of compliance with the provisions of that State Environmental Planning Policy Seniors Living, on the merits of development, fell away during the course of the hearing.

11 A number of other issues were raised by the community submissions opposing the development. However, given the conclusions I have reached concerning the UCSW issues, these do not require to be separately determined.

D. THE HISTORY OF THE PROCEEDINGS 12 The appeals have had a somewhat chequered history. The original phase occurred in June 2005 involving two days of hearings on the original application involving a slightly more intensive form of development (43 units with an overall slightly greater building footprint) than that which is currently before the Court. 13 As part of that hearing, I inspected the development site in company with Commissioner Moore (whose assistance pursuant to the Land and Environment Court Act 1979, s 37(1) I gratefully acknowledge) the representatives of the parties, the various experts and members of the local community. I also inspected another small stand of UCSW located nearby in the grounds of Umina High School (situate a short distance from the development site). 14 During the course of the original hearing, Dr Clements, the Applicant's own expert witness on the relevant ecological issues, gave evidence that, based on the extent to which she accepted the presence of UCSW on the site, a buffer zone to those areas of some 10 m was the minimum required to permit protection of the community. (This represented a significant concession by the Applicant which had originally propounded its case upon the basis that there was very little or no UCSW on the development site). Such a buffer zone required significant modification of the proposed development. On the basis of her evidence, the Applicant applied for and was granted an adjournment to permit it the opportunity to revise its plans to provide for such a buffer zone. The Council was opposed to the revision of the application. Instead, it sought the dismissal of the appeal. 15 The hearing, based on revised plans, subsequently resumed and was completed in December 2005. Prior to that resumption, the Council had opposed the grant of leave for the Applicant to rely upon the revised plans submitting that the revision was a new proposal which should be processed afresh. In fact, during the adjournment of the hearing (after leave had been granted to the Applicant to rely upon revised plans of the proposal) to enable the Council to publicly notify the revised proposal and to consider the revised plan, that revision and the supporting SIS were publicly exhibited. However, this process, did not result in the Council determining the revised application. (Nor did it seek the concurrence of the Director of National Parks and Wildlife pursuant to the EP&A Act, s 77A). Instead, having publicly exhibited the revised proposal and the SIS, the Council, upon resumption of the hearing, maintained its opposition to the revised proposal, including the raising of objections to the legal adequacy and competency of the SIS which had somewhat unusually (albeit precautionarily) been prepared on an alternate basis, thereby accommodating the possibility that UCSW was more widely distributed on the development site than the more limited peripheral distribution that had ultimately been conceded by the Applicant in the original phase of the hearing. The Applicant no doubt took this course in the knowledge that the Court appointed expert, Ms James held, and expressed, the opinion that the distribution of the UCSW was throughout the development site. 16 An examination of the SIS supporting the Applicant's revised proposal clearly indicates a concentration of attention on the scenario of a more limited peripheral distribution on the development site of the UCSW and although the alternate scenario of a widespread distribution throughout the site is addressed by the SIS, the content of the SIS in that respect is conspicuously spare. This feature of the SIS was naturally enough seized upon by the Council at the hearing as demonstrating a perfunctory, token and inadequate appraisal of the alternate scenario to such an extent as to found the Council's submission that the SIS was legally inadequate and invalid on account of the deficiencies in its consideration of the impact of the revised development on the UCSW, if it were so widely distributed as the alternate scenario had recognised. (There were additional allegations of inadequacies in the SIS made by the Council unrelated to the alternate scenario. Although these allegations raise matters of some general importance, in view of my appraisal of the SIS, I do not propose to consider further the alleged legal deficiencies in the SIS.) E. UMINA COASTAL SANDPLAIN WOODLAND (i) An endangered ecological community 17 On 6 December 2002, the Scientific Committee established pursuant the TSC Act, made a final determination (the final determination) confirming the existence of an endangered "ecological community" it described as Umina Coastal Sandplain Woodland (UCSW). 18 In the usual fashion, the final determination deals with a variety of matters upon which the determination is based. 19 Paragraph 1 of the final determination commences by recording: The Umina Coastal Sandplain Woodland is the name given to the ecological community recorded on coastal sands on the Woy Woy peninsula from the local government area of Gosford (within the Sydney Basin Bioregion).

20 Paragraph 1 then lists 75 species - an assemblage of which characterise UCSW. 21 Paragraph 2 of the final determination records: The total species list of the community is considerably larger than that given above, with many species present in only one or two sites or in very small quantity. The species composition of a site will be influenced by the size of the site, recent rainfall or drought condition and by its disturbance (including fire) history. The number of species, and the above ground relative abundance of species will change with time since fire, and may also change in response to changes in fire regime (including changes in fire frequency). At any one time, above ground individuals of some species may be absent, but the species may be represented below ground in the soil seed banks or as dormant structures such as bulbs, corms, rhizomes, rootstocks or lignotubers. The list of species given above is of vascular plant species, the community also includes micro-organisms, fungi, cryptogamic plants and a diverse fauna, both vertebrate and invertebrate. These components of the community are poorly documented.

22 Paragraph 3 of the final determination notes: Umina Coastal Sandplain Woodland has been recorded from the local government area of Gosford (within the Sydney Basin Bioregion).

23 Paragraph 4 of the final determination contains the critical botanic description for the identification of the presence of a community of UCSW at any location. It reads: Umina Coastal Sandplain Woodland is a low woodland dominated by trees of Eucalyptus botryoides and Angophora floribunda with a diverse understorey of sclerophyllous shrubs species including Banksia integrifolia, Banksia serrata, Monotoca elliptica, Macrozamia communis, Acacia ulicifolia, Platysace lanceolata, Acacia suaveolens and Allocasuarina littoralis.

24 Paragraph 5 of the final determination records the history of identification of the community. It reads: Umina Coastal Sandplain Woodland has been recorded on coastal sands on the Woy Woy Peninsula at Umina and Pearl Beach. The woodland was described in 1952 by Burges & Drover (1952) who described Eucalyptus botryoides as predominating immediately behind the beach with Angophora floribunda predominating for up to 2 km from the beach. They described the soils as iron podzols and distinguished them from humus podsols with Angophora costata which occurred further away from the beach. Umina Coastal Sandplain Woodland occurs on soils of the Woy Woy Soil Landscape (Chapman & Murphy 1989). Umina Coastal Sandplain Woodland is part of the vegetation described as Coastal Dune Forest (map unit 9t) in Benson & Howell (1994).

25 Paragraph 6 of the final determination specifies the known occurrence of UCSW as at the date of the determination. UCSW is described as being only known from three small areas at Umina; at Umina Oval, McEvoy Oval and Umina High School and at a tiny remnant at Little Patonga Beach. The total area still surviving in 2002 is estimated at less than 2 ha. Understorey has been removed for the occurrence at Pearl Beach. 26 Paragraphs 7 and 8 read: Umina Coastal Sandplain Woodland has been extensively cleared for suburban development and remnants are not within conservation reserves. Remnants are very small and threatened by mowing and slashing, weed invasion, sand extraction and modified fire regimes. Weed species include Lantana camara, Chrysanthemoides monilifera, Ipomoea cairica, Paspalum urvillei, Bidens pilosa , Pennisteum villosum, Coreopsis lanceolata and Ehrharta erecta .

In view of the above the Scientific Committee is of the opinion that Umina Coastal Sandplain Woodland in the Sydney Basin Bioregion is likely to become extinct in nature in New South Wales unless the circumstances and factors threatening its survival or evolutionary development cease to operate. 27 Some element of UCSW is located on the small Council reserve fronting Veron Road. The extent of the community on this reserve is of no material significance in these proceedings save for the fact that it, obviously, must be considered to form part of the total remaining stock of that community which continues in existence. 28 During the course of the expert evidence, the extent of the known occurrences of UCSW was canvassed by the ecological experts. This would be of some importance in these proceedings if the known area of UCSW was significantly (or, indeed, radically) larger than that contained on those sites identified by the Scientific Committee in paragraph 6 of the final determination. That the occurrence of UCSW is more widespread that those sites identified by the Scientific Committee is self-evident from the fact that no portion of the development site or the adjacent Council reserve is identified by the Committee. 29 The original nomination of UCSW for consideration by the Scientific Committee was made by Mr Payne, an ecologist who did the fieldwork supporting the nomination. Mr Payne was one of the Applicant's expert witnesses in these proceedings and was the author of the SIS supporting the revised development proposal. Mr Payne advanced the thesis, on behalf of the Applicant, that, in reality, UCSW should be regarded as a form of local occurrence of another much larger ecological community. (A similar view had been expressed by the National Parks and Wildlife Service in opposing the proposed final determination by the Scientific Committee.) 30 If such a thesis were to be accepted (and I understood this is not accepted by Ms James, the Court-appointed expert, or those giving evidence on behalf of the Council), the area of the ecological community of which the development site would form part would be dramatically expanded. As a consequence, the impact on that expanded community of the destruction of any UCSW on the development site (if I were to prefer the view of its extent advanced by the Court-appointed expert and those giving evidence on behalf of the Council) would be much less significant. 31 I do not need to express a view on Mr Payne's thesis, as the Scientific Committee's final determination is a complete answer to it. I have no statutory role to go behind the Committee's determination and must deal with the issues in these proceedings on the basis of the matters determined by, and set out in the determination of, the Committee. (No question of the validity of the final determination, as opposed to its interpretation was raised in these proceedings.) Of course the Committee's determination must be interpreted, but its proper interpretation will be one that accords with the approach adopted in the separate judgments of Beazley JA and Hodgson JA in Vaw (Kurri Kurri) v Scientific Committee (2003) 128 LGERA 419 at 450 to 455 and at 459 to 460, respectively when considering a determination by the Committee of another endangered ecological community. (During the original phase of the hearing, the Applicant's case that little or no UCSW existed on the development site was principally founded on legal interpretations (adopted by the Applicant's ecologists) of the meaning and scope of the Committee's final determination. As the case developed (and after the SIS was prepared), this aspect of the Applicant's case seemed to be abandoned only to be attempted to be belatedly revived in the Applicant's final address. In view of the course of the hearing, I do not think this belated revival of legal interpretations of the final determination warrants serious consideration since it is essentially inconsistent with the case ultimately presented by the Applicant at the hearing). (ii) The present vegetative condition of the development site 32 Although there has been some clearing of the centre of the site, at some time in the past, and although there is a network of informal paths through the site from the Hillview Street frontage to the cleared maintenance way along the drainage canal on the western side of the site, the experts agreed that the vegetation is in a reasonable condition and that there is no significant weed invasion of the site. 33 There is also agreement that there is, at the present time, limited impact as a consequence of this track network and limited edge effect impact on the vegetation along the western, northern and eastern public interfaces of the site. The southern boundary of the site is not subject to possible present or future edge effects as it is continuous with the vegetation in the small Council reserve on the corner of Hillview Street and Veron Road. (iii) The agreed minimum extent of the existence of UCSW on the site 34 There have been two conferences between the ecological experts - one with respect to the revised plans presently before the Court and one covering those in the original proposed design. During the earlier phase of the hearing, the experts reached agreement as to the minimum area of UCSW which was located on the site. This was marked by an orange boundary on a plan tendered as Exhibit 16. A copy of that plan is annexed hereto and marked "B". This extent of UCSW was described in the proceedings as "Option A" (conformably to the terminology adopted in the SIS). According to the SIS, the area of the development site comprising Option A is 2033 square metres (ie 20 percent of the total area of the site). 35 That plan depicts in effect a fringe of UCSW along the northern boundary; a small continuation of that fringe along the western boundary in the north-western corner; a wider fringe along the eastern boundary to a point near the middle of that street frontage; a gap through which it is proposed that the driveway of any development will be located; a further substantial fringe along the south-eastern element of the frontage continuing, to some degree, along the common boundary with the Council reserve; and, finally, an extremely minor element in the south-western corner (which is a continuation of an element of UCSW on the Council reserve). 36 During the resumed hearing, the Applicants' experts sought to modify, to a minor degree, the agreed Exhibit 16 position depicting the minimum extent of UCSW. This modification was with respect to the agreed element on the north western section of the site's boundary where Dr Clements indicated that, following an examination of the tree survey, she no longer considered that that area should be regarded as UCSW. 37 In the overall context of the vegetation on the development site, it is appropriate to note that there is a substantial corkwood tree located in approximately the centre of the site. There is agreement between the experts that this tree warrants preservation and such preservation has been provided, it is agreed, in both the earlier plans and those presently before the Court. The presence of this tree is not material to the assessment of the extent of UCSW on the site. 38 It is also appropriate to note that the relevant understorey indicative of the presence of UCSW is present across the whole of the site. However, since this understorey is also consistent with ecological communities other than UCSW, its presence does not by itself determine the presence of UCSW (whereas its absence would have been more conclusive in the opposite direction). (iv) The disagreement between the experts as to the extent of UCSW 39 There is substantial and fundamental disagreement between the experts as to whether or not the UCSW extends beyond the agreed area as marked on Exhibit 16. 40 The Applicant's experts are firmly of the view that it does not whilst the Court-appointed expert and those advising the Council consider that it covers the whole of the site. The "cover the site" position was described in the proceedings as Option B (again reflecting the terminology employed by the SIS). (v) The tree survey post the SIS 41 The results of a plotted and tabulated tree survey undertaken in September 2005 were tendered as Exhibit T (a copy of which is annexed hereto and marked "C"). (vi) The further botanic survey post the SIS 42 Exhibit 16 also includes, as pencil annotations, the result of a further botanic survey undertaken by Mr Payne to identify other trees that are located on the site and which did not meet the threshold tests for inclusion in the tree survey (Exhibit T).

43 That survey was qualified by the annotation that "In general only significant trees with a trunk diameter of over 0.3m" were marked on Exhibit T. 44 Apart from the botanic identification of these additional specimens, no further information is available to the Court as to the trunk size, canopy spread or possible age or health of any of these specimens. (vii) A possible third option concerning the extent of UCSW on the site? 45 During the course of the hearing, it was put to the experts that another option (ie other than Options A and B) might be considered a possibility. Commissioner Moore put this to the experts in light of the additional tree information available from Mr Payne's botanic survey when considered in the context of paragraph 4 of the Scientific Committee's final determination which states: Umina Coastal Sandplain Woodland is a low woodland dominated by trees of Eucalyptus botryoides and Angophora floribunda with a diverse understorey of sclerophyllous shrubs species including Banksia integrifolia, Banksia serrata, Monotoca elliptica, Macrozamia communis, Acacia ulicifolia, Platysace lanceolata, Acacia suaveolens and Allocasuarina littoralis.

46 This possible third option involved, effectively, including the entire north-eastern sector of the development site together with an additional area in the south-eastern corner as being UCSW whilst excluding approximately one third of the site in the south central and south-western portion of the site. This possibility was discussed at the hearing as Option C. 47 Option C is founded on paragraph 4 of the final determination characterising UCSW as a low woodland dominated by trees of two species - Eucalyptus botryoides and Angophora floribunda and Mr Payne's recent botanic survey (defined by the additional pencil markings on Exhibit 16) recording two occurrences of E botryoides and numerous specimens of A floribunda in the northern portion of the site outside the boundary of the agreed area of UCSW marked on Exhibit 16. 48 He also records a number of specimens of A floribunda (but none of E botryoides) in the area adjacent to the UCSW in the south eastern portion of the site. 49 Whether the presence of these additional specimens indicated the presence of UCSW or not was a matter of further disagreement between the experts. Dr Clements was of the opinion they were not and Mr Payne supported her in this view. 50 On the other hand, Ms James and Council's experts were of the view that, if I did not accept their primary opinion that the ecological community was present across the whole of the development site (for the reasons which they had advanced in their statements of evidence), the presence of these indicator tree species was relevant and would justify the conclusion that at least these additional areas were inhabited by UCSW. 51 The question how I should regard the presence of these plants (about which, as I have earlier noted, I have no detailed information as to size or health) in the context of paragraph 4 of the final determination itself becomes an important subset of the crucial disputed question whether UCSW is distributed generally throughout the development site. 52 Dr Clements was of the view that the word dominated in paragraph 4 of the final determination meant that there needed to be a presence of canopy trees and that the two indicator species needed to predominate amongst those trees. Neither of these criteria applies to these additional specimens. 53 She was also of the opinion that there was no certainty that, in twenty years time, all or any of these trees would have grown to maturity as canopy trees and thus provide any possibility of satisfaction of the provisions of paragraph 4 of the final determination (according to her interpretation of its meaning and intent). 54 On the other hand, although she expressed doubts as to whether this would occur, she did not say that there was any certainty that this would or could not occur. 55 As a consequence, it would seem to me that whether or not I am in a position to assume that these indicator specimens demonstrate a present occurrence of a developed ecological community, I cannot be certain that there is not a nascent UCSW community present on the development site beyond the extent of its agreed existence as depicted on Exhibit 16. (viii) Conclusions as to the presence of UCSW on the development site 56 In light of the foregoing considerations, a number of conclusions are able to be made concerning the presence of UCSW on the development site. These are as follows: · The area shown by the orange boundary in Exhibit 16 (except for the area in the north-western corner now not accepted by Dr Clements) definitely reflects the presence of UCSW; · With respect to the now contested area in the north-western corner, the fact that an examination of Exhibit T (the tree survey) does not disclose any material difference between the trees present at the time of the agreement being reached (as shown in Exhibit 16) and those trees shown as being present in Exhibit T, leads me to conclude that I should prefer the Exhibit 16 agreed position. I therefore determine that UCSW is also present on the north-western corner as originally agreed. (The consequence of this conclusion is that one element of the originally agreed community would be impacted by the current proposal); · With respect to the areas in the northern portion of the site and in the south-eastern portion of the site adjacent to the Exhibit 16 agreed areas, where new knowledge of the presence of the two species Eucalyptus botryoides and Angophora floribunda (the latter in some frequency) arises from Mr Payne's more recent botanic survey, I am comfortably satisfied, on the balance of probabilities, that UCSW is present in those areas defined by the additional pencil markings on Exhibit 16. The degree of my satisfaction is somewhat stronger with respect to the northern of these two portions because of the absence of E botryoides in the southern of these portions; and · With respect to the remainder of the site (the central and south-western portions of it) I am unable to resolve, on any scientific basis founded on the evidence, the disagreement between the experts. Therefore, I am unable to determine whether or not UCSW is present on that portion of the site. This conclusion necessarily follows from the strongly expressed and irreconcilable disagreement between the experts and the absence of either the determinative tree species noted in paragraph 4 of the final determination. However, as will later appear, this inconclusive result will need to be reviewed to reflect the application of the precautionary principle. 57 In assessing the extent of UCSW on the site (beyond the agreed position), I have considered the criticism of Ms James' analysis made by Ms Donald, a statistician who gave evidence on behalf of the Applicant. 58 This criticism does not impact the conclusion which I have reached concerning the additional area of the site which should be regarded as UCSW which is primarily based on the additional tree information and the inferences to be drawn from it. 59 Moreover, I am not satisfied that Ms Donald's evidence significantly undermines Ms James' evidence about the remainder of the site in respect of which I am unable to reach a definite conclusion as to the occurrence or not of UCSW. Ms James' conclusion about the remainder of the site is supported by the Council's experts and their views were not shaken during the hearing (which involved the reception of concurrent oral evidence by all the ecological experts, their questioning of each other and their cross-examination). 60 In reaching the foregoing conclusions, I have taken into consideration the differences between the expert witnesses relating to the soil types identified on the development site. That issue arises because the final determination states, in one sentence in paragraph 5, that the occurrence of UCSW is related to the type of soils that are present on sites where it is found. It does so in the context of the state of its knowledge of the soil types expressed in the data available to it. In this respect, the terms of the final determination in referring to a referenced 1952 study, states: They described the soils as iron podzols and distinguished them from humus podsols with Angophora costata which occurred further away from the beach. 61 It is accepted by the experts that iron podzols are not found on the site - however, humus podsols are. 62 However, Mr Payne provides assistance on this issue, at page 23 of the SIS where he summarises the present position about the distribution of various soil types at a number of the locations where UCSW is acknowledged to exist. 63 This summary confirms that the soil type position is not as absolute as may be suggested in the final determination. As a consequence, I am satisfied that, although the soil types of the site do not reflect the soil types identified by the Scientific Committee, this fact of itself does not preclude my conclusions as the presence of UCSW on the site (in the same way that it obviously did not preclude the experts agreeing upon the extent of UCSW on the site). F. SCOPE FOR THE APPLICATION OF THE PRECAUTIONARY PRINCIPLE 64 The conclusions that I have expressed in respect of the extent of the existence (and distribution) of the UCSW on the development site (including my open finding as to whether UCSW is distributed throughout the site) give rise to the question of the application in the present case of the precautionary principle. 65 The precautionary principle is one of the stated principles of the "ecologically sustainable development". That concept (which originated in international environmental protocols) was added to the objects stated in s 5 of the EP&A Act in 1998 (when Act No 152 of 1997 commenced). However, at that time, the EP&A Act provided no definition of the concept, although it was already defined in other existing legislation. This specific legislative lack has now been made good by the Environmental Planning and Assessment (Infrastructure and other Planning Reform) Act 2005 (Act No 43) introducing into the definition section of the EP&A Act the following definition: Ecologically sustainable development has the same meaning it has in section 6(2) of the Protection of the Environment Administration Act 1991 66 Section 6(2) of that Act is in the following terms: For the purposes of subsection (1) (a), ecologically sustainable development requires the effective integration of economic and environmental considerations in decision-making processes. Ecologically sustainable development can be achieved through the implementation of the following principles and programs: (a) the precautionary principle - namely, that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. In the application of the precautionary principle, public and private decisions should be guided by: (i) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and (ii) an assessment of the risk-weighted consequences of various options, (b) inter-generational equity - namely, that the present generation should ensure that the health, diversity and productivity of the environment are maintained or enhanced for the benefit of future generations, (c) conservation of biological diversity and ecological integrity - namely, that conservation of biological diversity and ecological integrity should be a fundamental consideration, (d) improved valuation, pricing and incentive mechanisms - namely, that environmental factors should be included in the valuation of assets and services, such as: (i) polluter pays - that is, those who generate pollution and waste should bear the cost of containment, avoidance or abatement, (ii) the users of goods and services should pay prices based on the full life cycle of costs of providing goods and services, including the use of natural resources and assets and the ultimate disposal of any waste, (iii) environmental goals, having been established, should be pursued in the most cost effective way, by establishing incentive structures, including market mechanisms, that enable those best placed to maximise benefits or minimise costs to develop their own solutions and responses to environmental problems. 67 It was while the EP&A Act did not provide a statutory definition of the term "ecologically sustainable development" that McClellan CJ in BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237 was required to determine whether the precautionary principle should be applied to the decision required in that case of determining an appeal against the Council's refusal of a development application. His Honour, after comprehensively reviewing the relevant case law and relevant legislation, (including the origins of the concept of ecologically sustainable development in international symposia) held that the precautionary principle should be applied to the decision required to be made in that case, when he expressed the following conclusions at pars 113 and 114: In my opinion, by requiring a consent authority (including the Court) to have regard to the public interest, s 79(C)(e) of the EP&A Act obliges the decision-maker to have regard to the principles of ecologically sustainable development in cases where issues relevant to those principles arise. This will have the consequence that, amongst other matters, consideration must be given to matters of inter-generational equity, conservation of biological diversity and ecological integrity. Furthermore, where there is a lack of scientific certainty, the precautionary principle must be utilised. As Stein J said in Leatch , this will mean that the decision-maker must approach the matter with caution but will also require the decision-maker to avoid, where practicable, serious or irreversible damage to the environment.

Consideration of these principles does not preclude a decision to approve an application in any cases where the overall benefits of the project outweigh the likely environmental harm. However, care needs to be taken to determine whether appropriate and adequate measures have been incorporated into such a project to confine any likely harm to the environment. 68 These passages affirm the legitimate application of the precautionary principle on the discharge of the duty imposed by the EP&A Act, s 79C(1) to determine a development application. 69 But the legitimate application of the precautionary principle under the EP&A Act is not confined to that particular application. For example, earlier in his judgment, in BCP Properties, McClellan CJ had recognised the legitimacy of a wider application when he said at par 82: Before considering the evidence in relation to each issue and its significance to the decision in this appeal, it is necessary to resolve the approach to be taken to the evaluation of some matters. The evidence raises for consideration a number of complex issues relating to the potential impact of the development on threatened species and ecological communities or their habitats. When such issues are raised, there is often difficulty in arriving at absolute conclusions as to the existence of a relevant species, community or habitat and their disposition on a given site. Even greater difficulties can arise in identifying the impacts from the development, particularly when the proposal accepts that impacts will occur but seeks to ameliorate them by carefully designing the development and providing for ongoing operation or maintenance within an environmentally sensitive framework. 70 In the earlier decision in NSW Land and Housing Corporation v Campbelltown City Council (2002) 126 LGERA 348, faced with competing expert evidence, I recognised (at 391) the potential application of the precautionary principle to the fact finding task of determining the environmental impact of the removal of parts of the habitat of three relevant vulnerable species of fauna. 71 More recently, Pain J in BT Goldsmith Planning Services Pty Ltd (2005) NSWLEC applied the precautionary principle to her consideration of the factors enumerated in s 5A of the EP&A Act, relevant to the determination of the likelihood of a significant impact of threatened species etc. 72 Her Honour had raised the question of the application of the precautionary principle when she had earlier noted (at par 68) that "the evidence on the extent of CPW (Cumberland Plain Woodland) and its conservation value in the Cumberland Plain is not exact and it is therefore difficult to understand precisely the current situation of CPW across the region in understanding the assessment of the likely impact under s 5A(c) of the EP&A Act". 73 At par 71, she narrowed the question by asking: Should the precautionary principle apply here where no final decision is being made as to whether development consent ought to be granted, but rather a step in the assessment process is being considered, namely whether a SIS is required? 74 After citing a passage from the judgment of McClellan CJ in Murrumbidgee Ground-water Preservation Association v Minister for Natural Resources (2004) NSWLEC 122 where his Honour had stated that under the Water Management Act 2000 "the precautionary principle was a central element in the decision making process and cannot be confined….", her Honour stated the following: I consider the application of the precautionary principle is not merely confined to the final decision as to whether development consent, a license or approval ought be granted. Rather, decision-makers must consider the precautionary principle whenever decisions are being made under an Act that adopts the precautionary principle as is the case here. 75 Her Honour then proceeded to apply the precautionary principle when she said at par 73: In this matter there is uncertainty in the data provided by NPWS given it is likely to be out of date, having been collected in 1997, and it is not presently known how much CPW has been cleared or how much has been "found" since 1997. There are differences of view between Dr Robertson and Dr Mills as to whether more or less CPW exists than when the data was collected in 1997. CPW is an endangered ecological community due to the relatively small amount left on the Cumberland Plain. A precautionary approach to the consideration of factors relevant to determine the likelihood of significant impact is warranted. 76 Having regard to the statutory definition of the "precautionary principle" (as an integral aspect of the defined concept of "ecologically susceptible development") and to the decided cases which have recognised the legitimacy of applying the precautionary principle to various decision-making duties imposed by the EP&A Act, I am of the opinion that there is legitimacy in applying the precautionary principle in the present case to resolve the scientific uncertainty created by the irreconcilable expert evidence on the question whether UCSW is widely distributed over the development site. 77 The application of the precautionary principle in the present case justifies an approach which avoids the risk of serious or irreversible environmental damage by assuming the existence of the wide distribution of UCSW over the development site. This assumption accords with the opinion of the Court appointed expert and the Council's experts (which opinions are in counterpoise to the countervailing opinions of the Applicant's experts), but importantly accords with the alternate scenario (Option B) recognised in the SIS supporting the revised development proposal. 78 I have earlier noted that this feature of the SIS is unusual and most probably is to be explained by the manner in which the SIS came into existence in the course of this punctuated litigation. At various times during the punctuated hearing, the SIS was referred to as a "contingent" SIS (where the relevant contingency was the ultimate decision to be made by the Court on the disputed question of whether UCSW was widely distributed over the development site). 79 Of course, the EP&A Act does not provide for a "contingent" SIS and a more apt description of the SIS assessing Options A and B was that the content of the SIS relating to Option B was included precautionarily (to guard against the possible result of the Court accepting the relevant opinion of the Court appointed expert and holding that the Applicant's development application was invalid for want of an accompanying SIS as required by s 78A(8)(b) of the EP&A Act). 80 But once it is appreciated that the statutory obligation for an SIS to accompany a development application arises "if….the (proposed) development is likely to significantly affect threatened species….etc" and having regard to the established judicial interpretation given to the word "likely" in this statutory context, the ready application of the precautionary principle to the fulfilment of that statutory obligation is just as apparent and justified, if not more so, as its application to the statutory duty imposed by the EP&A Act, s 79C(1) of determining a development application (as was held in BGP Properties) or to the consideration of the enumerated factors in the EP&A Act, s 5A (as was held in B T Goldsmith Planning Services) 81 Accordingly, if the disputed scientific question raised in these proceedings is properly contextualised (namely within the operation of the EP&A Act, s 78A(8)(b)), then it is apparent that the Option B content of the SIS is fully justified by the application of the precautionary principle. 82 That particular application of the precautionary principle does not exhaust the application of it in the present case since it can here be anticipated that there is further scope for its application in the ultimate decision discharging the duty imposed by the EP&A Act, s 79C(1) to determine the development application. 83 This leads me initially to consider the content of the SIS, especially as it relates to Option B, before undertaking the required planning evaluation of the proposal in terms of the EP&A Act, s 79C(1). G. THE SIS 84 The SIS (Exhibit P) was prepared by Mr Robert Payne in July 2005. 85 Although the Council raised a number of criticisms going to the legal adequacy of the Applicant's SIS, I have initially proceeded to consider its content on the assumption that it is valid. If I were to conclude that it provided a sound basis justifying the grant of development consent, I would only then need to consider whether or not it was a legally adequate SIS according to the established test enunciated in the NSW Land Housing Corp case at 374/375. 86 I do not need to consider at any length the adequacy or otherwise of the SIS in respect to Option A as this only relates to the area of UCSW defined by Exhibit 16 and not the totality of the site which should be considered as if it were UCSW. 87 The SIS commences with a comprehensive detailing of the history of the investigation of UCSW, generally, and the studies undertaken on the site and the conclusions that the author, Mr Payne, considers should be drawn from them. 88 On page 30 of the SIS, under the sub-heading "Loss from Impact from the development on UCSW", Mr Payne, referring to the fact that the revised proposal would involve the loss of an area of some 80 square metres of UCSW under Option A states: The total area of UCSW over the sandplains is around 12 ha and this option would result in a loss of 0.06 percent.

(The reference to 12 ha is a reference to p 28 of the SIS where Mr Payne says: " ……in the case of the Woy Woy Umina sandplain the number and size of the sites is so small that less than 12 hectares or 2 percent of the original vegetation remains".) 89 On page 31of the SIS, he says:

Option B, which is assuming the total site area is UCSW, would result in a removal of vegetation directly and indirectly of around 0.5 ha. Given the statement by Bell that " all open forest or woodland growing on sand in the sandplains is UCSW ," then about 25 ha remains. The disturbance and loss regime would account for about 2.8 percent. If this option is accepted then the Bushland Management Plan will need to be upgraded to manage what vegetation can be retained over the site. 90 Further down that page, under the heading "Loss of Locally Significant Vegetation", he says the following:

Under Option A 100 percent of UCSW can be protected and maintained in adequate condition within the development. Some loss of trees to comply with the fire guidelines will result. Under Option B 5.8 percent of UCSW will be lost. Additional trees would also be lost to comply with the fire guidelines. 91 On page 36 of the SIS, he confirms that the loss of UCSW would be approximately 0.5 hectares. It is apparent that the discrepancy in the SIS concerning the percentage loss of 0.5 hectares in respect of the overall areas of UCSW is explained by the different estimates of the overall areas of UCSW (ie 12 hectares or 25 hectares) 92 At 8.0 of the SIS, at page 43, he says: James has prepared an eight part test of significance for Option B and concluded that the development would have a significant impact on UCSW. The test for Option B will not be repeated as that statement was agreed to by all parties at the joint meeting in the Land and Environment Court hearing. 93 Ms James' "8 Part test" assessment was included in her Report to the Court dated 8 May 2005 (as Court Appointed Expert). It accordingly was addressing the original development proposal. Her conclusion was that the proposed development was likely to have a significant impact on UCSW and that accordingly, a SIS was required. The "Summary" to her Report to the Court elaborated on the conclusion in her 8 part test and included the following: The proposed development will impact on a total area of just over 1 ha of UCSW, comprising up to 100% of the Site. There will be direct clearing or modification of vegetation for construction of buildings, road, car parking, pathways, laying of pipes, landscaped areas and filling of lower parts of the Site. Any retained areas including a vegetation buffer zone along the western edge of the village, remnant trees and ground cover areas will be fragmented, impacted by changes in habitat conditions, subject to ongoing edge effects and modified for fire protection and maintenance requirements. The area of UCSW to be cleared is significant in relation to the current known extent of the community. Based on an estimate of approx. 6 ha of UCSW remaining as intact remnants in good condition, the proposed development is likely to affect approx. 16% of the remaining extent. Furthermore, the Site comprises a significant area in relation to its good condition, despite past clearing and frequent fires, including an intact structure, specimen of the regionally significant Corkwood Endiandra sieberi . 94 The fact that the SIS adopted her 8 part test indicates that the assessment was considered appropriate to the revised proposal. (In her oral evidence, Ms James maintained her opinion that the impact of the revised proposal on the UCSW was significant). 95 It is clear that the principal focus of the SIS is to demonstrate that for Option A, the proposed development provides an acceptable environmental outcome. The focus of the entire discussion at 7.0 entitled "Ameliorative Measures" is directed to this end. In addition, the SIS notes at 6.4, in dealing with feasible alternatives that: There are no feasible alternatives to the proposal. 96 The SIS really only reveals two pieces of information concerning the environmental impact of the proposed development on Option B -

(i) it will involve the loss of an area of 0.5 hectares of UCSW being nearly 50 percent of the area of the development site and representing the loss of either 2.8 percent or 5.8 percent of the estimated overall areas of UCSW (depending upon whether those overall areas are 12 hectares or 25 hectares); and

(ii) the impact of the proposal on UCSW is significant (as disclosed by Ms James' 8 part test). 97 I have concluded that the SIS does not provide any sufficient or reasonable justification for the extent of likely destruction of UCSW by the carrying out of the proposed development on the basis of Option B which accords with my findings as to the extent of UCSW on the development site. H. THE PLANNING EVALUATION REQUIRED BY S 79C(1) OF THE EP&A ACT 98 Section 79C(1) is in the following terms: 1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) any draft environmental planning instrument that is or has been placed on public exhibition and details of which have been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the draft instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest.

99 The only issues raised by the Council in opposition to the revised development proposal concern the impact of that development on the endangered ecological community, USCW. These matters are principally relevant in terms of par (b) of s 79C(1) (the environmental impact on the natural environment). 100 The Applicant's case, in addition to disputing the Council's case and the opinion of the Court appointed expert Ms James concerning the extent to which UCSW is distributed over the development site, has laid emphasis on the fact that except for the ecological issues raised by the Council, no town planning case has ultimately been raised against the proposed development. In this latter respect, the Applicant also relies upon the established Residential zoning of the development site under the LEP and the permissibility of the proposed development under the Seniors Living SEPP (and the concession that the proposal complies with the relevant planning and design standards and criteria enunciated in the SEPP). Moreover, while acknowledging that the density of residential development achievable for the development site under that SEPP is greater than the achievable density for a residential development undertaken conformably with the LEP, the Applicant relies upon the probable environmental impacts of that notional alternative form of development, in commending as a preferable environmental outcome its revised proposal with its capability, in terms of assuming a sustained and rigorous observance of the proposed plan of management, of conserving some 2000 square metres of UCSW (ie that which is located along three of the site's boundaries). The Applicant additionally relies upon the recent history of the Council's consideration of acquiring the development site because of its high ecological value which history reached its conclusion when the Council resolved not to proceed with its public acquisition. 101 Finally, the Applicant relies upon the fact that the National Parks and Wildlife Service opposed on reasoned grounds the final determination concerning UCSW made by the Scientific Committee. 102 Faced with these competing considerations, s 79C(1) ultimately requires a balancing exercise to be undertaken by the decision-maker in coming to its decision whether to grant development consent or to refuse it. More particularly, in the present case there is on one side of the scales the significant environmental impact of the proposed development on the natural environment (and in particular the endangered ecological community UCSW) and on the other side of the scales there are the several matters weighing in favour of the proposal. 103 In describing the environmental impact as significant, I adopt Ms James' 8 part-test conclusion which was agreed to by all the ecological experts in this case. That impact justifies the epithet "significant" in view of the very small overall areas of UCSW within the Woy Woy Umina sand plan (estimated by the SIS to be either 12 hectares or 25 hectares and estimated in Ms James' 8-part test to be six hectares compared with the estimate of two hectares in the Scientific Committee's final determination). 104 Whatever be the most accurate estimate (2, 6, 12 or 25 hectares) and there is scope here to apply the precautionary principle, the loss of 0.5 hectares from the development site of 1.166 hectares of the endangered ecological community can only reasonably be regarded as significant indeed. 105 That conclusion as to the environmental impact of the proposed development remains apt and accurate, even allowing for the advantage proffered by the proposed development of the ongoing conservation and management as part of the development of an area of nearly 2000 square metres (ie the identified fringe existence of UCSW along three of the site's boundaries). 106 Ultimately, I have concluded (as I did in the NSW Land and Housing Corporation case where my judgment contains a detailed analysis of the very important changes made to the EP&A Act by and in consequence of the enactment of the TSC Act, which analysis is relevant to and supports the approach taken to my decision in the present case) that my finding of adverse environmental impact of the proposal on the natural environment (in this case the endangered ecological community UCSW) outweighs the competing factors weighing in favour of the grant of development consent to the proposal. 107 In so concluding, I have not thought it appropriate to revisit or to reopen the competing expert opinions on the extent of UCSW on the development site or the Applicant's original stance as to the proper interpretation of the final determination of the Scientific Committee in respect of UCSW. 108 This is so, for the reasons I have already given in applying the precautionary principle to the various decision-making tasks required in this case. Those tasks necessarily commenced with the decision that a SIS was necessary to accompany the proposed development. They necessarily conclude with the planning evaluation required by the EP&A Act, s 79C(1). 109 In discharging both those decision-making tasks, I have encountered competing expert opinions. In reaching the required decisions, I have given legitimate scope to, and applied, the precautionary principle in the manner I have indicated. I. CONCLUSIONS AND ORDERS 110 For all of the foregoing reasons, development consent must be refused to the proposed retirement village. 111 Conformably to that decision and the parties' agreement that the result of that application should govern the result of the related subdivision application, that application must also be refused. 112 Accordingly, I make the following orders -

In each of the related proceedings, the appeal be dismissed.

In each of the related proceedings, development consent be refused.

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.

(2004) 138 LGERA 237

(2002) 126 LGERA 348

(2003) 128 LGERA 419

At a glance

Court

Decision date

Before

Source

Judgment (39 paragraphs)

Parties

Cases Cited (4)

Cited By (1)