Sanctuary Investments Pty Ltd & Ors v Baulkham Hills Shire Council

[18]

13 The applicants suggest a deferred commencement condition to require the acquisition of this land or some alternative land to the satisfaction of the Department of Environment and Conservation prior to the development consent becoming operative. Alternatively, the applicants offer to enter into a planning agreement with (presumably) the Council, Ku-ring-gai Council and the Department in accordance with ss 93F to 93L of the EPA Act, to the same general effect as the suggested deferred commencement condition. The offer triggers the application of s 79C(1)(a)(iiia) of the Act (which requires the consent authority to take into consideration any planning agreement that has been entered into under s 93F, or any draft planning agreement that a developer has offered to enter into under s 93F). C. Planning controls 14 The site is zoned Residential 2(d)(Protected) under Baulkham Hills Local Environmental Plan 2005. LEP 2005 was made on 26 August 2005. Clause 13(2) provides that consent must not be granted unless the consent authority is satisfied that the proposed development: (a) is consistent with one or more of the aims of this plan and any relevant objectives for development, and (b) is not contrary to achieving the objectives of the zone within which it will be carried out. 15 Relevant aims of the LEP 2005 in cl 2(1) include: ( a) With respect to the natural and built environment of the Baulkham Hills local government area, to conserve and enhance the natural and built environment of Baulkham Hills for present and future generations, 16 Relevant objectives for development in cl 2(2) include: (ii) protect and enhance the area's biodiversity, and (iii) ensure that environmentally sensitive areas are suitably protected, and … (v) respect, improve and integrate with the local character of the locality in which it is carried out, … 17 The objectives of the zone are: (a) to provide for the residential development of land within the zone having particular regard to the special environmental development constraints of that land, and (b) to provide for the preservation of the vegetative, landscape, drainage, scenic and environmental qualities of the land within the zone by minimising the impact of development on the natural environment. 18 Together, the proposed subdivision and dwellings constitute development for the purpose of environmentally integrated housing, which is permissible with consent. Clause 5 defines "environmentally integrated housing" as: (a) the integrated design and construction of dwellings with a resultant maximum yield of dwellings and lots that is consistent with the subdivision potential of the land, which may be indicated in a development control plan, and (b) the protection of all environmentally significant or sensitive areas (normally as common or neighbourhood property) of land, including natural drainage channels, important vegetative and topographic features, geotechnical hazard areas and the like, by the integration of buildings and works with the environment. 19 Development Control Plan No. 3 Residential applies. The Council adopted DCP 3 in April 2006. Clause 4.7 contains requirements for bushland and biodiversity conservation. Clause 4.12 provides requirements for subdivision generally including minimum allotment sizes (cl 4.12.2) and building platforms (cl 4.12.3). Clause 4.12.1 provides specific provisions for environmentally integrated housing. That clause explains that a primary purpose of environmentally integrated housing is to achieve better protection of environmentally significant features by an integrated approach to subdivision and subsequent development.

[27]

29 Mr To appeared for the Council. He submitted that the planning controls had to be read as a whole. When read as a whole, the controls disclosed the focus on preserving significant environmental features, minimising the impacts of development, minimising the removal of trees and vegetation in area "C" and retaining as many significant and substantial trees as possible. In this context, the fact that the development complied with the numerical requirement of the nominal lot average and provided a corridor as depicted on sheet 37 did not mean that the development was consistent with, or acceptable having regard to, the planning controls. Moreover, the development did not ensure the long-term conservation of the corridor and the proposed contribution to the acquiring of offset land was inadequate, inappropriate and, absent a planning agreement, invalid. E. The evidence 30 Mr John Travers, ecologist, was involved in the preparation of the species impact statement and prepared the ecological site management plan and other documents relating to tree protection and bushfire hazard reduction in support of the application. In Mr Travers' opinion the proposed corridor and contribution to the acquisition of other land for conservation purposes was consistent with the requirements of the Department and the policy underlying the Department's offsetting policy (reflected in the provisions of the Native Vegetation Act 2003 and the Threatened Species Conservation Amendment (Biodiversity Banking) Bill 2006). He concluded that this approach was appropriate because the proposed offset land adjoined a nature reserve, was of similar size, contained a critically endangered ecological community, was zoned residential, was of core conservation value, contained vegetation in a similar condition to the site, contained Blue Gum High Forest, which shares many of the same floristics as STIF, contained almost identical habitat features as the site, and (on a regional scale) STIF and Blue Gum High Forest are often continuous. He acknowledged that the contribution to the purchase of the other land by way of an offset was essential to the acceptability of the proposal, given the amount of STIF to be removed in the carrying out of the development.

[33]

36 Ms Burke confirmed that the existing draft policy was not comparable to the proposed biodiversity banking legislation, which would incorporate a detailed scheme with respect to assessing applicable credits and ratios. 37 When asked whether the Department considered the impacts on the site unavoidable, Ms Burke explained that the Department's position was always framed as advice to the consent authority, it being the consent authority's role to consider whether the development was appropriate. If the consent authority considered the development appropriate, then the Department provided its advice with respect to concurrence. The question of offsets would arise at that stage in the assessment. The Department had not proposed that the applicants acquire land because it inferred that the size of the development would make that course economically unviable. The proposed contribution was not ideal but, if the STIF on site was to be removed, the Department's suggestion was preferable to a mere contribution to revegetating lands already owned by the Council. 38 Ms Burke considered the Department's "offsetting principles and options" document prepared for the specific development the most relevant to understanding the policy underlying offsets. That document records the Department's view that if impacts on threatened species and endangered ecological communities were unavoidable, then development applications should include offsets to counterbalance these impacts. The document notes that the Department would support this approach where "it can be shown that no feasible alternative exists to the removal of vegetation". Further, that the decision "whether the current proposal, and any associated loss of vegetation, is justified rests with the consent authority". The objective underlying the offset approach is one of "no net loss", to balance adverse impacts, and to ensure that planning decisions do not diminish future recovery options. Accordingly, offsets should be considered a "last resort" option, to be explored "after all other options to minimise impacts have been considered". If these requirements were satisfied then the offset for any particular development should reflect six principles - namely: 1. preference should be given to a "like for like" offset. 2. the offset should be greater than the area cleared. 3. the offset should preferably be in proximity to the area impacted. 4. the offset actions should be located in strategic, targeted areas. 5. offsets should be in addition to existing initiatives and should not duplicate or replicate existing schemes or programs. 6. the offset must be secure and long-term. 39 These provisions reflect the Department's more general draft policy "principles for the use of biodiversity offsets in NSW". That draft policy also requires that offsets be underpinned by sound ecological principles, should aim for net improvements in biodiversity over time, must be enduring, should be agreed before the impact occurs, must be quantifiable in that impacts and benefits should be reliably estimated, must be targeted for a like for like or better conservation outcome, must be appropriately located in the same region, must be supplementary to existing requirements, and must be enforceable. The draft policy notes that the requirement that offsets be quantifiable involves applying a methodology based on the best available science to calculate the loss from the development and the gain from the offset, and that a state-wide tool will be developed for the bio-banking legislation based on the tools developed for the Native Vegetation Act.

[38]

45 Given the applicants' offer, the question of the extent of the power available under s 80A does not arise. Nevertheless, it is appropriate that I record that I do not accept the applicants' arguments about the capacity to impose such a condition absent the offer to enter into a planning agreement. The reasons put forward by the applicants to this end are unpersuasive. Absent the provisions relating to planning agreements, s 94 was the exclusive source of power for a consent authority to impose conditions requiring the payment of money ( Fairfield City Council v N & S Olivieri P/L [2003] NSWCA 41 at [2], [73] and [77], Maitland City Council v Anambah Homes Pty Limited [2005] NSWCA 455 at [132], Fitch v Shoalhaven City Council (1987) 67 LGRA 165). The applicants' offer is to pay a monetary contribution, albeit to another council. The fact that the condition is not one authorised by a contributions plan and that the money will be expended outside the area of Baulkham Hills Shire Council does not mean that the condition is free from the constraints imposed by the scheme of s 94, and able to be imposed under s 80A(1). Contrary to the applicants' submission, s 80A(1)(a) is not a source of residual power to impose conditions requiring payment of money outside the scheme of s 94, as the decisions in Olivieri and Anambah disclose. The decision in Longboard Developments Pty Ltd and Ors v Byron Shire Council [2001] NSWLEC 143, relied on by the applicants, is not authority for any contrary position. The scheme is also not ousted by the applicants' agreement to the condition. The provisions relating to planning agreements turn on the developer's agreement, but agreement cannot give the consent authority power it does not have under the statute. Nor do I accept the submission that purchasing land for conservation purposes is outside the scope of "public amenities and public services" referred to in s 94. That is contrary to the decision in Hammersmith Management Pty Ltd v Lake Macquarie City Council (2003) 124 LGERA 63 affirmed in Lake Macquarie City Council v Hammersmith Management Pty Ltd (2003) 132 LGERA 225).

Sanctuary Investments Pty Ltd & Ors v Baulkham Hills Shire Council - [2006] NSWLEC 733 - NSWLEC 2006 case summary — Zoe

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