COMMISSIONER: Sandy Outlook Pty Ltd (the Applicant) has appealed the deemed refusal by Ku-ring-gai Council (the Respondent) of its development application DA-0174/20 which sought consent for demolition of existing structures, tree removal and community title subdivision of land to create six (6) allotments and associated works (the Proposed Development) at 4 and 18 Cliff Avenue, North Wahroonga (the Subject Site).
The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court's jurisdiction. The hearing is conducted pursuant to s 34C of the Land and Environment Court Act 1979 (the LEC Act),
The Subject Site is zoned E4 Environmental Living under the provisions of Ku-ring-gai Local Environmental Plan 2015 (KLEP) and the Proposed Development is permissible with consent in that zone.
Due to the COVID-19 pandemic, and consistent with the Court's COVID-19 Arrangements Policy a site inspection was undertaken and the balance of the hearing was conducted by Microsoft Teams.
[2]
The Proposed Development
The Applicant had been granted leave on 12 February 2021 to rely on amended plans, and the Proposed Development, as amended, now seeks consent for:
1. demolition of existing structures on the Subject Site;
2. community title subdivision of the Subject Site to create six allotments, as follows:
1. Proposed Lot 1 (Community Lot), having an area of 1847m2, an open access way, passing bay and native landscaping;
2. Proposed Lot 2, being a community title residential allotment with an area of 1500 m2 and an indicative building envelope of 580 m2;
3. Proposed Lot 3, being a community title residential allotment with an area of 1516 m2 and an indicative building envelope of 540 m2;
4. Proposed Lot 4, being a community title residential allotment with an area of 1913 m2 and an indicative building envelope of 342 m2;
5. Proposed Lot 5, being a community title residential allotment with an area of 1500 m2 and an indicative building envelope of 372 m2;
6. Proposed Lot 6, being a community title residential allotment with an area of 1513 m2 and an indicative building envelope of 562 m2.
1. the subdivision of the Subject Site into six lots is illustrated in the following figure, adapted from a plan provided by the Applicant.
1. an open access way, which would:
1. form part of Proposed Lot 1 (the Community Lot), from Cliff Avenue to each of the six proposed post-subdivision allotments;
2. include:
1. a turning head to be located at the end of the access way;
2. would include the maintenance and upkeep of the road as the responsibility, and at the cost, of all owners, and which would form part of the community management scheme;
3. a proposed retaining wall along the eastern sides of the open access way (retaining wall 2).
1. stormwater runoff from the Proposed Development to be conveyed via a pit and pipe network to an existing table drain in Lister Street via an acquired drainage easement through an adjacent lot (Lot 3 DP 1084328) 18 Cliff Avenue. A "proposed surcharge pit" has been proposed at the end of the easement, and is located within the property boundary.
2. a retaining wall, proposed as part of the stormwater infrastructure works through Lot 3 DP 1084328, along the southern side of the access handle out to Lister Street (retaining wall 1). That, retaining wall 1 varies in height between 0.661.05m and 1.59m.
The Subject Site is mapped as bushfire prone land and, except for a part of Lot 1, would be classified as an Inner Protection Area (IPA) for bushfire asset protection purposes if the Proposed Development were approved.
The Applicant proposes that certain trees on the Subject Site would be retained to reflect the recommendations within Appendix A3 its the Bushfire Protection Assessment report prepared by its bushfire consultant Travers Bushfire and Ecology, and dated 29 January 2021 (the Travers Report). That document recommends that:
1. canopy cover should not exceed 15% at maturity;
2. trees (at maturity) must not touch or overhang the building;
3. lower limbs of trees should be removed up to a height of 2m above ground;
4. tree canopies should be separated by between 2m to 5m; and
5. preference should be given to smooth barked and evergreen trees for offset plantings.
Notwithstanding the trees proposed for retention by the Applicant, the Parties' bushfire experts, Mr Travers, for the Applicant, and Mr Short, for the Respondent, agreed that, based on the Applicant's location of proposed building footprints, 82 trees would be proposed for removal to satisfy:
1. bushfire mitigation recommendations identified in the Travers Report; and
2. the requirements of the Bushfire Safety Authority (BSA) issued by the NSW Rural Fire Service (RFS) on 21 April 2021 under s 100B of the Rural Fires Act 1997, which required that the Subject Site be managed with asset protection zones in accordance with relevant figures in the Travers Report.
The Applicant has submitted that:
1. the necessity to implement the recommendations and requirements of the Travers report and the BSA (see above at [8]) also provided the fundamental rationale for the Applicant's proposed subdivision, including:
1. the configuration of individual lots;
2. the design of its proposed building envelopes;
1. its Proposed Development does not seek consent for the construction of buildings on its indicative building footprints but rather seeks to demonstrate what might be feasible on each of the lots so as to illustrate that the design of lots would minimise impacts on trees on the Subject Site;
2. specific development consents would be required for the construction of any future dwellings on the Applicant's proposed lots should the proposed subdivision be approved;
3. in response to the provisions of Ku-ring-gai Development Control Plan (KDCP), the Applicant has provided a plan for the location of potential building footprints within each proposed lot to illustrate how construction of a dwelling on each such lot might be achieved, including the location of outdoor paving and pool;
4. in its estimation, the potential building footprints provided should:
1. be assessed as being larger than would be required to accommodate the footprint of an individual building, and
2. provide a basis for consideration, and assessment, of realistic future potential impacts of tree removal that would result from approval of the Proposed Development.
[3]
Notifications and objector submissions
The Proposed Development was originally placed on public exhibition by Ku-ring-gai Council between 11 and 25 June 2020, and thirteen public submissions were received in response to that notification.
The Applicant's amended development application was also notified, in accordance with the provisions of cl 77 and Sch 1 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation) and the Ku-ring-gai Community Participation Plan, between 25 February and 25 March 2021. A further eight submissions were received in response to that notification.
At the commencement of the hearing the Court received oral submissions from the following objectors to the Proposed Development:
1. Mr Matthew Effenburg, who raised concerns in relation to potential flora and fauna impacts noting that the Subject Site is zoned E4;
2. Ms Tracy Ter Kuile, who raised issues concerning:
1. the potential impact of the Proposed Development on flora and fauna,
2. potential impacts on traffic and parking in the area of the Subject Site, noting that Cliff Avenue is used to access the oval at the end of the road which is used for rugby training; and
3. the management of land near the boundary of the Subject Site and the basis for enduring ownership of the proposed community lot (proposed Lot 1);
1. Ms Elisa Ajura, who expressed concerns in relation to:
1. stormwater management, including the restoration of vegetation within the Applicant's proposed stormwater easement;
2. the need for the Applicant to confirm how the proposed stormwater management infrastructure within its proposed easement would be accessed;
1. Mr Andres Pinto, who expressed concerns in relation to potential construction management impacts, driveway damage created by the Applicant due to the use of machinery on the Subject Site, reduced amenity to the neighbourhood arising from the development of E4 zoned lands;
2. Mr Paul Stewart, who expressed concerns in relation to:
1. tree removal required to facilitate access to the Subject Site;
2. the potential impact of the Proposed Development on Sydney Turpentine Ironbark Forest (STIF) vegetation on the Subject Site, the canopies of which can be seen from his residence;
3. potential impacts of the proposed Development on fauna and flora, particularly arising from the potential development of proposed Lots 5 and 6;
4. potential noise impacts; and
5. the adequacy of the Applicant's biodiversity development assessment report (BDAR) and whether it take proper account of the potential presence of eight (8) bat species, and 16 other species including the sugar glider, on the Subject Site.
[4]
Contentions
On 1 September 2020, the Council filed its Statement of Facts and Contentions and then on 29 March 2021 filed an Amended Statement of Facts and Contentions (ASOFACs) setting out the contentions in this appeal which fell into the following broad areas:
1. concurrence from the NSW RFS;
2. the impact of tree removal, including landscaping as it relates to minimisation of tree removal;
3. biodiversity matters, including:
1. non-compliance with cl 6.3 of KLEP, which also relates to biodiversity protection;
2. "inability to make an informed assessment" which is essentially a criticism of the Applicant's BDAR originally submitted with the application;
1. contamination, which relates to the adequacy of the Preliminary Site Investigation (PSI) report, originally submitted with the application;
2. character of the local area;
3. access and car parking;
4. public interest;
5. insufficient information relating to the reports submitted with the application including:
1. the arborists report,
2. the landscaping plan,
3. stormwater management,
4. the construction traffic management plan,
5. the geotechnical report and the survey.
The contention concerning the concurrence of the NSW RFS has been resolved following production of the NSW RFS s 100B BSA (tendered as Exhibit 1 at the hearing), which provided requirements in relation to:
1. asset protection zones;
2. property access;
3. water and utility services;
4. general advice.
Following the completion of joint conferencing by the Parties' experts, and the tendering of the experts' joint reports at the hearing, certain contentions were agreed to have been resolved on the following basis:
1. the contention concerning the adequacy of the geotechnical report has been resolved by the geotechnical engineers (tendered as Exhibit 10 at the hearing) and
2. a contention concerning the adequacy of the Applicant's survey of the Subject Site has been resolved by the production of the required survey plan (tendered as Exhibit C at the hearing).
The Respondent noted in opening that each of the remaining contentions in Council's ASOFACs (Exhibit 2) remained pressed in the appeal for the reasons provided within Exhibit 2 and as articulated by the Council's experts in their contributions to the tendered joint expert reports.
Further, for simplicity, the Parties identified that the remaining contentions fell into three principal areas, being biodiversity impacts, BSA related matters, and tree removal matters, and could be summarised as follows.
1. biodiversity contentions concerning:
1. the Proposed Development's potential adverse impacts on that portion of the Subject Site identified on the Respondent's Terrestrial Biodiversity mapping as being biodiversity land, and whether:
1. the Proposed Development complied with the provisions of cl 6.3 of KLEP; and
2. the Proposed Development's potential adverse impacts on vegetation on the Subject Site was acceptable noting that the vegetation included trees that were representative of STIF and/or Blue Gum High Forest (GBHF), both of which communities are listed as critically endangered ecological communities (CEEC) under the Biodiversity Conservation Act 2016 (BC Act);
1. the Proposed Development's potential adverse impacts on those portions of the Subject Site mapped on Council's Greenweb Map, pursuant to the provisions of Part 18 of the KDCP as:
1. "Support for Core Biodiversity Land" and "Biodiversity Corridors and Buffer Areas", and located most notably across proposed Lots 4, 5 and 6 (see above at [5(3)]); and
2. "Landscape Remnant" and located in the front portion of the Subject Site near the existing and proposed entry from Cliff Avenue and in the general vicinity of proposed Lot 1;
1. the adequacy of the Applicant's BDAR and its proposal to offset biodiversity impacts through retirement of biodiversity credits;
1. bushfire related contentions, including the implications of the BSA issued by the NSW RFS in relation to:
1. the Applicant's proposed dwelling footprints for each of the proposed Lots 2-6;
2. the future construction of dwellings on those footprints; and
3. the Applicant's proposals for tree retention and its assessment of related ecological impacts;
1. tree removal contentions concerning the Applicant's proposed removal of 82 trees to facilitate its Proposed Development, and required to achieve the recommendations of its bushfire expert, and the requirements of the BSA.
These contentions were the subject of evidence from the following experts, who had prepared joint expert reports and who also provided oral evidence during the hearing to assist the Court in its considerations:
1. the expert ecologists, Mr Craig Anderson, for the Applicant, and Ms AnneMarie Clements, for the Respondent;
2. the arboricultural experts, Ms Russell Kingdom, for the Applicant, and Mr Geoff Bird, for the Respondent;
3. the bushfire experts, Mr John Travers, for the Applicant, and Mr Lew Short, for the Respondent; and
4. the expert town planners, Mr Adam Crampton, for the Applicant, and Ms Belinda Newell, for the Respondent.
[5]
Environmental Planning and Assessment Act 1979
The objects of the EP&A Act are as follows:
(a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State's natural and other resources,
(b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment,
(c) to promote the orderly and economic use and development of land,
(d) to promote the delivery and maintenance of affordable housing,
(e) to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats,
(f) to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage),
(g) to promote good design and amenity of the built environment,
(h) to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants,
(i) to promote the sharing of the responsibility for environmental planning and assessment between the different levels of government in the State,
(j) to provide increased opportunity for community participation in environmental planning and assessment.
Section 3.43(5) of the EP&A Act provides that:
(5) A provision of a development control plan (whenever made) has no effect to the extent that -
(a) it is the same or substantially the same as a provision of an environmental planning instrument applying to the same land, or
(b) it is inconsistent or incompatible with a provision of any such instrument.
Section 4.15(3A) of the EP&A Act further provides that:
If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:
(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards - is not to require more onerous standards with respect to that aspect of the development, and
(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and
(c) may consider those provisions only in connection with the assessment of that development application.
…
Section 10.3(1) of the EP&A Act concerns bush fire prone land and provides:
(1) If a bush fire risk management plan applies to land within the area of a council, the council must, within 12 months after the commencement of this section (and before the end of the period of every 5 years after the commencement) -
(a) request the Commissioner of the NSW Rural Fire Service to designate land (if any) within the area that the Commissioner considers, having regard to the bush fire risk management plan, to be bush fire prone land, and
(b) must record any land so designated on a map.
[6]
Rural Fires Act
Section 100B of the Rural Fires Act provides, inter alia, as follows:
(1) The Commissioner may issue a bush fire safety authority for -
(a) a subdivision of bush fire prone land that could lawfully be used for residential or rural residential purposes, or
(b) development of bush fire prone land for a special fire protection purpose.
(2) A bush fire safety authority authorises development for a purpose referred to in subsection (1) to the extent that it complies with standards regarding setbacks, provision of water supply and other matters considered by the Commissioner to be necessary to protect persons, property or the environment from danger that may arise from a bush fire.
(3) A person must obtain such a bush fire safety authority before developing bush fire prone land for a purpose referred to in subsection (1).
(4) Application for a bush fire safety authority is to be made to the Commissioner in accordance with the regulations.
[7]
Biodiversity Conservation Act 2016
The following provisions of the BC Act are of relevance to the current appeal:
1. Section 6.5 which concerns serious and irreversible impacts on biodiversity values, and which provides:
(1) The determination of serious and irreversible impacts on biodiversity values for the purposes of the biodiversity offsets scheme is to be made in accordance with principles prescribed by the regulations.
(2) The Environment Agency Head may provide guidance on the determination of any such serious and irreversible impacts, and for that purpose may publish, from time to time, criteria to assist in the application of those principles and lists of potential serious and irreversible impacts.
1. Section 6.12 concerning biodiversity development assessment reports, and which provides:
(1) For the purposes of the biodiversity offsets scheme, a biodiversity development assessment report is a report prepared by an accredited person in relation to proposed development or activity that would be authorised by a planning approval, or proposed clearing that would be authorised by a vegetation clearing approval, that -
(a) assesses in accordance with the biodiversity assessment method the biodiversity values of the land subject to the proposed development, activity or clearing, and
(b) assesses in accordance with that method the impact of proposed development, activity or clearing on the biodiversity values of that land, and
(c) sets out the measures that the proponent of the proposed development, activity or clearing proposes to take to avoid or minimise the impact of the proposed development, activity or clearing, and
(d) specifies in accordance with that method the number and class of biodiversity credits that are required to be retired to offset the residual impacts on biodiversity values of the actions to which the biodiversity offsets scheme applies.
Note - A biodiversity development assessment report is also used for the assessment of impacts on threatened species and threatened ecological communities, and their habitats, and other impacts under Part 7 (Biodiversity assessment and approvals under Planning Act) even though the impacts may not relate to actions to which the biodiversity offsets scheme applies.
1. Part 7 of the BC Act concerns biodiversity assessment and approvals under the EP&A Act and which includes the following provisions of relevance to the current appeal:
1. Section 7.2 which defines development or activity "likely to significantly affect threatened species", and which provides as follows:
(1) For the purposes of this Part, development or an activity is likely to significantly affect threatened species if -
(a) it is likely to significantly affect threatened species or ecological communities, or their habitats, according to the test in section 7.3, or
(b) the development exceeds the biodiversity offsets scheme threshold if the biodiversity offsets scheme applies to the impacts of the development on biodiversity values, or
(c) it is carried out in a declared area of outstanding biodiversity value.
(2) To avoid doubt, subsection (1)(b) does not apply to development that is an activity subject to environmental impact assessment under Part 5 of the Environmental Planning and Assessment Act 1979.
(3) Subsection (1)(a) does not apply to bushfire-affected development if -
(a) the proposed development -
(i) is the reconstruction or replacement of a bushfire-affected building or structure, and
(ii) will result in a building or structure that is the same, or substantially the same, as the building or structure that existed immediately before it was damaged or destroyed, and
(b) the development application for the bushfire-affected development is made no later than 2 years after the commencement of this subsection.
(4) This subsection and subsections (3) and (5) are repealed 2 years after they commence.
(5) In this section - bushfire-affected building or structure means a building or structure that -
(a) was destroyed or damaged as a result of bushfire in the period starting 5 August 2019 and ending 2 March 2020, and
(b) was, immediately before it was destroyed or damaged, lawfully erected.
bushfire-affected development means proposed development involving the erection of, or repairs to, a bushfire-affected building or structure.
1. Section 7.3 which provides the test for determining whether proposed development or activity likely to significantly affect threatened species or ecological communities, or their habitats, and which provides as follows:
(1) The following is to be taken into account for the purposes of determining whether a proposed development or activity is likely to significantly affect threatened species or ecological communities, or their habitats -
(a) in the case of a threatened species, whether the proposed development or activity is likely to have an adverse effect on the life cycle of the species such that a viable local population of the species is likely to be placed at risk of extinction,
(b) in the case of an endangered ecological community or critically endangered ecological community, whether the proposed development or activity -
(i) is likely to have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction, or
(ii) is likely to substantially and adversely modify the composition of the ecological community such that its local occurrence is likely to be placed at risk of extinction,
(c) in relation to the habitat of a threatened species or ecological community -
(i) the extent to which habitat is likely to be removed or modified as a result of the proposed development or activity, and
(ii) whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed development or activity, and
(iii) the importance of the habitat to be removed, modified, fragmented or isolated to the long-term survival of the species or ecological community in the locality,
(d) whether the proposed development or activity is likely to have an adverse effect on any declared area of outstanding biodiversity value (either directly or indirectly),
(e) whether the proposed development or activity is or is part of a key threatening process or is likely to increase the impact of a key threatening process.
(2) The Minister may, by order published in the Gazette with the concurrence of the Minister for Planning, issue guidelines relating to the determination of whether a proposed development or activity is likely to significantly affect threatened species or ecological communities, or their habitats. Any such guidelines may include consideration of the implementation of strategies under the Biodiversity Conservation Program.
1. Section 7.5, which concerns the relationship between the BC Act and the Planning Act, being the EP&A Act, and which provides that:
(1) This Part prevails to the extent of any inconsistency between this Part and the Environmental Planning and Assessment Act 1979 (or any instrument under that Act).
(2) A reference in the Environmental Planning and Assessment Act 1979 or any other Act or in any statutory instrument or document to the Environmental Planning and Assessment Act 1979 (whether an express or implied reference) is a reference to that Act as applying in accordance with this Part.
1. Section 7.7 which concerns biodiversity assessment for Pt 4 development (other than State significant development or complying development), and which provides:
(1) This section applies to an application for development consent under Part 4 of the Environmental Planning and Assessment Act 1979, except -
(a) an application for development consent for State significant development, or
(b) an application for a complying development certificate.
(2) If the proposed development is likely to significantly affect threatened species, the application for development consent is to be accompanied by a biodiversity development assessment report.
1. Section 7.12 which concerns the circumstances in which concurrence of Environment Agency Head is required if a Minister is not the consent authority under Pt 4 or determining authority under Pt 5 of the EP&A Act, and which provides that
(1) This section applies to the following -
(a) development (not being State significant development or complying development) that requires development consent under Part 4 of the Environmental Planning and Assessment Act 1979 when a Minister is not the consent authority,
(b) an activity that requires environmental impact assessment under Part 5 of the Environmental Planning and Assessment Act 1979 when a Minister is not the determining authority.
(2) The consent authority is not to grant development consent if the development is likely to significantly affect threatened species, unless the consent authority has obtained the concurrence of the Environment Agency Head. However, concurrence is not required if -
(a) the application for development consent is accompanied by a biodiversity development assessment report in accordance with Division 2, and
(b) in a case in which the biodiversity offsets scheme applies to the impacts of the development - the conditions of the consent require the applicant to retire biodiversity credits to offset the residual impact on biodiversity values of at least the number and class specified in the report.
1. Section 7.13 which concerns biodiversity assessments and offsets in relation to development other than State significant development or infrastructure, and which, inter alia, provides:
(1) This section applies to an application for development consent under Part 4 of the Environmental Planning and Assessment Act 1979 that is required under Division 2 to be accompanied by a biodiversity development assessment report, except -
(a) an application for development consent for State significant development, or
(b) an application for a complying development certificate.
(2) The consent authority, when determining in accordance with the Environmental Planning and Assessment Act 1979 any such application, is to take into consideration under that Act the likely impact of the proposed development on biodiversity values as assessed in the biodiversity development assessment report that relates to the application. The consent authority may (but is not required to) further consider under that Act the likely impact of the proposed development on biodiversity values.
(3) If the consent authority decides to grant consent and the biodiversity offsets scheme applies to the proposed development, the conditions of the consent must require the applicant to retire biodiversity credits to offset the residual impact on biodiversity values of the number and class specified in the report (subject to subsection (4)). The residual impact is the impact after the measures that are required to be carried out by the terms or conditions of the consent to avoid or minimise the impact on biodiversity values of the proposed development (being measures on which the report was based).
1. Section 7.16 which concerns the circumstances in which a proposed development or activity has serious and irreversible impacts on biodiversity values, and which, inter alia, provides:
(1) In this section, serious and irreversible impacts on biodiversity values of proposed development or activity means serious and irreversible impacts on biodiversity values as determined under section 6.5 that would remain after the measures proposed to be taken to avoid or minimise the impact on biodiversity values of the proposed development or activity.
(2) The consent authority must refuse to grant consent under Part 4 of the Environmental Planning and Assessment Act 1979, in the case of an application for development consent to which this Division applies (other than for State significant development), if it is of the opinion that the proposed development is likely to have serious and irreversible impacts on biodiversity values.
[8]
Ku-ring-gai Local Environmental Plan 2015
The following provisions of KLEP are of relevance in this appeal:
1. clause 2.3 concerning zone objectives and Land Use Table, and in relation to which:
1. subclause 2.3(2) requires that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone; and
2. the Subject Site is zoned E4 Environmental Living, the objectives of which are:
• To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.
• To ensure that residential development does not have an adverse effect on those values.
• To ensure development does not result in further fragmentation of ecological communities, biodiversity corridors or other significant vegetation or habitat.
• To minimise direct and indirect risks to life, property and the environment from bushfire events.
• To ensure that development in this zone on land that adjoins land in Zone E1 National Parks and Nature Reserves or Zone E2 Environmental Conservation is compatible with the objectives of those zones.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
1. clause 6.3 concerning biodiversity protection, and which provides as follows:
(1) The objective of this clause is to protect, maintain and improve the diversity and condition of native vegetation and habitat, including -
(a) protecting biological diversity of native fauna and flora, and
(b) protecting the ecological processes necessary for their continued existence, and
(c) encouraging the recovery of threatened species, communities, populations and their habitats, and
(d) protecting, restoring and enhancing biodiversity corridors.
(2) This clause applies to land identified as "Biodiversity" on the Terrestrial Biodiversity Map.
(3) Before determining a development application for development on land to which this clause applies, the consent authority must consider -
(a) the impact of the proposed development on the following -
(i) any native vegetation community,
(ii) the habitat of any threatened species, population or ecological community,
(iii) any regionally significant species of plant, animal or habitat,
(iv) any biodiversity corridor,
(v) any wetland,
(vi) the biodiversity values within any reserve,
(vii) the stability of the land, and
(b) any proposed measure to be undertaken to ameliorate any potential
adverse environmental impact, and
(c) any opportunity to restore or enhance remnant vegetation, habitat and biodiversity corridors.
(4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development -
(a) is consistent with the objectives of this clause, and
(b) is designed, and will be sited and managed, to avoid any potentially adverse environmental impact or, if a potentially adverse environmental impact cannot be avoided -
(i) the development minimises disturbance and adverse impacts on remnant vegetation communities, habitat and threatened species and populations, and
(ii) measures have been considered to maintain native vegetation and habitat in parcels of a size, condition and configuration that will facilitate biodiversity protection and native flora and fauna movement through biodiversity corridors, and
(iii) the development avoids clearing steep slopes and facilitates the stability of the land, and
(iv) measures have been considered to achieve no net loss of significant vegetation or habitat.
(5) In this clause -
biodiversity corridor means an area that facilitates the connection and maintenance of native fauna and flora habitats and, within the urban landscape, includes areas that may be broken by roads and other urban elements and may include remnant trees and associated native and exotic vegetation.
[9]
Biodiversity Conservation Regulation 2017
The Biodiversity Conservation Regulation 2017 (the BC Regulation) makes regulations in support of the BC Act and of relevance to this appeal provides under cl 6.7 the principles applicable to determination of "serious and irreversible impacts on biodiversity values" as referred to in s 6.5(1) of the BC Act, and provides:
(1) This clause applies for the purposes of determining whether an impact on diversity values is a serious and irreversible impact for the purposes of the biodiversity offsets scheme.
(2) An impact is to be regarded as serious and irreversible if it is likely to contribute significantly to the risk of a threatened species or ecological community becoming extinct because -
(a) it will cause a further decline of the species or ecological community that is currently observed, estimated, inferred or reasonably suspected to be in a rapid rate of decline, or
(b) it will further reduce the population size of the species or ecological community that is currently observed, estimated, inferred or reasonably suspected to have a very small population size, or
(c) it is an impact on the habitat of the species or ecological community that is currently observed, estimated, inferred or reasonably suspected to have a very limited geographic distribution, or
(d) the impacted species or ecological community is unlikely to respond to measures to improve its habitat and vegetation integrity and therefore its members are not replaceable.
(3) For the purpose of this clause, a decline of a species or ecological community is a continuing or projected decline in -
(a) an index of abundance appropriate to the taxon, or
(b) the geographic distribution and habitat quality of the species or ecological community.
(4) If the guidance published by the Environment Agency Head under section 6.5(2) of the Act is changed, a biodiversity assessment report may, during the period of 90 days after the guidance was changed, be prepared on the basis of the guidance in force before the change, but only if the report states that it has been prepared on that basis.
[10]
Ku-ring-gai Development Control Plan
The Proposed Development is subject to the provisions of KDCP, and in particular:
1. Part 3 - Land Consolidation and subdivision, which provides controls in relation to the subdivision of land including:
1. Part 3A.1, concerning lot shape, orientation and design, which has the following objectives and controls of relevance in this appeal:
1. Objectives
1 To ensure consolidation and subdivision create usable and regularly shaped lots that relate to the site conditions and the context.
2 To limit the impact of new development on natural, environmental, cultural and historical significance of the site and the amenity of adjoining properties.
3 To ensure that any new lot created has sufficient area for private open space, drainage, utility services and vehicular access to and from the site.
4 To ensure subdivision patterns, building footprints and siting respect the characteristic street address rhythm and built form spacing of its locality.
7 To ensure development adjacent to urban bushland is sympathetic and safe.
1. Controls
1 The lot shape, orientation and design of consolidated and subdivided lots is to demonstrate the following:
ii) Protection of habitat and distinctive environmental features including:
- Cliffs and rock outcrops
- Remnant bushland and trees
- Tree hollows
- Natural watercourses
v) Protection and enhancement of the amenity, solar access, privacy, open space and views of the neighbouring lots;
vi) Minimisation of impacts of the development (including any asset protection zones required) on riparian or Greenweb lands;
xi) Minimisation of the need for bush fire hazard reduction, while protecting life and property.
1. Part 3A.3 concerning building footprints, which has the following objectives and controls of relevance in this appeal:
1. Objectives
2 To protect the amenity of adjoining properties.
5 To ensure building footprints have minimal impact on existing trees and areas of ecological or heritage significance.
1. Controls
1 Potential building footprints are to be identified on the site plan of all consolidation and subdivisions.
2 Building footprints are to be located outside areas of ecological or heritage significance and to avoid the loss of trees.
1. Part 3A.4, concerning trees and vegetation, which has the following objectives and controls of relevance in this appeal.
1. Objectives:
1 To protect established trees and vegetation on sites and road verges.
2 To protect the ecological, cultural and aesthetic values of the site and surrounds.
3 To ensure the appropriate planting of street trees in subdivisions involving new roads.
4 To ensure that street trees are located to minimise the impact on services.
1. Controls:
1 Any subdivision or consolidation proposal must demonstrate that the location and design of:
i) building footprints;
ii) access ways;
iii) roadways, including perimeter roads or trails;
iv) services;
v) inter-allotment drainage easements; and
vi) asset protection zones maximises the retention of, and minimises impacts on existing significant trees and vegetation on or adjacent to the site.
2 For the purposes of 3A.4 (1) above, significant trees and vegetation includes but is not limited to cultural plantings, large and visually prominent trees, bushland and endangered ecological communities.
3 Where a site is particularly constrained a more detailed layout of the potential development may be required.
1. Part 18 concerning biodiversity matters, and in particular:
1. Part 18.3 which provides controls in relation to land mapped as Support for Core Biodiversity Lands, which has the following objectives:
Objectives
1 To support core areas of vegetation and fauna habitat.
2 To contribute to the protection and recovery of Key Vegetation Communities, threatened species, populations and their habitats.
3 To contribute to the protection, restoration and management of Biodiversity Corridors.
4 To contribute to the protection, restoration and management of vegetation and habitat in riparian lands.
5 To contribute to the net improvement of ecological function.
Control
1 Avoid locating development on areas identified as Support for Core Biodiversity Lands on the Greenweb map. (Refer to maps in 18R.1 of this Part).
1. Part 18.4 which provides controls in relation to Landscape Remnants, which has the following objectives and control of relevance to this appeal:
Objectives
1 To maintain smaller Key Vegetation Communities remnants as 'stepping stones', providing habitat, seedbank and pollination resources (facilitating gene flow) and supporting flora and fauna resilience.
2 To maintain and restore smaller remnants of Key Vegetation Communities across a range of topographies.
3 To protect trees within Key Vegetation Communities that provide food, shelter or nesting resources for native fauna, or that are of exceptional aesthetic value.
Controls
1 Avoid locating development on land identified as - Landscape Remnant; on the Greenweb map. (Refer to maps in 18R.1 of this Part).
[11]
Planning for Bushfire Protection
Planning for Bush Fire Protection 2019 (PBP) provides development standards for designing and building on bush fire prone land (BFPL) in New South Wales, and requires that all development on bush fire prone land must satisfy the aim and objectives of PBP.
A BSA (see above at [8(2)]) is required from the NSW RFS for residential and rural residential subdivision and developments on BFPL. An application for a BSA must address the extent to which the development complies with PBP.
Section 2.4.1 of PBP notes that:
1. proposals for subdivision on BFPL require an approval from the NSW RFS in the form of a BSA under RF Act, s 100B;
2. development requiring a BSA is considered Integrated Development under s 4.46 of the EP&A Act; and
3. the BSA is critical in ensuring these key developments are designed and located in a manner that is suitable to protect human life and facilitate appropriate operational firefighting arrangements. This is a means by which the NSW RFS Commissioner fulfills their statutory obligation to ensure the protection of the community, including firefighters from the impacts of bush fire.
Section 3.2.5 of PBP concerning APZs on adjoining land further states that:
1. an APZ imposed by a development consent condition must be maintained for the lifetime of the development, unless modified by a subsequent consent. In order to guarantee that an APZ can be managed in perpetuity, APZs should be contained within the overall development site and not on adjoining lands.
2. APZs on adjoining land are not encouraged. Where an APZ is proposed on adjoining land, a guarantee must be provided that the land will be managed in perpetuity. In order to achieve this, the land should have an easement under s 88B of the Conveyancing Act 1919 to ensure:
1. surety of APZ and the correct management prescriptions; and
2. that management occurs in a binding legal agreement in perpetuity;
1. these situations shall be assessed on their merits.
2. in such circumstances, the proponent will need to obtain written confirmation from the relevant parties that the easement will continue in perpetuity and that the land subject to the easement will be maintained in a suitable manner. In all cases, the owner of adjoining land must provide written consent for the easement, which shall be lodged with the DA. Generally, the owner/occupier of the land who has benefited from the easement shall be responsible for maintaining the APZ. Where an APZ easement has been established to the benefit of a community title, it shall be maintained in accordance with a Plan of Management.
3. neither the NSW RFS nor a council has the power to impose an APZ on an adjoining landowner for new development. It is therefore the developer's responsibility to negotiate with adjoining land owner/s as part of the DA process. Easements should not be considered where the adjoining land is used for a public purpose and where vegetation management is not likely or cannot be legally granted (eg, National Park, bushland reserve, critical habitat, 'coastal wetlands' or 'littoral rainforests' mapped in the Coastal Management SEPP).
4. in circumstances where an APZ is proposed on adjoining land, it will be considered as a performance-based solution. In addition, the NSW RFS cannot be considered a party to the easement.
[12]
Contentions
The remaining contentions for resolution in this appeal were noted above at [17] and concern the following matters:
1. the acceptability of Proposed Development's potential impacts on biodiversity, including its proposal to offset biodiversity impacts through retirement of biodiversity credits on the basis of its BDAR.
2. the acceptability of the potential bushfire related impacts of the Proposed Development, including the implications of the Applicant's BSA on the Applicant's proposed future dwelling footprints, the construction of dwellings on those footprints, the Applicant's proposals for tree retention; and
3. the potential impacts of the Proposed Development on trees, including the Applicant's proposed removal of 82 trees required by bushfire requirements and potential dwelling footprints of the Proposed Development.
These are now considered ad seriatim.
[13]
Are the biodiversity impacts of the Applicant's proposal acceptable, including its proposal to offset biodiversity impacts on the basis of its BDAR?
The Subject Site is zoned E4 Environmental Living, the objectives of the zone are provided above (at [25(1)(b)]). The objectives include the following:
• To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.
• To ensure that residential development does not have an adverse effect on those values.
• To ensure development does not result in further fragmentation of ecological communities, biodiversity corridors or other significant vegetation or habitat.
Clause 6.3 of KLEP includes the objectives identified above (at [25(2)]), and provides under subcl 6.3(4) that:
(4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development -
(a) is consistent with the objectives of this clause, and
(b) is designed, and will be sited and managed, to avoid any potentially adverse environmental impact or, if a potentially adverse environmental impact cannot be avoided -
(i) the development minimises disturbance and adverse impacts on remnant vegetation communities, habitat and threatened species and populations, and
(ii) measures have been considered to maintain native vegetation and habitat in parcels of a size, condition and configuration that will facilitate biodiversity protection and native flora and fauna movement through biodiversity corridors, and
(iii) the development avoids clearing steep slopes and facilitates the stability of the land, and
(iv) measures have been considered to achieve no net loss of significant vegetation or habitat.
The Applicant relies on the provisions of the BC Act (see above at [24]), which include, inter alia, the following provisions of s 7.13 that are of relevance to this appeal:
…
(2) The consent authority, when determining in accordance with the Environmental Planning and Assessment Act 1979 any such application, is to take into consideration under that Act the likely impact of the proposed development on biodiversity values as assessed in the biodiversity development assessment report that relates to the application. The consent authority may (but is not required to) further consider under that Act the likely impact of the proposed development on biodiversity values.
….
(6) This section does not operate to limit the matters that a consent authority may take into consideration -
(a) in relation to the impact of proposed development on biodiversity values, the measures that a consent authority may require to avoid or minimise those impacts or the power of a consent authority to refuse to grant consent because of those impacts, or
(b) in deciding whether to reduce or increase the number of biodiversity credits to be retired.
The provisions of s 7.13(6) of the BC Act facilitate the consideration by the consent authority, or the Court on appeal, of the impact of proposed development on biodiversity values, including the measures that a consent authority may require to avoid or minimise those impacts. They also do not operate to limit the power of a consent authority to refuse to grant consent because of those impacts.
These provisions of the BC Act are, in my assessment, self-evidently consistent with the provisions of cl 6.3(4)(b) of KLEP (noted above at [35]), which require that development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development:
1. is consistent with the objectives of cl 6.3 which includes that the development should protect, maintain and improve the diversity and condition of native vegetation and habitat; and
2. is designed, and will be sited and managed, to avoid any potentially adverse environmental impact.
The Applicant had drawn the Court's attention to the provisions of s 7.5 of the BC Act (see above at [24(3)(c)]), which would require that, to the extent of any inconsistency between provisions of Pt 7 of the BC Act and an instrument made under the EP&A Act, such as KLEP, the provisions of Pt 7 of the BC Act prevail.
However, as it is my assessment that the provisions of subcl 6.3(4)(b) of KLEP and those of s 7.3(6) of the BC Act are consistent, the provisions of s 7.5 of the BC Act concerning inconsistencies between the BC Act and KLEP have no application in relation to an assessment as to whether the Proposed Development has been designed, and will be sited and managed, to avoid any potentially adverse environmental impacts on biodiversity.
I will, therefore, first assess whether the Proposed Development has been designed, and will be sited and managed, to avoid any potentially adverse environmental impacts on biodiversity.
I will then give consideration to the Applicant's proposals for offsetting the biodiversity impacts of the Proposed Development, and the adequacy of the Applicant's BDAR in relation to offsetting these impacts.
[14]
Has the Proposed Development been designed, and will it be sited and managed, to avoid any potentially adverse environmental impact in relation to biodiversity?
The Applicant has proposed subdivision of the Subject Site into 6 lots, five of which would, subsequent to subdivision, be available for residential use and for the construction of one dwelling on each of proposed Lots 2-6.
The Proposed Development includes the proposed removal of some 82 trees, many of which are located on land mapped as biodiversity land under the provisions of KLEP, and including certain turpentine trees (Syncarpia glomulifera) on proposed Lot 6.
In opening, the Applicant submitted that the requirement of cl 6.3(4)(b) to avoid potentially adverse environmental impacts should be interpreted within the context of what is permissible on the Subject Site, and that:
1. development of the type proposed by the Applicant, that is the subdivision of land with a minimum lot size of 1500m2, is envisaged under the provisions of cl 4.1 of KLEP;
2. while the Applicant was not bound by the 1500m2 minimum lot size, it had taken account of this requirement in the design of its subdivision;
3. the Applicant had designed its proposed residential lots to be of irregular shape in response to the need to avoid, as far as possible, adverse environmental impacts, including in relation to biodiversity; and
4. because proposed subdivision was for lots of 1500m2 minimum lot size as envisaged under the provisions of KLEP, and as the configuration of the proposed Lots 2-6 had taken account, to the degree possible, of potentially adverse environmental impacts, the Applicant had satisfied the requirements of cl 6.3(4)(b) to avoid potential biodiversity impacts.
The Respondent submitted in its opening that, while it was satisfied that, notwithstanding potential tree impacts in relation to the access road from Cliff Avenue and proposed Lot 1 (see below at [77]) and following:
1. the design of proposed Lots 1, 2 and 3 was acceptable; and
2. the design of proposed Lots 4, 5 and 6 was not acceptable as the Applicant had not properly given consideration to avoiding potentially adverse environmental impacts in relation to biodiversity on those lots.
In particular, the Respondent said that the Proposed Development if approved would have a potentially adverse impact on:
1. trees forming part of a community of STIF, which is listed as a CEEC: and
2. trees forming part of a community identified as BGHF in the Sydney Basin Bioregion, which is also a CEEC.
The Respondent said that the Applicant could have designed its subdivision to avoid these potentially adverse impacts on the CEECs, albeit that may have required that the subdivision be for fewer lots of a larger size.
The Parties' expert ecologists had prepared two joint experts reports that were tendered as evidence at the hearing.
Within the first of these reports, the expert ecologists had agreed that certain trees on the Subject Site, and located within proposed Lot 6, did constitute a remnant of the STIF CEEC, but they could not agree as to whether they were an intergrade with the BGHF CEEC.
During the hearing, and in response to questions from the Respondent, the Applicant's expert ecologist, Mr Anderson, agreed that:
1. as a contributor to, and reviewer of, the Applicant's BDAR, prepared by his firm AEP, he and his colleagues were required to consider, and record within the BDAR, those measures undertaken to locate the Proposed Development such that it would avoid or minimise direct and indirect impacts on native vegetation, threatened species, threatened ecological communities and their habitat;
2. within the Applicant's BDAR, section 2.1, which was headed "Avoid and Minimise Impacts", included only measures to mitigate potentially adverse impacts on biodiversity, and recorded no measures undertaken to locate the Proposed Development such that it would avoid such impacts;
3. within Table 8 of the BDAR, which provided an opportunity to detail of measures taken to locate the Proposed Development so that it avoided and mitigated impacts on native vegetation and habitat:
1. the BDAR authors had asserted that direct impacts on vegetation from the Proposed Development were "considered unavoidable"; but
2. he was not aware of any analysis that had been undertaken to reduce vegetation (ie tree loss) impacts by proposing a subdivision of the Subject Site into a smaller number of lots, and so avoid impacts on biodiversity.
The Respondent noted that the Applicant's BDAR had stated, incorrectly, that the Subject Site does not contain mapped biodiversity values.
In closing, the Applicant submitted that:
1. the Court would conclude that the Proposed Development warranted approval if it was satisfied in relation to the following matters:
1. that there is no serious and irreversible impact which would warrant refusal under s 7.16 of the BC Act, noting that this had not been a matter in contention in this appeal;
2. that the BDAR met the requirements of s 6.12 of the BC Act (see above at [24(2)]) as to what must be provided in the BDAR;
3. those matters addressed within the BDAR and its conclusions;
4. that a condition for the retirement of credits calculated by the BDAR was provided as part of a consent for the Proposed Development;
1. if the Court were to be satisfied in relation to the matters identified above (at [(1)]), then the requirements for assessment of the impacts of the Proposed Development on biodiversity values under the BC Act would be fully satisfied without any further requirement to consider the provisions of cl 6.3 of KLEP or Part 18 of KDCP;
2. it would be wrong for the Respondent to continue to contend that the provisions of Part 18 of KDCP should be the "focal point" of consideration in the appeal, having regard to express legislative provisions contained in s 7.13(2) of the BC Act (see above at [24(3)(f)]).
The Respondent in its closing remarks submitted that:
1. Preston CJ had provided an overview of strategies to manage impacts on biodiversity in his judgment in Bulga Milbrodale Progress Association Inc. v Minister for Planning and Infrastructure and Warkworth Mining Ltd (2013) 194 LGERA 347; [2013] NSWLEC 48 at [147]-[148] (hereafter referred to as Bulga). This had included requirements to "avoid" impacts, and in relation to which his Honour had stated that:
"147 The strategies for managing the adverse impacts of a project on biological diversity are, in order of priority of action, avoidance, mitigation and offsets. Avoidance and mitigation measures should be the primary strategies for managing the potential adverse impacts of a project. Avoidance and mitigation measures directly reduce the scale and intensity of the potential impacts of a project. Offsets are then used to address the impacts that remain after avoidance and mitigation measures have been put in place (see "Principles for the Use of Biodiversity Offsets in NSW", Office of Environment and Heritage (TB vol 7, p 4117)).
148 The first strategy is to endeavour to avoid the potential impacts of a project. Avoidance of impacts may be achieved through planning and assessment of the project including suitable site selection and project design. An example would be modifying the project to avoid an area of biodiversity value, such as an endangered ecological community or habitats of threatened species or populations."
1. the Applicant had not demonstrated adequately that it had considered avoidance of potential impacts on biodiversity on the Subject Site, particularly in relation to potential impacts on the STIF CEEC; and
2. the inadequacy of the Applicant's consideration of options to avoid impacts on biodiversity had been confirmed by the BDAR prepared by AEP, in relation to which AEP was required under the BAM to provide details of measures taken to avoid biodiversity impacts but which, as confirmed by Mr Anderson in his oral evidence, had not been undertaken.
I have considered the evidence of the Parties' experts in relation to the Proposed Development's potential impacts of biodiversity, and the submissions of the Parties, and have concluded as follows:
1. I accept the agreed evidence of the Parties' expert ecologists, noted above (at [50]), that vegetation on the Subject Site includes a remnant of the STIF CEEC, and note that it was common ground between the Parties that this community would be impacted by the Proposed Development through the proposed removal of several individuals of the species Syncarpia glomulifera;
2. I accept the evidence of the Applicant's expert ecologist, Mr Anderson, agreed in cross examination, that the BDAR prepared by his firm, AEP, and to which he contributed, had not explicitly demonstrated that avoidance of impacts to these trees, and of the STIFF CEEC of which they formed part, had been considered;
3. I accept the submission of the Respondent, supported by the findings of the Chief Judge in Bulga (at [147]) that:
1. offsets, such as those proposed by the Applicant in its BDAR prepared by AEP, are used to address the impacts that remain after avoidance and mitigation measures have been put in place;
2. one means of confirming that the design of the Proposed Development had sought to avoid biodiversity impacts would be by modifying the project to avoid an area of biodiversity value, such as an endangered ecological community or habitats of threatened species or populations. On the Subject Site such an area would be that containing the trees constituting the STIF CEEC community;
3. the fact that the Applicant's proposed subdivision, including its proposed building footprints and access arrangements, had not avoided potential impacts on such a sensitive community as the STIF CEEC confirms, in my assessment, that it has not satisfactorily considered the requirements of cl 6.3(4)(b) of KLEP to avoid potential impacts on biodiversity;
1. I agree with the Respondent that any reference to avoidance within the BDAR prepared by AEP, including Mr Anderson, is simply assertion rather than being based on any verifiable analysis;
2. in my assessment, statements within the BDAR that avoidance of impacts was not possible were not supported by any thoughtful assessment;
3. while the configuration of the proposed layout of Lots 1-6, and in particular proposed Lots 4, 5 and 6, may have minimised impacts on trees, I am not satisfied that the Applicant has properly considered avoiding impacts as required under cl 6.3(4)(b) of KLEP and the consideration of which is facilitated under s 7.13(6) of the BC Act.
The Applicant's submission that its Proposed Development has sought to avoid impacts on biodiversity, including on impacts of trees constituting a STIF CEEC community remnant, by proposing a subdivision design that delivers six lots consistent with the minimum lot size provisions of cl 4.1 of KLEP while minimising tree loss, is insufficient in my assessment to satisfy the provisions of the first limb of cl 6.3(4)(b) of KLEP requiring the avoidance of biodiversity impacts.
The provisions of the second limb cl 6.3(4)(b) of KLEP provide that if impacts cannot be avoided then the Applicant should address the matters at subcl 6.3(4)(b)(i)-(iv). However, the Applicant has not, to my satisfaction demonstrated that the impacts on biodiversity cannot be avoided.
Consequently, the provisions of the second limb of cl 6.3(4)(b) are not open to the Applicant, and consent cannot be granted to its development application for subdivision of the Subject Site, as:
1. it has not complied with the requirements of cl 6.3(4)(b) of KLEP; and
2. it is not consistent with the objectives of cl 6.3 of KLEP as it would not:
1. protect biological diversity of native flora;
2. protect ecological processes necessary for the continued existence of native flora; and
3. it would not encourage the recovery of threatened species, communities and their habitats.
I agree with the Respondent's submission that the conclusion above (at [55(3)]) in relation to the priority that ought to be afforded the avoidance of impacts on CEECs, while clearly consistent with the findings of the Chief Judge in Bulga, is also consistent with the conclusions of the Commissioners in Ingham Planning Pty Ltd v Ku-ring-gai Council [2010] NSWLEC 1222 in which it was noted (at [168]) that:
"168 In meeting our obligations under s 79C of the EPA Act, we find that notwithstanding the numerical compliance of the lot sizes and road widths with the relevant clauses of the KPSO, we are not satisfied that the proposed lot and road layout recognises the critically endangered status of the BGHF and that the development, as proposed, will not place the CEEC at an increased risk of extinction. We accept that parts of the site are suitable for development. However, we are of the opinion that there is too much uncertainty with respect to too many of the elements of this proposal that to approve the development in its current form would not be in the public interest."
Finally, because I have found that the Applicant's Proposed Development is not compliant with the provisions of cl 6.4 of KLEP, and would not be consistent with its objectives, I am further satisfied that it is not consistent with achievement of the objectives of the E4 zoning of the Subject Site (see above at [25(1)(b)]) because:
1. it would not provide for low-impact residential development in areas with special ecological values, which in this case include the presence of the STIF CEEC on the Subject Site as sought by the first of the zone objectives; and
2. it would also not ensure that residential development does not have an adverse effect on those ecological values as sought by the second of the zone objectives.
[15]
Are the Applicant's proposals for offsetting of biodiversity impacts through retirement of biodiversity credits as outlined within its BDAR, acceptable?
As noted previously, the Applicant relies on a BDAR prepared by AEP as a sufficient basis on which to demonstrate that its proposed impacts on biodiversity can be offset through the retirement of biodiversity credits as recommended in the BDAR.
The BDAR notes within its Table 8 that:
"the development will impact on PCT 1281 - Turpentine-Grey Ironbark open forest on shale in the lower Blue Mountains, Sydney Basin Bioregion, which is associated with EPBC-listed and State-listed CEEC Sydney Turpentine Ironbark Forest. The proposed subdivision includes residue land on which the CEEC occurs and therefore will be retained. Significant effort has been made to retain trees within the development area to minimise impact on the CEEC. The remainder of the CEEC will however be cleared".
The BDAR states within its executive summary that it has been prepared to meet the requirements of the Biodiversity Assessment Method 2017 (BAM) published by the NSW OEH, and established under the provisions of s 6.7 of the BC Act.
Section 8 of the BAM requires that actions taken to avoid and minimise impacts through locating the project, or selecting the land to be biodiversity certified, must be documented and justified in the BDAR.
However, as noted above (at [55(6)]), I have concluded, relying inter alia on the evidence of the Applicant's expert ecologist Mr Anderson, that the BDAR has not demonstrated an adequate consideration of measures taken to avoid potential impacts on biodiversity on the Subject Site, including in relation to STIF CEEC located thereon.
Indeed, it was Mr Anderson's evidence that section 2 of the BDAR prepared by AEP, entitled 'Avoid and minimise impacts', included no consideration of measures in relation to avoiding impacts. I also note that in the extract from the BDAR provided above (at [62]) reference is made to efforts to minimising, rather than avoiding, impacts on the CEEC.
Further, I agree with the Respondent's submissions that:
1. Table 8 of the Applicant's BDAR does not demonstrate any assessment of options considered to avoid impacts; and
2. statements within the BDAR such as "direct impacts upon the vegetation that are associated with the proposal are considered unavoidable to allow for the site to be developed" are assertions unsupported by analysis that might otherwise have been weighed in assessing the Proposed Development.
Because I am satisfied that the Applicant's BDAR has not considered the requirements of the BAM in relation to avoidance of potential impacts on biodiversity, and in particular on the STIF CEEC, I conclude that the Applicant's BDAR:
1. has not been prepared to meet the requirements of the BAM; and
2. has not been prepared to satisfy the provisions of s 6.12 of the BC Act, notably s 6.12(c) of that Act; and
3. cannot be utilised for the purposes of offsetting biodiversity impacts through retirement of biodiversity credits as outlined within the BDAR.
Pursuant to the provisions of ss 7.13(2) and 7.13(6) of the BC Act, for reasons provided above (at [67] and [68]) I further conclude that, because the Applicant's BDAR has not, in my assessment, considered options to avoid potential impacts on biodiversity, and in particular on the STIF CEEC located on the Subject Site, and as required under the BAM, the Proposed Development should not be approved.
[16]
Are the implications of the Applicant's bushfire safety authority (BSA) acceptable?
The BSA provided to the Applicant by NSW RFS in relation to the Proposed Development imposed the following requirements in relation to establishing and maintaining an Inner Protection Area (IPA) to mitigate the risk of bushfire impact on the Proposed Development:
1. tree canopy cover should be less than 15% at maturity;
2. trees at maturity should not touch or overhang the building;
3. lower limbs should be removed up to a height of 2m above the ground;
4. tree canopies should be separated by 2m to 5m;
5. preference should be given to smooth barked and evergreen trees;
6. large discontinuities or gaps in vegetation should be provided to slow down or break the progress of fire towards buildings;
7. shrubs should not be located under trees;
8. shrubs should not form more than 10% groundcover;
9. concert shrubs should be separated from exposed windows and doors by distance of at least twice the height of the vegetation;
10. grass should be kept mown (as a guide grass should be kept to no more than 100 mm in height); and
11. leaves and vegetation degree should be removed.
The Respondent had said that the Applicant's Proposed Development would be unable to comply with the requirements of the BSA because:
1. the Applicant's proposed retention of trees on the Subject Site would not achieve the BSA requirement that tree canopy cover should be less than 15% at maturity;
2. the Applicant's proposed retention of trees on the Subject Site, many of which were already mature, would result in trees overhanging and potentially touching buildings constructed on the indicative building footprints identified by the Applicant on its proposed lots following subdivision;
3. the BSA requires that lower limbs should be removed up to a height of 2m above the ground, but this requirement had not been assessed by the Applicant in relation to the trees it has proposed for retention;
4. the separation of tree canopies by 2m to 5m would not be consistent with the Applicant's proposed retention of trees on the Subject Site; and
5. the BSA required that land adjacent to the Subject Site, and not under the control of the Applicant, would need to be kept mown in order to mitigate the potential impact of a bushfire on any buildings constructed on the Applicant's proposed lots following subdivision.
Further, the Respondent also submitted that compliance with the requirements of the BSA would give rise to:
1. potential impacts on a CEEC, being the STIF community mapped on proposed Lot 6; and
2. non-compliances and inconsistencies with:
1. the provisions of cl 6.3 of KLEP;
2. the objectives of the E4 zoning of the Subject Site under cl 2.3 of KLEP; and
3. Parts 3 and 18 of KDCP.
During the hearing, the Applicant's bushfire expert, Mr Travers agreed that:
1. the canopy cover survey undertaken by the bushfire experts had confirmed that tree canopy cover within the Proposed Development would be 18% and so not consistent with the first requirement of the BSA (see above at [70(1)]);
2. the canopy of trees proposed for retention by the Applicant was likely to overhang buildings constructed within the Applicant's indicative building footprints identified in its application, in contravention of the second requirement of the BSA (see above at [70(3)]);
3. a survey of the canopies of trees proposed for retention by the Applicant had confirmed that there would be areas of the canopy that would not be separated by between 2m and 5m as required under the fourth requirement of the BSA (see above at [70(4)]); and
4. the BSA did require that land adjacent to the Subject Site, and not under the control of the Applicant, would need to be kept mown in order to meet the requirements of the BSA for the Proposed Development's IPA needed to mitigate the potential impact of a bushfire on any buildings constructed on the Applicant's proposed lots following subdivision.
The Applicant submitted that:
1. it had provided building footprints for its proposed subdivision as required under the provisions Control 1 of Part 3A.3 of KDCP (see above [27(1)(b)(ii)]);
2. it accepted that there would be tree limbs that would overhang its proposed building footprints, in contravention to the requirements of the BSA;
3. any pruning or further work required does not alter the agreement of the bushfire experts that 82 trees are proposed for removal having regard to the terms of the BSA and general terms of approval issued to the Applicant by the NSW RFS;
4. it had confirmed:
1. which 82 trees on the Subject Site will be removed should consent be granted to the Proposed Development; and
2. those trees slated for removal will be removed if consent is granted and the trees proposed for retention will be retained;
1. any pruning of trees that would be required to satisfy the BSA requirement that tree canopy cover should not exceed 15% would be minimal, and that the actual proposed tree canopy cover was in fact 17%, not the 18% mentioned by Mr Travers in his evidence;
2. any additional tree pruning that might be required was minimal and ought not to be of great significance;
3. the Proposed Development does not seek consent for the construction of any dwellings, but provides indicative building footprints to assist with the assessment of the Proposed Development;
4. the Proposed Development demonstrates that continued careful and thoughtful design of dwellings must occur at the next stage of development on the Subject Site at which point development applications would be made, and assessed, seeking approval to construct dwellings on the subdivided lots;
5. because the Subject Site is zoned E4 it would not be possible for the Applicant to seek approval for construction of dwelling on the Subject Site through obtaining a complying development certificate under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (SEPP Codes);
6. as any future proposal for construction of a dwelling on any of the subdivided lots would require preparation, and assessment, of a development application, it was unnecessary for the Applicant to provide detailed design for dwellings on each proposed lot as might be required by the planning principle enunciated by former Senior Commissioner Roseth in Parrott v Kiama [2004] NSWLEC 77;
7. any dwelling design in the future must respect the on-going presence of those trees which are proposed, by condition of consent, for retention; and
8. the evidence of the Parties' expert planners does not demonstrate that there would be any significant impediments to, nor render unrealistic, the construction of dwellings on each of the proposed subdivided lots.
I have considered the submissions of the Parties and the evidence of the Parties' experts and have concluded that:
1. I accept that, consistent with the evidence provided by Mr Travers, if the Applicant's Proposed Development were approved:
1. it would not satisfy the requirement of the BSA that canopy cover should not exceed 15%;
2. the canopies of trees proposed for retention would not satisfy the BSA requirement that tree canopies should be separated by 2m to 5min;
3. the canopy of trees within the Proposed Development would overhang buildings constructed within the building footprints identified by the Applicant in its application, also in contravention of the BSA;
1. it is clear, both on the evidence of the experts and the submissiosn of the Applicant, that pruning of trees would be required to satisfy the requirements of the BSA;
2. the Applicant has not provided any proposal, or any assessment, as to which of the trees proposed for retention would be impacted by pruning works required to satisfy the terms of the BSA;
3. while the Applicant has submitted (see above at [74(6)]) that any additional tree pruning required to satisfy the BSA would be minimal and ought not to be considered as being of great significance, in my assessment the evidence before me is insufficient to accept this assertion;
4. the considerations concerning the potential pruning of trees proposed for retention within the Proposed Development would not, in my assessment, be straightforward, and would involve the simultaneous resolution of:
1. the requirements of the BSA concerning:
1. canopy separation of between 2m and 5m
2. canopy cover to be no more than 15%;
3. the removal of limbs overhanging any proposed dwellings;
1. arboricultural considerations in relation to the capacity of any trees to remain viable and stable following pruning;
2. the implications of any arboricultural considerations for ecological outcomes should trees identified for pruning be placed at risk of instability or have their long-term viability compromised;
1. for reasons provided above at [(1)] to [(5)], I am satisfied that the Proposed Development:
1. is not compliant with the provisions of controls (ii) and (vi) of Part 3A.1 of KDCP because the uncertainty of the Applicant's Proposed Development with respect to potential pruning impacts on native trees does not allow me to conclude that:
1. it would protect habitat and distinctive environmental features, including on remnant bushland and trees, as well as in relation to tree hollows; and
2. it has minimised the impacts of the Proposed Development (including the impacts of any asset protection zones required) on Greenweb lands located on the Subject Site;
1. would not achieve objectives 2 and 7 of Part 3A.1 of KDCP because the uncertainty of the Applicant's Proposed Development with respect to pruning impacts on vegetation does not allow me to conclude that:
1. it has limited the impact of the development on the natural and environmental significance of the Subject Site; and
2. the Proposed Development, including its proposed building footprints, is sympathetic and safe in relation to adjacent urban bushland on the Subject Site; and
1. does not merit flexibility in the application of the controls in Part 3A.1 of KDCP, as provided for in Part 3A.1 of the EP&A Act, because it does not achieve the objectives of those controls as required for flexibility to be so applied.
Further, and also based on my consideration of the expert evidence and submissions of the Parties, I agree with the Respondent that, while the Applicant seeks consent for its development on the basis that it will satisfy the requirements of the BSA issued by the NSW RFS:
1. the IPA required by the BSA for the Proposed Development:
1. includes land within an adjoining lot, outside the Subject Site, and,
2. as confirmed by the evidence of Mr Travers, necessitates management of that land outside the Subject Site to assure that the IPA fulfills its bushfire mitigation purpose;
1. the Applicant has not provided either:
1. owners consent to undertake the management actions required to maintain the IPA on adjacent land in satisfaction of the BSA; or
2. an agreement with the owner of the adjoining lot to maintain the area of the IPA on that lot in satisfaction of the BSA; and
1. on the basis of the above points (at [76] and [84]), and without owners consent to maintain the IPA on the adjoining lot in satisfaction of the BSA, the application has not satisfied the requirements of the EP&A Regulation with respect to being made with owner's consent, and as a consequence could not be determined.
Finally, in relation to bushfire matters arising from the BSA, I note that the BSA requires that the access road to the Subject Site from Cliff Avenue is required to be a minimum 5.5m carriageway width kerb to kerb.
The Respondent stated that:
1. the BSA requirement to increase the width of the access road (kerb to kerb) from 4.0m to 5.5m would potentially result in the removal of an additional three trees (Nos. 29, 31 and 33); and
2. each of these trees, consistent with the evidence of the Applicant's arboricultural expert, Mr Kingdom, is endemic, of high priority for retention, high landscape significance and have a long-life expectancy.
The Applicant contended that this matter is simply resolved as follows:
1. the Applicant's Tree Retention Detail Plan DA-017 (Exhibit A, Tab 1(i)(b)) depicts the extent of the road reserve at a width of 6.0m. The dashed line depicts the 'extent of batter' - which includes a 0.5m dish drain, a 4m road and 1.5m of verge (1.00m on the left side and 0.50m on the right) (see DA211 of the concept engineering plans at Exhibit A, Tab 1(i)(c)); and
2. because no kerbs are proposed, the road as proposed achieves 5.5 m carriageway width; but
3. if the RFS were to strictly apply the 'kerb to kerb' requirement, the road could be extended into the verge. DA-017 does not need to be amended to comply with this requirement and Trees 29, 31 and 33 remain.
The Applicant further submitted that the above appears to have been confirmed in the oral evidence of Mr Anderson during the hearing.
Having considered the evidence on this point, I am of the view that, given the weight of other considerations that require that the Applicant's Proposed Development should not be approved, the appeal will not turn on my having to resolve this contention.
Notwithstanding this, in general I am persuaded that, consistent with the Applicant's submission, if required the Applicant's plans could be amended to accommodate both the retention of Trees 29, 31, and 33.
However, given my conclusions below (at [84]) there would be no utility in requiring the preparation of such a plan to confirm a revised design for the access road from Cliff Avenue to satisfy the requirements of the BSA with regards to its width and so as to demonstrate retention of Trees 29, 31 and 33.
[17]
Conclusion concerning bushfire contentions
On the basis of my conclusions above, and in addition to my conclusions in relation to biodiversity impacts, I find that the Applicant's Proposed Development should also not be approved because:
1. the Applicant's BSA would require pruning of trees in relation to canopy separation, canopy cover and overhanging trees limbs above future dwellings. These have not been assessed and so I am unable to be satisfied that the Proposed Development would be compliant with the provisions of Part 3A.1 of KDCP, for reasons provided above (at [75(6)]); and
2. as noted above (at [76]), the Proposed Development includes a requirement within its BSA for management on land adjacent to and outside the Subject Site and for which the Applicant has not provided either owner's consent or an agreement with the owner of that land to maintain the land for the purposes of an IPA as required by the BSA.
[18]
Is the Applicant's proposed removal of 82 trees acceptable?
As already noted at multiple points within this judgment, in order to comply with the requirements of the BSA issued by the NSW RFS, the Applicant has proposed removal of 82 trees as part of its Proposed Development.
On the basis of conclusions already made in this judgment, I am unable to conclude that the Applicant's proposed removal of 82 trees is acceptable because:
1. as noted above (at [58]) I have concluded that the Proposed Development is not compliant with the provisions of cl 6.3(4)(b) of KLEP because the Applicant has not adequately considered options to avoid potential impacts on certain Syncarpia glomulifera trees associated with the STIF CEEC located on proposed Lot 6, some of which are proposed to be removed as part of the Proposed Development;
2. as noted above (at [68]), I have concluded that the Applicant's BDAR is not adequate for the purposes assessing the Proposed Development under the BC Act as it has not fulfilled the requirements of the BAM to properly consider options to avoid impacts on biodiversity, most notably in relation to STIF CEEC located on proposed Lot 6;
3. as noted above (at [75]), the Proposed Development is not compliant with the provisions Part 3A.1 of KDCP for the reasons provided.
[19]
Conclusions
On the basis of my assessment and conclusions above in this judgment, I am satisfied that the Proposed Development should not be the approved because:
1. as discussed above at [58] it is not compliant provisions of cl 6.3(4)(b) of KLEP and on that basis, and in my assessment, it is inconsistent with the objectives of that clause because:
1. it will not protect the biological diversity of native flora, notably the STIF CEEC found on the Subject Site, and certain Syncarpia glomulifera trees;
2. it will not encourage the recovery of a threatened community, that being a STIF CEEC found on the Subject Site;
1. as discussed at [68], the Applicant's BDAR:
1. has not, in my assessment, considered options to avoid potential impacts on biodiversity, and in particular on the STIF CEEC located on the Subject Site, as provided for under ss 7.13(2) and 7.13(6) of the BC Act, and as required under the requirements of the BAM;
2. cannot be utilised for the purposes of offsetting biodiversity impacts through retirement of biodiversity credits as outlined within the BDAR;
1. as discussed above at [84], the Applicant's BSA would require pruning of trees in relation to canopy separation, canopy cover and overhanging trees limbs above future dwellings which have not been assessed and as a consequence:
1. I am unable to be satisfied that the Proposed Development would be compliant with the controls of Part 3A.1 of KDCP;
2. I am satisfied that the Proposed Development would not achieve the objectives of Part 3A.1 of KDCP;
3. the Proposed Development does not warrant the application of flexibility in relation to the requirement to comply with the controls of Part 3A.1 of KDCP, pursuant to s 4.15(3A)(b) of the EP&A Act;
1. for reasons provided above at [86], the Applicant's proposed removal of 82 trees on the Subject Site is not acceptable; and
2. on the basis of the above conclusions (at [(1)] to [(4)]), the Proposed Development is:
1. inconsistent with achievement of the objectives of the E4 zoning of the Subject Site, in particular because it would not, in my assessment, provide for a low impact residential development in an area with special ecological and scientific values and it would not ensure that the proposed residential development; and
2. inconsistent with achievement of the objects of the EP&A Act as, in my assessment, it would not:
1. facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment; and
2. protect the environment, including the conservation of threatened and other species of native plants, ecological communities and their habitats.
For reasons provided above at [87], I am also satisfied that approval of the Applicant's Proposed Development is not in the public interest.
Finally, as noted above (at [76]), the Proposed Development includes a requirement within its BSA for management on land adjacent to, and outside, the Subject Site and in relation to which the Applicant:
1. has not provided evidence of having secured owner's consent for the works required under the BSA on that adjacent land; or
2. has no agreement with the owner of that land to maintain the land for the purposes of an IPA as required by the BSA.
Clause 49 of the EP&A Regulation requires that, in order for a development application to be properly made, any development application should be made either by the owner of the land to which the development application relates, or by any other person, with the consent of the owner of that land.
[20]
Orders
The Court orders that:
1. The appeal is dismissed.
2. Development Application DA-0174/20 seeking consent for the demolition of structures, tree removal and community title subdivision of land to create six (6) allotments and associated works at 4 and 18 Cliff Avenue, North Wahroonga, is determined by way of refusal.
3. The exhibits are returned, with the exception of A and 2.
[21]
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Decision last updated: 15 September 2021
Parties
Applicant/Plaintiff:
Sandy Outlook Pty Ltd as the trustee for Sandy Outlook Trust