Sentros Pty Ltd v Central Coast Council

Category: Principal judgment

Parties: Sentros Pty Ltd (Applicant)
Central Coast Council (Respondent)

Representation: Counsel:
N Eastman SC (Applicant)
C Ireland (Respondent)
Solicitors:
Sparke Helmore Lawyers (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2024/280663

Publication restriction: Nil

JUDGMENT

1. Sentros Pty Ltd (Sentros) have applied to Central Coast Council (the Council) for the staged Torrens title subdivision and early works for residential purposes at 120 Jensen Road and 12 Durian Street, Wadalba, Lot 212 DP 81007 and Lot 29 DP 1294537 respectively. These proceedings, brought pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) arise from the Council’s deemed refusal of this application.

2. In detail, the application is for an eight-stage subdivision of 118 residential lots plus residue parcels, with demolition of existing structures, some vegetation removal, and construction of roads, bushfire access, stormwater, bulk earthworks and landscaping. The development stages are as set out in the Amended Statement of Facts and Contentions (ASOFAC) (Exhibit 1).

3. Residential subdivision is anticipated by the development controls applicable to this site, as it forms part of the Wadalba South Urban Release Area (Wadalba South URA) under the provisions of the Central Coast Development Control Plan 2022 (CCDCP). However, at the commencement of these proceedings the Council maintains that the application warrants refusal for a number of reasons, principally:

4. The ‘edge effects’ created by the development, in terms of both planning and ecological impacts;

5. The mapping and species credits for Melaleuca biconvexa;

6. Whether the design of the proposed development satisfactorily addresses the obligation to ‘avoid and minimise’ impacts on ecological values as required by s 6.2 and s 6.3A of the Biodiversity Conservation Act 2016 (NSW) (BC Act), and;

7. Whether the development will result in a Serious and Irreversible Impact (SAII) on the Swift Parrot or Squirrel Glider.

8. For the following reasons, I find that the applicant has not satisfactorily met the obligation to avoid and minimise impacts on ecological values pursuant to s 6.3A of the BC Act, nor have they adequately managed the edge effects of the development on the site’s ecology. Accordingly, the appeal must be dismissed and the application refused.

The site and its planning context

5. Due to its location within the Wadalba South Urban Release Area, the site is surrounded by a mix of bushland, agricultural land and suburban development, including detached one and two storey dwellings and large lot residential.

6. The site itself totals 12.723 hectares, with 120 Jensen road occupying 10.94 ha and 12 Durian Street 1.783 ha. 120 Jensen Street is currently occupied by a single dwelling house with a barn, tennis court and swimming pool. 12 Durian Street is not occupied by any dwelling, and has been predominantly used, until recently, for grazing. Pursuant to the Central Coast Local Environmental Plan 2022 (CCLEP), the land is zoned in parts as R2 Low Density Residential, C2 Environmental Conservation, and C3 Environmental Management.

7. The site is subject to an ‘Indicative road layout and structure plan’ (structure plan) held within the CCDCP at Part 5, Section 5.9.2.3 (Figure 1). This structure plan shows a future link road traversing the site from the north to the south-west, connecting John’s Road to the north to Jensen Road in the south. The structure plan also shows two vegetation corridors, one running east-west, and one running roughly north-south. Both of these corridors are zoned C2, except for the eastern end of the east-west corridor which is zoned C3. The CCDCP both identifies that the subject lands contain areas of high conservation value that are known habitat for threatened species, and makes detailed, specific provisions for the management of potential ecological impacts through development. It is apparent that the Wadalba South URA has been developed in response to preliminary ecological investigations on a broad scale, however I note that this does not negate the need to assess and respond to site-scale ecological impacts.

Figure 1: Indicative Road Layout & Structure Plan, extracted from Pt 5 Ch 5.9, Fig 3, CCDCP (Ex 2 tab 22). The subject site runs south from the junction of Orchard Way and Johns Road.

Biodiversity values of the subject site

8. Expert ecological evidence was provided by John Whyte for Sentros and Chris McLean for the Council. Arboricultural evidence was provided by Greg Tesoriero for the Council, and Mr Whyte again for Sentros.

9. Sentros supported their case with written evidence, appended to the Biodiversity Development Assessment Report by Hunter Ecology dated 30 June 2025 (BDAR) (Ex G tab b) from Rodney van der Ree with reference to the Squirrel Glider, and Ross Crates for the Swift Parrot. Neither Dr van der Ree nor Dr Crates were called to give oral evidence, nor sworn in as experts in these proceedings.

10. In its current state, the site is largely vegetated with a mix of plant communities. This includes substantial areas of native vegetation in varying conditions covering a total area of 5.9ha, as well as additional areas of derived grassland and weedy riparian vegetation. It also includes several mapped first order watercourses, which impact and direct the sloping topography. The site also includes known habitat for three threatened species of fauna: Lathamus discolor (Swift Parrot), Myotis Macropus (Southern Myotis) and Petaurus norfolcensis (Squirrel Glider).

11. The plant community types (PCTs) on the site that are identifiable under the Biodiversity Assessment Method (BAM) include: PCT 3244 Lower North Spotted Gum-Mahogany-Ironbark Sheltered Forest, and PCT 4028 Estuarine Swamp Oak Twig-rush Forest. Also identified on site is an isolated stand of Melaleuca biconvexa, which are believed to have germinated from within imported fill.

12. The stand of M. biconvexva is proposed to be removed in its entirety, and its removal is uncontroversial. However, the parties dispute the methodology of calculation of biodiversity offset credits for its removal, which Sentros’ ecologists developed through correspondence with the relevant BOS helpdesk. The Council contended that the BDAR underestimates the offset credits, because M. biconvexa is a species that should be calculated based on the potential habitat area, which in this case would match the area of PCT 3244 (the Spotted Gum PCT), which would include a derived grassland zone of 3.3ha and a forest component zone of 4.4ha. Sentros contend that it is acceptable to calculate offset credits based on the known area of the species, particularly because the experts agree that the incidence of this species in this location is likely the result of it being transported to the site in imported fill, and this limits the occurrence of this species on this site. To confirm this calculation method, the BDAR states that the assessing ecologist contacted the biodiversity helpdesk, who advised on the method of calculation that was subsequently applied in the BDAR. This was further confirmed by Mr Whyte in oral evidence as an appropriate methodology. I accept this course of action and that the corresponding BDAR calculation of credit in relation to this species is acceptable, in these circumstances, and is concurrent with s 5.2.5 of the Biodiversity Assessment Method (Ex 4 tab 2).

13. Subsequently, the species that are of particular relevance to this judgment are the Squirrel Glider and the Swift Parrot.

14. Squirrel Gliders are listed as a ‘vulnerable’ species in NSW (Ex 4 tab 7). They live in family groups, and require abundant tree hollows for refuge and nest sites, preferring mixed-species stands with a shrub midstorey. The NSW threatened species profile lists numerous threats to the Squirrel Glider which relevantly include: habitat loss and degradation; fragmentation of habitat; loss of hollow-bearing trees and loss of understorey food resources (Ex 4 tab 7). Squirrel Gliders have been identified on the site, and are known to inhabit the pocket of Spotted Gum-Ironbark woodland to the north-eastern corner of the site.

15. Swift Parrots are critically endangered birds that breed and nest in Tasmania and migrate to the south-eastern mainland to feed in large mature trees, typically Eucalyptus and Corymbia species (Ex 4 tab 1). The advice of Dr Ross Crates, upon which Sentros relies in relation to Swift Parrots, states that although their potential non-breeding habitat can occur from Victoria to south-eastern Queensland, the availability of food is dynamic and can be dramatically affected by varying rainfall patterns and drought (Ex 4 tab 1). Dr McLean further submitted in oral evidence that as a result of this dynamic habitat, the Central Coast can at times be a key winter habitat. Dr Crates states that the frequency and intensity of drought is predicted to increase under climate change, impacting this habitat, and further that the Swift Parrot habitat is at risk of loss through the cumulative impact of ongoing but small-scale loss of potential foraging habitat. This is consistent with the threats listed in the Swift Parrot threatened species profile (Ex 4 tab 3) and supported by Strategy 1 of the National Recovery Plan for the Swift Parrot (Ex 4 tab 1) which is to ‘maintain known Swift Parrot breeding and foraging habitat at the local, regional and landscape scales.’ The Swift Parrot endangered species listing (Ex 4 tab 5) states that continued loss of flowering resources in its wintering grounds in NSW “through conversion of native woodlands and forests to other land uses associated with human development threatens the continued existence of this species in nature in New South Wales in the short term (2-5 years).”

16. In the joint report, Dr McLean identifies a further threat to the use of Swift Parrots in the area, which is habitat competition from aggressive Noisy Miners. He describes in oral evidence the dominance of Noisy Miners in suburban habitats due to their preference for habitat with a low stem density of trees and low-to-no understorey. As a result, land that is managed as both inner and outer protection areas for bushfire purposes benefits noisy minors and disadvantages Swift Parrots, as they largely reduce the prevalence of a complex mid-storey of vegetation.

17. Under the NSW Biodiversity Assessment Method important area mapping, the site is mapped as containing 6.74 ha Swift Parrot habitat, and Dr Crates identifies the highest priority habitat to be within the stand of spotted gums towards the centre of the subject site.

The statutory framework for ecological considerations

18. Part 7 of the BC Act regulates biodiversity assessment and approvals under the EPA Act. Section 7.7 of the BC Act provides that 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 (BDAR).

19. The criteria that determine whether a proposed development is likely to significantly affect threatened species are set out in s 7.2 of the BC Act, and includes development that ‘exceeds the biodiversity offset scheme threshold’. Exceedance of this threshold is defined in s 7.2 of the Biodiversity Conservation Regulation 2017 (NSW) (BC Regulation) as clearing of native vegetation in excess of the amount stated in the table in this section. With reference to the table at s 7.2, for land that is less than 40 ha but not less than 1ha in area, clearing of 0.5ha or more exceeds the biodiversity offsets threshold.

20. The subject site has an area of 12.72 ha, and the amount of native vegetation proposed to be cleared is over 4.4ha. Therefore, the proposed development exceeds the biodiversity offset scheme threshold and is therefore likely to significantly affect threatened species, and pursuant to s 7.7 of the BC Act must be accompanied by a BDAR. Accordingly, a BDAR, prepared by Hunter Ecology dated 30 June 2025 accompanies the application.

21. Section 7.16(2) of the BC Act contains a precondition to the grant of consent, providing:

“The consent authority must refuse to grant consent under the Environmental Planning and Assessment Act 1979, Part 4 for an application for development consent to which this division applies if, in the consent authority’s opinion, the proposed development is likely to have serious and irreversible impacts on biodiversity values.”

22. ‘Biodiversity values’ are defined in s 1.5(2) of the BC Act as:

“(a) vegetation integrity—being the degree to which the composition, structure and function of vegetation at a particular site and the surrounding landscape has been altered from a near natural state,

(b) habitat suitability—being the degree to which the habitat needs of threatened species are present at a particular site,

(c) biodiversity values, or biodiversity-related values, prescribed by the regulations.”

23. Some impacts of actions on biodiversity values are subject to assessment and offset under the biodiversity offsets scheme. Pursuant to s 6.3 of the BC Act, these include, inter alia, the impacts of the clearing of native vegetation and the loss of habitat.

24. Section 6.3A of the BC Act then provides a hierarchy for the principles of “avoid, minimise and offset” approach to managing the impacts of actions on biodiversity values:

“For the purposes of the biodiversity offsets scheme, the avoid, minimise and offset hierarchy is the principle that avoiding, minimising and offsetting the impacts of actions on biodiversity values be approached as follows—

(a) the proponent of the action first takes all reasonable measures to avoid the impacts of the action on biodiversity values,

(b) after taking all reasonable measures under paragraph (a), the proponent then takes all reasonable measures to minimise the impacts that have not been avoided,

(c) having taken the measures under paragraph (b), the proponent then takes biodiversity conservation measures under the biodiversity offsets scheme to offset or compensate for any residual impact on biodiversity values.”

25. In this case, I find that the proponent has not taken all reasonable measures to avoid the impacts of the clearing of native vegetation on the biodiversity values of the site. Specifically, these values are the habitat suitability of the site for Swift Parrots and, to a lesser but still relevant extent, Squirrel Gliders.

Steps taken by the applicant to ‘avoid and minimise’

26. Sentros submit that they have taken the following steps to avoid and minimise impacts on biodiversity values. These are detailed in the BDAR and summarised here, noting that the two steps, ‘avoid’ and ‘minimise’ have generally been conflated in the application and evidence:

27. Compliance with the habitat corridor planning set out in the Greater Warnervale Structure Plan 2021-2041, and with the masterplan of the East Wadalba Urban Land Release.

28. Project modifications at subdivision stage, which depart from the original concept masterplan and include the retention of additional R2 zoned areas in the north-eastern corner of the site and through the centre of the site, to ensure habitat connectivity is maintained and an additional 51 trees are retained.

29. The retention of an additional 54 trees within the construction footprint for the benefit of Swift Parrots.

30. The establishment of a conservation area around the C2 zoned riparian corridors and the additional R2 zoned areas identified above. These areas would be subject to the submitted Vegetation Management Plan (VMP) (Exhibit B tab 11).

31. Protection of retained vegetation and habitat during construction through a Flora and Fauna Management Plan.

32. Design features that reduce indirect impacts such as edge effects and light pollution, including an Urban Interface Area (UIA) consistent with s 2.4.2.7 of the CCDCP, and environmentally sensitive street lighting design.

33. For the following reasons, I find that the stated steps taken to avoid and minimise impacts on biodiversity values are not as claimed, nor do they respond to the significance of the site as habitat for the Swift Parrot. The application therefore does not demonstrate that ‘all reasonable measures’ have been taken to avoid the impacts on biodiversity values.

Reasonable avoidance of Swift Parrot habitat

28. The parties concur that compliance with the Structure Plan does not constitute ‘avoidance’ in this case, as residential dwellings are not permitted within the C2 zone, and the C3 zone on this site is designated as an environmental corridor in the structure plan.

29. Regarding the departures from the original concept masterplan to include the retention of additional R2 zoned areas, it is apparent from the evidence that the additional zones avoid some vegetation removal, but do not avoid removal of the highest priority vegetation on site as identified by Dr Crates. It is noteworthy that, as stated in the BDAR, 32.6% of the existing vegetation on site is to be retained, and 77.4% removed.

30. In his advice to Sentros, appended to the BDAR at Appendix K, Dr Crates identifies a dialogue that has occurred between Sentros and himself, where he provides technical advice on how potential impacts of the proposed development on the Swift Parrot could be reduced. In this report, Dr Crates records the responses made by Sentros to his critique of the development proposal, and subsequent changes made. These changes include updates made to the BDAR and VMP, and also to the subdivision design.

31. Of critical importance is ‘comment 6’ on page 12 of the BDAR, where Dr Crates states:

“To reduce the potential for the revised development application to constitute a Serious and Irreversible Impact on Swift Parrot habitat, further avoidance of high priority foraging habitat is recommended. Priority areas for avoidance are those areas of mature Spotted Gum shown in Figure 8. These areas run adjacent to (west of) the C2-C3 corridor, and would allow preservation of the highest priority Swift Parrot habitats whilst also minimising the edge to area ratio of remaining habitat (thus minimising potential increased Noisy Miner impacts).”

32. Sentros’ ecologist’s response to this identifies “significant efforts made to retain mature feed trees”, including an additional 53 feed trees within the construction footprint, which includes “mature spotted gums located within the highest priority area for Swift Parrots within the subject site”.

33. The response continues:

“In completing a review of the subdivision design and proposed tree retention, Everitt Consulting Engineers and Hunter Ecology have also provided the following response as to why further avoidance of mapped Swift Parrot habitat in the area described in the above comment is not feasible:

Earthworks and retaining walls are required on site to provide lots of a suitable slope conducive to affordable housing blocks suited to slab on ground construction.

Services installation within set allocations (drainage/water/sewer/utilities) is required throughout the subdivision to provide each lot with access to the required services to support residential housing development. These servicing allocations often clash with Tree Protection Zones (TPZs) resulting in an unsatisfactory impact to the tree requiring its removal in accordance with AS4970.

The objective of R2 Land zoning under CCLEP2022 is to “provide for t**he housing needs of the community within a low-density environment.” The minimum and encouraged lot size in this zone is 450m2 which delivers the target density desired by local council and state government. Retention of large trees on small lots is difficult due to the large Tree Protection Zones resulting in unviable or highly restrictive building envelopes.

Large trees in proximity to residential buildings may result in an increased risk to building damage leading to increased building insurance costs or in extreme cases uninsurable risk.

Retention of vegetation in general where there is an existing bushfire risk further increases the risk of bushfire attack and results in unsatisfactory Bushfire Attach Level (BAL) ratings. BAL cannot exceed BAL29 for subdivision development.**”

34. The diagrammatic representation of revisions made to the masterplan are as per the ‘Plan showing the evolution of the site avoid and minimise strategy’ (Ex B, tab 3 sheet 34), Figure 2 below.

Figure 2: Plan showing the evolition of the site avoid and minimise strategy, Everitt & Everitt Consulting Surveyors, Ex B tab 3

35. In response, the Council highlights that Sentros have retained some individual trees within future residential lots, rather than avoiding the high priority area as a whole, as recommended by Dr Crates. They suggest that this does not demonstrate a genuine attempt to avoid the highest priority habitat for Swift Parrots, and that “the clear evidence is that there are further steps in addition to those that have been taken that were required to satisfy the avoid and minimise requirement.” In the Council’s case, the subdivision could readily accommodate the retention of the priority habitat through a reduction of lots and an alternative layout.

36. Although Sentros state that achieving the density of housing, and the provision of a certain type of building pad for affordable housing contributes to the justification of this lack of avoidance, the Council disagrees, and submits that an alternative layout should be considered.

37. In cross examination of the arboricultural experts, the Council, in my opinion, adequately demonstrated that several of the trees proposed for retention were in fact unlikely to be viably retained due to proximity of services, earthworks and retaining walls. These include, at least, trees 226, 241, 518, 628 and 949.

38. Regarding the assessment of arboricultural impacts, there was some debate as to which version of the Australian Standards applies to the current development: the recently superseded AS4970/2009 or the current AS4970/2025. The current standard includes additional relevant considerations that have not been incorporated into the Arboricultural Impact Assessment by Enviro Ecology (Ex G tab 1). Irrespective of which standard applies, if a tree is designated to be retained in a development application, this should be on the basis of a coordinated assessment of the current and future constraints on the tree in question. In this case, the likely impact of services, retaining walls and earthworks on trees to be retained are a relevant consideration, and integral in confirming that the proposed retention of each tree is indeed viable. On this, I concur with the Council that this assessment has not clearly or accurately occurred, and that the viability of the five trees noted above is uncertain. Put simply, Sentros have not demonstrated that they can viably retain all the trees they claim to.

39. Sentros submit that, should the proposed retention of some of the trees not be technically feasible, it is of minimal significance to the overall impacts of the development given the much larger number of retained trees.

40. I disagree, and note that Sentros have not provided adequate justification as to why the layout could not be amended to comfortably accommodate these trees in question, either in isolation or as part of a conservation area. I concur with the Council that this demonstrates lesser avoidance than claimed, noting the relevance of these trees as part of Sentros’ ‘avoid, minimise, offset’ assessment.

41. In addition, it is my considered opinion that Sentros have not adequately justified the removal of the majority of the primary habitat for Swift Parrots. The application and evidence do not demonstrate that a suitable number of lots cannot be provided with an alternative layout, despite the application itself demonstrating that deviation from the original master planned layout is an acceptable course of action.

42. In his report in the BDAR at pp 11-12, Dr Crates makes the following comment:

“The main issue with planting replacement Swift Parrot trees versus preserving those already present is the time lag of approximately 30-40 years between the loss of mature trees and the maturity of replacement trees. This lag exceeds the period within which Swift Parrot conservation efforts are most critical (i.e. the next 20 years, Owens et al., 2022).”

43. Sentros’ response to Dr Crates in the BDAR is to detail the additional 53 trees they have retained in the R2 zone, and that the staged subdivision would occur over 8-10 years, reducing the lag between the loss of habitat and the maturity of the replanted habitat.

44. On this, and given the sensitivity of the Swift Parrot population, I concur with the Council that newly planted trees are simply unlikely to grow in time, and there would likely be an impactful and unacceptable gap in available feed trees for Swift Parrots in this time.

45. Subsequently, the justification provided in the BDAR of achieving planned density and building pads for a certain construction method is not, in my considered opinion, adequate reasoning for the excessive removal of mature Swift Parrot feed trees.

46. Finally, the Council submits and both ecology experts concur, that the VMP as filed is insufficient. It lacks specific quantitative performance benchmarks linked to vegetation condition improvement, and also specification of corrective actions if performance standards are not met. It further lacks specific details, and a clear intent and performance outcome for the inclusion and positioning of glider poles for supporting Squirrel Glider movement. Dr Whyte submitted that these flaws could be rectified through conditions of consent, however Dr McLean disputed this, stating that the issues such as placement and intent of glider poles were too complex to resolve via conditions of consent. Draft conditions of consent were provided by the Council in an attempt to address this issue should the application be granted development consent. However, I concur with the Council that these conditions do not sufficiently address the inability for the Council and the Court to assess the proposed vegetation management principles.

47. Given the provision of, and compliance with a VMP was another limb of ‘avoidance and minimisation’ claimed by Sentros, to then have a VMP that is, by the admission of their own expert, deficient, is unacceptable in this case. I concur with the Council that these deficiencies cannot be adequately addressed by conditions of consent.

Avoidance of impacts on Squirrel Gliders

48. Hollow bearing trees are required for refuge and nest sites for Squirrel Gliders, and this subject site contains five of them. Of these five, the BDAR identifies that only one, tree 1, is suitable for Squirrel Gliders due to gaps and cracks in the majority of trees.

49. The proposed development avoids one hollow bearing tree, however this is Tree 4, not Tree 1. Tree 4 is located within the additional area of R2 land that has been allocated to the conservation area, to the north eastern corner of the site. Trees 1, 2, 3 and 5 are scattered throughout the parts of the site that are intended for residential lots or roads and infrastructure.

50. Mr Whyte submits that this does not represent a lack of avoidance, as minimisation techniques can be applied to mitigate the loss of hollow bearing trees. These include the provision of nest boxes, and ‘hollow augmentation’ whereby a section is cut from a living tree to create artificial hollows.

51. Dr McLean disputes the conclusion of the BDAR regarding the suitability of the remaining 4 hollow bearing trees, submitting in Ex G at par 174, that if no better hollows were available, the ones on site could be used. He further submits that nest boxes may be inappropriate, based on research demonstrating that in summer, nest box temperatures increase above the physiological range of Squirrel Gliders.

52. Dr McLean also submits in Ex G at par 173 that Sentros has focused on the provision of connectivity for Squirrel Gliders, rather than the dual provision of habitat and connectivity, noting the critical importance of both in sustaining viable populations. Further, the lack of understorey within these corridors due to their management as an Outer Protection Area (OPA) for bushfire purposes will lead to edge effects that will impact their function for Squirrel Gliders.

53. From this evidence, I concur with the Council that the application makes an inadequate attempt to avoid impacts on the Squirrel Glider. The application does not avoid the removal of the one confirmed viable hollow-bearing tree, and removes three of the remaining four. Further, the proposed nest boxes are unsuitable alternatives to these natural hollows, and the VMP does not discuss hollow augmentation. Finally, the lack of understorey in the habitat corridors that result from the management of the OPA demonstrates further risk to the function of these corridors for assisting in maintaining a viable, healthy population of Squirrel Gliders.

Edge effects and the Urban Interface Area

54. Sentros then state that another limb of their ‘avoid and minimise’ strategy is the inclusion of a UIA that is consistent with s 2.4.2.7 of the CCDCP. The proposed urban interface shown in section at Figure 3 below, and the relevant accompanying diagram at Fig 2 of Part 2 of the CCDCP is Figure 4.

Figure 3*: Typical proposed road section adjacent to north-south conservation zone. Extract from drawing 3.03 Rev E, Everitt Consulting Engineers (Ex B tab 9)*

Figure 4*: Plan view of UIA Model for subdivision abutting significant vegetation, extract from CCDCP Pt 2 Ch 2.4 (Ex 2 Tab 22)*

55. The parties dispute the adequacy of this interface. Sentros state that they have provided a UIA that is consistent with the CCDCP requirements in that it is a 16m buffer to the development edge, adjacent to the retained conservation zone. They submit that the detailed dimensions of what is provided within the UIA is not relevant so long as a the minimum 15m overall buffer is provided, and relevant components are found somewhere within that space.

56. These objectives at Section 2.4.2.7 ‘Urban Interface Area (UIA) Requirements’ of the CCDCP are:

“To manage edge effects on retained vegetation

To suitably locate bushfire protection and water sensitive urban design (WSUD) infrastructure

To provide appropriate access to public lands

To provide suitable buffers to retained natural watercourses

To streamline the requirements of diverse regulatory regimes and expedite NSW State Government approvals

To provide assistance to developers in estimating lot yield and purchase of land for subdivision

To improve and simplify ongoing management of retained native vegetation and related maintenance costs”

57. Sentros submit that the UIA meets the objectives of the section, and accordingly the diagram in the CCDCP should be applied flexibly in accordance with EPA Act s 4.15(3), and the UIA found to be acceptable. Further, the road layout complies with the ‘Road Layout and Heirarchy’ provision in Section 5.9.2.4(i) of the CCDCP, which requires developments to “provide roads at the perimeter of all wildlife corridors to provide adequate urban interface with these areas.” On this basis, and because of the ‘numeric compliance’ achieved by the 16m UIA, Sentros submit that no more onerous standard ought otherwise to be imposed.

58. The Council disputes this, submitting that the detail of the UIA as set out in the CCDCP are intentional, and relevant. They submit that the UIA model set out in this section not only requires a minimum 15m overall width, but also requires certain components within it, as demonstrated in Figures 2 and 3 of Part 2 Chapter 2.4 of the CCDCP. That is, a UIA should provide: a 5-20m access reserve; a 5-20m WSUD treatment, and; a 5-10m retained naturally vegetated buffer. The note at Section 2.5.2.7 g(ii) states that “where WSUD is not required a minimum width of 5m will be required, forming part of any required APZ and acting as an additional buffer to the retained significant vegetation to reduce edge effects.”

59. Although Sentros have provided a 16m UIA, this is comprised of a 12.5m road reserve, including verge to the inside edge, footpath and carriageway, and a 3.5m planted verge to the outside edge adjacent to the conservation zone which also includes construction of a retaining wall where required.

60. The Council submits firstly that a 3.5m buffer is inadequate. Secondly, they submit that that the likely impacts of this inadequate 3.5m buffer are ‘edge effects’, that is: increasing the likelihood of litter, weed invasion, light spill and vehicle strike, impacting the integrity of the vegetation and habitat suitability of the conservation zone. They maintain that the UIA should include the required minimum of 10m of combined WSUD/additional vegetated buffer, and outer vegetated buffer as set out in the CCDCP (Figure 4).

61. On this issue, expert planning evidence was provided by Chris Smith for Sentros and Clare Brown for the Council, both orally and in a joint report that forms Exhibit E.

62. Mr Smith submits in Ex E that the UIA is numerically compliant, and satisfies all relevant requirements of the CCDCP. He refers to the BDAR comments on ‘edge effects’, and also states that the proposed retaining walls could limit the potential for weed invasion, particularly grass species propagated by runners. He further states that abiotic edge effects are minimised by locating footpaths, services and street lighting within the 4.5m verge closest to future houses. He notes the intention for appropriate weed management (identified in the BDAR at p 121) and recommendations for further reduction of edge effects that he suggests could be included as conditions of consent.

63. Ms Brown submits that engineering design does not replace the requirement for two vegetated buffers of 5m each, and notes that providing a compliant buffer would serve to reduce the impacts of dust, noise and lighting of users of the road and from the adjacent residential development. In her opinion, the proposed 3.5m vegetated buffer and arrangement of services does not achieve this, and therefore does not manage edge effects.

64. From an ecology perspective, Mr Whyte’s opinion mirrors that which is presented in the BDAR, which is to say that it does not detail why the 3.5m verge is acceptable in lieu of a 10m verge, but states that it will be planted with “beneficial species of native street trees, shrubs and groundcover flora species.” He also submits that, in relation to vehicle strikes, that the access roads would be limited to 50km/hour speeds and that the risk of vehicle strike is low.

65. In response, and in addition to the Council’s submissions, Dr McLean submits that an insufficient buffer and the proposed earthworks and retaining walls will have likely impacts on riparian vegetation and water quality in the 1st order stream due to impacts on groundwater. He further submits that the proposed speeds are too high to adequately reduce vehicle strike on fauna such as the Squirrel Glider, and the proximity of vehicle traffic to the C3 zone, with limited vegetated buffer, increases the risk of light spill from headlights.

66. From the evidence, I concur with the Council that the proposed UIA does not meet the controls of the CCDCP, providing insufficient vegetated buffer on land where high levels of protection are required to minimise impacts on the Squirrel Glider. Further, I also concur that it does not manage the edge effects on retained native vegetation in the C2 zone, including but not limited to light spill, weed invasion, vehicle strike and litter, with potential impacts on riparian vegetation. The proposed UIA therefore does not meet the objectives of the relevant control, and therefore does not satisfy the requirements for consideration of a reasonable alternative solution pursuant to s 4.15(3A) of the EPA Act. Finally, in their application, Sentros utilise the UIA for a purpose that goes beyond the requirements of the CCDCP, in stating that the UIA contributes to the avoidance and minimisation of impacts on ecological values. In concurring with the Council that the UIA is inadequate, it is therefore my considered opinion that the proposed UIA does not represent adequate avoidance or minimisation of impacts on biodiversity values on this site.

The application does not adequately avoid and minimise impacts on biodiversity values

67. The combined implications of what is, in my view, inadequate avoidance and minimisation actions taken by Sentros and an insufficient UIA, is that there is a significant risk that the proposed development will have unacceptable impacts on biodiversity values that have not been adequately considered in the application.

68. For these reasons, I find that Sentros have not adequately avoided and minimised the impacts of the development on the ecological values of the site, and accordingly, the appeal should be dismissed and the application refused.

Orders

69. The Court orders:

70. The appeal is dismissed.

71. Development application DA/2342/2023 is determined by way of refusal.

72. Exhibits A, B, E, G and 1 are to be retained. All other exhibits are to be returned.

E Washington

Commissioner of the Court

**********