Site R & D Pty Ltd v Byron Shire Council

Zoning of the Subject Site

1. The following land use zones apply to the Subject Site: 1. zoning pursuant to West Byron Bay - Land Zoning Map, and subject to the West Byron Bay site provisions of Part 4 of BLEP 1988: 1. B1 Neighbourhood Centre; 2. R2 Low Density Residential; 3. R3 Medium Density Residential; 4. E2 Environmental Conservation; 5. E3 Environmental Management; 6. RE1 Public Recreation; 7. IN2 Light Industrial. 1. 'Residual Land' (that are part of the Subject Site but which not subject to the West Byron Bay provisions in Part 4 of BLEP 1988).
2. The land use within the Subject Site is illustrated in the figure below that was produced by AWC and included as Fig 1.2 within the amended Threatened Species Management Plan.
3. In this figure the boundaries of the two parts of the Subject Site are outlined in black, and the Residual Lands is shown as areas of white within the Subject Site boundaries.
4. The subdivision of land and associated works proposed by the Applicant are permissible under the land use zones applicable to the Subject Site under BLEP 1988.
5. The Applicant has structured its subdivision of the Subject Site into 12 stages across four precincts, as follows: 1. Precinct 1, containing Stages 1, 2, 3, 4 (part), 9 (part) and 10; 2. Precinct 2, containing Stages 4 (part), 5, 6, and 9 (part); 3. Precinct 3, containing Stages 7 and 8; and 4. Precinct 4, containing Stages 11 and 12.
6. The arrangement of these precincts is provided in the following figure.

Context of the Subject Site

1. The Subject Site adjoins other land within the WBURA that is subject to a consent granted by the Court on 8 December 2021 in the matter of Villa World Byron Pty Ltd v Byron Shire Council [2020] NSWLEC 1612 (referred to hereafter as the Villa World decision).
2. The lands that were the subject of the Villa World decision and those that are the subject of the current appeal are co-dependent in terms of their future development, and particularly in relation to site access.
3. To this end, the Applicant confirmed that a landowners agreement had been entered into between owners of the lands subject to the Villa World decision and other owners of land within the Subject Site to ensure coordination of the respective proposed developments, and to avoid nuisance arising between these owners of land within the WBURA.
4. Clause 5.1 of that agreement establishes general obligations between the parties to the agreement as follows: "Each party must in addition to granting access pursuant to clause 2: (a) act in good faith at all times towards each other in relation to the ongoing development of the adjoining land; and (b) use their reasonable endeavours to not cause any disruption or nuisance to the other parties reasonable use of its lot."
5. As a consequence, the plans for which consent is sought in the current appeal, while facilitating the delivery of the Applicant's Proposed Development, should not, if possible, be in conflict with those for which consent was granted by the Court in the Villa World decision.
6. Following the site view undertaken on 9 November 2020, the hearing proper commenced on 10 November 2021, at a time when the Parties in the Villa World decision had filed an agreement pursuant to s 34 of the Land and Environment Court Act 1979 and to which the Court gave effect through the grant of consent in the judgment in the Villa World decision.
7. In response to the agreement of the Parties in the Villa World decision, and the plans to which that consent referred, the Applicant sought leave to amend its development application to address a contention raised by the Respondent (identified as contention 5). This concerned certain inconsistencies between the Applicant's proposed staging plan and the provisions of chapter E8.10 of BDCP 2014, as well as the plans for the adjoining development that was the subject of the Villa World decision and following that grant of consent.
8. That request was considered through a notice of motion (NoM) moved by the Applicant.

Notice of motion to amend the development application

1. On 23 and 30 April 2021, by notice of motion, the Applicant sought leave to further amend its development application 10.2017.661.1 in response to matters that had arisen during the course of the proceedings, including the consent granted in the Villa World decision.
2. The leave sought was granted, and as recorded in the Court's judgment in Site R & D Pty Ltd v Byron Shire Council [2021] NSWLEC 1226, the following orders were made: 1. the Applicant was granted leave to amend Development Application 10.2017.661.1 (The proposed Development, as amended) and to rely upon the following amended documents as annexed at Annexure "B" (unmarked set of amended plans for Stage 11 and 12) and Annexure "C" (Abbott & Macro amended plan of subdivision) of the affidavit of Anthony Charles Griffiths sworn 1 April 2021 filed with this Notice of Motion (and including the works shown on Melaleuca Drive): 1. Abbott and Macro Plan 15024-9R Sheet 2 of 9 dated 2 February 2021; 2. Figure 8.1 - Issue M; 3. Figure 15.1 - Issue Q; 4. Plan W1 - Issue E; 5. Plan W2 - Issue E; 1. in addition to Order (1) above, the Applicant was granted leave to amend Development Application 10.2017.661.1 to rely in this appeal on the following plans approved for the Harvest Estate in the Villa World decision on 8 December 2020 as development consent DA 10.2017.201.1, in relation to the Villa World Road 01 [Bayshore Drive] only: 1. 0200 Rev B Finished Surface Cut Fill Plan, Sheet 1 of 2 [earthworks cut/fill at Road 01]; 2. 0210 Rev B Earthworks Plan Sheet 1 of 6 [shows Road 01 and Section D marker]; 3. 0230 Rev A Retaining Wall Sections [Section D]; 4. 0300 Rev C Road and Drainage Plan Sheet 1 of 6 [shows ROAD 01 and swales 10 and 11]; 5. 0310 Rev C Typical Road Sections Sheet 1 of 7 [shows ROAD 01 Collector Road chainage 0 to 474]; 6. 0320 Rev B ROAD 01 Longitudinal Section Sheet 1 of 2 [shows ROAD 01 longitudinal section]; 7. 0420 Rev A Typical Swale Sections [shows swales 10 and 11]; 8. 0440 Rev A Bio-Retention Basin and Bio-Swale Typical Details [shows bioretention swale typical section]; and 9. 0450 Rev A Plan of Swales Sheet 1 of 2 [shows ROAD 01 grassed swale (swales 10 and 11) and bio-retention swale; 1. the Parties' acoustic experts were directed to commence further joint conferencing by 7 May 2021, and to file a supplementary expert joint report; and 2. the Respondent was ordered to file: 1. by 14 May 2021, a Further Amended Statement of Facts and Contentions removing any issues that had been resolved and only adding any issues raised by the Respondent's experts in their Supplementary Joint Reports before that time; 2. by 28 May 2021, a Second Further Amended Statement of Facts and Contentions including any unresolved acoustic issues arising from the joint conferencing of the acoustic experts; and 3. by 28 May 2021, draft Without Prejudice Conditions in response to the Applicant's proposed conditions annexed to the affidavit of Anthony Charles Griffiths filed with the Notice of Motion.
3. These documents were filed with the Court as directed.

The Applicant's Proposed Development, as amended

1. The Applicant's Proposed Development, as amended, now includes the creation of one hundred and sixty two (162) lots comprising one hundred and twenty seven (127) residential lots, twenty five (25) super (master) lots, two (2) business lots, one (1) recreation lot, two (2) industrial lots and five (5) residue lots.
2. More specifically, the Proposed Development, as amended, seeks consent for: 1. development to be carried out in twelve (12) stages; 2. construction of a roundabout at the intersection of proposed Road No. 5, Ewingsdale Road and the access road to SAE Institute; 3. construction of all internal roads; 4. provision of underground water, sewer, power and telephone services; 5. upgrading and embellishment of the existing drainage channel within Lot 7020 DP 1113431; 6. provision of an underground stormwater drainage system including water quality control devices; 7. bulk earthworks across the subject land including the importation of approximately 470,000m3 329,500m3 of fill; 8. construction of an acoustic fence adjacent to Ewingsdale Road; 9. restoration works, habitat reconstruction and offset planting within the E2 Zoned Lot 1 DP780242, Lot 1 DP 201626 and Lot 2 DP 818403; and 10. restoration works and offset planting within the E3 zoned Lot 2 DP 818403, Lot 2 DP 542178 and Lot 7020 DP 1113413.

Applicant has provided SEPP 1 objections to development standards

1. The Applicant had provided two objections to development standards within BLEP 1988 pursuant to the provisions of State Environmental Planning Policy No 1 - Development Standards (SEPP 1), and these objections seek to vary the development standards within: 1. clause 11, in relation to the subdivision of land for uses, including for a dwelling house within certain zones identified within the clause; and 2. clause 81, which establishes a minimum lot size for developments within Zone R2 Low Density Residential and Zone R3 Medium Density Residential.
2. It was common ground between the Parties, and I agree, that these two SEPP1 objections should be upheld because, consistent with the guidance provided by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827: 1. compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard; 2. the objections are well founded, as required under the provisions of cl 7 of SEPP 1; 3. granting of consent to that development application would be consistent with the aims of this Policy as set out in cl 3 of SEPP 1; and 4. the matters in clause 8(a) and (b) of SEPP 1 have been considered and justify upholding of the SEPP 1 objections: Fastbuck$ v Byron Shire Council (1999) 103 LGERA 94; [1999] NSWCA 19 (at [100]), and City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262; [1999] NSWLEC 246 (at [291]). The matters in clause 8(a) and (b) are: (a) whether non-compliance with the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the planning controls adopted by the environmental planning instrument.

Notification and objector submissions

1. The Applicant's development application as originally lodged was notified and placed on public exhibition between 14 December 2017 and 7 February 2018. That notification period was extended for a further period to allow submissions to be received up to 31 March 2018.
2. In response to this initial notification 2,218 objector submissions were received along with one submission in support of the Proposed Development.
3. On 13 February 2020, prior to the commencement of the hearing in the current appeal, and by Notice of Motion, the Court granted leave to the Applicant to rely on amended plans.
4. The Applicant's amended plans and accompanying documents were notified and placed on public exhibition between 11 March 2020 and 9 April 2020. That notification period was again extended by the Respondent until 7 May 2020, and some 1,760 objector submissions were received in response to that notification.
5. The submissions received in response to notification of the Applicant's development application consisted of some 3000 pages of documents. The Respondent advised that its planning officer had reviewed the submissions received. That officer confirmed that, in his opinion, no new issues were raised in the submissions received in 2020 than were identified in submissions made in 2018. Those issues covered the following matters: 1. increased traffic concerns associated with the subdivision, including disrupted access to services within Byron Bay such as medical care; 2. potential biodiversity/ecological impacts - both to flora and fauna, and including potential impacts on koala habitat and populations; 3. potential impacts on the intermittently closed and open lakes and lagoons (ICOLLs) and the Belongil Estuary; 4. potential groundwater ,stormwater and flooding impacts; 5. potential impacts associated with acid sulfate soils; 6. potential geotechnical and cut/fill impacts; 7. potential economic impacts on tourism; 8. potential impacts on Aboriginal cultural heritage; 9. potential construction impacts on surrounding residents; 10. potential visual impacts, including in relation to an acoustic wall; 11. potential acoustic impacts; 12. potential cumulative impacts associated with development of, and inconsistencies with, the adjoining subdivision; 13. concerns in relation to the provision of site access; 14. the design of the subdivision; 15. bushfire concerns; 16. potential social impacts from increases to the population of Byron Bay; 17. potential sewage impacts; 18. potential future impacts of climate change on the subdivision; 19. concerns relating to over-development in the Byron Bay area; 20. the suitability of the location for the proposed development; and 21. the public interest.
6. During the hearing, the Court received oral submissions from seven objectors. Each objector had also provided written submissions in support of their oral testimony.
7. Those submissions were received from: 1. Mr Paul Margolin, a resident of Melaleuca Drive who owned a property adjacent to the Subject Site, and who expressed concerns in relation to: 1. potential hydrological impacts of the Proposed Development on his property, including in relation to flooding; 2. the unlawful filling of a drainage easement and impacts on water flows on his land; and 3. ensuring that drainage from the Proposed Development was directed to a lawful point of discharge; 1. Mr Tom Vidal, a resident of Melaleuca Drive and Secretary of the Belongil Catchment Drainage Board, and who expressed concerns in relation to: 1. flooding and potential shifts in flooding frequency that he had observed; 2. the requirement for drainage from the Proposed Development was directed to a lawful point of discharge; 3. the impact of filling proposed as part of the Proposed Development; and 4. the adequacy of consultation undertaken with the Belongil Catchment Drainage Board; 1. Mr Bruce Clarke, a resident of Ewingsdale, who stated that while he supported reasonable development in the area nevertheless expressed concerns in relation to: 1. the adequacy of the Applicant's assessment of potential traffic impacts of the Proposed Development, noting that, in his opinion, Ewingsdale Road was currently performing poorly in terms of traffic flow management; 2. potential construction impacts of the Proposed Development; 3. potential impacts of filling proposed by the Applicant for the Subject Site; 4. potential impacts on flooding regimes in the area, and the frequency of floods which in his estimation had increased; 5. potential impacts on sedimentation of waterways; 6. the adequacy of assessments undertaken concerning sewage management; 7. the potential of the development to displace koalas; and 8. potential amenity impacts; 1. Mr Veda Turner, a resident of Byron Bay, who expressed concerns in relation to: 1. the need to coordinate development across the Applicant's Proposed Development in this appeal and the adjoining development granted consent in the Villa World decision, and specifically in relation to: 1. the integration of roads and stormwater infrastructure; 2. potential traffic impacts and impacts in relation to creeks from stormwater flows; 1. potential impacts arising from fill in relation to flooding regimes; and 2. accounting for the potential impacts of climate change and sea level rise; 1. Ms Bronwyn Morris, a resident of Montecollum, who expressed concerns in relation to: 1. the suitability of the Subject Site for the Proposed Development given its potential impacts in relation to flooding, acid sulfate soils, bushfire, contamination, flora and fauna, noise, odours and pests; 2. potential traffic impacts; 3. the potential impacts of fill on flood behaviour in the area; 4. the potential impacts of the Proposed Development on local swamp ecosystems and the wildlife within those areas; and 5. the potential impact of the Proposed Development in relation to sewage; 1. Mr Anthony Stante, a resident of Coorabell, who had provided a response, drafted with Ms Annie Stante, to the West Byron Traffic and Transport Report prepared by Veitch Lister Consulting (VLC), and who expressed concerns in relation to: 1. the reliability of the Applicant's traffic modelling; 2. the need to prepare a strategic traffic model for Byron Bay, noting that the town's bypass should not be viewed as a "silver bullet"; and 3. the need for upgrades to Ewingsdale Road, which he said could cost up to $75M; 1. Mr Dailan Pugh, a resident of Byron Bay, who had provided a submission of some 150 pages, and who expressed concerns in relation to: 1. potential impacts of the Proposed Development on koalas and koala populations, as well as on wallum frogs; 2. potential climate change impacts; 3. the potential of the Proposed Development to degrade the Special Purpose Zone associated with Belongil Creek; 4. potential impacts of stormwater flows in relation to ICOLLs; 5. potential traffic impacts; 6. the requirement to ensure that water is disposed of at legal points of discharge; 7. compliance of the Proposed Development with the provisions of the BDCP; and 8. whether approval of the Proposed Development was in the public interest.

Contentions

1. Following the Court granting leave for the Applicant to amend its development application (see above (at [28]), the Respondent's Further Amended Statement of Facts and Contentions (FASFAC) noted that on the basis of proposed draft conditions of consent: 1. contentions concerning flooding on the Subject Site had been resolved; 2. contentions concerning earthworks, fill and geotechnical matters had been resolved; 3. contentions concerning site access had been resolved; 4. contentions concerning the proposed design of the subdivision had been resolved; 5. contentions concerning the management of stormwater, including the design of drainage associated with the Proposed Development, had been resolved; 6. contentions concerning the potential impact of the Proposed Development on acid sulfate soils had been resolved; 7. contentions concerning bushfire management on the Subject Site had been resolved; 8. contentions concerning potential Aboriginal cultural heritage impacts had been resolved; 9. contentions concerning construction noise management were resolved; and 10. contentions concerning potential visual impacts and in relation to character had been resolved.
2. During the hearing, and on the basis of further expert evidence of the Parties' acoustics experts, Mr Jason Fox, for the Applicant, and Mr Tim Fitzroy, for the Respondent, a contention in relation to further potential acoustic impacts was resolved through the Applicant's agreement to the imposition the certain additional conditions of consent recommended by those experts.
3. The remaining contentions in the appeal fell into the following broad areas which all pertain to aspects of the suitability of the Subject Site for the Proposed Development: 1. potential ecological impacts, and in particular in relation to: 1. the potential impacts of the Proposed Development on koalas and their habitat; 2. the potential impact of the Proposed Development on other threatened vegetation communities on the Subject Site, and the adequacy of the Applicant's plans for restoration and rehabilitation of certain lands within the Subject Site; 3. the potential impacts of the Proposed Development on certain frog species and their habitat; and 4. the adequacy of the Applicant's proposed arrangements for access to proposed Stages 11 and 12 in the western area of the Subject Site.
4. The Court was assisted in its consideration of these contentions by written, and in some circumstances oral, evidence of the Parties experts as follows: 1. the expert ecologists, Dr David Robertson, for the Applicant, and Dr Mark Fitzgerald, for the Respondent; 2. the expert traffic engineers, Mr Ken Hollyoak, for the Applicant, and Mr Craig McLaren, for the Respondent; 3. the expert civil engineers, Mr Robert Staniland, for the Applicant, and Mr David England, for the Respondent; 4. the expert water engineers, Dr Daniel Martens, for the Applicant, and Mr David England, for the Respondent; 5. the expert planners, Mr Stuart McDonald, for the Applicant, and Mr Jeff Mead, for the Respondent; and 6. the acoustics experts, Mr Jason Fox, for the Applicant, and Mr Tim Fitzroy, for the Respondent.

Environmental Planning and Assessment Act 1979

1. The objects of the EP&A Act, at s 1.3, 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.
2. 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.
3. Section 4.14 of the EP&A Act provides relevantly in relation to the current appeal as follows: (1) Development consent cannot be granted for the carrying out of development for any purpose (other than a subdivision of land that could lawfully be used for residential or rural residential purposes or development for a special fire protection purpose) on bush fire prone land (being land for the time being recorded as bush fire prone land on a relevant map certified under section 10.3(2)) unless the consent authority - (a) is satisfied that the development conforms to the specifications and requirements of the version (as prescribed by the regulations) of the document entitled Planning for Bush Fire Protection prepared by the NSW Rural Fire Service in co-operation with the Department (or, if another document is prescribed by the regulations for the purposes of this paragraph, that document) that are relevant to the development (the relevant specifications and requirements), or (b) has been provided with a certificate by a person who is recognised by the NSW Rural Fire Service as a qualified consultant in bush fire risk assessment stating that the development conforms to the relevant specifications and requirements.
4. Section 4.15(1) of the EP&A Act provides that: (1) In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application - (a) the provisions of - (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) (Repealed) that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest.
5. 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.

Byron Local Environmental Plan 2014

1. The Subject Site is identified as a Deferred Matter under Byron Local Environmental Plan 2014 (BLEP 2014).
2. Pursuant to cl 1.3(1A) of BLEP 2014, that plan does not apply to the Subject Site, and determination of the development application in this appeal is subject to the provisions of BLEP 1988.

Byron Local Environmental Plan 1988

1. The following provisions of BLEP 1988 are of relevance to the determination of the Applicant's development application in this appeal: 1. clause 11 of BLEP 1988, which concerns the subdivision of land in rural areas for agricultural purposes, and which provides that Council shall not consent to the subdivision of land for agriculture, forestry or a dwelling-house within the zones shown in Column 1 of the Table to this clause unless the area of each of the allotments to be created is not less than that shown opposite that zone in Column 2 of the Table and, in the opinion of the council, each allotment is of satisfactory shape and has a satisfactory frontage; 2. clause 81 of BLEP which: 1. establishes a minimum lot size for Zone R2 Low Density Residential and Zone R3 Medium Density Residential, and encourages small residential lots in appropriate locations in West Byron Bay; and 2. requires that the size of any lot resulting from a subdivision of land to which the clause applies is not to be less than the minimum size shown on the Lot Size Map and which establishes the minimum subdivision lot sizes as follows: 1. a minimum lot size of 450m2 applies within lands that form part of the R2 Low Density Residential zone footprint within the Proposed Development; 2. a minimum lot size of 200m2 applies to land zoned R3 Medium Density Residential and B1 Neighbourhood Centre; 3. there is no prescribed minimum lot size within the RE1 zone footprint within the Proposed Development; and 4. a 40ha minimum lot size otherwise applies throughout the Subject Site; 1. clause 88, which concerns development in coastal areas and provides as follows: (1) The objectives of this clause are as follows - (a) to provide for the protection of the coastal environment of the State for the benefit of both present and future generations through promoting the principles of ecologically sustainable development, (b) to implement the principles in the NSW Coastal Policy, and in particular to - (i) protect, enhance, maintain and restore the coastal environment, its associated ecosystems, ecological processes and biological diversity and its water quality, and (ii) protect and preserve the natural, cultural, recreational and economic attributes of the NSW coast, and (iii) provide opportunities for pedestrian public access to and along the coastal foreshore, and (iv) recognise and accommodate coastal processes and climate change, and (v) protect amenity and scenic quality, and (vi) protect and preserve rock platforms, beach environments and beach amenity, and (vii) protect and preserve native coastal vegetation, and (viii) protect and preserve the marine environment, and (ix) ensure that the type, bulk, scale and size of development is appropriate for the location and protects and improves the natural scenic quality of the surrounding area, and (x) ensure that decisions in relation to new development consider the broader and cumulative impacts on the catchment, and (xi) protect Aboriginal cultural places, values and customs, and (xii) protect and preserve items of heritage, archaeological or historical significance. (2) Development consent must not be granted to development on land that is wholly or partly within the coastal zone unless the consent authority has considered - (a) existing public access to and along the coastal foreshore for pedestrians (including persons with a disability) with a view to - (i) maintaining existing public access and, where possible, improving that access, and (ii) identifying opportunities for new public access, and (b) the suitability of the proposed development, its relationship with the surrounding area and its impact on the natural scenic quality, taking into account - (i) the type of the proposed development and any associated land uses or activities (including compatibility of any land-based and water-based coastal activities), and (ii) the location, and (iii) the bulk, scale, size and overall built form design of any building or work involved, and (c) the impact of the proposed development on the amenity of the coastal foreshore including - (i) any significant overshadowing of the coastal foreshore, and (ii) any loss of views from a public place to the coastal foreshore, and (d) how the visual amenity and scenic qualities of the coast, including coastal headlands, can be protected, and (e) how biodiversity and ecosystems, including - (i) native coastal vegetation and existing wildlife corridors, and (ii) rock platforms, and (iii) water quality of coastal waterbodies, and (iv) native fauna and native flora, and their habitats, can be conserved, and (f) the cumulative impacts of the proposed development and other development on the coastal catchment. (3) Development consent must not be granted to development on land that is wholly or partly within the coastal zone unless the consent authority is satisfied that - (a) the proposed development will not impede or diminish, where practicable, the physical, land-based right of access of the public to or along the coastal foreshore, and (b) if effluent from the development is disposed of by a non-reticulated system, it will not have a negative effect on the water quality of the sea, or any beach, estuary, coastal lake, coastal creek or other similar body of water, or a rock platform, and (c) the proposed development will not discharge untreated stormwater into the sea, or any beach, estuary, coastal lake, coastal creek or other similar body of water, or a rock platform, and (d) the proposed development will not - (i) be significantly affected by coastal hazards, or (ii) have a significant impact on coastal hazards, or (iii) increase the risk of coastal hazards in relation to any other land. 1. clause 92 of BLEP 1988 concerning heritage conservation, which relevantly in relation to this appeal, provides as follows: (4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6). (5) Heritage assessment The consent authority may, before granting consent to any development - (a) on land on which a heritage item is located, or (b) on land that is within a heritage conservation area, or (c) on land that is within the vicinity of land referred to in paragraph (a) or (b), require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned. (6) Heritage conservation management plans The consent authority may require, after considering the heritage significance of a heritage item and the extent of change proposed to it, the submission of a heritage conservation management plan before granting consent under this clause. 1. clause 97 of BLEP 1988, in relation to acid sulfate soils, and in particular: 1. subcl 97(2), which provides that development consent is required for the carrying out of works described in the Table to this subclause on land shown on the Acid Sulfate Soils Map as being of the class specified for those works; and 2. subcl 97(3) which provides that development consent must not be granted under this clause for the carrying out of works unless an acid sulfate soils management plan has been prepared for the proposed works in accordance with the Acid Sulfate Soils Manual and has been provided to the consent authority. 1. clause 98 in relation to flood planning, which applies to the Subject Site, and 1. has the following objectives (a) to minimise the flood risk to life and property associated with the use of land, (b) to allow development on land that is compatible with the land's flood hazard, taking into account projected changes as a result of projected sea level rise, (c) to avoid significant adverse impacts on flood behaviour and the environment. 1. which requires under the provisions of cl 98(3) as follows: 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 compatible with the flood hazard of the land, and (b) is not likely to significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and (c) incorporates appropriate measures to manage risk to life from flood, and (d) is not likely to significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and (e) is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding. 1. clause 99 of BLEP 1988, in relation to satisfactory arrangements for public infrastructure, provides under its subcl 99(2) as follows: (2) Development consent must not be granted for the subdivision of land in an urban release area if the subdivision would create a lot smaller than the minimum lot size permitted on the land immediately before the land became, or became part of, an urban release area, unless the Director-General has certified in writing to the consent authority that satisfactory arrangements have been made to contribute to the provision of designated State public infrastructure in relation to that lot; 1. clause 100 of BLEP 1988, in relation to public utility infrastructure, provides under its subcl 100(1) as follows: (1) Development consent must not be granted for development on land in an urban release area unless the Council is satisfied that any public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to make that infrastructure available when it is required.

Byron Shire Development Control Plan 2014

1. Byron Shire Development Control Plan 2014 (BDCP) states that its primary purpose is to specify requirements for quality development and sustainable environmental outcomes on land including the West Byron Bay Site identified under Part 4 of the BLEP 1988.
2. Chapter E8 of the BDCP which applies specifically to the West Byron Urban Release Area, notes that it: 1. provides for the matters specified in cl 101(3) of BLEP 1988; and 2. has been prepared and adopted by Byron Shire Council, in satisfaction of the requirements of cl 101(2) of BLEP 1988; 3. provides a framework to guide the future development of West Byron; and 4. specifies subdivision, built form, environmental protection and other controls to "achieve the vision for West Byron Bay".
3. The following provisions of Part E8 of the BDCP are of particular relevance to contentions identified by the Respondent in this appeal: 1. Part E8.5 describes the relationship of BDCP to other plans and policies and notes that: "Development within West Byron Bay will need to comply with this chapter, as well as other relevant chapters in the Byron Shire DCP 2014 set out in Table E8.1. In the event of any inconsistency between this DCP Chapter and other Chapters within Byron Shire DCP 2014 or any other plan or policy of Council, this chapter will prevail to the extent of the inconsistency". 1. Part E8.10 provides design principles for development within the West Byron Bay area, including in relation to concept and staging plans provided within Appendices A and B to BDCP, and it notes that: "Both plans are indicative and further changes to the layout and or staging may occur through the development of West Byron and further assessment. Where major variations are proposed the applicant will be required to demonstrate the development remains consistent with the Design Principles in this section". 1. Part E8.10.1 identifies that the lands that are the subject of the current appeal fall within Stage 1 of the of the Staging Plan and notes that Stage 1 will comprise minimum infrastructure and works to enable the site to be subsequently developed for commercial, residential and industrial land uses. This includes a detailed traffic study be undertaken to confirm the appropriate configuration of the two round about intersections with Ewingsdale Rd. The study to address the requirements of the Guide to Traffic Generating Developments (RTA 2002), and any additional traffic studies and design plans prepared by Council to inform the final design of the roundabouts; 2. Part E8.10.2 which provides guidance in relation to housing subdivision layouts, orientation and diversity; 3. Part E8.10.3 in relation to transport movement and street hierarchy, and which, inter alia, provides the following prescriptive measures of relevance to the current appeal: "1. The road layout is based generally on the Concept Plan. The road hierarchy is based on the following: a) a main Spine Road which intersects with Ewingsdale Road in two places at roundabouts (Distributor road) b) Collector roads; … 2. The street network layout and associated infrastructure to be carefully sited and designed, having regards to the provisions contained under E8.10.5.1 Biodiversity and Vegetation Management and in particular threatened species of flora, fauna and endangered ecological communities, habitat corridors and links. … 6. Formal pedestrian crossings to be clearly delineated through changes in road pavement material and or raised, plus appropriate signage and line marking as required. 7. "Except where otherwise provided for in this Chapter, all roads, streets and roundabouts are to be designed and constructed in accordance with the minimum requirements set out in the Northern Rivers Local Government Development Design and Construction Manual". … 10. The road through the IN2 Zone Land to terminate in a cul de sac at the boundary with Lot 181 DP755695. Alternatives to extend the road through this parcel and back to Ewingsdale Road will be considered where it can be demonstrated with a traffic study a positive outcome for traffic management on Ewingsdale Road and to enable the free flow and movement of heavy vehicles, delivery trucks and other traffic entering the IN2 Zone." 1. Part E8.10.4 concerning stormwater management, which requires under its prescriptive measure 1 that the Applicant should provide with its development application a detailed stormwater management plan based on the concept of water sensitive urban design which is, inter alia, to be consistent with the stormwater requirements for subdivisions within Chapter D6 of BDCP and the Northern Rivers Development and Design Manual; 2. Part E8.10.5 in relation to biodiversity, vegetation management and landscaping, and which, inter alia: 1. states as follows: "The subject site provides important habitat for a range of species and ecological communities including koalas, wallum froglet, wallum sedge frog, blossom bat and remnant coastal cypress pine communities. A voluntary planning agreement has been signed between the Minister for Planning and the landowners requiring a vegetation management plan to be prepared addressing matters such as a program and implementation strategy of environmental management works for the land zoned E2 Environmental Conservation. Vegetation management however will need to apply to the entire site, and any native vegetation that is proposed to be removed from within the urban footprint will need to be appropriately compensated. Landscaping will play an important role as part of the overall environmental management of the site, and will enhance habitat attributes, whilst also playing a part in the management of stormwater." 1. provides the following performance criteria: "1. Ensure that a comprehensive Biodiversity Conservation Management Plan, including identified sub-plans, is prepared and approved to minimize and offset the impact of development on the site with the Stage 1 Development Application. 2. Environmental buffers to sensitive ecological areas to be revegetated or restored, with development located outside environmental buffers. 3. Protect potential and core koala habitat areas from development that would compromise habitat quality and integrity and enhance koala habitat to provide connectivity links to facilitate the natural movement of koalas. 4. Protect, maintain and enhance key habitat corridors to improve linkages between habitats. 5. Improve biodiversity on the site by rehabilitating and re-vegetating areas identified for conservation within an established timeframe for delivery. 6. Mitigation of direct and indirect impacts of development on drainage lines and riparian areas. 7. To identify, protect and maintain wallum froglet and wallum sedge frog habitat areas where appropriate and to provide additional wallum froglet and wallum sedge frog habitat areas within the West Byron Site, so that there is no net loss in habitat." 1. provides the following prescriptive measures: "1. A comprehensive Biodiversity Conservation Management Plan is required to be prepared for the Stage 1 Development Application. The plan is to be for the entire Urban Release Area and to include the following: a) identification of existing vegetation to be retained; b) the types of vegetation management works required and how those works will be implemented, including allocation of responsibility for funding works; c) an initial five-year implementation program setting out habitat restoration and management works including strategies for planting, weed control and maintenance based on strengthening general key habitat corridors along the eastern and southern periphery of the Urban Release Area (See Figure E8.6 below). Such works are to be incorporated into the first Construction Certificate for the site to ensure any compensatory planting that may be required is established as West Byron is gradually developed; d) details of responsibility for the ongoing management of habitat areas in the E2 and E3 Zones following the initial five year implementation program; e) methods to prevent the introduction of exotic pest species or to manage and reduce pest species already present; f) methods to reduce potential for bird strikes into windows of buildings; g) details of ongoing monitoring, reporting to Council and processes for adaptive management where necessary; h) The Vegetation Management Plan for the E2 Zone as required under the Voluntary Planning Agreement (VPA) dated 21/10/14 to be incorporated into the comprehensive Biodiversity Conservation Management Plan. The plan to address threatened species, SEPP 44 Koala Habitat Protection, measures to manage Belongil Creek and the requirements of the VPA. The plan can be detailed in the following sub plans: i) Threatened species management plan providing details on any expected impacts on threatened species or their habitat, how such impacts will be avoided as far as practical or mitigated if necessary, and how any impacts will be compensated through rehabilitation and revegetation work. Council records indicate the site provides habitat for wallum sedge frog and the wallum tree frog. The management plan is to address the National Recovery Plan for Wallum Sedge frogs and other wallum dependant frog species. ii) A Belongil Creek Plan of Management to be prepared in consultation with the relevant land owner and provide for bushland restoration on land adjacent to the creek and within riparian buffers provided by the E2 conservation zones, weed control and habitat restoration along drainage lines. Any new culverts over existing water crossings to provide improvements in water quality and fish passage iii) A Koala Plan of Management (KPOM) is to be prepared in accordance with the requirements of State Environmental Planning Policy No. 44 - Koala Habitat Protection. Should Council have an adopted KPOM for the area, Applicants have the choice to use this plan or prepare their own plan. An Individual KPOM as a minimum to address the following: • SEPP 44 Guidelines for Individual KPOMs • Potential and Core Koala Habitat on and surrounding the site • Rehabilitation of habitat in the E Zones to focus on Koala Habitat restoration to address any compensation requirement and to provide or embellish linkages between potential and core koala habitat areas • measures to protect existing koalas whilst new habitat is being established. • details of koala friendly crossings under / over Ewingsdale Road, and timing and responsibility for their delivery. • other measures to protect koalas including reduced vehicle speeds and traffic calming measures, development fencing, dog prohibition or control, pool safety through design measures such as ramps or "beaches", control on construction activities, signage, appropriate building envelopes having regards to bushfire requirements for asset protection zones. Revegetation and rehabilitation works are to be delivered in accordance with the Biodiversity Conservation Management Plan and the sub plans, and is to be based on the Concept Plan in Appendix B. All plantings should use species locally sourced with local genetics, and include the aim of achieving a 90% survival rate. 3. Development applications for subdivision (excluding subdivision for the consolidation of lots that does not create additional lots or the opportunity for additional dwellings, boundary adjustments or to dedicate land for a public purpose) are to: a) Address the relevant statutory considerations under the Environmental Planning and Assessment Act 1979 (specifically Section 5A, 5C and Section 79C) consider potential impacts to: i) threatened species, populations and endangered ecological communities under the Threatened Species Conservation Act 1995 and the Environmental Protection and Biodiversity Conservation Act 1999 ii) SEPP 14 Wetlands and SEPP 44 Koala Habitat Protection iii) Relevant provisions of the Water Management Act 2000, Fisheries Management Act 1994, Marine Parks Act 1997 and the Native Vegetation Act 2003 iv) Be accompanied by a detailed ecological assessment including habitat values, location and extent of any habitat proposed for removal and offset location, extent and timing. b) Identify buffers between development (in zones R2 Low Density Residential, R3 Medium Density Residential, IN2 Light Industrial, B1 Neighbourhood Centre) and any land zoned E2 or E3 and provide a plan of management for the buffers and the zone interface. Buffers or buffer zones are not required between E2 and E3 zones. Buffer management plans must: i) Mitigate direct and indirect impacts from development in order to protect the integrity and health of the natural environment. ii) Avoid negative impacts on the natural environment and ensure retention and enhancement of those functions and characteristics that are important to biodiversity conservation, landform stability, erosion management, hydraulic function and other important natural, geophysical and biophysical processes iii) Provide a minimum width buffer of 20 metres. The buffer can include a perimeter road/ bushfire trail for bushfire protection purposes provided that road is located outside of the E2 and E3 zone and comprises a minimum vegetated edge adjacent to the E2 and E3 zone of 7 metres. Cycleways and pedestrian paths are also acceptable within buffer areas. Where required the vegetated edge to the E3 Zone to be widened to 10 metres to provide for a suitable level of amenity to properties in the E3 Zone off Melaleuca Drive. iv) Incorporate existing native vegetation into the buffer. v) Provide details on long term management and responsibility. 4. Landscaping of drainage lines, parks, reserves, road buffers and other large areas within the urban footprint of the Urban Release Area to be designed to enhance biodiversity values and habitat linkages. Concept landscaping plan to be submitted with development applications for subdivision which form one or more stages of the proposal for West Byron. 5. The road network within the south eastern perimeter of the Urban Release Area including vehicle access from the main residential areas to include traffic calming measures such as narrower road widths including chicanes and or one way traffic flows to facilitate the movement of fauna through this area from the E3 Zones to the E2 Zones. Other options to regulate and limit through traffic in this area is to develop Lot 1 DP 780242 and Lot 229 DP 755695 as community title/ strata title residential estates with an "Environmental Living Theme" and incorporate surrounding E2 and E3 Zoned land into the common/ neighbourhood property for ongoing management. 6. Any roads, cycleways, pedestrian footpaths, bushfire trails and other necessary infrastructure that traverses into or across the E2 and E3 Zone to be sited to minimise impacts on the environmental qualities of native vegetation and habitat in those zones by utilising existing breaks in the native vegetation and or siting and designing such works to have minimal disturbance (eg narrow road width/ locate where weeds and exotics are to be removed, signage for wildlife crossings etc). Details to be submitted with the development application. 7. For ongoing removal of trees and vegetation after West Byron is developed, land owners to comply with Chapter B2 Preservation of Trees and Other Vegetation, and any requirements of the Biodiversity Conservation Management Plan approved under this Chapter. 8. Despite the provisions of Clause E8.3, residual areas outside of the Urban Release Area in Lots 227 and 229 DP 755695, Lot 9 DP 111821, and Lot 2 DP818403 to be incorporated into the Biodiversity Conservation Management Plan as required. 9. The keeping of cats and dogs other than guide dogs is to be prohibited. Any plan of subdivision to include an appropriately worded S.88B instrument in relation to keeping such pets. The prohibition to also apply to community title and strata tittle subdivisions and to be incorporated into Strata Plans of Management and or Neighbourhood Management plans and the like. Appropriate conditions to apply for applications to residential development including multi dwelling housing, integrated housing, dwelling houses, dual occupancy and secondary dwellings." 1. Part E8.10.8 in relation to hazards and constraints, and which provides specific controls in relation to flooding, acid, sulfate soils, ground water, bushfire, mosquitoes, contamination and potential odour from the adjacent chicken processing plant on Ewingsdale Road; 2. Part E8.10.9 concerning Aboriginal cultural matters, and which: 1. includes the following objectives: "1. Traditional Owners are recognised and respectfully consulted to identify ways to protect culture and features of Indigenous cultural significance. 2. Culturally significant features are to be protected and incorporated in accordance with the recommendations and findings of such consultation. 3. Opportunities for Traditional Owners to look after country both physically and spiritually will be encouraged." 1. includes the following prescriptive measures: "1. An Aboriginal Cultural Heritage Assessment to be carried out by a suitably qualified professional for the West Byron Site with the Stage 1 Development Application. The assessment to be carried out in accordance with the relevant Office of Environment and Heritage (OEH) Guidelines for Aboriginal cultural heritage matters. 2. Any sites, items, objects, relics or places of significance that are located within the development site are to be appropriately identified and management measures for their ongoing protection are to be recommended as required under the OEH Guidelines. 3. The assessment is to demonstrate consultation with the Byron Bay Bundjalung People, and other Key Stakeholders pursuant to Clause 80C of the NPW Regulation 2009, in accordance with the OEH Aboriginal Cultural Heritage Consultation Requirements for Proponents 2010." 1. Part E.8.10.10 in relation to urban design of significant sites and higher densities, and in particular 1. Part E8.10.10.4 in relation to industrial lands, which states that: "Approximately 7.5 hectares of the West Byron Site is zoned IN2 Light Industrial. The IN2 Zoned land sits opposite the Byron Bay Industrial Estate to the north and residential land to the east. For specific development guidelines for construction of factory units in this area, applicants are directed to Chapter D5 Industrial Development within DCP 2014. The following controls though apply to the subdivision design and development of the land Zoned IN2." 1. Part E8.10.10.4 which provides the following performance criteria and prescriptive measures that are of particular relevance in this appeal: "Performance Criteria 1. Access roads are designed to facilitate the movement of large vehicles. 2. Lot sizes meet minimum requirements to facilitate safe manoeuvring onsite for delivery trucks. … 5. Development be designed and sited to minimise land use conflicts with surrounding residential development. Prescriptive measures 1. A single DA be submitted to Council for the initial subdivision of the IN2 Zoned Land presenting an integrated proposal for the road and allotment layout, based on potential industries seeking industrial land in Byron Bay. Details to be provided with the development application. 2. Access roads through the IN2 Zoned land to be of a suitable width to accommodate articulated vehicles plus on street parking. 3. A minimum of twenty five percent (25%) of lots are to be designed with an appropriate area and width to enable Articulated Vehicles to enter and leave in a forward direction."

State Environmental Planning Policy No 55 - Remediation of Land

1. State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55) applies to the Proposed Development pursuant to cl 4 of this SEPP, and the provisions of the following subclauses of cl 7 of SEPP 55 are of relevance in this appeal: (1) A consent authority must not consent to the carrying out of any development on land unless - (a) it has considered whether the land is contaminated, and (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose. (2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines. (3) The applicant for development consent must carry out the investigation required by subclause (2) and must provide a report on it to the consent authority. The consent authority may require the applicant to carry out, and provide a report on, a detailed investigation (as referred to in the contaminated land planning guidelines) if it considers that the findings of the preliminary investigation warrant such an investigation.

State Environmental Planning Policy (Infrastructure) 2007

1. State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP) applies to the Proposed Development because: 1. the Subject Site adjoins Ewingsdale Road, which is a classified road with a traffic volume greater than 20,000 vehicles per day; and 2. because the Proposed Development will generate traffic onto a classified road.
2. The following are the relevant provisions of SEPP Infrastructure that require consideration in relation to the Proposed Development, together with the basis upon which the Parties agree that the requirements of those provisions have been satisfied. 1. clause 101 of the Infrastructure SEPP: 1. which requires that a consent authority must not grant consent to development on land that has frontage to a classified road unless it is satisfied that: a) where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and (b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of - (i) the design of the vehicular access to the land, or (ii) the emission of smoke or dust from the development, or (iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and (c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road. 1. subclauses 102(2) and 102(3) of the Infrastructure SEPP, provides that: (2) Before determining a development application for development to which this clause applies, the consent authority must take into consideration any guidelines that are issued by the Secretary for the purposes of this clause and published in the Gazette; (3) If the development is for the purposes of residential accommodation, the consent authority must not grant consent to the development unless it is satisfied that appropriate measures will be taken to ensure that the following LAeq levels are not exceeded - (a) in any bedroom in the residential accommodation - 35 dB(A) at any time between 10 pm and 7 am, (b) anywhere else in the residential accommodation (other than a garage, kitchen, bathroom or hallway) - 40 dB(A) at any time. 1. clause 104 of the Infrastructure SEPP, which applies because the development is for more than 50 lots with access to a road that connects to a classified road, being Ewingsdale Road, and in relation to which: 1. cl 104(3) provides that before determining a development application to which cl 104 applies, the consent authority must give written notice of the application to the NSW Roads and Maritime Services (RMS), and take into consideration: 1. any submission the RMS provides within 21 days of the notice having been given, 2. the accessibility of the site, including: the efficiency of movement of people and freight to and from the site and extent of multi-purpose trips, and the potential to minimise the need for travel by car and to maximise movement of freight in containers or bulk freight rail, and 1. any potential traffic safety, road congestion or parking implications of the development.

State Environmental Planning Policy No 14 - Coastal Wetlands

1. State Environmental Planning Policy No 14 - Coastal Wetlands (SEPP 14) continues to apply to the Proposed Development because: 1. SEPP 14 was in force at the time the development application was lodged; and 2. the savings and transitional provisions within cl 21(1) of State Environmental Planning (Coastal Management) 2018 (Coastal Management SEPP) provide that "the former planning provisions continue to apply (and this Policy does not apply) to a development application lodged, but not finally determined, immediately before the commencement of this Policy in relation to land to which this Policy applies"; 3. the Applicant's development application was lodged before the commencement of the 2018 SEPP and has not yet been finally determined.

State Environmental Planning Policy No 26 - Littoral Rainforest

1. The Subject Site does not contain any littoral rainforest as mapped under the now repealed State Environmental Planning Policy No 26 - Littoral Rainforest.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

1. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP (B&C) commenced on 1 March 2022, and by dint of its Chapters 3 and 4, along with Schedule 14, this policy has incorporated the provisions of both State Environmental Planning Policy (Koala Habitat Protection) 2020 (Koala SEPP 2020) and State Environmental Planning Policy (Koala Habitat Protection) 2021 (Koala SEPP 2021), into SEPP (B&C) in the same terms as applied prior to 1 March 2022.
2. Following its commencement and prior to handing down this judgment, I invited the Parties to confirm whether or not they would seek to address the Court on this change in statutory regimes, and both Parties confirmed their view that: 1. given that the provisions of the two Koala SEPPs were incorporated into the new SEPP (B&C) in the same terms, other than in respect of name and commencement date, and cl 20 of Koala SEPP 2020 repealing State Environmental Planning Policy (Koala Habitat Protection) 2019, the commencement of SEPP (B&C) is of no substantive effect in relation to the considerations of this judgment; 2. the Respondent noted that all savings and transitional provisions of the repealed Koala SEPPs continue to have effect due to sections 5(6) and 30(2)(d) of the Interpretation Act 1987.
3. This judgment was substantively drafted prior to the commencement of SEPP (B&C), and as a consequence of the above advice of the Parties, and for practical reasons, the judgment retains references to Koala SEPP 2020 and Koala SEPP 2021, and does not seek to cross reference to the new SEPP (B&C).

State Environmental Planning Policy (Koala Habitat Protection) 2021

1. State Environmental Planning Policy (Koala Habitat Protection) 2021 (Koala SEPP 2021) commenced operation on 17 March 2021 and aims to encourage the conservation and management of areas of natural vegetation that provide habitat for koalas to support a permanent free-living population over their present range and reverse the current trend of koala population decline.
2. Notwithstanding that it was operational at the time of this appeal, cl 18 of this SEPP, provides that: 18 A development application made in relation to land, but not finally determined before this Policy applied to the land, must be determined as if this Policy had not commenced in its application to the land
3. Consequently, Koala SEPP 2021 has no application in the determination of this appeal, and the Applicant's development application is subject to the provisions of the previous instrument concerning koalas and protection of koala habitat being State Environmental Planning Policy (Koala Habitat Protection) 2020 (Koala SEPP 2020).

State Environmental Planning Policy (Koala Habitat Protection) 2020

1. Koala SEPP 2020, which repealed State Environmental Planning Policy (Koala Habitat Protection) 2019 (Koala SEPP 2019), aims to encourage the proper conservation and management of areas of natural vegetation that provide habitat for koalas to ensure a permanent free-living population over their present range and reverse the current trend of koala population decline. It seeks to achieve this by: 1. requiring the preparation of plans of management before development consent can be granted in relation to areas of core koala habitat; 2. encouraging the identification of areas of core koala habitat; and 3. encouraging the inclusion of areas of core koala habitat in environment protection zones.
2. The following elements of Koala SEPP 2020 are of particular relevance in this appeal: 1. clause 4 provides the following definitions of relevance to the assessment and determination of the Proposed Development: core koala habitat means an area of land with a resident population of koalas, evidenced by attributes such as breeding females, being females with young, and recent sightings of and historical records of a population. guidelines means the guidelines, as in force from time to time, made for the purposes of this Policy by the Planning Secretary. Planning for Bush Fire Protection means the document referred to in clause 272 of the Environmental Planning and Assessment Regulation 2000. potential koala habitat means areas of native vegetation where trees of the types listed in Schedule 2 constitute at least 15% of the total number of trees in the upper or lower strata of the tree component. 1. clause 5(1) states that the SEPP applies to each local government area (LGA) listed in its Schedule 1, and the Byron LGA is listed in that schedule; 2. subclauses 7(a), 7(b) and 7(c) confirm that the provisions of Part 2 of the SEPP in relation to development of koala habitat applies to certain lands and the Subject Site meets each of the criteria in those subclauses; 3. clause 8 provides requirements with respect to development on, and the identification of, potential koala habitat as follows: (1) Before a council may grant consent to a development application for consent to carry out development on land to which this Part applies, the council must be satisfied as to whether or not the land is a potential koala habitat. (2) The council may be satisfied as to whether or not land is a potential koala habitat only on information obtained by it, or by the applicant, from a person who is qualified and experienced in tree identification. (3) If the council is satisfied - (a) that the land is not a potential koala habitat, it is not prevented, because of this Policy, from granting consent to the development application, or (b) that the land is a potential koala habitat, it must comply with clause 9. 1. clause 9 provides requirements with respect to development on, and the identification of, core koala habitat as follows: (1) Before a council may grant consent to a development application for consent to carry out development on land to which this Part applies that it is satisfied is a potential koala habitat, it must satisfy itself as to whether or not the land is a core koala habitat. (2) The council may be satisfied as to whether or not land is a core koala habitat only on information obtained by it, or by the applicant, from a person with appropriate qualifications and experience in biological science and fauna survey and management. (3) If the council is satisfied - (a) that the land is not a core koala habitat, it is not prevented, because of this Policy, from granting consent to the development application, or (b) that the land is a core koala habitat, it must comply with clause 10. 1. clause 10 concerns the circumstances in which consent can be granted for development on land identified as core koala habitat, as follows: (1) Before granting consent to a development application for consent to carry out development on land to which this Part applies that it is satisfied is a core koala habitat, there must be a plan of management prepared in accordance with Part 3 that applies to the land. (2) The council's determination of the development application must not be inconsistent with the plan of management. 1. clause 11 concerns the requirement to consider guidelines (see above at [(1)]) in determining a development application, as follows Without limiting clause 18, a council must take the guidelines into consideration in determining an application for consent to carry out development on land to which this Part applies. 1. clause 12 concerns the preparation of koala plans of management, and provides: (1) A plan of management may be prepared for - (a) the whole of a local government area listed in Schedule 1, or (b) a part of such a local government area, including an area of land that is the subject of a development application. (2) Anyone, including a council, may prepare a plan of management. (3) A plan of management is to be prepared in accordance with the guidelines. 1. clause 14 concerns the approval of a koala plan of management, and provides: (1) A plan of management prepared by a council has no effect unless it is approved by the Planning Secretary. (2) A plan of management prepared by a person other than a council has no effect unless it is approved by the council for the relevant local government area and by the Planning Secretary. (3) A plan of management takes effect on the day it is approved by the Planning Secretary or on a later day specified in it for the purpose. 1. Clause 18 provides as follows in relation to guidelines (see above at [(1)]): (1) In exercising a function under this Policy, a council must take into consideration the guidelines that are relevant to the exercise of the function. (2) Anyone may inspect the guidelines free of charge at an office of the Department during the hours when the office is open to the public. 1. clause 19, which provides specific savings provisions in relation to koala plans of management, in the following terms: The following are taken to be plans of management made under this Policy - (a) a plan of management approved under State Environmental Planning Policy No 44 - Koala Habitat Protection that was kept in force by clause 16 of State Environmental Planning Policy (Koala Habitat Protection) 2019, (b) a koala plan of management approved under State Environmental Planning Policy (Koala Habitat Protection) 2019 and in force immediately before the repeal of that Policy.
3. Unlike Koala SEPP 2021, this Koala SEPP 2020 does not include a savings provision of the type provided in cl 18 of Koala SEPP 2021 (see above at [65]). Consequently, neither the provisions of Koala SEPP 2019, nor those in State Environmental Planning Policy No 44 - Koala Habitat Protection (SEPP 44), both repealed, have any application in the current appeal.

Biodiversity Conservation Act 2016

1. The following provisions of the Biodiversity Conservation Act 2016 (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 concerns biodiversity assessment for Part 4 development (other than State significant development or complying development), and 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 consent authority under Part 4 or determining authority under Part 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.

Rural Fires Act 1997

1. The Proposed Development, as amended, is subject to the provisions of the Rural Fires Act 1997 (the RF Act).
2. Section100B of the RF Act provides: (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.

Remaining contentions

1. The remaining contentions in this appeal were identified above at [43]). In its closing submissions, the Respondent helpfully summarised these as requiring resolution of the following questions: 1. does the Proposed Development satisfy the provisions of the Koala SEPP 2020 such that it can be determined through the grant of consent? 2. should the Proposed Development be approved given the Respondent's contended inconsistencies between various plans of management, including a koala plan of management, and the Applicant's vegetation management plan (VMP)? 3. are the potential impacts of the Proposed Development on certain frog species acceptable? 4. does the Applicant's proposed road system provide acceptable access to the IN2 lands within the Proposed Development?
2. The Respondent noted that, in addition to these remaining principle contentions, certain further matters of detail would require resolution should the Court be minded to grant consent to the Applicant's development application, including in relation to proposed conditions of consent.
3. Each of these remaining contentions will be addressed in turn before I then consider certain jurisdictional matters and the Parties' competing proposed conditions of consent.

Does the Proposed Development satisfy the provisions of the Koala SEPP 2020 such that it can be determined through the grant of consent?

1. Relevant provisions of both the Koala SEPP 2021 and Koala SEPP 2020 were provide above at [64] and [67], respectively, and as noted previously, by dint of the savings provisions within cl 18 of Koala SEPP 2021, and the lack of similar provisions within Koala SEPP 2020, it is the provisions of the 2020 instrument that apply to the determination of the Applicant's development application in this appeal.

The Applicant contends that Koala SEPP 2020 cannot apply in this appeal

1. In its closing submissions, the Applicant , for the first time in the proceedings, said that the conditions precedent in cll 8 and 9 of Koala SEPP 2020 (see above at [68(8)] and [68(9)]) did not apply to the determination of the Applicant's development application in this appeal because the provisions of those clauses only applied to the determination of an application by a council and not to a determination of an application by a regional planning panel, as is the case in this appeal.
2. More specifically, the Applicant said in its written submissions, that the operative provisions of Part 2 of Koala SEPP 2020 only impose requirements which must be satisfied before "a council may grant consent' to a development application" and the consent authority for the Applicant's development application that is the subject of this appeal was not a council but rather the Northern Joint Regional Planning Panel.
3. The Respondent submitted that, while it accepted that there was no express provision in Koala SEPP 2020 confirming the word 'council' should be taken to include a regional planning panel, having regard to the aims of the SEPP the word 'council' as used in cll 8 and 9 should be read broadly and should be taken as a generic reference to the consent authority responsible for determining a development application.
4. Notwithstanding the differences in statutory construction presented by the Parties, the Applicant noted that the differences in construction, and the applicability of Koala SEPP 2020 to the determination of the Applicant development application, need only be addressed should the Court conclude that core koala habitat is present on the Subject Site. This is because: 1. if core koala habitat is not identified on the Subject Site: 1. the Respondent would accept that the provisions of Koala SEPP 2020 would permit the grant of consent to the Proposed Development, notwithstanding the identification of potential koala habitat on the Subject Site, and the SEPP would have no further role to play in determination of the application; 2. the Applicant would not need to press the statutory construction of the word 'council' in Koala SEPP 2020 because, even if it had succeeded in the Court accepting its construction argument, and the SEPP did not then apply to determination of its development application, the outcome would be the same as identified above (at [(a)]); 1. if core koala habitat is identified on the Subject Site then: 1. the Respondent would contend that the Proposed Development could not be determined because under the provisions of Koala SEPP 2020 consent could only be granted if the development was consistent with the provisions of an approved Koala Plan of Management (KPoM), and no such KPoM has been approved for the Subject Site; and 2. the Applicant would only then need to sustain its contention that Koala SEPP 2020 has no application to determination of the Proposed Development.
5. Noting the Applicant's submission above (at [80]), the initial task before the Court is to consider whether or not core koala habitat exists on the Subject Site, and then: 1. if the Court found that core koala habitat was present on the Subject Site it should consider and resolve the application, or otherwise, of Koala SEPP 2020 to the determination of the Applicant's Proposed Development; 2. if the Court were satisfied that no core koala habitat is present on the Subject Site, then notwithstanding the submissions of the Applicant, the Court would consider that the provisions of Koala SEPP 2020 would not preclude the grant of consent in these proceedings, and it would move to consider the remaining contentions in the appeal.

Is Core Koala Habitat present on the Subject Site?

1. The process for assessment of a development to which Koala SEPP 2020 applies is provided within cll 8, 9 and 10 of the SEPP (see above at [68(4)], [68(5)] and [68(6)]). This establishes a three step approach to this assessment.
2. Step 1 requires consideration as to whether or not the site of the proposed development contains potential koala habitat.
3. It was common ground between the Parties that the Subject Site included potential koala habitat, as defined under the provisions of Koala SEPP 2020, as the site contained areas of native vegetation where trees of the types listed in Schedule 2 of Koala SEPP 2020 constituted at least 15% of the total number of trees in the upper or lower strata of the tree component.
4. Step 2 requires consideration as to whether the site contains core koala habitat and cl 9 of the SEPP provides that a council may be satisfied as to whether or not land is a core koala habitat only on information obtained by it, or by the applicant, from a person with appropriate qualifications and experience in biological science and fauna survey and management.
5. Step 3 requires that if core koala habitat is identified on land the subject of a development application, then determination of the development application must not be inconsistent with the plan of management for koalas applicable to that land.
6. The definition of core koala habitat under Koala SEPP 2020 was provided above (at [68(1)]), and that definition is consistent with the definition of core koala habitat that had been included previously in Koala SEPP 2019 and SEPP 44, both of which instruments are now repealed.
7. The Parties differed in their assessment of whether or not core koala habitat existed on the Subject Site, in relation to which: 1. the Applicant said that, on the basis of evidence gathered by its experts, there was no core koala habitat on the Subject Site; and 2. the Respondent submitted that it was not possible to be satisfied one way or the other whether core koala habitat was located on the Subject Site.
8. The Applicant tendered the following documents in support of is submission that there was no core koala habitat on the Subject Site: 1. a document styled "West Byron Urban Release Area Koala Plan of Management" (WBURA KPoM) prepared by AWC, which: 1. in its most recent October 2020 iteration had been prepared by Jacqui Coughlan, and reviewed by Damian McCann, who held positions as Principal Ecologist and Director, respectively, at AWC; 2. had provided, inter alia, a summary of the results of koala surveys undertaken on the Subject Site between 1994 and 2015; 3. stated that: 1. no resident breeding female koalas had been recorded on the Subject Site during surveys it listed as having been conducted between 1994 and 2015; 2. while a small and highly fragmented area of around 3.7 Ha of potential koala habitat occurs on the Subject Site, this area did not support a resident breeding population of koalas because of its small size and fragmentation; 3. koalas periodically observed on the Subject Site during surveys conducted between 1994 and 2015 were considered to be transients that had dispersed onto the site from more extensive "primary koala habitat", most likely to the north of Ewingsdale Road; and 1. concluded that there was no core koala habitat on the Subject Site; 1. a document styled "West Byron Urban Release Rea: Standard Koala Assessment Report", abbreviated to the 'SKAR', dated 7 May 2021, prepared by Cumberland Ecology, approved by the Applicant's expert ecologist, Dr Robertson, who was also a principal author of the report. The SKAR was provided as an annexure to a joint expert report dated May 2021 prepared by Dr Robertson with the Respondent's expert ecologist Dr Fitzgerald, and: 1. stated that: 1. no breeding females had been found on the Subject Site; 2. only limited occurrences of koalas had been recorded during surveys of the Subject Site as reported in the Applicant's WBURA KPoM; 3. while Bionet records indicate that there are areas of koala activity across the "study area" (ie the Subject Site), there is no resident koala population; 1. concluded that there is no core koala habitat on the Subject Site; and 2. reported that recent surveys of the Subject Site undertaken by AWC in April 2021, and which had recorded 521 preferred koala food trees, had not identified any koala scats on the Subject Site during that survey.
9. The Applicant submitted that there was no basis to find that core koala habitat was present on the Subject Site, because: 1. consistent with the results of koala surveys undertaken between 1994 and 2015, as reported by AWC in the WBURA KPoM and the Cumberland Ecology SKAR, there had been no recent or historic sightings of koalas, and no evidence of females with young, on the Subject Site; 2. recent surveys of the Subject Site by AWC undertaken on 7 and 14 April 2021 had: 1. not recorded the presence of koalas on the Subject Site and the survey had not identified any koala scats on the Subject Site; and 2. been undertaken by AWC senior ecologist, Eli Dutton, with AWC ecologist, Claire Hewitt, and Ms Dutton's curriculum vitae, tendered in an affidavit, confirmed that her qualifications included a Bachelor of Applied Sciences from Southern Cross University and that she had held a scientific investigation license from DECCW and the NSW Dept of Primary Industries between 1999 and 2020.
10. The Respondent, relying in part on the written evidence of its expert ecologist, Dr Fitzgerald, submitted that it was not possible to be satisfied one way or the other whether core koala habitat was located on the Subject Site, because: 1. evidence had been tendered confirming koala activity on the Subject Site in the period between 2010 and 2017, including: 1. five koalas which had been seen on the Subject Site in 2010, including: 1. two koalas of unspecified gender during a Spot Assessment Technique (SAT) survey in 2010; and 2. three koalas, including one female recorded by AWC in a survey undertaken using spotlighting and scat searches; 1. koala scats, but no koala sightings, had also been recorded on the Subject Site: 1. in 2015 by AWC at five locations, using a SAT methodology; 2. in 2015 by Cristescu and Schultz at 13 locations, including two fresh scats, during a survey using 'koala dogs'; and 3. in 2017 by AWC at two locations, as part of random searches during vegetation surveys; 1. the Applicant's AWC survey in 2021 had not been undertaken as a targeted survey of the Subject Site for koalas, but had rather been undertaken as an incidental search for koala scats on the Subject Site; 2. because the Applicant's search for koala scats had been undertaken using a non-targeted, rather than a targeted, search methodology, it was unlikely to find evidence of koala presence on the Subject Site, and could not be relied upon; and 3. there is historic evidence of the presence of koalas on the Subject Site, and, therefore, there must be breeding females somewhere.
11. The Parties' ecology experts provided further evidence, both within their joint expert reports and orally during the hearing, to assist the Court in its consideration of whether core koala habitat was located on the Subject Site, as follows: 1. the Respondent's expert ecologist, Dr Fitzgerald, said that: 1. while he noted that the Applicant's WBURA KPoM had concluded that there was no core koala habitat on the Subject Site, it was unclear to him that this was currently correct; 2. he did not agree that there was currently a low probability of koalas on the Subject Site; 3. notwithstanding these opinions, he agreed that: 1. it had been his opinion in 2005 that there was no core koala habitat on the Subject Site; 2. Annexure B to the joint expert report he had prepared with Dr Robertson in May 2021, and which provided data relied on by Dr Robertson in preparing his SKAR, confirmed that a total of 520 preferred koala food trees on the Subject Site had been inspected and no koala scats were recorded in association with any of those trees; 3. following a review of the data within the AWC 2010 survey of the Subject Site, no breeding females had been recorded and only one non-breeding female had been sighted during that survey; 4. within the October 2020 joint expert report on ecology issues, which he had prepared with Dr Robertson, a Figure 2 illustrating Bionet koala records for the Subject Site between 2015 and 2020, included no records of breeding females; 5. that most of the koala habitat in the area of the Subject Site was located north of Ewingsdale Road, and not south of that road on the Subject Site; 1. the Applicant's expert ecologist, Dr Robertson, in response to questions from the Respondent, confirmed his view that there was no core koala habitat on the Subject Site, and he stated that: 1. in assessing whether core koala habitat was present on the Subject Site, it was his opinion that: 1. a population for the purposes of the definition of core koala habitat would refer to a group of koalas that have the opportunity to breed; 2. the NSW Department of Environment and Planning generally considered that a period of five years or less would constitute a 'recent' period given the rate of changes in land use that would ordinarily occur in the landscape; 3. records that were "historical" would refer to records across a 20 year period, and not longer, because beyond that timeframe landscapes undergo such significant change as not to hold relevance for assessment purposes; 1. he had relied on the AWC April 2021 survey data to confirm, to his satisfaction, that there was no recent evidence of koala presence on the Subject Site; 2. he acknowledged that the AWC survey undertaken in April 2021 had applied an opportunistic methodology rather than a targeted (the so-called SAT) methodology, and that records within the AWC survey concerning the presence, or absence, of indications of koala presence had been collected incidentally to the main purpose of the survey which was to identify koala food trees; 3. he had reviewed the full range of records in relation to the presence of koalas on the Subject Site since 2005, and: 1. there had been no koala sightings on the Subject Site since 2017; 2. he agreed that there had not been a targeted survey of koalas undertaken on the Subject Site in the five years prior to 2021; 3. he agreed that the Subject Site contains trees that are species identified as preferred koala feed trees, and that koalas may be present on the Subject Site from time to time; 4. he agreed that records from the 2015 koala dog survey had identified four koala scat locations inside the Subject Site in areas proposed for tree removal, and that the Byron Council Comprehensive Koala Plan of management (BCCKPoM) had recommended that trees used by koalas should not be removed for development; 5. while the Subject Site would be only a small area in which a resident population could occur, he agreed that Ewingsdale Road would not present an impenetrable barrier to koala movement from north to south, and while it was possible that populations north and south of Ewingsdale Road may be connected, the degree of connectivity was not known; and 6. while he agreed that it was possible that a resident breeding female might be present within the West Byron precinct, as defined in the BCCKPoM, and which includes the Subject Site, there was no evidence from the various surveys undertaken across the past 20 years that one or more breeding koala females were present on the Subject Site.
12. I have considered the evidence of the expert ecologists and the submissions of the Parties concerning the presence or otherwise of core koala habitat on the Subject Site, and: 1. Koala SEPP 2020 provides the basis for establishing whether or not there is core koala habitat on the Subject Site as follows; 1. it requires evidence of a resident koala population. This can be demonstrated by attributes such as the presence of breeding females (that is females with young) and recent sightings and historical records of a population; 2. the Court, standing in the shoes of Council, can only be satisfied as to whether or not there is core koala habitat on the basis of information obtained by it, or by the Applicant, from a person with appropriate qualifications and experience in biological science and fauna survey and management. 1. I have concluded that, consistent with the Applicant's submission, there is no core koala habitat on the Subject Site because the requirements for identification of core koala habitat on the Subject Site as provided in Koala SEPP 2020 have not been met. More specifically: 1. the Applicant has provided information from a person with appropriate qualifications and experience in biological science and fauna survey and management, and based on that information I am satisfied that: 1. there has been no evidence of breeding females, including females with young, on the Subject Site since before 1994; 2. there is no recent evidence, by way of either sightings or koala scats, of individual koalas on the Subject Site since 2015, and so certainly no evidence of a koala population on the site in that time; 3. there is no historic evidence of a resident population of koalas on the Subject Site which might have been demonstrated by evidence confirming the presence of breeding females on the Subject Site; 4. the outcomes of surveys undertaken on the Subject Site across a period of more than 20 years have confirmed to my satisfaction that, at best, there has limited use of the Subject Site by koalas over that period; 1. the information provided by the Applicant, and upon which it relies to conclude that there is no core koala habitat on the Subject Site, is drawn from, and based upon, the written and oral evidence of its expert ecologist, Dr Robertson who: 1. in my assessment, has appropriate qualifications and experience in biological science and fauna survey and management, as evidenced by his curriculum vitae annexed to his joint expert report prepared with Dr Fitzgerald in October 2020; 2. has included consideration of the outcomes of all historic and recent surveys of the Subject Site in relation to the presence of koalas; 3. has visited, inspected, and undertaken what he described as limited survey, of the Subject Site; and 4. has relied most recently on the results of a survey of preferred koala food trees on the Subject Site, which also recorded the presence or absence of koala scats associated with those trees, and which was undertaken by appropriately qualified ecologists from AWC, as confirmed to my satisfaction by the curriculum of senior ecologist Eli Dutton, tendered as evidence at the hearing.
13. I note that the Respondent's expert ecologist, Dr Fitzgerald, also has appropriate qualifications and experience in biological science, fauna survey and management as referred to in cl 9 of Koala SEPP 2020. However, the Respondent and its expert ecologist were unable to provide information that would have supported a conclusion that there was core koala habitat on the Subject Site.
14. Further, I am also satisfied that Dr Fitzgerald's conclusions concerning the likelihood of there being core koala habitat on the Subject Site (see above at [92(1)(a)]), and his conclusion concerning the probability of koalas being present on the Subject Site (see above at [92(1)(b)]), were not supported by evidence tendered at the hearing, and were largely based on assertion.
15. I note that during the hearing Dr Fitzgerald agreed that in 2005 it had been his opinion, confirmed in a report authored by him at that time, that there was a low probability of koalas occurring on the Subject Site.
16. As I have concluded that there is no core koala habitat on the Subject Site: 1. consistent with the provisions of cl 9(3) of the Koala SEPP 2020, if the council, or the Court on appeal, is satisfied that the Subject Site is not a core koala habitat, it is not prevented, because of the SEPP, from granting consent to the Applicant's development application; 2. there is no requirement for the Applicant to satisfy the provisions of cl 10 of Koala SEPP 2020 concerning the third step for assessing development on the Subject Site, and a koala plan of management is not required to be prepared in accordance with Part 3 of the SEPP; and 3. as discussed above (at [80]), it is unnecessary for me to consider and resolve the Applicant's contention that the provisions of Koala SEPP 2020 do not apply to the Proposed Development, because even if I were to embrace the Applicant's submission, the practical outcome of applying its statutory construction would be no different to the conclusion I have reached above (at [(1)]).
17. Finally, I note that: 1. the Court has previously confirmed that no core koala habitat was located on the Villa World lands that were the subject of a grant of consent in the Villa World decision located adjacent to the Subject Site; 2. the Villa World decision had been made following the Respondent, Byron Shire Council, entering into an agreement with the applicant in that appeal that confirmed its assessment that consent should be granted that development; 3. the consent granted in the Villa World decision was supported by agreed advice from those parties, including Byron Shire Council, that there was no core koala habitat on the Villa World land. The reasons provided by the parties for this agreed advice were recorded in paragraphs [23] and [24] of that judgment; and 4. while not relying on the matters considered in the Villa World decision in arriving at my conclusions concerning the presence or otherwise of core koala habitat on the Subject Site, and notwithstanding differences in mapping of potential koala habitat between the sites, the conclusions in this appeal and in the Villa World decision concerning core koala habitat are consistent.
18. I will now give consideration to the on-going management of potential koala habitat on the Subject Site, including the Respondent's contended inconsistencies between various plans of management.

Should the Proposed Development be approved given the Respondent's contended inconsistencies between various plans of management, including the Applicant's koala plan of management (KPoM) and vegetation management plan (VMP)?

1. Although I have concluded that there is no core koala habitat on the Subject Site, the Proposed Development, as amended, proposes the removal of significant numbers of trees, including preferred koala food trees, and the restoration of other areas through the planting of preferred koala food trees for the purpose establishing "primary koala habitat".
2. As noted above (at [31]), the Applicant has proposed that all areas of the Subject Site with zoning E2 Environmental Conservation and E3 Environmental Management that are currently cleared would be restored through randomly spaced plantings of preferred koala food trees across three lots covering 3.63Ha.
3. The Applicant has produced a series of management plans that seek to confirm the details of its proposals with respect to tree removal and habitat restoration through tree plantings. These documents include: 1. the WBURA KPoM; 2. a Koala Habitat Plan of Management (KHPoM), which forms annexure A to the WBURA KPoM; 3. a Threatened Species Management Plan (TSMP); and 4. a Vegetation Management Plan (VMP).
4. The Respondent submitted that the number and location of proposed plantings of koala preferred food trees proposed by the Applicant was unclear, and cited as examples: 1. the location of habitat restoration and offset plantings proposed by the Applicant which had been inconsistently documented, including: 1. the Applicant had described its Proposed Development, as amended, as including restoration and offset plantings within six lots on the Subject Site (see above at [31(9)] and [31(10)]), but 2. the Applicant's WBURA KPoM and KHPoM had identified that three lots for these restoration plantings were Lot 1 in DP 780242, Lot 2 in DP542178 and Lot 1 in DP201626; 1. the proposed densities of tree plantings for habitat restoration varied between the Applicant's plans as follows: 1. the Applicant's WBURA KPoM suggested that all plantings would be of swamp mahogany (Eucalyptus robusta) which would be planted randomly at spacing of between 5-6m; 2. the Applicant's KHPoM suggested that the trees to be planted would include swamp mahagony (Eucalyptus robusta), swamp box (Lophostemon suaveolens) and broad-leaved paperbark (Melaleuca quinquinerva) trees, in the ratio of 90%, 5% and 5%, respectively, and with a spacing of 2m; and 3. the Applicant's VMP, included directions that all tree to be planted in Environmental Management Zones should be planted with a minimum spacing of 2.5m to 3.0m, noting that the term Environmental Management Zones while probably intended to refer to both E2 and E3 zoned lands was clumsy given that only E3 lands are zoned Environmental Management.
5. Further, the Respondent said that certain other matters within the plans were expressed inconsistently or inadequately, including: 1. certain mapping of vegetation communities within the Applicant's VMP which were said to be inaccurate; 2. the details of maintenance regimes to be implemented as part of restoration planting initiatives which were said to be inconsistent or prescribed to be undertaken for an inadequately short period; and 3. the Applicant's proposed plantings would take a period of some 10 years or more to be meaningful for use by koalas.
6. The Parties' expert ecologists had provided the following evidence within their joint expert reports tendered as evidence in the hearing: 1. Dr Robertson had stated that: 1. the SKAR had provided data for, and had assessed the impact of, the Proposed Development, as amended, on all preferred koala food trees on the Subject Site; 2. most intact patches of potential koala habitat containing swamp mahogany and other preferred food trees would be conserved within either the "eastern conservation area" or within the E3 zoned environmental conservation lands; 3. an estimated 169 preferred koala food trees with a diameter at breast height (dbh) of more than 250mm would be removed as a consequence of the Proposed Development, as amended; 4. the Applicant's WBURA KPoM and VMP were, in fact, consistent with the provisions of the BCC KPoM, noting that: 1. those plans were consistent with the objectives of the BCC KPoM; 2. the Subject Site did not contain core koala habitat and so the provisions of BCC KPoM do not apply to the Proposed Development, as amended; 3. most intact patches of the Subject Site containing potential koala habitat would be retained within the E3 zoned lands and the eastern conservation area within the Subject Site; 1. Dr Fitzgerald stated that: 1. while the SKAR had estimated that 169 koala preferred food trees with a dbh greater than 250mm would be removed, a total of 265 koala preferred food trees would be removed; 2. the proposed development should adhere to recommendations of the BCC KPoM in relation to large developments impacting on core koala habitat, including that: 1. koala preferred food trees with a dhb greater than 250mm should not be cleared; 2. the Applicant should provide a total of 5335 trees to offset the trees proposed to be removed on the basis of multipliers provided within the BCC KPoM.
7. The Parties' expert ecologists provided the following further evidence during the hearing in relation to the consistency and adequacy of the Applicant's various management plans: 1. the experts agreed that a proposed amendment to a draft condition of consent concerning details of an acoustic barrier to be provided along the boundary of the Subject Site with Ewingsdale Road, and which required the installation of koala fences, should be adopted. This was included by agreement as proposed condition 50 in the Parties' proposed conditions of consent; 2. Dr Fitzgerald: 1. reiterated that on his calculations, and applying the requirements of the BCC KPoM in relation to compensatory plantings, the Applicant should be required to plant 5335 replacement koala preferred food trees; 2. agreed that, having reviewed a suite of aerial photographs of the Subject Site over time, the landscape has exhibited signs of vegetation regrowth and restoration of the site to provide potential koala habitat is possible; 3. the loss of 265 preferred koala foods trees from the Subject Site was a significant negative impact of the Proposed Development, as amended; and 4. koala monitoring should be undertaken annually for a minimum of 5 years as outlined at section 4.10.1 of the Applicant's KPoM, and thereafter every 2 years for a period of 20 years; 1. Dr Robertson: 1. acknowledged that the Applicant's KPoM and VMP were not consistent in their recommendations concerning plantings of preferred koala food trees, and should be amended to provide consistency; 2. where the two plans were inconsistent, the recommendations of the KPoM should prevail over those in the VMP; 3. while he had not previously calculated the numbers of trees to be planted as compensation for trees proposed to be removed, he had subsequently undertaken calculations that suggested within in the 3.6Ha of lands proposed to be restored by the Applicant: 1. 1400 trees are proposed to be planted if the KPoM recommendation of a 5m separation between trees were adopted; 2. a separation of 3m between trees, as recommended in the VMP, would provide approximately 3,600 trees; and 3. a separation of 2m between trees as recommended in the KHPoM, would provide approximately 9000 trees; 1. of these three recommended tree planting densities he favoured a tree separation distance of 5m as per the KPoM, which he said, in his experience, was an industry standard; 2. the planting and monitoring of trees would be the responsibility of the entity proposed to manage community title lands, the creation of which forms part of the Proposed Development, as amended; 3. long term monitoring and management of the replacement tree plantings and the integrity of fencing across the subject site would be aided by the preparation of a specific overarching plan that integrated the requirements of the KPoM, KHPoM and VMP; 4. koala monitoring should be undertaken annually as outlined at section 4.10.1 of the Applicant's KPoM for a minimum of 5 years, and thereafter every 5 years for a period of 20 years; 5. the condition of vegetation in restoration areas should be the subject of long term of monitoring and should be coordinated through a coordinating document that integrated the recommendations within the KPoM and VMP; and 6. agreed that the Applicant's proposed condition 13 in relation to the timing of the Applicant's proposed revegetation works was appropriate. That condition would read: "13. Preliminary Activities The following are "Preliminary Activities" for the purposes of this condition: Environmental restoration and enhancement works within land zoned E2, E3, 7(a) and 7(b), as specified under the KPoM, the TSMP, the VMP and the BCMP. The Preliminary Activities must be substantially commenced prior to the issue of a subdivision works certificate for Stage 1. The following must be provided to Council's Director of Planning (or nominee) to demonstrate compliance with this condition: a. A report detailing the works carried out including supporting evidence and reference to the approved management plans; and b. In relation to the environmental restoration and enhancement works, certification of substantial commencement by a suitably qualified and experienced ecologist. In this condition, "substantially commenced" means all proposed environmental restoration and enhancement works specified in the above management plans have been carried out and maintained in accordance with the schedule specified in the Vegetation Management Plan for a period of not less than 6 months. For avoidance of doubt, notwithstanding that some management plans specify that works may be staged to correspond to the staging of construction works, this condition requires that restoration works in all of the above areas be substantially commenced prior to the issue of a subdivision works certificate for Stage 1."

The Applicant's plans should be revised

1. I am satisfied that, notwithstanding inconsistencies between various of its plans, the potential impacts of the Proposed Development, as amended, have been properly assessed and can be approved.
2. I agree with the Respondent that the Applicant's plans should be amended to provide consistency, as follows: 1. in relation to the planting density for replacement trees within restoration areas: 1. I do not agree with Dr Fitzgerald that the density of plantings recommended in the BCC KPoM should be adopted because, as is made clear within the BCC KPoM,: 1. its recommendations only apply to areas of core koala habitat, 2. I have concluded for reasons provided above (at [93(2)]) that there is no core koala habitat on the Subject Site; and 3. it would not be appropriate to impose recommendations in relation to core koala habitat to lands that are not core koala habitat and to which the BCC KPoM does not apply; 1. I prefer the planting density recommended within the Applicant's KPoM, which Dr Robertson has affirmed in evidence is consistent with industry standards, and which are made on the assumption, correctly made, that the Subject Site does not contain core koala habitat; 1. in response to the evidence of Dr Fitzgerald and Dr Robertson in relation to koala monitoring, I note that the Applicant within its proposed conditions dated 29 July 2021 has included a condition 21B in the following terms, and the Applicant's KPoM section 4.10 should be updated to reflect this proposed condition: "21B Koala Monitoring Monitoring of koalas in accordance with Section 4.10.1 of the KPoM (the version finally approved by this consent) shall be carried out six monthly for five years following the commencement of Stage A of this consent (noting Condition 13 above), and thereafter in the 10th and 20th year after commencement. Monitoring of koala habitat restoration in accordance with Section 4.10.2 of the KPoM shall be carried out yearly for five years following the commencement of Stage A, and every second year thereafter until the 20th year after commencement. After the creation of community title schemes, monitoring shall be coordinated between the community associations to produce a single monitoring report across all of the environmentally zoned land. The ongoing provision of the results of koala monitoring to Council is to be in accordance with the approved KPoM." 1. as recommended by Dr Robertson, to the degree that inconsistency exists between the KPoM and the VMP, the recommendations of the KPoM should prevail; and 2. the Applicant's KHPoM should also be reviewed to ensure consistency between the KPoM and VMP.
3. I note that the Applicant's proposed draft conditions of consent dated 29 July 2021, and filed with the Court at that time, include proposed conditions 40, 41, 42 and 42AA requiring that the Applicant's TSMP, VMP, KPoM and KHMP be updated prior to the issue of Subdivision Works Certificates to reflect the final approved subdivision layout and design, as well as to include required asset protection zones and achieve consistency with the final Bushfire Safety Authority and General Terms of Agreement issued by the NSW Rural Fire Service.
4. I also note that the Applicant's proposed conditions dated 29 July 2021 include a proposed condition 17 concerning additional monitoring and reporting requirements in the following terms: "17. Additional monitoring and reporting requirements Prior to issue of a subdivision works certificate for Stage 1, the monitoring requirements in all approved management plans including the ASSMP, BCPM, BCMP, ESCP, TSMP, VMP and KPoM shall be updated in the CEMP to include, but not be limited to: Monitoring site locations including site descriptions, photos and coordinates. Monitoring site locations shall be included on a map/plan; Parameters to be measured; Monitoring/sampling frequencies for each parameter to be measured; The duration of sampling for all parameters to be measured; Sampling and analysis methodologies to be used; and Data analysis methodologies including thresholds, limits and triggers for contingency actions. The reporting requirements in all approved management plans including the ASSMP, BCPM, BCMP, ESCP, TSMP, VMP and KPoM shall be updated in the CEMP to include, but not be limited to: Analysis of all monitoring and sampling data against baseline data and approved thresholds, limits and triggers, At least six (6) monthly reporting during subdivision construction works for at least five (5) years or until the issue of a subdivision certificate for Stage 12, whichever is the later. At least annual reporting thereafter for a total period of at least ten (10) years from the commencement of subdivision works."
5. The Respondent submitted that, should the Court be minded to grant consent to the Proposed Development, as amended, conditions should be imposed to require also that the Applicant's plans be revised to be consistent with the BCC KPoM. Having considered this proposition I have decided that I disagree with it because: 1. the BCC KPoM states that if there is no core koala habitat on land proposed for development then the provisions of BCC KPoM do not apply to the land. I have already concluded that there is no core koala habitat on the Subject Site and so the provisions of BCC KPoM do not apply to development on the Subject Site; 2. notwithstanding my finding above (at [(1)]), and having reviewed the documents, I am also satisfied that the Applicant's plans have already taken account of the objectives and recommendations of the BCC KPoM, and interpreted these into the plans for the Proposed Development, as amended.

Timing of plan revision

1. The Respondent said that if the Court agreed that these plans should be revised to achieve consistency, these tasks should be required through the imposition of a deferred commencement condition.
2. The Applicant opposed the imposition of a deferred commencement condition and submitted that, if it were required to revise its plans these tasks should be completed prior to the issue of the subdivision works certificate for Stage 1 of the Proposed Development, as amended.
3. In support of this submission, the Applicant drew the Court's attention to the judgment of Preston CJ in Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited (2010) 210 LGERA 126; [2010] NSWLEC 48, ( 'HVSSI'), in which his Honour recoded at [209] and [210] as follows: "209 The other set of deferred commencement conditions proposed by NHVSS is in condition S1.1B requiring Stoneco to submit to the Council a mining operations plan and various management plans. The requirement for submission of such plans is appropriate but I consider it need not be a deferred commencement condition but can be instead an operational condition. 210 Accordingly, I do not consider NHVSS's proposed deferred commencement conditions should be imposed, although aspects of them can be made part of the operational conditions as discussed above."
4. I have considered the submissions of the Parties on this matter and have concluded that I generally agree with the submission of the Applicant, other than in respect of linking the updating of the Applicant's plans with the timing of Stage 1 works.
5. In my assessment, revision of the Applicant's plans should not be the subject of a deferred commencement condition but any consent should include conditions requiring that: 1. the Applicant's plans should be updated, and reviewed for consistency, prior to the issue of subdivision works certificates; and 2. this work should be completed prior to the issue of any subdivision works certificates for any stage of the development, whether for Stage 1 or any other stage.
6. To be clear, the condition should require that the plans identified above (at [102]) should be updated and reviewed to achieve consistency prior to the issue of the first subdivision works certificate issued in respect of the Proposed Development, as amended.
7. I am satisfied that this approach is appropriate because: 1. notwithstanding my conclusions that the potential impacts of the Proposed Development, as amended, on potential koala habitat and preferred koala food trees have been adequately and properly assessed, and while I have confirmed the density of replacement plantings for koala preferred food trees, these conclusions should be consistently expressed within the Applicant's various plans; 2. while it is preferable that the Applicant's plans should have been consistent prior to the commencement of these proceedings, it is not surprising that this consistency was not achieved prior to the appeal being finalised due to the combined efforts of the Parties to reduce the scope of contentions, combined with the scale of the Proposed Development, as amended; 3. it is appropriate that the work to achieve consistency of plans should be completed before any works commence on ground; 4. the requirement that revisions of the Applicant's plans be completed prior to the issue of any subdivision certificate: 1. is consistent with the approach adopted by Preston CJ in HVSSI; 2. is consistent with the approach adopted in the Villa World decision in which certain of the applicant's plans in that appeal were required to be revised prior to the issue of subdivision works certificates; and 3. will provide confidence that on ground works will be implemented with consistency;
8. Finally, I agree with the evidence of Dr Robertson that the Applicant's proposed condition 13 would assist to ensure the that the timing of environmental restoration and enhancement works required under the Proposed Development are undertaken in a manner that will mitigate the impacts of tree clearing on the Subject Site as proposed.

Are the potential impacts of the Proposed Development on certain frog species acceptable?

1. The Respondent had contended that the Proposed Development would have potential adverse impacts on the habitat and populations of two vulnerable frog species both of which are associated with Wallum vegetation/acidic swamps on coastal sand plains. These species are the Wallum Sedge Frog (Litoria olongburensis), also known as the Olongburra frog, or the "acid" frog; and the Wallum Froglet (Crinia tinnula).
2. More specifically, the potential impacts contended by the Responded related to potential modifications to the water flow regimes, and groundwater ecosystems, associated with the habitats of these frogs in two locations 1. the western area of the Subject Site, and an area of frog habitat identified in the proceedings as the "Frog Zone"; and 2. in the eastern area of the Subject Site, and an area frog habitat within the Applicant's proposed conservation reserve in the E2 zoned lands.
3. I will consider the potential impacts of the Proposed Development, as amended, on each of these areas in turn.

Western Frog Habitat

1. The Applicant's development application, as originally lodged, proposed that access to the Subject Site would include a southern extension of Bayshore Drive from its current intersection with Ewingsdale Road through to the proposed road that would separate the proposed residential subdivision land within proposed Stage 11 from the proposed light industrial IN2 zoned land in proposed Stage 12, both located within the proposed precinct 4 of the development.
2. The following figure illustrates the southern extension of Bayshore Drive from Ewingsdale road passing between lots 161 and 162 as originally proposed:
3. The specific subdivision pattern for Stages 11 and 12, together with the Applicant's originally proposed arrangements for entry to precinct 4 is illustrated in the following figure:
4. While these initially proposed access arrangements had the benefit of providing a direct access for vehicles from the existing roundabout on Ewingsdale Road, at its intersection with Bayshore Drive, into Stages 11 and, more particularly, the light industry zoned Stage 12, it gave rise to potential impacts on an area of wetlands referred to in the hearing as the 'Frog Zone'.
5. This Frog Zone contains a patch of Wallum vegetation known to be the habitat of the Wallum Sedge Frog and the Wallum Froglet, both of which are associated with acidic swamps on coastal sand plains.
6. The Applicant's Proposed Development, as amended, includes a proposed redesign of the road network to remove the section of the southern extension of Bayshore Drive that would have traversed the Frog Zone. As a consequence of this amendment the potential impacts on the Frog Zone would be reduced or avoided.
7. The Applicant's amended road access arrangements are illustrated in the following figure which formed Exhibit C in the appeal and which also identifies the location of the Frog Zone to the north of proposed lot 11:
8. These amended access arrangements were: 1. acknowledged by the Parties and their experts as environmentally beneficial for the Frog Zone, and so preferable; 2. a necessary consequence of the consent granted in the Villa World decision and plans that formed part of that consent, to which the Respondent in this appeal was a Party; and 3. agreed by the Respondent in the Villa World decision.
9. The Villa World decision, inter alia, granted consent to the following plan for construction of road access to the Villa World lands from Ewingsdale Road:
10. The Applicant's modified access arrangements into Stages 11 and 12, and including arrangements along Melaleuca Drive would require vehicles to: 1. turn into the WBURA at the intersection of Ewingsdale Road with Bayshore Drive; and then 2. proceed along a road identified as 'ROAD 01', and already approved in the Villa World decision; before 3. turning south into Melaleuca Drive; before 4. turning right from Melaleuca Drive at a new intersection into a road identified as 'ROAD No. 2' to access stages 11 and 12 of the Proposed Development, as amended.
11. During the hearing, the Applicant tendered the designs of the roads to the north and south of the Frog Zone along with details of the water treatment that would be achieved through the use of swales to treat the run-off or water from the roads, noting that run-off from the road would be directed to "lot 6".
12. The Parties' expert ecologists agreed within their joint expert report prepared in February 2020 that the Applicant's amended access arrangements to proposed stages 11 and 12, avoided impacts on the Frog Zone and: 1. represented an improvement to the Proposed Development as it avoided impacts on the two frog species; and 2. avoided the removal of some 0.57 Ha of vegetation that otherwise would have been impacted should the Proposed Development as originally designed have been approved.
13. The expert ecologists also agreed that: 1. the management of stormwater required further consideration by the Parties' stormwater engineering experts in order to ensure that the amended road design maintained water quality within the Frog Zone to ensure the long term viability of the two vulnerable frog species in that area; 2. the management of run-off in relation to both ROAD01 to the north of the Frog Zone and ROAD No. 2 to its south were of concern in relation to the future management of the habitat and populations of frogs in the Frog Zone.
14. During the hearing, the Parties' expert ecologists provided further evidence in relation to the management of water quality in the Frog Zone, and in relation to run-off from ROAD01 to its north and ROAD No.2 to its south.
15. I will deal first with consideration in relation to ROAD01 before then considering matters concerning ROAD No. 2.
16. In relation to ROAD01: 1. the Applicant's expert ecologist, Dr Robertson agreed that: 1. the design of amended road access included a swale, referred to as swale 10, as part of the road to the north of the Frog Zone, and the objective and function of the swale is to receive and filter run-off from that road and direct it to the south east; 2. a condition imposed in the Villa World decision, referred to as condition 80, would also be appropriate to impose on the Applicant should the Court be minded to grant consent to the Proposed Development, as amended; 3. the frog and threatened species monitoring that might be required in relation to the Frog Zone area may require work to be completed on land adjacent to the Subject Site; and 4. notwithstanding the intent of Applicant's amended plans to avoid direct impacts on the Frog Zone, the Applicant had maintained its commitment to purchase and retire the credits required under its biodiversity development assessment report (BDAR) which included offsets that had assumed the Applicant would have a direct impact on the Frog Zone due to the now deleted southern extension of Bayshore Drive; 1. the Respondent's expert ecologist, Dr Fitzgerald, confirmed in his oral testimony that: 1. while the Applicant's Proposed Development, as amended, reflected the essence of recommendations that he had made within the joint report prepared with Dr Robertson, and direct impacts on the frog zone would be avoided, he was unable to conclude that there were no residual impacts of the Proposed Development, as amended, in relation to the Frog Zone; 2. he was unable to confirm the objective and function of the swale included in the design of amended road access and whether this would receive and filter run-off from ROAD01 and direct it to the south east; 3. he agreed with Dr Robertson that it would be appropriate to impose condition 80 from the Villa World decision should the Proposed Development, as amended, receive consent from the Court; 4. he added that the effectiveness of the monitoring requirements imposed by a condition similar to condition 80 of the Villa World decision, would be improved if the management plans referred to in that condition included indices that, if observed during monitoring, would trigger pre-identified adaptive management responses; 1. noting the observations of the experts concerning condition 80 of the Villa World decision, this condition imposed requirements in relation to the monitoring of frogs and other threatened species. The condition included references to an Acid Frog Management Plan (AFMP) and a Biodiversity Conservation Management Plan (BCMP) and was imposed in the following terms: "80. Frog and threatened species monitoring Monitoring of frogs and threatened species shall continue during subdivision works in accordance with the approved AFMP, BCMP and the relevant conditions in this consent". 1. in response to the evidence of the experts: 1. the Respondent submitted that: 1. notwithstanding the potential benefits of removing the road from passing through the Frog Zone, the potential impacts of the change, particularly in relation to the design of proposed ROAD no. 2 (which I address below at [139]) were not fully known; 1. the Applicant submitted that: 1. its proposed draft conditions of consent dated 29 July 21 include: 1. a proposed condition 21A in the following terms: "21A. Frog monitoring Monitoring of frogs on the E2 Zoned land on Lot 1 DP780242 (proposed Lot 156) in accordance with section 7.2.2 of the Threatened Species Management Plan (the final approved version) shall be carried out at six monthly intervals during the five year period of regeneration works specified in the Vegetation Management Plan (in the final version approved by this consent). Frog monitoring and reporting is to continue for at least 20 years from the issue of a subdivision works certificate for Stage A in accordance with the final approved TSMP and VMP. The ongoing provision of the results of frog monitoring to Council is to be in accordance with the approved TSMP and VMP. In relation to monitoring on Lot 6, the applicant is not required to duplicate any monitoring already carried out by the landowner of Lot 6 pursuant to development consent DA 10.2017.201.1." 1. a proposed condition 88 in similar terms to that imposed as condition 80 in the Villa World decision, as follows: "88. Frog and threatened species monitoring Monitoring of frogs and threatened species shall continue during subdivision works in accordance with the approved Threatened Species Management Plan (TSMP), Biodiversity Conservation Management Plan (BSMP) and the relevant conditions in this consent". 1. a proposed condition 12B that requires the retirement of certain biodiversity credits consistent with the observation of Dr Robertson (see above at [(1)(d)]) and the recommendation in the Applicant's BDAR. 1. having considered the submissions of the parties and the evidence of the experts, I am satisfied that matters concerning quality of water run-off from ROAD01 towards the Frog Zone, and potential impacts arising therefrom, are acceptable because: 1. as previously noted above (at [125]), the construction of the access road from Ewingsdale Road to Melaleuca Drive had been subject to a grant of consent in the Villa World decision, and that decision also approved the design of the road identified as 'ROAD 01' along the northern boundary of the Frog Zone and including swales to manage water quality from run-off from that road; 2. the consent sought by the Applicant in this appeal is consistent with the consent granted to the design of ROAD01 in the Villa World decision, including the design of the water quality management swale identified as swale 10; 3. the Applicant has agreed that a condition in the form of condition 80 in the Villa World decision should be imposed in relation to its Proposed Development, as amended; 4. the Applicant has proposed a condition 88 to require that monitoring of frogs and threatened species should be undertaken in a manner consistent with the TSMP prepared by AWC; 5. the monitoring requirements in respect of the Wallum Sedge Frog and Wallum Froglet that would flow from the imposition of proposed conditions 21A and 88 are provided within the TSMP in section 7.2 and includes water testing, vegetation monitoring and frog survey; 6. the TSMP, which is recognised within proposed condition 88, includes at its Appendix C a Landowners Agreement in relation to environmental offsets which requires that restoration and rehabilitation works within environmental offset lands will be undertaken by a suitably qualified ecologist; 7. the duplicate requirements for monitoring of frogs and other threatened species imposed as a consequence of the condition 80 in the Villa World decision, along with that in proposed condition 88 in this appeal, provide a basis for management responses to be taken in response to the findings of the monitoring and in within the frameworks provided in the plans of management approved in the Villa World decision and in the current appeal should consent be granted; 1. I further note that: 1. the Applicant in this appeal and the Applicant in the Villa World appeal, have an obligation under the West Byron Bay landowners agreement (see above at [21]) to cooperate in respect of the future development of the WBURA, and this provides some confidence that the monitoring and management requirements that are imposed by the Villa Word decision, and any that would be imposed through determination of this appeal, will be undertaken in a coordinated manner; 2. it is in the mutual interest of all Parties that the monitoring to be undertaken in relation to frogs should be coordinated, notwithstanding the ownership of the land on which the monitoring is to be undertaken; and 3. the terms of proposed condition 88 reflect the fact that the required monitoring of frogs in relation to the Frog Zone will be completed either as a consequence of the Villa World decision or through any consent granted in this appeal.
17. In relation to ROAD No. 2: 1. the Respondent had submitted that: 1. water run-off from ROAD No. 2 may accumulate at the base of the northern batter of that road, as confirmed in evidence by the Applicant's water engineering expert, Dr Martens; 2. it was unclear whether the design of the ROAD No. 2, to the south of the Frog Zone, was adequate to capture and treat run-off such that the resulting water quality was acceptable; and 3. it was also unclear that the frog populations in the Frog Zone would not be adversely impacted as a consequence of potential changes in the hydrological regime in the Frog Zone which had been described in a report prepared in August 2019 by BMT as "was dry now wet"; 1. the Applicant noted that its water engineering expert, Dr Martens, had stated in evidence during the hearing that the scale of potential changes in the hydrological regime of the Frog Zone was likely to be between 10-15mm; 2. in response to the matters raised by the Parties above (at [(1)] and [(2)]) the expert ecologists, Dr Robertson and Dr Fitzgerald, said that they agreed: 1. that the potential changes in water level identified by Dr Martens in the Frog Zone were minor in relation to water levels changes that would generally be experienced within the Frog Zone; 2. that the environmental restoration, enhancement and landscaping works that would be required of the Applicant through the imposition of its proposed condition 13 (originally identified as proposed condition 10), would assist to mitigate potential stormwater impacts on frog populations in the Frog Zone. That condition is to read: "13. Environmental restoration and enhancement and landscaping works All works within Stage A (as identified pursuant to condition 1(4)), must be completed prior to the issue of a subdivision works certificate for Stage 1. The following must be submitted to and approved by Council's Director of Planning (or nominee) to demonstrate compliance with this condition: a. a report detailing the works carried out including supporting evidence and reference to the approved subdivision plans and management plans; and b. certification of completion of these works by a suitably qualified and experienced ecologist. For avoidance of doubt, Stage A works will be completed for the purpose of this condition if all proposed environmental restoration and enhancement works specified in the relevant management plans have been commenced and carried out in accordance with the schedules contained in those plans for a period of not less than 6 months, notwithstanding that further works remain to be carried out at later points in time under those plans." 1. the Applicant's expert, Dr Robertson noted that, notwithstanding any potential impacts that may arise in relation to changes in the hydrological regime within the Frog Zone: 1. the Applicant has committed to purchasing and retiring species credits for both the Wallum Sedge Frog and the Wallum Froglet to offset any potential impacts from the Proposed Development; and 2. even if the availability of the required species credits was found to be limited, the offsetting outcome would nevertheless be achieved through the Applicant contributing to the Biodiversity Conservation Fund managed by the Biodiversity Conservation Trust; 1. in their closing remarks: 1. the Respondent said that, notwithstanding the fact the Applicant's amended access arrangements from Ewingsdale Road now avoided the Frog Zone, and the Applicant's commitment to the retiring of biodiversity credits to offset the loss of frogs from the Frog Zone, it remained open to the Court under s 7.13(2) of the BC Act to further consider the likely impact of the proposed development on biodiversity values; 2. the Applicant submitted that: 1. it's Proposed Development, both as originally designed, and in its Amended form, had assessed and offset all potential impacts on both the Wallum Sedge Frog and the Wallum Froglet through its acceptance of the outcomes of the BDAR in terms of the purchase and retirement of biodiversity credits for both species; 2. the Proposed Development, as amended, now avoided direct impacts on the Frog Zone, which the expert ecologists had agreed was a beneficial outcome for the two frog species; and 3. notwithstanding the avoidance of potential impacts resulting from its amended design it had maintained its commitment to fully offset any potential losses as originally assessed, and would accept the imposition of a condition of consent requiring that this be done; 1. having considered the evidence of the Parties' expert ecologists and the submissions of the Parties, I am satisfied that the design of the Proposed Development, as amended, including proposed ROAD No. 2, is acceptable because: 1. I accept the agreed evidence of the Parties' expert ecologists (see above at [(3)(a)]) that the potential changes in water level within in the Frog Zone that might arise in relation to ROAD No. 2 is minor, particularly given the general water level changes that are likely to experienced within the Frog Zone from time to time, and I am satisfied that any impacts on frog populations that may arise from these would also be minor; 2. in addition to the minor nature of any potential impacts on the Frog Zone that may arise from ROAD No. 2, the provisions of the BC Act apply to the Proposed Development, as amended, as a consequence of the provisions of s 7.7(1) of that Act; and 1. the Applicant has provided a BDAR prepared in the manner consistent with the provisions of the BC Act and the Biodiversity Conservation Regulation 2017 (BC Regulation); 2. I have considered the Applicant's BDAR (see below at [149]) and I am satisfied that its proposals for the avoidance, mitigation, management or offsetting of potential impacts on the Frog Zone and populations of frogs are in accordance with the provisions of the BC Act and BC Regulation; and 3. no further requirement should be imposed on the Applicant with respect to the requirements of the BC Act to avoid, mitigate or offset residual impacts of the Proposed Development on biodiversity values, including in relation to the Wallum Froglet and the Wallum Sedge Frog, beyond the purchase and retirement of biodiversity species credits, to which the Applicant has agreed.

Eastern frog habitat

1. The Applicant's Proposed Development includes certain proposed earthworks within its proposed precincts 1, 2 and 3 (see above (at [17]), and which are located in the region of the eastern frog habitat associated with Conservation Reserve 2 contained within the E2 zoned lands in the eastern portion of the Subject Site.
2. The Respondent submits that the Applicant's proposed earthworks within precincts 1, 2 and 3 would alter the hydrological regimes within the E2 zoned lands within the proposed eastern Conservation Reserve 2 and would give rise to potential impacts on the habitat and populations of the Wallum Sedge Frog and Wallum Froglet in that area.
3. In particular, the Respondent submitted that: 1. the West Byron WSUD Water Quantity Assessment prepared by BMT Eastern Australia Pty Ltd (BMT) dated August 2019 had modelled the effect of flood level impacts from the Proposed Development on the eastern frog habitat in Conservation Reserve 2; 2. the BMT study had concluded that certain areas within the eastern frog habitat that had been dry would become wet, and certain other areas that had been wet would become dry; and 3. the potential impacts of these changes on the habitat and populations of the two frog species was not adequately assessed and should not be accepted.
4. During the hearing the Parties' expert ecologists addressed the potential impacts of the Proposed Development, as amended, on the habitat and populations of the Wallum Sedge Frog and the Wallum Froglet in the eastern area of the Subject Site and: 1. the Applicant's expert ecologist, Dr Robertson, said that: 1. the proposed eastern conservation reserve contained potential habitat for both frog species; 2. while there was a record of the Wallum Sedge Frog in the area he recalled that this was an older record; 3. the habitat for the frog species in the eastern areas of the Subject Site would improve though time as a consequence of the Applicant's proposed restoration works to create wetland habitat in this area; 4. the landform in the area had been subject to change over time and the biology of the area had had to adapt to the changes imposed on the landscape; 5. if frogs had been present in the area in the past there was the potential for them to establish in the area in the future as the landscape is restored; 6. the changes to the habitat in the area would require monitoring through time, and the prospects in relation to the presence and strength of populations of either species was unsure at the present time; 1. the Respondent's expert ecologist, Dr Fitzgerald, said that: 1. the two frog species had distinct habitat requirements and would respond to changes in water regimes in different ways; 2. the quality of the habitat, including water quality, in the proposed eastern conservation reserve for the frogs was currently poor as a consequence of pollution in the area; and 3. he agreed with Dr Robertson that the success of the restoration works in relation to providing habitat for either of the frog species "could go either way".
5. During the evidence of the Parties' water engineering experts, the Applicant's expert Dr Martens had commented that although the modelling of flood impacts on the eastern area of the Subject Site had suggested that the Proposed Development would give rise to potential impacts on the moisture content of land in that area, the changes modelled were small and did not represent a material change.
6. I have considered the evidence of the Parties' expert ecologists and the submissions of the Parties, and I am satisfied that the potential impacts of the Proposed Development, as amended, on the habitat and populations of the Wallum Sedge Frog and Wallum Froglet in the eastern frog habitat areas is acceptable because: 1. consistent with the evidence of Dr Fitzgerald, I accept that the current quality of the conservation reserve lands, and the frog habitat, in the eastern areas of the Subject Site is poor; 2. the Applicant has proposed that the land in the proposed eastern conservation reserve would be restored, and I agree with Dr Robertson's evidence that the habitat for the frog species in the eastern areas of the Subject Site will actually improve though time as a consequence of the Applicant's proposed restoration works; 3. as noted previously (see above at [138(5)(a)]) the Applicant has agreed that in addition to its proposed restoration works, it would accept the imposition of proposed conditions 21A and 88 that will require monitoring of frog populations in this area and this would assist to inform the future management of the conservation reserve and frog habitat therein as those works proceed; and 4. notwithstanding the Applicant's acceptance of the imposition of conditions requiring it to purchase and retire biodiversity credits for the two frog species to offset the assessed residual impacts of the proposed Development on those species, in my assessment the long-term health of Wallum Froglet and Wallum Sedge Frog populations of the Subject Site will be enhanced by the restoration works to be undertaken as a consequence of the proposed Development if it were approved.

Conclusions re frogs

1. As discussed above, I have concluded that the potential impacts of the Proposed Development, as amended, on the populations of the Wallum Sedge Frog and the Wallum Froglet on the Subject Site are acceptable for reasons provided above at [138(6)], [139(6)] and [143].
2. In reaching this conclusion I have taken account of the fact that the Applicant's development application is accompanied by a biodiversity development assessment report, (BDAR) as required under s 7.7(2) of the BC Act.
3. As noted above (at [138(2)(d)]) the Applicant has agreed to maintain its commitment to purchase and retire the ecosystem and biodiversity credits required under its BDAR to off-set the residual impacts of the Proposed Development, as originally assessed, notwithstanding the avoidance of those impacts that might be achieved under its now amended proposal.
4. For completeness, I note that the Applicant's BDAR: 1. has been prepared by AWC and dated February 2020; 2. was authored by Hannah Reid, and reviewed by Eil Dutton, both accredited assessors for the purposes of applying the Biodiversity Assessment Methodology (BAM); 3. is in the form required under cl 6.8 of the BC Regulation; and 4. has, inter alia, calculated any ecosystem and species offsetting requirements in respect of potential impacts on biodiversity values of a development.
5. I also note that: 1. under the provisions of s 7.13(2) of the BC Act, a consent authority, or the Court on appeal, when determining a development application is to take into consideration the likely impact of the proposed development on biodiversity values as assessed in a BDAR that relates to the application, and may (but is not required to) further consider the likely impact of the proposed development on biodiversity values; and 2. the provisions of s 7.13(3) of the BC Act require that if consent is granted 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.
6. Having considered the Applicant's BDAR I am satisfied that: 1. the BDAR has been prepared in the manner consistent with the provisions of the BC Act and the BC Regulation; 2. the requirements of the BC Act with respect to the identification, assessment and offsetting of biodiversity impacts, including in relation to the potential impacts on both the Wallum Sedge Frog and the Wallum Froglet, in both the eastern and western areas of the Subject Site, have been met; 3. the potential impacts of the Proposed Development on the Wallum Sedge Frog and the Wallum Froglet in relation to both the western and eastern frog habitat on the Subject Site have been assessed, avoided, mitigated and, where required, off-set, and are acceptable; 4. as required under s 7.13(3) of the BC Act, the Applicant has confirmed during the hearing that it would agree to the imposition of a condition or conditions with the grant of consent and the Parties' versions of proposed conditions of consent provide consistent conditions in respect of the outcomes of the BDAR; 5. the Applicant's proposed draft conditions of consent include a proposed condition 12B which requires that those credits be retired prior to the issue of any subdivision works certificate for Stage 1 of the Proposed Development, as amended; and 6. consistent with the provisions of s 7.13(2) of the BC Act, no further consideration of the likely impact of the proposed development on biodiversity values, including in relation to the Wallum Froglet and the Wallum Sedge Frog, should be required.
7. Finally, consistent with the provisions of s 7.16 of the BC Act, I note that the Applicant's BDAR has considered whether the Proposed Development would have a serious and irreversible impact (SAII) on any threatened ecosystems or species and has concluded that it will not give rise to any SAII.

Does the Applicant's proposed road system provide acceptable access to the IN2 lands within the Proposed Development?

1. As discussed above (at [128] to [130]), the Applicant has amended its Proposed Development to ensure that the design of its development is consistent with the consent granted in the Villa World decision in relation to access from the Bayshore Drive intersection with Ewingsdale Road.
2. The amended access arrangements are described above, and in addition to the consistency achieved with the consent granted in the Villa World decision also provide a potentially beneficial outcome in relation to avoiding impacts on an area of frog habitat referred to in the hearing as the Frog Zone.
3. The amended vehicular access arrangements are illustrated in the figure below and concern the movement of vehicles from the Ewingsdale Road roundabout with Bayshore Drive initially via ROAD 01 then via Melaleuca Drive and finally via ROAD No. 2 into Stage 11 and, more particularly, Stage 12, of the Subject Site. The figure is drawn from the Applicant's tender bundle in the proceedings:
4. The Respondent contended that the amended access arrangements illustrated above were unsatisfactory because: 1. the Applicant had not demonstrated that the movement of an articulated vehicle of 20m length could be accommodated along the amended access route including in relation to turns into and out of Melaleuca Drive, which would have a width of 9.5m, at its intersections with ROAD01 and ROAD No. 2; 2. it was a poor planning outcome to provide access to the IN2 zoned lands in Stage 12 via the R2 zoned low density residential lands in stage 11, and it was likely that this would result in conflicts between traffic and residents in Stage 11, including children; 3. the design of the proposed access arrangements to and from the IN2 zone lands in Stage 12 were inconsistent with the provisions of Part E8.10.10.4 concerning the IN2 zone industrial lands, and specifically: 1. it was not confirmed that the access roads had been designed to facilitate the movement of large vehicles as required under performance criteria 1; and 2. the design of the proposed access arrangements did not minimise land use conflicts with surrounding residential development, particularly in relation to the R2 zoned lands in Stage 11, as required under performance criteria 5.
5. The Respondent further stated that there would be no reason that a solution could not be found to facilitate the access of trucks to the IN2 lands via ROAD No. 2, but it would require adjustment by the Applicant to its design and yield in the Stage 11 land.
6. The Applicant submitted that following the amendment of its development application and the joint reporting and evidence of the Parties' traffic experts, Mr McLaren and Mt Hollyoak: 1. there were no remaining material traffic contentions in the appeal; and 2. there was no reason to refuse the appeal on the basis of traffic contentions as any issues were able to be addressed through the imposition of appropriate conditions of consent.
7. In particular, the Applicant noted that: 1. all matters concerning the design, including the width, of ROAD01, had already been resolved through the consent granted in the Villa World decision, which, notwithstanding Mr McLaren's preference for a 13m width, was designed and approved to have a width of 11m; 2. the 11m width of proposed ROAD01 was consistent with the width required for a collector road under the Northern Rivers Local Government Development Design and Construction Manual Part D1 in relation to "Geometric Road Design (Urban and Rural)"; 3. the amended access arrangements were beneficial as they avoided potential environmental impacts on the Frog Zone and did not give rise to any significant impact in relation to safety; 4. the Applicant's contention that the road access to the IN2 zoned lands should be suitable for a 20m long articulated vehicle (AV) was not a statutory requirement and did not provide a basis for refusal of the Proposed Development, as amended; 5. the swept path analyses provided by the Applicant's expert traffic engineer, Mr Hollyoak had demonstrated that the design of the access arrangements to the IN2 land were satisfactory for a 19m long AV, and therefore acceptable; and 6. the access of vehicles to the IN2 zoned lands could be subject to further consideration in the context of development applications that would be required in relation to the further development of those lands beyond subdivision stage, and further conditions could be imposed with respect to vehicle size and vehicle movement through the Subject Site should that be required.
8. A more detailed illustration of the Applicant's proposed design of the access arrangements from ROAD01 through Melaleuca Drive and on to the IN2 zoned land in Stage 12 via the R2 zoned land in Stage 11 is provided below.
9. The illustration includes swept paths for the movement of a 19m long AV from ROAD01 through the proposed roundabout at Melaleuca Drive and ROAD No.2, and the traffic management and pedestrian movement arrangements in this area.
10. During the hearing the Parties expert traffic engineers, Mr McLaren and Mr Hollyoak, provided further evidence in relation to the design of the Applicant's proposed access arrangements to and from the IN2 zoned lands in Stage 12, and: 1. its adequacy in relation to the movement of large vehicles; and 2. the implications of movement of those vehicles along ROAD No.2 through the R2 zoned lands in stage 11.
11. More specifically the experts provided further evidence in relation to: 1. the width of the road leading the IN2 zoned land in Stage 12; 2. the suitability of access for use by articulated vehicles; 3. Stage 11 R2 and Stage 12 IN2 interactions; and 4. safety considerations and the adequacy of pedestrian refuges at the Melaleuca Drive roundabout;
12. I will consider the evidence in relation to each of these matters in turn.

Width of road leading to IN2 lands

1. Mr McLaren, for the Respondent, said that while not dimensioned on the Applicant's plans, its proposed ROAD No. 2 had a curb to curb width of 11m, and he expressed the view that this may not be sufficient for the purposes of facilitating access by commercial vehicles to the IN2 zoned lands.
2. Mr Hollyoak, for the Applicant, stated that: 1. he had considered the requirements of BDCP Part E8.10.3 in relation to transport movement and street hierarchies, and the requirements for the design of roads in IN2 zoned land; 2. the provisions of BDCP require that industrial roads should have a width of 13m, but he said that only related to the roads within the IN2 zoned land and does not relate to roads providing access to the IN2 zoned land; 3. the purpose of a 13m width requirement for roads in industrial land is to facilitate manoeuvring of trucks within an industrial area; 4. the 11m width of proposed ROAD No.2 would be sufficient for the purposes of facilitating access to the IN2 zoned land because the design of the road includes adequate width to provide: 1. a footpath along the southern side of the road; 2. two traffic lanes each of 3.5m width; and 3. a parking lane along one side of ROAD No.2; 1. in his opinion it would be appropriate to signpost the northern side of ROAD No.2 as "No Stopping".
3. I have considered the submissions of the Parties and the evidence of the experts, and I have concluded that: 1. the requirements for the widths of various classifications of road are provided within Part E8.10.3 of BDCP which references the Northern Rivers Local Government Design and Construction Manual, the relevant part of which is Development Design Specification D1 Geometric Road Design (Urban and Rural) produced by AUS-SPEC; 2. while the Part D1 of the manual confirms that the minimum carriageway widths and verge widths to be provided in industrial areas is 13m for roads in an industrial area, I agree with Mr Hollyoak that ROAD No.2 is not in the industrial area, and its required width as a collector road is 11m; 3. I further agree with Mr Hollyoak that: 1. the 11m width of ROAD No.2 is sufficient for the purposes of providing access to the IN2 zoned land in Stage 12, consistent with his observations above (at [166(4)]); and 2. it is appropriate that the northern side of ROAD No.2 should be sign-posted "No Stopping" to ensure the smooth functioning of that road, and to facilitate achievement of objective 1 of Part E8.10.3 of BDCP.

Suitability of access for use by articulated vehicles (AVs)

1. The Respondent had contended that the Applicant had not adequately demonstrated that the design of its road access into the IN2 zoned land in Stage 12 could accommodate the movement of articulated vehicles.
2. In particular, the Respondent said that: 1. the Applicant had not demonstrated that a 20m long AV could move through the series of intersections and roundabouts between ROAD01 and the IN2 zoned land; 2. the most recent edition of Australian Standard AS 2890.2:2018 Part 2 concerning of off-street commercial vehicle facilities had extended the length of AV class vehicles from 19m to 20m to allow for NHVR performance based standards for level I vehicles; and 3. the Applicant's swept path analyses had modelled AV movement through the access roads to the IN2 zoned lands on the basis of a 19m vehicle rather than the 20m vehicle now specified in AS2980.2 Part 2.
3. In his oral evidence at the hearing, Mr Hollyoak said that he agreed with the Respondent that the design of ROAD No. 2 leading to the IN2 lands in Stage 12 should anticipate use by AVs.
4. The Applicant submitted, relying on the oral evidence of Mr Hollyoak during the hearing and his evidence within a Supplementary Joint Expert report prepared with Mr McLaren, that: 1. the ROAD01, which was granted consent under the Villa World decision, had a width of 11m which accorded with the requirements for a collector road; 2. Mr McLaren had agreed that the 11m width of a collector road was designed to accommodate a maximum traffic volume of up to 3000 vehicles per day travelling at a maximum speed of 50 km/h in residential areas; 3. the 9.5m width of Melaleuca Drive between its intersection with ROAD01 and the roundabout at ROAD No.2 was acceptable because: 1. that section of roadway was 30m and therefore only a short distance along which trucks were required to travel; 2. that section of roadway would not provide any opportunity for parking of vehicles; 3. swept path analyses prepared by ACOR Consultants (NSW) Pty Ltd had confirmed that articulated vehicle of 19m length could satisfactorily enter Melaleuca Drive from ROAD01, turn at the roundabout with ROAD No.2, before travelling along that road to the IN2 zoned land; 1. the modelling undertaken by Mr Hollyoak for a 19m AV should be considered acceptable because, as explained by Mr Hollyoak in oral evidence: 1. the templates available to expert traffic engineers to model AV swept paths published by Austroads, provided templates for a 19m AV and not a 20m vehicle; 2. the Austroads swept path templates had been published in 2013 and did not align with the updated provisions of ASS2890.2 Part 2, which had been published in 2018; 3. it was not possible, therefore, to provide a swept path analysis for a 20m vehicle; and 4. notwithstanding the inconsistencies between the Austroads templates and the provisions of AS2890.2, he was satisfied that the 1m difference in length between a 19m vehicle and one of 20m length is minor and not significant in relation to manoeuvring an AV from ROAD01 to the IN2 zoned lands in stage 12.
5. I have considered the submissions of the Parties and the evidence of the expert traffic engineers, and I am satisfied that evidence provided by the Applicant, including the design of the road access arrangements between ROAD01 and the IN2 zoned lands in Stage 12 and the swept path analyses for AV vehicles, is acceptable for the reasons provided within the evidence of Mr Hollyoak, which I adopt.

Stage 11 R2 and Stage 12 IN2 Interactions

1. The Respondent had contended, relying on the evidence of its expert traffic engineer, Mr McLaren, that the use of ROAD No.2 by commercial vehicles accessing the IN2 zoned land in Stage 12 from the intersection of the road with the roundabout with Melaleuca Drive, was a poor planning outcome that would give rise to unacceptable potential impacts on future residents of the R2 zoned land in Stage 11.
2. Mr McLaren had opined in oral evidence that the passage of commercial vehicles along ROAD No.2 in proximity to the R2 zoned land in Stage 11 did not represent good practice, and an alternative design of those roads would be preferred.
3. Mr Hollyoak stated that any commercial vehicles using Road No. 2 would not be travelling through the R2 zoned land in Stage 11 but rather would be passing around it. He added that it was his assessment that: 1. the volume of commercial vehicles envisaged to use of the road would not present any increased risk to residents in the R2 zoned land; 2. future development applications in relation to the use of the IN2 lands would need to assess potential traffic related impacts of those proposed developments including in relation to the use of ROAD No.2, and conditions could be imposed, if required, to limit the type of vehicles using that road and their frequency of use, including, for example, limiting vehicles to those with a maximum length of 12.5m; and 3. it was unlikely that residents of the R2 zoned lands would seek to cross ROAD No. 2 as there was no verge or footpath provided on the northern side of the road.
4. The Applicant in closing submitted that: 1. the movement of any construction traffic along ROAD No.2 required in relation to the future development of IN2 lands in Stage 12 would be limited through the imposition of proposed condition of consent 34(6)(c), as follows: "(c) trucks entering the site during the construction of any phase of the development are not to exceed 10 trucks in any 1 hour period, or 5 trucks during the period 8:00am to 9:00am." 1. approval of the Proposed Development, as amended, including the subdivision in relation to the Stage 12 IN2 lands, would not remove the requirement for subsequent permissible use of those lands to be the subject of further development applications along with the imposition of conditions of consent limiting the size and frequency of vehicle movements along ROAD No.2 associated with any such consent; and 2. a joint report of the Parties' acoustic experts. Mr Jason Fox, for the Applicant, and Mr Tim Fitzroy, for the Respondent, had confirmed, relying on the outcomes of traffic modelling produced by VLC in August 2019, and assuming a 5m dwelling setback to the nearest boundary, there would be a 1dB increase in traffic noise levels for properties in the R2 zoned land in Stage 11 as a consequence the additional light industrial heavy vehicles accessing the Stage 12 IN2 land.
5. I have considered the submissions of the Parties and the evidence of the Parties' expert traffic engineers and acoustic specialists, along with the traffic modelling report of VLC, and have concluded as follows: 1. the requirement for the Applicant to access the IN2 lands in Stage 12 be via ROAD01 on the Villa World lands, then via Melaleuca Drive and along proposed ROAD No.2 arises as a consequence of the change in access to the Subject Site approved in the Villa World decision; 2. the amendment to the access arrangements approved in the Villa World decision, and adopted by the Applicant in this appeal, provided a beneficial environmental outcome as it avoids certain direct potential impacts on the so-called Frog Zone; 3. while I accept that there may be planning benefit in providing a more direct road access from Ewingsdale Road to the IN2 zoned lands in Stage 12, it is my assessment that the planning benefit afforded by a more direct road access arrangement to the IN2 land is outweighed by the environmental and public interest benefit achieved by avoiding any direct impact on the Frog Zone; 4. the public interest benefit of the amended road access arrangements to the IN2 zoned lands in Stage 12 was also recognised, in my view, by the agreement of the Parties in the Villa World decision, including the Respondent in this appeal, when they agreed to the arrangements in relation to configuration of ROAD01; 5. noting the above points ([(1)] to [(4)]), the question for resolution in this appeal is not whether the proposed arrangements for access to the IN2 lands in Stage 12 is the best planning outcome, but rather whether the arrangements, including the IN2/R2 interactions, are acceptable given that the public interest is best served by avoiding the potential environmental impacts on the Frog Zone; 6. I am satisfied that the Applicant's potential impacts on future residents of the R2 zoned land in Stage 11 that arise for the proposed arrangements for access to the IN2 zoned land in Stage 12 are acceptable, because: 1. I have already concluded that the design of proposed Road No.2 is acceptable in relation to the passage of commercial vehicles and proposed signage arrangements with respect of parking (see above at [167]); 2. the potential impacts of any construction traffic associated with development of the IN2 zoned lands have been considered and would be mitigated through the imposition of conditions of consent to which the Applicant has agreed, including proposed condition 34(6)(c); 3. the potential noise impacts of vehicles using proposed ROAD No.2 including those servicing future developments in the IN2 zoned land have been assessed as acceptable, noting that the marginal impact of commercial vehicles would around 1dB and so likely to be indiscernible to the future residents in the R2 lands in Stage 11; 4. I agree with the Applicant, relying on the evidence of Mr Hollyoak, that the arrangements with respect to the size and frequency of commercial vehicles accessing the IN2 lands via proposed ROAD No.2, can and will be further assessed and considered in the context of future development applications for specific uses of the IN2 lands, and it will be open to consent authorities to impose further conditions of consent in relation to those uses should that be determined appropriate.

Safety considerations and the adequacy of pedestrian refuges at the Melaleuca Drive roundabout

1. The Respondent's expert traffic engineer, Mr McLaren, had stated within a joint expert report prepared May 2021 with Mr Hollyoak, that having considered advice provided by the NSW RMS in its Guide to traffic generating developments, and in particular its section 7.4: 1. he remained concerned in relation to the potential for conflict between vehicles and pedestrians crossing the Melaleuca Drive junctions with ROAD No.2 and ROAD01; 2. it is usual to provide pedestrian refuges on all four legs of a roundabout, but the Applicant's proposal for a single crossing on the southern leg at ROAD No.2 was a poor pedestrian planning outcome; 3. the Applicant's proposed arrangements at the junction of Melaleuca Drive with ROAD01 was also a poor pedestrian planning outcome.
2. The Applicant's expert traffic engineer, Mr Hollyoak, had responded within the joint expert report to the comments of Mr McLaren as follows: 1. the Applicant has proposed a pedestrian refuge island on the south side of the Melaleuca Drive roundabout as this is aligned with the footpath on the south side of ROAD No.2, and the south side of the roundabout is not proposed as a route for heavy vehicles; and 2. vehicles entering the roundabout from the east via the road identified as ROAD04 are unlikely to turn left at the roundabout and head south on Melaleuca Drive as that direction is unlikely to provide connectivity to desired locations.
3. During the hearing, Mr Hollyoak confirmed the views he had expressed in the joint expert report with Mr McLaren, and in particular said that: 1. there was no requirement that pedestrian crossings should be provided on all four arms of the Melaleuca Drive roundabout with ROAD No.2; and 2. the refuges provided at a roundabout should reflect pedestrian pathways, and the Applicant's plans for the roundabout reflect this principle as the Applicant proposes no footpath on either the northern side of ROAD No.2, or the western side of Melaleuca Drive between ROAD No.2 and ROAD01; and 3. notwithstanding the current design, it remained open to the Applicant to provide additional crossing points to facilitate future planning outcomes, and this could be done in the detailed design phase for relevant stages of the Proposed Development, as amended.
4. In closing, the Respondent submitted that, relying on the evidence of Mr McLaren, it remained concerned that the Applicant's proposed design of the roads between ROAD01 and ROAD No.2 were not acceptable and required refinement to reflect matters raised by Mr McLaren in his evidence.
5. In reply, the Applicant submitted that its proposals for the design of road arrangements from ROAD01 along Melaleuca Drive and through ROAD No.2 were acceptable because: 1. the arrangements proposed in its road design to mitigate potential risk to pedestrians were, as stated by Mr Hollyoak, appropriate and reflected likely pedestrian movements in the area; 2. Mr Hollyoak had recommended certain traffic management measures, including road markings illustrated on its plans, and these would assist to ensure that larger vehicles moving through the area would travel along appropriate paths within the road corridor; and 3. any commercial vehicles moving between the Melaleuca Drive intersection with ROAD01 and the roundabout with ROAD No.2 would be moving slowly given the short distances between these intersections, and this would assist in limiting risk from the movement of the vehicles to pedestrians.
6. Having considered the evidence of the Parties' expert traffic engineers, and the Parties' submissions at the hearing, I am satisfied that: 1. the design of the Applicant's proposed traffic arrangements, including in relation to the provision of roundabouts at the Melaleuca Drive roundabout and facilitation of safe pedestrian movement through the area are acceptable for reasons provided by the Applicant and its expert, Mr Hollyoak above [at [179] and [180]); and 2. the contentions raised by the Respondent in relation to the design of the proposed Melaleuca Drive roundabout, including those identified by its expert, Mr McLaren, have been satisfactorily addressed by the Applicant;
7. Further, I note the observation provided by Mr Hollyoak, with which I agree, that it remained open to the Applicant to refine the proposed design, if required, and this could be done in the detailed design phase for relevant stages of the Proposed Development, as amended.

Conclusion in relation to vehicle access to the IN2 lands

1. On the basis of my findings above, and having considered the matters raised by the Respondent above I am satisfied that the Applicant's proposed road system provides acceptable access to the IN2 lands within Stage 12 of the Proposed Development, as amended, and no aspect of this design provides a basis for refusal of the Applicant's development application.
2. Notwithstanding this conclusion, I note that the Applicant has proposed that it would accept the imposition of certain conditions of development consent in relation to the movement of vehicles between ROAD01 and the IN2 lands (see above at [167(3)(b)] and [176(1)]) and I agree that these conditions should be imposed with any grant of consent to the Proposed Development, as amended.

Other matters - Jurisdictional considerations

1. Further to my conclusions in relation to the remaining contentions in this appeal, and matters concerning proposed draft conditions of consent, there remain certain matters concerning jurisdictional considerations that should be addressed in this judgment.
2. These jurisdictional matters, each of which is discussed in more detail below, concern: 1. owners' consent; 2. the coastal zone; 3. heritage conservation; 4. acid sulfate soils; 5. flood planning; 6. lawful points of discharge; 7. public infrastructure; 8. contamination; 9. bushfire prone land; and 10. the provisions of BDCP.

Owners consent

1. The Parties have confirmed that the consent of all owners required in relation to the Proposed Development, as amended, has been provided.
2. This includes the consent of Byron Shire Council for the Applicant to use and occupy certain Council owned lands in the vicinity of Melaleuca Drive for the purpose of proposed road works that form part of its development application, and which was granted during the appeal on 27 April 2021.

The coastal zone

1. Clause 88 of BLEP 1988 provides that development consent must not be granted to development on land that is wholly or partly within the coastal zone unless the consent authority has considered.
2. The Subject Site is located within the coastal zone as referred to in cl 88 of BLEP 1988, and the Parties are satisfied, and I accept, that the matters set out in cl 88(2) of the BLEP 1988 have been considered and the Proposed Development (as amended) has satisfied the requirements of cl 88(3) of BLEP 1988.
3. In particular, I note that the Parties' water experts, Dr Daniel Martens, for the Applicant, and Mr David England for the Respondent, provided a joint experts report that was tendered into evidence at the hearing, and those experts agreed, and I am satisfied, that: 1. the Applicant has provided, and tendered into evidence at the hearing, the following reports that as a basis for considering the matters required under cl 88(3) of BLEP: 1. West Byron Flood Impact Assessment prepared by BMT Eastern Australia Pty Ltd (BMT) and dated August 2019; 2. West Byron Stormwater Assessment prepared by BMT and dated August 2019; 3. West Byron Water Sensitive Urban Design (WSUD) Water Quality Report, prepared by BMC and dated August 2019; 4. West Byron Urban Release Area Stormwater management Plan, prepared by AWC and dated August 2019; and 5. Hydrogeological Assessment: West Byron Urban Release area, prepared by Martens and Associates and dated August 2019; 1. the reports prepared by BMT (see above at [(1)]) confirm that the potential impacts of the Proposed Development on coastal hydrology and the morphology of Belongil Creek and ICOLLs, have been adequately modelled and assessed, and together with the Martens hydrogeological report confirm that the Proposed Development: 1. would have no adverse impact on the flood level either on the Subject Site (either in isolation or cumulatively) or within the Belongil Creek ICOLLs for the 10%, 5% or 1% AEP flood events, and would not impact on flood level or velocity in the 1 Exceedance per Year (EY) event; 2. would have no impact on more frequent flood levels under the 4EY (98%AEP) and 0.5EY (39%AEP) scenarios; 3. would, following implementation of the WSUD elements, not give rise to any material increase in the flow rate to the main drain discharging to Belongil Creek for higher flood frequency (4EY, 1EY, and 0.5EY) events; 4. would give rise to no groundwater related impacts at the Belongil Creek ICOLLs); 5. is unlikely to give rise to any adverse impacts on the hydrology, and therefore morphology, of the Belongil Creek ICOLLs; and 6. is consistent with the objectives of cl 88 of BLEP.
4. Finally, State Environmental Planning Policy No 14 - Coastal Wetlands (SEPP 14) continues to apply to the Proposed Development, as amended.
5. While the Subject Site is mapped as containing coastal wetlands subject to the provisions of SEPP 14, the footprint of works under the Proposed Development, as amended, is located external to any mapped areas of coastal wetlands that would be subject to the provisions of SEPP 14 and it is also outside of the 100m buffer required around mapped coastal wetlands.
6. The Parties have advised, and I am satisfied, that the Applicant has satisfied the provisions of SEPP 14, the grant of development consent is not precluded by SEPP 14 and its provisions, and no concurrence is required from NSW Department of Primary Industries (DPI) Fisheries.

Heritage conservation

1. An 'Amended Cultural Heritage Assessment' prepared by Jacqueline Collins, a consultant archaeologist, of Adise Pty Ltd and dated August 2019 was provided as part of the Applicant's Statement of Environmental Effects that accompanied its development application.
2. The cultural heritage assessment report makes recommendations that have been endorsed by the Bundjalung of Byron Bay Aboriginal Corporation (Arakwal) and the Tweed Byron Local Aboriginal Land Council and which, in the opinion of the author, require no change as a consequence of the modifications to road design arising from the Applicant's amended development application that itself arise from the Villa World decision.
3. Those recommendations are identified by the author of the assessment as being designed to avoid or mitigate potential impacts of the Proposed Development, as amended, including in relation to a registered midden site, and to achieve compliance with relevant statutory provisions.
4. The Respondent raised no contention at the hearing in relation to heritage conservation, and I am satisfied, that, as required under the provisions of cl 92 of BLEP 1988: 1. the effects of the Proposed Development on any items or areas of heritage significance have been considered; and 2. the Proposed Development will not have an adverse impact on items or areas of Aboriginal cultural heritage significance that may be on the Subject Site.

Acid Sulfate Soils

1. The Subject Site is included within the Acid Sulfate Soils Map referred to within cl 97(2) of BLEP 1988, and the Parties, supported by their acid sulfate soils experts, Mr Tim Fitzroy and Dr Daniel Martens, are satisfied, and I accept, that: 1. the Acid Sulfate Soils Management Plan submitted with the Applicant's Proposed development application is acceptable and has fulfilled the requirements of cl 97(3) of BLEP 1988; 2. comments made by the Biodiversity and Conservation Division in the NSW Department of Planning, Industry and Environment had been appropriately addressed though the design of the Proposed Development, and through the proposed imposition of conditions of consent; and 3. the Parties' acid sulfate soil experts had confirmed that the Applicant's amended plans will have no appreciable impact on matters related to both acid sulfate soils and the impact of acid sulfate soils on groundwater.

Flood planning

1. As noted above (at [52(6)]), the provisions of cl 98 of BLEP 1988 apply to development on the Subject Site, and the Subject Site is identified as a "flood planning area" on the Flood Planning Map referred to within cl 98 of BLEP 1988.
2. The Applicant has provided a Flood Impact Assessment Report prepared by BMT Eastern Australia Pty Ltd (BMT), dated August 2019, in relation to the Proposed Development, along with a hydrogeological assessment prepared by Martens Associates and also dated August 2019 which have assessed the potential flood related impacts of the Proposed Development.
3. The Parties' water experts, Dr Daniel Martens, for the Applicant, and Mr David England, for the Respondent, agreed within their joint expert report dated October 2020 that: 1. the Applicant's flood modelling, undertaken and reported by BMT, is acceptable and demonstrates that the Proposed Development whether in isolation or cumulatively with the adjoining Villa World development is unlikely to give rise to significant off-site flooding related impacts; 2. the main drain through the Subject Site will have sufficient capacity to carry flows generated by the Proposed Development both in isolation and cumulatively with the development on the adjoining Villa World lands; 3. flow levels in the main drain and Belongil Creek, along with related flow rates, flow regimes and velocities, would not be materially altered by implementation of the Proposed Development; 4. it would be appropriate to impose certain conditions of consent, drafts of which the experts provided, to facilitate mitigation of potential flood impacts in relation to the implementation of the Proposed Development at the level of specific stages.
4. The Parties advise, and I am satisfied, that, on the basis of these reports, and as confirmed by the Parties' 'water experts', having regard to cl 98(3) of BLEP 1988, the Proposed Development: 1. is compatible with the flood hazard of the land; 2. is not likely to significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties; 3. incorporates appropriate measures to manage risk to life from flood; 4. is not likely to significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of riverbanks or watercourses; and 5. is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding.

Lawful points of discharge

1. The Respondent had contended at the commencement of the proceedings that the Applicant had not provided lawful points of discharge for all stormwater outlets within its Proposed Development.
2. During the hearing, the Respondent filed an amended statement of facts and contentions in which it no longer pressed its contention concerning lawful points of discharge. The contention was no longer pressed because the Parties' water experts, Dr Daniel Martens and Mr David England had provided a joint report in which, inter alia, they agreed that: 1. consistent with the provisions of Part D6.2.1(10)(b) of BDCP the Proposed Development, as amended, would provide that: 1. each new allotment created by the subdivision would be capable of discharging stormwater runoff from impervious areas to a lawful point of discharge; 2. each discharge location is either to an existing drainage easement, an existing surface drain or natural watercourse, or where this is not the case water is released within the property such that it does not cause nuisance to any downstream owner; and 1. there are no material inconsistencies between the stormwater management strategy and engineering plans that would affect the overall design of the development that cannot be rectified as is ordinarily the case during the detailed design stage as part of the construction certificate documentation process, and they have recommended a condition of consent for imposition reflecting this outcome.

Other water related contentions

1. The Parties' water experts, Dr Martens and Mr England, have also resolved all other contentions in relation to the management of water in relation to the Proposed Development, as amended, within their joint expert report and a supplementary joint expert report, both tendered as evidence at the hearing. These included recommendations for the imposition of conditions of consent in relation to the management of water flows on and from the Subject Site, and these proposed conditions have been accepted by the Applicant and incorporated within the Parties' proposed draft conditions of consent.
2. Further, the water experts agreed within their supplementary joint expert report that the information contained in the Applicant's amended design for access to the IN2 zoned land in Stage 12 and the R2 zoned land in Stage 11, was consistent with the consent granted in the Villa World decision.
3. The water experts also agreed that: 1. the surface run-off from the western side of Melaleuca Drive adjacent to the development is to be directed, where possible, to the water quality area adjacent to the western side of Road 1 denoted as B3 on Stormwater Infrastructure Sheet 1 - Figure 15 Issue P, prepared by Acor Consultants, and they proposed a condition of consent to be imposed to assure this outcome; 2. numerous rainwater gardens shown within Stages 11 and 12 should be removed and the water quality objectives met through swales and end-of-line bioretention swales, with the rain gardens "green areas" retained as landscaping elements. They proposed a condition of consent to be imposed to assure this outcome; and 3. surface water flows from the southern portion of Lot 6 in DP 1269369 should be directed to the west due to the proposed filling required for Stages 11 and 12, and that the design of the stormwater culvert conveying flows through the Proposed Development, as amended, should allow for flows from the overland swale through Lot 5 in DP 1269369 and from that portion of Lot 6 in DP 1269369 to be diverted to the west. They proposed a further condition of consent to be imposed to assure this outcome.
4. The Parties' proposed conditions of consent reflect these agreed outcomes of their water experts.

Public infrastructure

1. The Applicant has provided a Satisfactory Arrangements Certificate issued by a delegate of the Secretary of the Department of Planning, Industry and Environment dated 12 January 2021 in accordance with the provisions of cl 99 of BLEP 1988.
2. The Parties further advise, and I am satisfied, that: 1. the Applicant has provided the following reports in relation to the provision of infrastructure required in relation to the Proposed Development: 1. a revised engineering assessment and plans, prepared by ACOR Consultants Pty Ltd and dated 23 August 2019; and 2. an electrical and NBN infrastructure report, prepared by Clarence Consultants Pty Ltd, and dated September 2017; 1. any public utility infrastructure that is essential for the Proposed Development is available, or that adequate arrangements have been made to make that infrastructure available, when it is required to each proposed allotment as part of the Applicant's Proposed Development (as amended) within the Subject Site, in satisfaction of the provisions of cl 100 of BELP 1988.

Infrastructure delivery

1. As discussed above (at [57]) the provisions of SEPP Infrastructure apply to the Applicant's development application in this appeal, and: 1. in relation to the provisions of cl 101, I am satisfied that the requirements of cl 101 are satisfied because the Proposed Development (as amended) includes: 1. a limit to vehicular access to the existing Ewingsdale Road/ Bayshore Drive roundabout through the staged construction and dedication of a new collector road, Road 1 and partial closure of Melaleuca Drive; 2. that a section of Melaleuca Drive situated between Road 1 and Ewingsdale Road is to be closed; 3. that the section of Melaleuca Drive to the south of proposed Road 1 is not proposed to be closed, and will continue to be utilised as a public road by both proposed new allotments and existing allotments to the south; 4. a series of lower order public roads that, directly or indirectly, will access proposed Road 1 and will service the balance of proposed new allotments; 5. that the properties at 300 and 310 Ewingsdale Road will continue to utilise their existing constructed access points to Ewingsdale Road, until such time as further development occurs on the allotments or those access points are removed through the duplication of Ewingsdale Road or through safety and efficiency improvement works to Ewingsdale Road; 6. formalised future vehicular access for the properties at 300 and 310 Ewingsdale Road, as part of the Proposed Development, through proposed Road 2, which will be dedicated to Council and which will connect with proposed Road 1; 7. an access driveway to service the single dwelling on 300 Ewingsdale Road which has been designed into the proposed subdivision; 8. that the property at 310 Ewingsdale Road, which is the larger of the two lots, will have a direct road frontage; 9. the construction of an acoustically treated fencing for proposed Lots 1-11 and front boundary fence designs for proposed Lots 136-145 which will ameliorate any potential traffic noise impact on those lots; 10. that the acoustically treated fencing is setback 30m from Ewingsdale Road and the Proposed Development will provide a 30m deep landscaping screen to be planted along its Ewingsdale Road frontage; 1. in relation to the provisions of cl 102, subclauses 102(2) and 102(3) of the Infrastructure SEPP, concerning the impact of road noise or vibration on non-road development, require that: 1. for residential accommodation, the consent authority must take into consideration any guidelines that are issued by the Secretary for the purposes of this clause and published in the Gazette; and 2. where the development is for the purposes of residential accommodation, the consent authority must not grant consent to the development unless it is satisfied that appropriate measures will be taken to ensure that the following LAeq levels are not exceeded: 1. in any bedroom in the residential accommodation - 35dB(A) at any time between 10pm and 7am; and 2. anywhere else in the residential accommodation (other than a garage, kitchen, bathroom or hallway) - 40dB(A) at any time. 1. in relation to the provisions of those subclauses 102(2) and 102(3), and based on the advice of the Parties, I am satisfied that: 1. the development does not propose the construction of any residential accommodation, but rather the subdivision of land for the purposes of residential accommodation; 2. a Noise Impact Assessment has been prepared and submitted to the Respondent which sets out mitigation measures to ameliorate the potential impacts of traffic noise to the future residential accommodation on the Site. Those measures include the acoustically treated fencing for Lots 1-11 and front boundary fence designs for proposed Lots 136-145, together with the 30m setback from Ewingsdale Road and provision of a 30m deep landscape buffer along Ewingsdale Road; 3. the Noise Impact Assessment report concludes that, as a consequence of the mitigative effects of the proposed 30m setback and landscape buffer from Ewingsdale Road to the nearest proposed lots, the road traffic noise reductions required under cl 102(3) are likely to be achieved with standard building shell treatments (i.e. Construction Category 1 in the "Development near rail corridors and busy roads - interim guideline"), and the outcome will be further addressed as part of a subsequent development applications for individual dwellings on the subdivided residential lots. 1. In relation to the provisions of cl 104 of SEPP Infrastructure, I am satisfied that: 1. Transport for NSW (TfNSW) was notified of the development by the Respondent and the RMS has provided a letter setting out matters to be considered in determining the application; 2. the matters identified within the TfNSW letter have been considered and that the development addresses relevant traffic matters; 3. the development does not significantly impact on the safety or efficiency of Ewingsdale Road and provides for an internal road network facilitating public transport opportunities as well as active transport.

Contamination

1. Pursuant to the provisions of cl 7 of SEPP 55: 1. the Applicant has provided a Detailed Contaminated Land Investigation Report (DCLIR) prepared by Australian Wetlands Consulting Pty Ltd and dated August 2019. This was tendered as evidence at the hearing and stated that: 1. a preliminary contaminated land assessment (PCLA) of lands including the Subject Site was undertaken in accordance with the contaminated land planning guidelines by EAL in 2010 and has been considered in relation to the Proposed Development; 2. the preliminary contaminated land assessment by EAL in 2010 concluded that the Subject Site was largely free of contamination and was suitable for "urban development" and recommended that further investigations be undertaken; 3. it reported the results of the further investigations recommended by AEL in its PCLA; 1. the Applicant's DCLIR concluded that: 1. sampling and analysis undertaken on areas zoned for residential purposes on the Subject Site confirmed that these areas were suitable for the proposed residential use of those lands; and 2. remediation of land was required in certain areas within the land zoned for environmental conservation purposes and it provided recommendations in relation to those remediation works; and 3. a remediation action plan (RAP) should be prepared in relation to the remediation of E2 zoned land on Lot 1 in DP 780242, And that the worked required under the RAP to remediate land associated with historic use of that land as a car wrecking yard and automotive workshop, should be completed prior to the issue of any construction certificate for that land. 4. any remedial work must be completed and validated in accordance with the RAP, and a notice of completion must be submitted to Council before any other works commence; 1. as a consequence of the information provided above (at [(1)] and [(2)]), I am satisfied that: 1. for that part of the Subject Site that is contaminated, those lands, once remediated, will be suitable for their proposed use and the requirement for that remediation required is subject to a proposed condition of consent, identified as proposed condition 19 of the Parties' respective proposed draft conditions of consent. The Parties' versions of proposed condition 19 differ slightly in their wording and, for the removal of doubt, I am satisfied that it is the Respondent's version of this condition that should be imposed. 2. the balance of the Subject Site is suitable in its current state for use as a residential subdivision; 1. as a consequence of the matters addressed above (at [(1)] to [(3)]), I am satisfied that the provisions of cl 7 of SEPP55 are satisfied.

Bushfire prone land

1. As noted above, the provisions of s 4.14 of the EP&A Act (see above at [47]), state that development consent cannot be granted for the carrying out of development for any purpose (other than a subdivision of land that could lawfully be used for residential or rural residential purposes or development for a special fire protection purpose) on bush fire prone unless the consent authority, or the Court on appeal: 1. is satisfied that the development conforms to the specifications and requirements of the version (as prescribed by the regulations) of the document entitled Planning for Bush Fire Protection prepared by the NSW Rural Fire Service in co-operation with the Department, or 2. has been provided with a certificate by a person who is recognised by the NSW Rural Fire Service as a qualified consultant in bush fire risk assessment stating that the development conforms to the relevant specifications and requirements.
2. Further, s100B(3) of the RF Act requires that a person must obtain a bush fire safety authority before developing bush fire prone land for a purpose referred to in subsection (1) of s100B and that includes for the purpose of a subdivision of bush fire prone land that could lawfully be used for residential or rural residential purposes.
3. The Applicant has provided a bushfire threat assessment prepared by Bushfire Planning Australia Pty Ltd (BPA) in 2017, and an amended bushfire threat assessment also prepared by BPA was prepared in August 2019.
4. The Proposed Development, including the bushfire threat assessments, was originally referred to the NSW RFS in 2018, and the Proposed Development, as amended was referred to NSW RFS in June 2021.
5. The NSW RFS provided its initial response to the referral in a letter dated 4 December 2018, including proposed general terms of approval, and a subsequent response in relation to the referral in 2021 was provided by NSW RFS on 18 June 2021.
6. The most recent response from NSW RFS provided updated general terms of approval (GTAs) and included a bushfire safety authority dated 18 June 2021, provided by Alex Bawden, Supervisor of "Development Assessment and Plan Built and Natural Environment" with NSW RFS that confirms that, subject to the GTAs being met, the proposed development will meet the NSW Rural Fire Service requirements for a bushfire safety authority under s 100b of the RF Act.

Provisions of BDCP

1. As noted above (at [54]), Part E8 of BDCP is of particular relevance to contentions identified by the Respondent in this appeal, and certain of the most relevant provisions of BDCP as they concern the matters considered in this appeal have been also been provided above (at [55]).
2. The provisions of other parts of BDCP are also of relevance to contentions identified by the Respondent in this appeal, including, but not limited to, for example, the provisions of Part D6 concerning subdivision.
3. To the extent that matters in contention in this appeal have required consideration of, and assessment against, the specific requirements of BDCP, I am satisfied that these matters have been considered and are resolved through either: 1. the expert evidence and recommendations, including recommended conditions of consent, of the Parties' experts; or 2. through the consideration and resolution of the remaining contentions in the appeal within this judgment.
4. I am further satisfied that the Proposed Development, as amended, has achieved those provisions, or where they have not achieved the prescriptive measures and/or performance criteria set down in BDCP, they nonetheless achieve the objectives of those measures and criteria such that they represent reasonable alternative solutions for the purposes of s 4.15(3A) of the EP&A Act (see above (at [49]), and where this has been the case I have provided reasons as to why I assess this to be so.
5. In particular, I am satisfied that the Proposed Development is acceptable having regard to the provisions of Part E8 of BDCP concerning development in the WBURA and in relation to the following provisions of BDCP that are of relevance to the matters remaining in contention in this appeal (see above at [43]): 1. Part E8.10.3 concerning transport movement and street hierarchy; 2. Part E8.10.4, concerning stormwater management; 3. Part E8.10.5 concerning biodiversity, vegetation management, and landscaping; 4. Part E8.10.6 concerning public facilities, services and infrastructure; 5. Part E8.10.8, concerning hazards and constraints; and 6. Part E8.10.10.4 concerning urban design matters related to industrial areas.
6. I am satisfied, based on the submissions of the Parties and the evidence of their various experts, that the Proposed Development, as amended, is acceptable in relation to the provisions of BDCP, including those specifically identified above (at [226]), as well as the provisions of Part B8.10.9 concerning Aboriginal cultural heritage (see above at [41(8)]) because either: 1. the Proposed Development, as amended, satisfies the controls (in this case performance criteria and prescriptive measures) of BDCP; or 2. the Proposed Development, as amended, achieves the objectives of the controls and so represents a reasonable alternative solution that merits flexibility in the application of those controls, consistent with the provisions of s 4.15(3A) of the EP&A Act (see above at [49]).

Consideration of submissions

1. The Proposed Development has been the subject of public notification and exhibition on several occasions, and the significant interest of the public in the Applicant's development application was noted above (at [34] to [37]).
2. The Respondent provided a breakdown of the broad matters identified in the submissions received in response to notification of the proposed Development, and these were recorded above (at [38]).
3. In addition, the Court received seven oral submissions at the commencement of these proceedings and a summary of those submissions was also provided above (at [40]).
4. Notwithstanding the numerous concerns identified in both the written submissions provided in response to notification of the Applicant's development application, and those identified by the individuals who provided oral submissions at the hearing, I am satisfied that the Applicant has responded to matters through the provision of further information, and through amendments made to its application.
5. In particular, in this appeal the Court has: 1. noted the context of the Proposed Development, as amended, within the WBURA (see above (at [5]), including its relationship to the consent granted in the Villa World decision; 2. acknowledged that the West Byron Bay site was zoned for urban purposes in 2014 following the preparation and exhibition of a State Significant Site Study; 3. considered the potential impacts of the Proposed Development, as amended, in relation to all of the contentions in the appeal; and 4. addressed matters concerning jurisdictional considerations relating to the appeal, and the Court's powers to grant consent to the Proposed Development, as amended.
6. In addition to concerns raised in relation to direct potential impacts, submissions expressed concerns in relation to potential impact on the economics of tourism in the Byron Bay area and social impacts due to increases in the population of Byron Bay. I note that the Respondent raises no contentions in the appeal in relation to these matters, and I have no evidence before me that would facilitate consideration of these issues.
7. Notwithstanding these observations, I note that the WBURA lands were rezoned for urban purposes in 2014, and such considerations would normally have informed the outcome of that rezoning process.
8. Finally, I am satisfied that the Applicant has considered matters concerning cumulative impacts through the assessments provided by its experts including, but not limited to, the assessment and mitigation of potential impacts in relation to construction staging, traffic, noise, water, stormwater, flooding, sewage and biodiversity.

Koala SEPP 2021

1. As noted previously in this judgment, the savings provisions within cl 18 of Koala SEPP 2021 (see above at [65]) require that the development application that is the subject of this appeal must be determined as if Koala SEPP 2021 had not commenced.
2. However, the Respondent said that, notwithstanding the provisions of cl 18 of Koala SEPP 2021, the policy should be a matter of consideration in the evaluation of the Proposed Development, consistent with the provisions of s 4.15(1)(a)(ii) of the EP&A Act, and as a matter of the public interest under s 4.15(1)(e) of that Act, (see above at [48]) (citing Pepper J in Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142 ([33] to [35]).
3. Clause 10 of Koala SEPP 2021 concerns the development assessment process in relation to approved koala plans of management for land, and provides that: 1. the clause applies to land to which this policy applies and to which an approved koala plan of management applies; and 2. the determination of a development application must be consistent with the approved koala plan of management that applies to the land.
4. The BCC KPoM, which was prepared under the direction of Byron Shire Council in 2015, and which was adopted by Council in 2016, is an approved koala plan of management that applies, inter alia, to the Subject Site. Consistent with the Respondent's submission I have considered the provisions of Koala SEPP 2021 and the requirement under that policy in relation to the provisions of the BCC KPoM.
5. BCC KPoM provides a development assessment flow chart within its Figure 10, along with development standards in relation to large and minor developments on core koala habitat.
6. The development flow chart in BCC KPoM indicates that if the land on which a development is proposed is greater than 1Ha in size and contains potential koala habitat, but not core koala habitat, the BCC KPoM does not apply to the assessment of that application and the development assessment process should consider the koala protection provisions of the Threatened Species Conservation Act 1995 (TSC Act), Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) and any local policies in Development Control Plans (DCPs) and Local Environmental Plans (LEPs).
7. In this appeal, I have considered the provisions of BDCP and BLEP 1988, and I am satisfied that the Proposed Development, as amended, is consistent with the provisions of those instruments in relation to koalas.
8. I have also considered the Applicant's response to the provisions of the BC Act, the successor Act to the TSC Act (now repealed), and I am satisfied that the Proposed Development, as amended, is consistent with the provisions of the BC Act, including in relation to koalas.
9. Notwithstanding these conclusions, and the the fact that the provisions of the BCC KPoM do not apply to the Proposed Development, as amended, I note that the Applicant has prepared a SKAR along with the WBRUA KPoM, which includes as an annexure a Koala Habitat PoM. These plans provide further guidance in relation to the mitigation and management of potential impacts of the Proposed Development, as amended, on potential koala habitat and koala preferred feed trees on the Subject Site.
10. Each of these plans make reference to the BCC KPoM, and the objectives of those plans are, in my assessment, consistent with the objectives and recommendations of the BCC KPoM.
11. Consequently, on the basis of my finding above (at [108]) that the Applicant will be required through the imposition of conditions of consent to reconcile its KPoM, KHPoM and VMP for the Proposed Development, I am satisfied that, matters of public interest as they pertain to the management of koala habitat on the Subject Site, including the need to consider the provisions of Koala SEPP 2021 and the objectives and recommendations of the BCC KPoM, have been addressed adequately by the Applicant in this appeal.

Conditions

1. Having addressed the contentions in this appeal and having considered the jurisdictional and other matters discussed above (at [187] to [227]) I am satisfied that the Applicant's Proposed Development, as amended, should be determined through the grant of consent, subject to conditions.
2. In addressing the principal contentions in the appeal I have also made observations concerning conditions of consent that should be imposed with the grant of consent to the Applicant's development application.
3. At the conclusion of the hearing I directed the Parties to provide respective draft proposed conditions of consent together with written submissions in relation to those conditions.
4. The Parties filed their respective proposed draft conditions of consent, including conditions arising from the considerations and recommendations of their experts' evidence, as recorded above in this judgment (at [41]), along with written submissions as directed. These conditions were largely agreed but differed in certain important respects.
5. The Parties' draft proposed conditions included: 1. eight (8) potential deferred commencement conditions (DCCs 1-8) within a section referred to as schedule 1; 2. 123 operational conditions of consent (COCs 1-123) within a section referred to schedule 2; and 3. a final schedule providing a condition concerning contributions payable pursuant to s 7.11 of the EP&A Act.
6. I will first consider the Parties' competing proposed deferred commencement conditions DCCs 1-8), and then consider differences in their proposed operational conditions (COCs 1-123) and in the s 7.11 contributions schedule.

Deferred commencement condition requiring updating and reconciliation of certain plans - DCC 1

1. A principal difference between the competing proposed conditions concerned the revision and reconciliation of the Applicant's various plans of management. This condition (DCC 1) concerned the reconciliation of the Applicant's TSMP, BCPM, KPoM and VMP.
2. This difference was resolved above (at [117]) in relation to which I have determined, for reasons provided above at [118]) that the plans should be revised to achieve reconciliation prior to the issue of any subdivision certificate in relation to the consent rather than as a deferred commencement condition.
3. For completeness I note that the Respondent had also submitted that the Applicant's KPoM should be revised to ensure consistency with the BCC KPoM prepared by Byron Shire Council. However, I have already concluded (see above at [111]) that the Applicant should not be required to reconcile its plans with the BCC KPoM because, in the absence of core koala habitat on the Subject Site, the BCC KPoM does not apply to the Proposed Development, as amended. Consequently, no condition should be imposed to require the reconciliation of the Applicant's KPoM and the BCC KPoM.

Other deferred commencement conditions (DCCs 2-8) - timing

1. The Respondent has submitted that the preparation of a suite of further plans should be subject to deferred commencement conditions requiring that they be submitted to, and approved by, the Respondent, before any consent granted became operational.
2. The Applicant had submitted that those plans should be submitted and approved prior to the issue of the first subdivision works certificate in relation to what were identified as either Stage A or Stage 1 of the development.
3. These plans were: 1. a tree removal and retention plan; 2. amended subdivision plans; 3. amended staging plans; 4. amended engineering plans; 5. community management statements; 6. Ewingsdale Road pedestrian/cyclist crossing facility; and 7. Ewingsdale Road site frontage shared path.
4. There were certain further differences of the detail of certain of these conditions which I will address separately to the question of the timing for their completion.
5. In relation to the matter of timing, and whether a deferred commencement condition ought be imposed in relation to these plans: 1. the Applicant submitted within is comments-in-chief that all the matters to be addressed in the preparation of these plans related to detailed plans and specifications that could be readily addressed by submission of the documents prior to the issue of subdivision works certificates; 2. the Respondent had submitted that, should the Court be minded to grant consent to the Proposed Development, as amended: 1. it was of the utmost importance that the subdivision plans, engineering plans, and staging plans be amended in a consistent form before the consent became operational; 2. the tree removal and retention plan and the community management statement should be prepared, received and approved by the Respondent's officers in a consistent and coordinated manner, noting that those officers had an ongoing and expert knowledge of the WBURA; and 3. determination of these plans should not be left to a principal certifying authority to a Principal Certifier after consent has commenced; 1. the Applicant in reply submitted that: 1. it did not propose that acceptance of the plans should fall to a Principal Certifier, but rather it proposed conditions that required the plans to be submitted to and approved by the Respondent Council; 2. the plans it had provided were already "unusually" detailed for support of a development application and final engineering details and specifications were not required until the point of application for subdivision works certificates; 3. beyond an assertion that the plans were required to complete assessment of the Proposed Development, as amended, the Respondent had not explained why the more detailed plans were required either: 1. to support further environmental impact assessment of the Proposed Development, as amended; or 2. to elucidate further matters the understanding of which may be required by the Court prior to the grant of consent; 1. having considered the submissions of the parties, I agree with the Applicant that the detail to be provided in the plans identified above (at [258]), should not required as part of a deferred commencement condition, but rather should they be provided prior to the issue of the first subdivision certificate for any stage of works to which consent is granted. My reasons for this conclusion are: 1. obtaining a subdivision works certificate is an early point in project delivery and, in my assessment, provides as much impetus for the completion of the plans as a deferred commencement condition in the circumstances of this appeal; 2. the Applicant's draft conditions require that the plans be submitted to, and approved by, the Respondent, and do not provide that they be open to approval by a Principal Certifier. This form of condition provides that, whether as a deferred commencement condition or as an operational condition for completion prior to the issue of any subdivision works certificate, the plans must be acceptable to the Council irrespective of timing, and any approval would only be provided before any works were undertaken; 3. I agree with the Applicant's submission, made in relation to the tree removal and retention plan, that the impacts of the Proposed Development, as amended, have been assessed, and it is the outcomes of that assessment that will guide the finalisation of the of the plans; 4. I also embrace the Applicant's submission, relying on the observation of Samuels AP in Scott v Wollongong City Council (1992) 75 LGRA 112 (at [118]), that: "it is common to find that development consent is subject to conditions which provided for some aspect of the matter stipulated to be left for later and final decision by a consent authority or some delegate officer to whose satisfaction, for example, specified works is to be performed. Such provisions are inevitable since it cannot be supposed that a development application can contain ultimate detail or that a consent can finally resolve all aspects of the proposal with absolute certainty." 1. I also accept the observation of the Respondent, citing Preston CJ in Ballina Shire Council v Palm Lakes Works Pty Ltd [2020] NSWLEC 41 (at [37]), that "the power to grant consent to a development application subject to a deferred commencement condition does not relieve a consent authority from the obligation to take into consideration all matters of relevance to the development the subject of the development application under s 4.14(1) of the EP&A Act", but would add that in the case of this appeal, all matters of relevance to the proposed Development, as amended, have been considered; 2. this approach is consistent with my earlier adoption of the recommendations of the water experts in this appeal (see above at [210]), in which the experts proposed a series of conditions requiring refinement of certain plans to reflect their agreed position that certain design changes be made to plans; 3. while I note the Applicant's concession that it had not yet drafted community management statements, in my assessment these would not add significantly to the outcome of the evaluation of the Proposed Development, as amended, and can be satisfactorily drafted, reviewed and approved by the Respondent Council without having a material impact of the considerations in this judgment, and the matters in contention ion the appeal; 4. I do not agree with the Respondent that maintaining the deferred commencement conditions would enable the Respondent's officers, who have an ongoing and expert knowledge of the WBURA, to review the plans in a consistent and coordinated manner. This outcome would be equally assured, if that were possible, whether the condition were imposed on a deferred basis or prior to completion of any subdivision works certificate.

Condition requiring provision of a tree removal and retention plan (DCC 2)

1. The Respondent submitted, and the Applicant acknowledged, that a tree removal and retention plan was required for review and approval by the Respondent Council. The Parties differed in relation to whether certain details should be required for inclusion in the plan.
2. The Respondent had proposed that the tree removal and retention plan should: 1. record both trees proposed for removal and those proposed for retention; 2. include tree species, diameter at breast height and estimate height must be documented for all trees to be removed; and 3. note that: 1. the requirement for identification of all trees for removal is a stipulation in the No Nett Vegetation Loss Provisions of the Byron Biodiversity Conservation Strategy (2004) and is a requirement in the approved BCCKPoM; 2. the tree removal and retention plan is necessary to calculate compensatory planting requirements.
3. The Applicant: 1. submitted that it had assessed the impacts of the proposed vegetation removal at the level of vegetation community rather than individual trees, there was no utility in further assessing impacts of individual tree removal and no applicable development standard nor control that required this level of assessment; 2. sought that: 1. only trees proposed for retention should be mapped and recorded in the plan; and 2. the points above (at [262(2)] and [262(3)]) should be deleted.
4. I have considered the Parties' submissions and: 1. I agree with the Respondent that the tree removal and retention plan: 1. should record both the trees proposed for removal and those to be retained; and 2. should document details of the tree species, diameter at breast height and estimated height for all trees proposed to be removed. The inclusion of these details will provide clarity for those undertaking works on the ground as to the development intent of the consent with respect to each tree on the Subject Site, and it will minimise potential for errors to arise in the management of the development process; and 1. I agree with the Applicant that the further requirements should not be included within the proposed conditions because: 1. the Applicant has agreed that it should prepare, and submit for approval to Council, a tree removal and retention plan and the language seeking to justify the need for the plan is redundant; 2. as previously noted in this judgment, the provisions of the BCC KPoM are not applicable to development on the Subject Site as there is no core koala habitat on the land.
5. Consequently, the condition should read: "Provision of a tree removal and retention plan Prior to the issue of any subdivision works certificate under this consent, a tree removal and retention plan must be submitted to, and approved by, Council that clearly maps and identifies all trees proposed for removal and retention inside or within 10m of the development footprint. Tree species, diameter at breast height and estimate height must be documented for all trees to be removed. Tree protection zones should be included in the map/s, in accordance with Australian Standard 4970-2009: Protection of trees on development sites for all trees to be retained."

Condition requiring provision amended subdivision plan (DCC 3)

1. The wording of this condition is agreed, noting that the plan should be provided and approved prior to the issue of any subdivision works certificate under this consent.

Condition requiring amended staging plans (DCC 4)

1. The wording of this condition is largely agreed, noting that the plan should be provided and approved prior to the issue of any subdivision works certificate under this consent, and in particular, the Parties have agreed that the Applicant should provide an amended staging plan and that this should include a new Stage A.
2. However, the Parties disagreed as to the nature of the new Stage A, as follows: 1. the Respondent described it thus: "All Year 1 planting and weed control identified in the approved VMP approved in accordance with deferred commencement condition 1(a) including but not limited to those works in zones 2A, 2D, 3 and the Belongil Creek restoration area." 1. the Applicant described it as follows: "The first 6 months of environmental restoration and enhancement works within land zoned E2, E3, 7(a) and 7(b) as specified under the KPoM, the KHMP, the TSMP, the VMP and the BCMP as amended in accordance with these conditions".
3. The Parties disagreed as to the requirements for amendment to Stage 1, as follows (with principal wording differences identified in bold): 1. the Respondent proposed that the condition should read: "d) Stage 1 is to be amended to identify that all road works including roundabout and associated works, footpath and cycleway works, pedestrian/cyclist crossing facilities (traffic signals, grade separation or underpasss) and other associated works required pursuant to this consent, including the deferred commencement conditions of consent, within Ewingsdale Road and any other road external to the site, must be included as part of Stage 1 of the subdivision. This excludes any woks required pursuant to Stages 11 and 12 referenced in subclause (iii) of this condition." 1. the Applicant proposed that the condition should read: "d) Stage 1 is to be amended to identify that all road works including roundabout and associated works, footpath and cycleway works, pedestrian/cyclist crossing facilities (traffic signals, or pedestrian refuges) and other associated works required pursuant to this consent, within Ewingsdale Road and any other road external to the site, must be included as part of Stage 1 of the subdivision. This excludes any woks required pursuant to Stages 11 and 12 referenced in subclause (iii) of this condition."
4. In support of their respective proposed versions of this condition: 1. the Respondent had submitted that it did not agree with the Applicant's proposed timing for Stage A works, noting that the reference to 6 months was particularly opposed, and it pressed for the period to be 12 months to facilitate vegetation establishment before trees were removed pursuant to subsequent stages; and 2. the Applicant had not specifically addressed its reasons for proposing a 6 month period in relation to Stage A, nor its change of wording concerning the nature of works to be undertaken in this period.
5. Having reflected on the Parties submissions concerning this condition, the substantive difference relates to whether the agreed further Stage A should be for a period of 6 or 12 months.
6. The Respondent has provided a clear rationale for its preference that Stage A should be 12 months, and I agree with that rationale.
7. The differences in descriptions of the works and the areas in which the works are to be undertaken can, in my estimation, be resolved by the Parties in their work to provide the Court with an agreed set of conditions to be imposed with the grant of consent as part of the Court making final orders in the appeal.
8. As to the differences in relation to the description of crossing facilities, these relate to the outcome of considerations concerning DCC 5 (see below at [277]). However, for the purposes this condition, ie DCC 4, I propose that it should incorporate both the Applicant's and Respondent's descriptions of potential structures so that it can be responsive to the final wording of proposed DCC 5.
9. In relation to the reference to deferred conditions of consent, this can be deleted, as proposed by the Applicant, as I have determined that no deferred commencement conditions should be imposed with the grant of consent to the Proposed Development, as amended.
10. I leave it to the Parties to resolve the final wording of this condition, consistent with my conclusions above, and note again that the condition should require that the plans be amended and approved by Council prior to the issue of any subdivision works certificate under this consent.

Condition requiring amended engineering plans (DCC5)

1. The wording of parts (a) and (b) of this condition are agreed, noting that the works it requires are to be completed and approved by Council prior to the issue of any subdivision works certificate under this consent.
2. The Parties disagreed in relation to the Respondent's part (c) of the condition, which required as follows: "(c) The engineering plans are to be amended to include the following works in (and potentially under and adjacent to) Ewingsdale Road and submitted to and approved by Council: i) Bayshore Drive (West Access) - Additional works along Ewingsdale Road comprising through lanes of 100m long plus taper length on both approaches and departure from the Bayshore Drive roundabout, additional through lanes 180m and 150m in the eastbound and westbound directions respectively. WBURA West Access to operate as a single lane approach and departure configuration. ii) SAE Institute Access (East Access) - Additional works along Ewingsdale Road comprising through lanes of 100m long plus taper length on both approaches and departures. WBURA East Access to operate as a single lane approach and departure configuration. iii) Sunrise Boulevard - modifications required of current lane discipline for the kerbside eastbound approach lane to be altered from 'left only' to a 'combined left plus through lane', subject to TfNSW / Council approval."
3. In support of its proposed part (c) of this condition, the Respondent submitted that: 1. it relied on the evidence of its expert traffic engineer, Mr McLaren, to support the need for these works with the implementation of the proposed subdivision; 2. the Applicant's expert traffic engineer, Mr Hollyoak, did not dispute that the roadworks would be required as a result of the additional vehicles associated with the Proposed Development, as amended, and the dispute concerns the entity that would construct and pay for those works; 3. the roadworks identified in this part of the condition are required as a direct result of the Applicant's proposed subdivision of the Subject Site and the Applicant should be responsible for the construction of the roadworks; and 4. there is no evidence that any funds associated with the Applicant's Voluntary Planning Agreement (VPA) would be used for the purposes of construction of the nominated roadworks.
4. The Applicant submitted that the Applicant's proposed part (c) should not be imposed for the following reasons: 1. its expert traffic engineer, Mr Hollyoak, had not, as stated by the Respondent, accepted that the works would be required as a result of the additional vehicles associated with the Applicant's development, but rather Mr Hollyoak had identified that Ewingsdale Road would need to be upgraded to four lanes in the future, even within development within the WBURA; 2. it had not submitted that funds provided under its VPA were likely to be used specifically for the upgrade works identified in the condition, but rather that its development would make a significant contribution of funds towards local roads generally; and 3. it would be unfair for the Applicant to be the sole entity to bear the cost of these proposed road upgrade works given that its Proposed Development, as amended, would not be the sole beneficiary of those works.
5. I have considered the submissions of the parties, and have reviewed the evidence of the Parties' expert traffic engineers, and I have concluded that the Respondent's part (c) of DCC 5 should not be imposed because I agree with the Applicant that: 1. the evidence of both expert traffic engineers within their joint expert report tendered as Exhibit 10 in the proceedings in which: 1. neither expert had stated that the Proposed Development, as amended, would be the sole source of increased traffic that would require the upgrade of Ewingsdale Road to four lanes; 2. as submitted by the Applicant, Mr Hollyoak had identified that Ewingsdale Road would need to be upgraded to four lanes in the future even without development within the WBURA, and 3. in making the observation concerning the need to upgrade Ewingsdale Road, Mr Hollyoak had: 1. cited the study by VLC, previously referenced in this judgment, which had suggested that this upgrade would be required by 2028; and 2. noted that Byron Shire Council had previously produced intersection plans illustrating the four land approaches to the upgrade intersections and these were reference in the VLC study; 1. the evidence of the experts is consistent with a conclusion that the need to upgrade of Ewingsdale Road is a consequence of factors including, but are not exclusively related to, the Applicant's Proposed Development, as amended. Mr McLaren had noted in the joint expert report with Mr Hollyoak that he had undertaken mid-block assessments for Ewingsdale Road and considered that the road may (but not would) require upgrading "prior to construction" to provide two eastbound lanes between the Pacific Highway and Bayshore Drive; and 2. I note that various of the public submissions provided in these proceedings identified that the performance of Ewingsdale Road, particularly in peak periods, was already poor, and suggested work was required to upgrade the road in response to current demand.
6. While I appreciate the reasons that the Respondent would seek for the Applicant in this case to be assigned responsibility for the design and financing of the required upgrade works on Ewingsdale Road as part of a consent granted by the Court in the current appeal, it is my assessment that the demand for these works has its roots in both current and future demand, reflecting a variety of use drivers.
7. In these circumstances the Ewingsdale Road upgrade works should be design and financed under the leadership and coordination of Council, and with the participation of all stakeholder beneficiaries including the Applicant in this case, and other partners in the development of the WBURA, along with the community as a whole.
8. I leave it to Council to lead and undertake this task, and otherwise conclude that the Respondent's proposed part (c) of DCC 5 should not be imposed.

Condition requiring preparation of community management statements (DCC 6)

1. The wording of this proposed condition was agreed by the Parties, noting that the tasks required under the condition should be completed prior to the issue of any subdivision works certificate under this consent.

Condition requiring a Ewingsdale Road pedestrian/cyclist crossing facility (DCC 7)

1. This condition as drafted by the Respondent required as follows: "(7) Ewingsdale Road pedestrian / cyclist crossing facility (Traffic Signals or grade separation) Details of a safe pedestrian / cyclist crossing facility at Ewingsdale Road along the site frontage and at (or in close proximity to) Banksia Drive, in the form of a traffic signalised crossing (based upon a reduced warrant assessment for elderly and school children) or provision of an assessment of a grade separated crossing (underpass preferred) must be submitted to and approved by Council. A refuge is not safe access for all users and will not be accepted in terms of a safe pedestrian / cyclist crossing facility. The staging plans must identify that these works are required in relation as part of Stage 1 of the development."
2. The Applicant had proposed that this condition be amended to: 1. remove it as a deferred commencement condition and have it imposed such that it be satisfied prior to the issue of a subdivision works certificate; 2. replace the condition's alternative to signalised traffic light, which was a grade separated crossing (underpass preferred), with the option of a pedestrian refuge.
3. I have already concluded that the condition should be imposed such that its requirements are met prior to the issue of any subdivision works certificate under this consent.
4. The Respondent submitted that the Applicant's proposal for a pedestrian refuge as an alternative to a signalised traffic light would not provide safe access for all users and would not be acceptable to it in terms of a safe pedestrian/cyclist crossing facility.
5. Having considered the alternative versions of the condition, and the submissions of the Parties, I am satisfied that the Respondent's version of the condition should be imposed as the Applicant's proposed alternative pedestrian refuge would not adequately ensure the safety of pedestrians and cyclists when crossing Ewingsdale Road given its high levels of use, particularly in peak periods.

Condition requiring shared path on frontage with Ewingsdale Road (DCC 8)

1. The wording of this condition is agreed between Parties except in relation to its timing, and in relation to this I have already concluded that the requirements of the condition should be met prior to the issue of any subdivision works certificate under this consent.

Operational conditions

1. The Parties' respective proposed draft conditions of consent differed in respect of many specific conditions, and I will consider each of these in turn.
2. Prior to undertaking that task, I make the general observation that final agreed conditions of consent, which I will direct the Parties to file with the Court, should be drafted to ensure consistency with the conclusions already described above in relation to the previously proposed deferred commencement conditions. This would include removal of reference to deferred commencement conditions, descriptions to be agreed between the Parties in relation to the proposed further Stage A, including making minor amendments to reflect the proposed addition of the new Stage A, and updating any cross references to plans that those conditions, as amended by this judgment, the preparation and timing of which I have already determined should be imposed.
3. Further, the Parties should ensure that the conditions are revised to identify accurately, the versions of plans and other documents to which the consent should apply.
4. I will now consider each of the remaining operational conditions of consent in relation to which the Parties have not agreed, and in doing so will not seek to repeat the general observations made above at [293], which I anticipate will be reflected in final agreed conditions filed by the Parties.

Condition 3C Timing of subdivision works

1. The Respondent has proposed the imposition of a condition 3C in the following terms: "Timing of subdivision works But for the planting of trees and vegetation restoration, subdivision works approved by this consent must not occur contemporaneously with any subdivision works on any other part of the West Byron Urban Release Area including the subdivision works approved under development consent 10.2017.201.1."
2. The development consent referenced in the condition is the consent granted in the Villa World decision.
3. The Respondent had submitted that: 1. imposition of the condition was required to address the potential cumulative impact of construction traffic in circumstances where construction of both subdivisions were to occur contemporaneously; and 2. In the event that subdivision works result in adverse impacts on the environment (e.g. groundwater level and/or quality changes), the Applicant has not put forward a mechanism that will enable the cause of such impacts to be determined in circumstances where both subdivisions undergo construction simultaneously, noting that significant levels of fill are proposed to be imported to each site and there was a need for care in coordinating the implementation of development of the WBURA as a whole.
4. The Applicant had submitted that: 1. imposition of the condition as drafted was unreasonable as it would prohibit the carrying out of works on the Subject Site following the grant of consent at any point that works were being undertaken under the consent granted in the Villa World decision; and 2. construction traffic impacts can be managed through the preparation of a construction traffic management plan (CTMP).
5. Having considered the Parties' submissions on this condition I agree with the Applicant that its imposition would be unreasonable, noting that no such condition was imposed in the Villa World decision in anticipation of the grant of consent to a development on the Subject Site in these proceedings.
6. Consistent with the Applicant's submission in this appeal, a condition was imposed in the Villa World decision requiring the preparation of a CTMP for the purpose of coordinating and mitigating potential traffic impacts in relation to that consent.
7. I note that the Parties have proposed that a condition be imposed with the grant of consent in this appeal requiring preparation of a CTMP by the Applicant, and this is referenced as proposed condition 34. The terms of proposed condition 34 are largely agreed including the requirement that the plan is to be submitted to, and approved by, the Respondent Council.
8. While I address the remaining differences in the Parties' drafts of proposed condition 34 later in this judgment, I will note at this point that I am satisfied that the Respondent's proposed condition 3C should not be imposed on the basis that proposed condition 34: 1. will be imposed in a form that requires preparation of a CTMP; 2. is a form that is broadly consistent with a condition imposed, with the agreement of the Respondent, on the Applicant in the Villa World decision; and 3. the condition requires that the Applicant's CTMP should be submitted to, and approved by, the Respondent Council, providing it a capacity to address to its satisfaction the consideration of cumulative traffic impacts that may arise in relation to the suite of traffic movements in the area of the Subject Site including from what I would refer to as regular traffic flows, as well as those generated by other developments in the vicinity of the Subject Site.

Condition 5 Staged Development

1. The Respondent has proposed the imposition of a condition, in seven un-numbered paragraphs, to guide delivery of the various stages of the Proposed Development, as amended. I will consider the Parties differing versions of this condition by referencing the Applicant's version paragraph by paragraph.
2. Considering the first and second paragraphs: 1. the Respondent has proposed a single paragraph as follows: "The development is to be carried out in the stages approved under deferred commencement condition 4, noting the addition of Stage A." 1. the Applicant has proposed an amended first paragraph and added a second, as follows: "The development is to be carried out generally in the stages approved under condition Sch 1, 4 above, noting the addition of Stage A. The development is to be carried out generally in accordance with the Staging Plan as amended under Condition Sch 1, 4. However works on each stage 1-10 may commence prior to completion of the previous stage, and works on Stages 11-12 may commence prior to the completion of Stages 1-10." 1. I am satisfied that: 1. only an amended version of the Respondent's first paragraph should be imposed, edited to reflect the fact that no deferred commencement conditions are to be imposed and the Applicant's reference of condition 4 of Sch 1 is more correct in relation to the draft proposed conditions as they come before me; 2. the Applicant's second paragraph should not be imposed because: 1. the Applicant will be required to amend its staging plan through imposition of condition 4 in Schedule 1 (see above at [267] to [276]); 2. the Applicant's proposed second paragraph would, in my assessment, introduce a level of uncertainty in the delivery of the Proposed Development, as amended, that would be unhelpful; and 3. the form of the Respondent's amended first paragraph is consistent with the form of condition imposed on the applicant in the Villa World decision, and that required a similar level of clarity with respect to stage delivery as is proposed in this appeal.
3. Considering the third proposed paragraph of the Applicant's condition, this should be imposed in a form consistent with the condition that the Parties have been directed to draft above (at [273]).
4. Considering the fourth proposed paragraph of the Applicant's condition, I am satisfied that: 1. the paragraph as drafted by be Respondent should be imposed; 2. the form of this paragraph is acceptable because the Applicant will confirm in its amended staging plan the arrangements for delivery of the Proposed Development, as amended, and having considered and confirmed that order of staging it is not unreasonable, in my assessment, to require that the plan be implemented as approved; 3. a similar form of condition requiring the sequential delivery of stages was agreed and imposed on the Applicant in the Villa World decision.
5. Considering the fifth proposed paragraph of the Applicant's condition, the condition relates to the timing of commencement of works concerning Stages 11 and 12 that have been the subject of significant consideration in this judgment (above at [153] to [186]), and: 1. the Applicant has proposed deletion of the second paragraph which is drafted as follows: "For the purposes of this requirement, the access road will be taken to be completed when a subdivision certificate has been issued for all stages of the subdivision approved by consent 10.2017.201.1 that include any part of the access road works described above." 1. I note that the access road works referred to in the condition concern the road referred to earlier in this judgment as ROAD01 and Melaleuca Drive; 2. the Applicant has also proposed that certain roundabout works should be undertaken as part of the Proposed Development, as amended, at the intersection of Melaleuca Drive and proposed ROAD No.2, and these works, in my assessment, should also be completed before works commence on Stages 11 and 12; 3. I am satisfied that the fifth paragraph of the condition should be imposed as follows in order to ensure that all are works completed, whether that be achieved under the consent granted in the Villa World decision or under a consent issued in the current appeal, and before work commences on Stages 11 or 12: "Stages 11 and 12 must not be commenced until the access road from Ewingsdale Road to Melaleuca Drive and the upgrade works to Melaleuca Drive have been completed as approved by consent 10.2017.201.1 and/or approved by this consent. For the purposes of this requirement, the access road will be taken to be completed when a subdivision certificate has been issued for all stages of the subdivision approved by consent 10.2017.201.1 and this consent that include any part of the access road works described above."
6. Considering the sixth proposed paragraph of the Applicant's condition: 1. the Respondent has proposed that the paragraph should read: "A maximum of one (1) stage may be under construction at any one time with only the following exception being the construction of temporary turning heads where roads terminate on stage boundaries." 1. the Respondent has said that: 1. the intent of this paragraph was to require that each stage should be completed before the next stage commences and so prevent subdivision work occurring on more than one stage simultaneously, noting that it is a requirement of E8 of BDCP that subdivision works within the WBURA should be constructed in smaller, discrete stages; 2. this approach would allow for the early detection of environmental impacts (such as groundwater level/quality changes) and implementation of contingency measures if required to avoid irreversible impacts; and 3. the paragraph should be retained as it was reasonable and consistent with the form of condition imposed on the Applicant in the consent granted in the Villa World decision. 1. the Applicant submitted that this paragraph should be deleted noting that the Applicant in the Villa Word decision had sought to recue the number of stages in its development so as to shorten its construction schedule. 2. having considered the nature of the proposed condition and the submissions of the Parties concerning this paragraph: 1. I agree with the Respondent that its imposition is reasonable for the reasons it provides, which I adopt; 2. I further agree that the condition will assist in managing the potential environmental impacts, including cumulative impacts, of the Proposed Development, as amended; 3. I note that the paragraph is of a form that is consistent with a condition imposed in the Villa World decision, but do not rely on this as the reason for imposing the requirements in the paragraph; and 4. I am satisfied that the paragraph should be imposed as part of the condition.
7. The seventh paragraph of the condition is agreed.

Condition 7 Staging progression, monitoring and reporting

1. The Respondent has proposed a condition 7 concerning staging progression, monitoring and reporting in the following terms: "7. Staging progression - monitoring and reporting Prerequisites for Council's assessment to commence to the next development stage are: a) Monitoring as required by the approved CEMP for at least 12 months following completion of construction works for the stage in question; b) Analysis of monitoring data carried out in accordance with the approved CEMP; c) Updated modelling outputs that incorporate monitoring data collected in accordance with the approved CEMP; d) Satisfactory implementation of any recommended contingency measures and/or amendments to the proposal based on the above analysis; e) Peer review of the above by an independent and suitably qualified and experience expert. Reports demonstrating that the above requirements have been satisfactorily completed are to be submitted to, and approved by, Council's Director of Planning (or nominee). If these reports are not approved, construction work is to cease until the Council's Director of Planning (or nominee) is satisfied that these requirements have been addressed."
2. I note that the above form of this condition is consistent with a condition imposed with the consent granted in the Villa World decision.
3. The Parties are agreed as to the five items that the Respondent refers to as "prerequisites". However, they are apart as to the use of these items in guiding decisions concerning progression between successive stages, and in relation to the timing of their submission and consideration.
4. In relation to this, the Applicant has proposed that: 1. the wording of the introductory paragraph should amended to read: "7. Monitoring and Reporting Within 14 months following the completion of each stage (excluding Stage A), the developer is to demonstrate that the following requirements have been satisfied:" 1. the wording of the concluding paragraph should be amended to read: "Reports demonstrating that the above requirements have been satisfactorily completed are to be submitted to, and approved by, Council's Director of Planning (or nominee) prior to any work on the next stage of development commencing. If these reports are not approved within 1 month of submission, construction work is to cease until the Council's Director of Planning (or nominee) is satisfied that these requirements have been addressed".
5. Addressing first the competing draft introductory paragraphs, the Applicant's draft would have the effect of removing a requirement that Council, or any other entity, should assess the items (a) through (e) in relation to the commencement of the next development stage.
6. In my assessment this would reduce the utility of items (a) to (e) in the long term management and mitigation of potential environmental impacts of the Proposed Development, as amended. I view this as not desirable and as a consequence I am satisfied that the Respondent's draft of the introductory paragraph should be retained and imposed.
7. Addressing the competing concluding paragraphs, the Applicant has proposed two amendments, as follows: 1. delete the requirement that the Council should approve reports in relation to items (a) to (e) prior to any work on the next stage of development commencing; and 2. inserting a specific timeline of "within 1 month", in relation to approval of the reports and before construction work is to cease.
8. In relation to the first of these proposed amendments, it is my assessment that removing the requirement that the reports should be approved prior to work commencing on the next stage of the development would also reduce the utility of items (a) to (e) in the long term management and mitigation of potential environmental impacts and, consistent with my assessment above (at [316]) I view this as not desirable. As a consequence, I am satisfied that this proposed amendment should not be adopted and the Respondent's proposed text should be retained.
9. In relation to the second of the proposed amendments, I note that it is unlikely that the review and approval of reports would be completed instantaneously, and more likely would require some reasonable timeframe for completion.
10. In that context, I view the Applicant's proposed timeframe of within one month to be reasonable and potentially helpful. I am satisfied that the Applicant's proposed second amendment should be adopted and imposed.

Condition 13 Environmental restoration and enhancement, and landscaping works

1. The Respondent has proposed that a condition be imposed concerning the completion of environmental restoration and enhancement works prior to the issue of subdivision works certificates as follows: "13. Environmental restoration and enhancement and landscaping works All works within Stage A (as identified pursuant to condition 1(4)), must be completed prior to the issue of a subdivision works certificate for Stage 1. The following must be submitted to, and approved by, Council's Director of Planning (or nominee) to demonstrate compliance with this condition: a. A report detailing the works carried out including supporting evidence and reference to the approved subdivision plans and management plans; and b. In relation to the environmental restoration and enhancement works, certification of completion of these works by a suitably qualified and experienced ecologist. For avoidance of doubt, notwithstanding that some management plans specify that works may be staged to correspond to the staging of construction works, this condition requires that restoration works in all of the above areas be completed prior to the issue of a subdivision works certificate for Stage 1."
2. The Applicant had proposed that: 1. point b. of the condition should be amended to remove reference to the environmental restoration and enhancement works, and so remove the link between these works and the required certification; and 2. replacement of the concluding paragraph, with the following: "For avoidance of doubt, Stage A works will be completed for the purpose of this condition if all proposed environmental restoration and enhancement works specified in the relevant management plans have been commenced and carried out in accordance with the schedules contained in those plans for a period of not less than 6 months, notwithstanding that further works remain to be carried out at later points in time under those plans."
3. In support of its proposed imposition of its draft condition, the Respondent had submitted that: 1. the evidence of its expert ecologist, Dr Fitzgerald, was that compensatory planting needs to be carried out well prior to any tree removal, because many years are required for new trees to be useable by fauna as habitat; 2. the absence of detailed timing commitments in the Applicant's management plans made the drafting of this condition difficult however all compensatory tree planting should be completed before any construction works commence; and 3. a condition of consent consistent with the requirements of this condition was imposed with the grant of consent in the Villa World decision.
4. The Applicant had submitted that: 1. it did not agree with the Respondent that there was an absence of detailed timing commitments in its management plans; and 2. its VMP had included a detailed list of management activities to be carried out in each zone and a timetable for implementation of these works.
5. Having considered the submissions of the Parties, I note that, contrary to the submission of the Respondent, the form of the Respondent's proposed condition 13 is not, in my assessment, consistent with the form of the condition imposed with the grant of consent in the Villa World condition.
6. The condition in the Villa World decision required that environmental restoration and enhancement and landscaping works should be "substantially commenced" rather than completed prior to the issue of subdivision works certificates, as follows: "10. Environmental restoration and enhancement and landscaping works The environmental restoration and enhancement and landscaping works within Stage 1, Stage 6 and Stage 7, must be substantially commenced prior to the issue of a subdivision works certificate for Stage 1-B. The following must be provided to Council's Director of Planning (or nominee) to demonstrate compliance with this condition: a. A report detailing the works carried out including supporting evidence and reference to the approved subdivision plans and management plans; b. In relation to the environmental restoration and enhancement works, certification of substantial commencement by a suitably qualified and experienced ecologist; and c. In relation to the landscaping works, certification of substantial commencement by a suitably qualified and experienced landscape architect. Note: For the purposes of this condition, "substantially commenced" means all proposed planting of vegetation and specified restoration and enhancement works have been completed."
7. Further, the condition imposed in the Villa World decision helpfully provided guidance as to the interpretation of "substantially commenced". The Respondent's draft condition 13 does not provide guidance in relation to interpreting "completed" in the context of the condition.
8. However, the Applicant's proposed alternative concluding paragraph does provide some guidance in relation to the interpretation of the term "completed" and links this to the commencement and carrying out of works specified in the relevant management plans and in accordance with the schedules contained in those plans.
9. However, it also introduces a time limitation to those works, being works carried out "for a period of not less than 6 months, notwithstanding that further works remain to be carried out at later points in time under those plans". In my assessment this time limit need not be imposed if the condition were drafted in terms comparable to those imposed in the Villa World decision.
10. Having further considered the Parties' submissions in relation to the framing of this condition, and reflecting the wording of the homologous condition imposed in the Villa World decision, I am satisfied that condition 13 ought to be imposed in the following terms: "13. Environmental restoration and enhancement and landscaping works All works within Stage A (as identified pursuant to condition 1(4)), must be substantially commenced prior to the issue of a subdivision works certificate for Stage 1. The following must be submitted to, and approved by, Council's Director of Planning (or nominee) to demonstrate compliance with this condition: a. A report detailing the works carried out including supporting evidence and reference to the approved subdivision plans and management plans; and b. In relation to the environmental restoration and enhancement works, certification of completion of these works by a suitably qualified and experienced ecologist. For avoidance of doubt, Stage A works will be substantially commenced for the purpose of this condition if all proposed planting of vegetation and specified restoration and enhancement works specified in the relevant management plans have been completed."

Conditions 15 and 16 concerning Groundwater Management

1. The Respondent has proposed the imposition of a condition of consent in relation to the updating of the Applicant's groundwater management plan, as follows: "15. Updated Groundwater Management Plan required Prior to issue of a subdivision works certificate for each stage, an updated Groundwater Management Plan (GMP) shall be submitted to and approved by Council's Director of Planning (or nominee). The GMP shall be updated to include monitoring of groundwater levels and quality prior to, during and following construction of the subdivision works as they progress, including, but not limited to: a. Monitoring of groundwater levels and quality for at least 12 months prior to commencement of subdivision construction works; b. Monitoring of groundwater levels and quality from the commencement of subdivision construction works until the issue of a subdivision certificate for Stage 12 with submission of an updated report to Council prior to the issue of the subdivision works certificate for each stage of works; c. Monitoring of groundwater levels and quality for at least 12 months following the issue of a subdivision certificate for stage 12; and d. Targets for groundwater quality and levels and the commitment to use these targets in required, routine reporting. The proposed groundwater monitoring shall take into account the specific details of the site, proposed subdivision construction works methodology and subdivision layout. The construction stage monitoring must be designed and conducted as appropriate for each stage with details to be given in the CEMP. The Groundwater Management Plan P1806868JR01V04 By Martens Consulting Engineers dated August 2019 provides details on baseline groundwater levels and quality monitoring and this information is to be incorporated into the Updated Groundwater Management Plan."
2. The Applicant has proposed that the Respondent's proposed condition 15 be replaced by a condition in the following form: "15. Updated hydrogeological model required Prior to the issue of a subdivision works certificate for each stage (excluding Stage A), a hydrogeological model shall be prepared for that stage, including any already constructed stages, that determines the requirements of any temporary groundwater impact mitigation measures (if any) that should be included as part of the civil engineering design for that stage."
3. In support of its proposed condition, the Respondent submitted that: 1. the Applicant's proposed condition is one of the conditions of consent agreed by the Parties' water experts, Dr Martens and Mr England, in relation to the resolution of groundwater contentions; 2. Its proposed condition contains additional and separate requirements to those agreed to by the water experts; 3. the purpose of this condition is not solely to address groundwater issues but is also necessary to address the environmental concerns in relation to the groundwater levels associated with the habitat for the endangered frogs on the Subject Site; 4. minor changes to groundwater levels can have a drastic impact on frog survival, as indicated in the evidence of its expert ecologist, Dr Fitzgerald; and 5. a condition in this form was imposed in the Villa World decision and should be consistently imposed on this consent, noting the common flora, fauna and groundwater issues across the adjoining Site R&D and Villa World sites.
4. The Applicant submitted that: 1. the details and further requirements of Council's proposed condition were unnecessary as a consequence of the detail provided in its hydrogeological model; and 2. it was unnecessary to impose the condition as drafted by the Respondent for the purpose of ensuring consistency with the condition imposed by the Villa World decision as the circumstances in the current appeal differed from those in the Villa World case.
5. I have reviewed the submissions of the Parties in the context of the recommendations of the Parties' water experts, and: 1. I note that the Parties water experts had agreed that: 1. the Applicant's groundwater assessment provided by Martens Associates had sufficiently modelled the effects on groundwater of stormwater detention and infiltration devices to demonstrate that the Proposed Development, as amended, is unlikely to materially impact on groundwater dependent ecosystems, nearby groundwater bores or flow regimes in mapped wetlands or Belongil Creek; 2. because the Proposed Development, as amended, relies on large scale filling for flood mitigation, and does not involve any major excavation below the water table, there is no real opportunity for significant groundwater level change; 3. should the Court grant consent to the Proposed Development, as amended, there are likely to some minor changes to the civil and drainage scheme arising out of the consent conditions and the effects of any such changes should be considered in an updated hydrogeological assessment; 4. there may be temporary changes in groundwater regimes because the development is proposed to be constructed in changes; 5. on the basis of the groundwater investigations and modelling undertaken and documented by the Applicant, together with the imposition of the recommended conditions of consent, the potential impacts of the proposed Development, as amended, have been sufficiently mitigated and the provisions of Part E8.10.8.3 of BDCP have been satisfied; 6. the following conditions should be imposed with the grant of any consent for the Proposed Development, as amended: "Prior to the issue of the first construction certificate for the development, the hydrogeological assessment should be updated to reflect the amended overall site civil and drainage scheme. The amended assessment should determine and specify (as necessary) the requirements of any long-term groundwater impact mitigation measures. Prior to the issue of a construction certificate for any stage of the development, a hydrogeological model shall be prepared for that stage, including any already constructed stages, that determines the requirements of any temporary groundwater impact mitigation measures (if any) that should be included as part of the civil engineering design for that stage." 1. I agree with the Applicant that: 1. relying on the agreed evidence of the Parties' water experts, the Respondent's proposed condition 15 need not be imposed in the form proposed; 2. the Applicant's proposed replacement condition 15, adapted, appropriately to the circumstances of the development, should be imposed; and 3. the expert's further recommended condition should also be imposed immediately prior to the Applicant's proposed condition.
6. Finally, I also note that the Applicant has also proposed the deletion of the Respondent's proposed condition 16 concerning groundwater analysis and modelling, relying the agreed evidence of the Parties' water experts as the basis for this deletion.
7. I have reviewed the Respondent's proposed condition 16 and agree that it can be deleted for the reasons provided by the Applicant, which I adopt, other than in relation to the requirements for peer review and Council approval of the updated hydrogeological assessment and stage specific hydrogeological models that will form part of the revised condition 13 that will be imposed as a consequence of this judgment.
8. As a consequence of the above considerations, condition 15 should read, and be imposed, as follows: "15. Updated hydrogeological assessment and models required "Prior to the issue of the first subdivision works certificate for the development (excluding Stage A), the hydrogeological assessment should be updated to reflect the amended overall site civil and drainage scheme. The amended assessment should determine and specify (as necessary) the requirements of any long-term groundwater impact mitigation measures. Prior to the issue of a subdivision works certificate for each stage (excluding Stage A), a hydrogeological model shall be prepared for that stage, including any already constructed stages, that determines the requirements of any temporary groundwater impact mitigation measures (if any) that should be included as part of the civil engineering design for that stage. The hydrogeological assessment and stage specific hydrogeological models shall be peer reviewed by an independent groundwater expert. The assessment/models and peer reviews shall be submitted to, and approved by, Council's Director of Planning (or nominee) prior to issue of the subdivision works certificate for each stage. The plans of subdivision works for the relevant Subdivision Works Certificates must be consistent with any such approvals."

Condition 21 Groundwater interaction with stormwater devices

1. The Applicant has proposed an amendment to the Respondent's proposed condition 21, in which it seeks to insert the following phase identified in bold into the condition: "21. Groundwater interaction with stormwater devices Prior to the issue of a subdivision works certificate for any stage of the development (except Stage A), the civil engineering plans must demonstrate that the invert of filter media of any stormwater treatment device is one metre above the water table, and if this cannot be achieved, then demonstrate that no adverse groundwater impacts arise out of the stormwater treatment device and that groundwater will be below the filter media invert. If this is not possible, then the stormwater treatment device must be suitably lined, with appropriate consideration of hydrostatic forces."
2. The Respondent submitted that the Applicant's proposed addition should not be imposed because: 1. the Respondent's engineering expert is of the view that if the base of the filter material cannot be separated from the ground water, then the system will short circuit and potentially the stormwater may flow into the groundwater untreated; and 2. the purpose of the 1m separation is to slow the release of water from the treatment device and allow the removal of nutrients by the vegetation and the filter media.
3. In the absence of a submission from the Applicant in support of its proposed amendment, other than the text itself, I accept the submission of the Respondent and agree that its proposed condition 13, as originally drafted, should be imposed.

Conditions 22 to 26, 29, 31: minor amendments

1. I agree that the minor amendments proposed by the Applicant in respect of proposed conditions 22 to 26 should be adopted.

Condition 28 Master Stormwater Management Plan

1. The Respondent's proposed condition 28 had required, inter alia, that the Applicant's modified Master Stormwater Management Plan should include identification of legal points of discharge for the site as a whole.
2. The Applicant has submitted that, following the agreement of the parties' water experts that the layout of the Proposed Development, as amended, achieved lawful points of discharge for all stormwater, it was unnecessary to identify these as proposed by the Respondent.
3. While I accept that the Parties' water experts agreed that the contention in relation to lawful points of discharge had been resolved, I do not agree that the Respondent's proposed condition 28 should be amended to delete the requirement to identify these in the Applicant's modified Master Stormwater Management Plan.
4. In my assessment, as the lawful points of discharge have been agreed by the Parties' water experts, the identification of these within the modified plan should be a straightforward matter. Further, stormwater and flooding management were matters were significant matters of public interest. It is my assessment that the public interest would be served by the identification of these points within the Applicant's modified plan.

Condition 32 Main Drain Upgrade

1. The Respondent has proposed the imposition of a condition 32 requiring the preparation, along with certain content, of a Master Stormwater Management Plan, and that the Applicant should obtain an approval under s 68 of the Local Government Act 1993 to carry out stormwater works.
2. The Applicant has submitted that any requirement to secure an approval under s 68 of the Local Government Act 1993 to carry out stormwater works would apply regardless of the condition, and therefore the condition was unnecessary.
3. The Respondent presses the imposition of its version of this condition, noting that its water expert, Mr England, states that the condition is required because without a "s 68 approval" it will not be possible for the proposed connection of drainage works within the Main Drain.
4. Having considered the Parties' submissions I am satisfied that the condition as drafted by the Respondent should be imposed for the reason provided by the respondent, which I adopt, and to assure compliance with the provisions of s 68 of the Local Government Act 1993.

Condition 33 Main Drain Stability

1. The Respondent has proposed a condition 33 requiring that, prior to the issue of any subdivision works certificate proposing works in the Main Drain or discharging water into the Main Drain, the Main Drain batters should be certified by a suitably qualified geotechnical engineer.
2. The Applicant has proposed the deletion of the condition but provides no submission in support of this proposal.
3. The Respondent presses its version of this condition on the basis that its water expert, Mr England, has stated that, in his opinion, this condition is required because the Applicant proposes to connect to the Main Drain and the condition is proposed to ensure the stability of the Main Drain batters, particularly in those areas of connecting stormwater infrastructure.
4. I agree with, and accept, the reasons provided by the Respondent concerning the basis for the condition, and I am satisfied that the condition as drafted by the Respondent should be imposed.

Condition 34 Construction Traffic Management

1. The Respondent has proposed imposition of a condition 34 concerning construction traffic management and the text of this condition is largely agreed between the Parties.
2. The Applicant has: 1. proposed the deletion of a paragraph at the end of point 2. of the condition which reads: "It is noted that the impact of construction activities along Ewingsdale Road and at the assessed intersections in the VLC Report dated October 2020 may alter the SIDRA findings if sensitivity testing of any changes to the above listed factors in Paragraph 2 above occur from a worst-case assessment viewpoint." 1. submitted that the operative intent and effect of this paragraph was unclear, and therefore it had no utility.
3. I have considered the submissions of the Parties and I agree with the Applicant that the paragraph serves no clear intent. I am satisfied that the paragraph can be deleted as proposed by the Applicant.
4. The Respondent's proposed condition 34 includes a point 6(a) in the following terms: "6. As a minimum, the CTMP is to commit to the following measures to reduce the impacts of construction traffic on Ewingsdale Road: (a) schedule the works involving truck movements outside of school holiday or public holiday periods."
5. The Applicant has submitted that: 1. point 6(a) as drafted by the Respondent was impractical because trucks would be required for all stages of works including for delivery of materials, and the condition would have the effect that no work would be possible during school holidays and public holiday periods; 2. in the alternative, the proposed point 6(a) should require that the "greatest volume of truck movements" should be scheduled outside of school holiday or public holiday periods, and that his would represent a reasonable compromise requirement.
6. Having considered the submissions of the parties I agree with the Applicant that the Respondent's draft of point 6(a) is impractical, and I am satisfied that the Applicant's proposed amendment to point 6(a) should be imposed.
7. Finally, the Applicant has proposed that point 8 of the Respondent's draft condition 34 should be deleted. Point 8 of the draft condition concerned that content of the Applicant's construction traffic management plan (CTMP) and required: "8. The CTMP is to contain a provision that requires the upgrade of Ewingsdale Road to accommodate construction traffic if construction traffic increases (noting that a modification of this consent will be required if construction traffic increases beyond the requirements of this consent) and these upgrades to be submitted to and approved by Council as part of each stage."
8. The Respondent submitted that the text of point 8 should be retained because: 1. the CTMP should contain a reference to what would be required if the construction traffic increases; and 2. the CTMP should acknowledge the impacts associated with increased construction traffic and recognise that the development consent would need to be formally modified if construction traffic increased beyond the requirements of this consent.
9. I have considered the submissions of the Parties, and I am satisfied that the text of point 8 within proposed condition 34 should be deleted because: 1. the Court would anticipate that the recipient of a grant of consent would act in accordance with the terms of that consent, including in relation to construction traffic; 2. the Court would also anticipate the Applicant would not generate construction traffic beyond that for which consent had been granted; and 3. if an increase in construction traffic were required at some future point, such an increase would be the subject of an application for determination by a relevant consent authority having regard to the assessed potential impacts of the application.
10. Given the above points, the text of proposed point 8 is of no utility.

Conditions 38 to 42AA Updates to various plans

1. The drafts of conditions 38 to 42AA within the Applicant's consolidated response to Council's conditions dated 29 July 2022, including marked additions, should be imposed with the grant of consent for the proposed Development, as amended.

Condition 48 Landscape Plan required

1. The Applicant has proposed that the Respondent's proposed condition 48, which requires the submission of landscape plans, with prescribed contents, as part of future applications for subdivision works certificates for each stage, be deleted.
2. The deletion is proposed because, in the Applicant's submission, detailed landscape plans have already been provided and "only need to be upgrade to correspond to revised lot layout" and this is required under proposed condition 3B in the most recent draft conditions.
3. The Respondent presses retention of the draft condition because the matters listed in the condition for inclusion in the plans are yet to be addressed by the Applicant within landscaping plans provided to date.
4. I am satisfied that the Respondent's proposed condition 48 should be imposed because: 1. that the Applicant has acknowledged that its current landscaping plans do require revision; and 2. if the plans are as complete as stated by the Applicant then the work required for plan revision in support of subdivision work certificate applications, while necessary, would not be onerous.

Condition 53 Works within Road Reserve

1. The Applicant's proposed amendment to point d) of the condition is not adopted to maintain consistency with the outcome of considerations concerning DCC 7 (see above at [290]).

Condition 55 Engineering Construction Plans

1. The Applicant has proposed an amendment to point a) within the Respondent's proposed condition 55, seeking to insert the words "with the exception of works on Ewingsdale Road".
2. The Respondent presses imposition of its condition 55 as drafted.
3. I am satisfied that the Applicant's proposed amendment of proposed condition 55 does not aid in the utility of the condition as drafted by the Respondent and should not be adopted.

Conditions 68 and 69A CEMP reporting, review and independent audit

1. The Applicant has proposed amendments to the Respondent's drafts of conditions 68 and 69A that seek: 1. to delete requirements that Construction Environmental Management Plan (CEMP) reporting and independent audits should be approved by Council prior to the commencement of works for each stage of the development; and 2. to require that the plans and audits are submitted to, with no requirement for approval, within six months of the completion of each stage.
2. Having considered the Parties proposed alternate versions of conditions 68 and 69A, I am satisfied that the conditions as drafted by the Respondent should be imposed as those versions will, in my assessment, facilitate the more effective management and mitigation of potential environmental impacts.
3. I note that the Applicant had sought to note an exception in relation to the now proposed Stage A of the proposed Development, as amended. I am confident that the Parties will confirm the final wording of these conditions based on my considerations above (at [375]), including in relation to their application to proposed Stage A.

Condition 69 Subdivision Work

1. The Applicant has proposed that the note at the end of the Respondent's draft condition 69 should be amended though deletion of descriptive phrase: ", including earthwork, road work, stormwater drainage work, landscaping work, tree/vegetation removal, erosion and sediment control, traffic control, etc."
2. I am satisfied that this descriptive phrase should not be deleted and the Applicant's proposed amendment should not be adopted within final conditions imposed with a grant of consent in this appeal. The phase provides additional clarity to Parties interpreting the term "subdivision works" within the consent.

Condition 82 CTMP Monitoring

1. The Respondent has proposed a draft condition 82 that requires monitoring of construction traffic into, and leaving, the Subject Site during subdivision works, and the Applicant has proposed that the condition should be deleted.
2. The Respondent's draft condition requires, inter alia, that the following are recorded daily: 1. the total number of construction traffic movements related to the works; 2. the number of heavy vehicle movements; 3. the number of light vehicle movements; 4. the number of vehicle movements related to importing fill to the site; 5. the number of vehicle movements related to exporting unsuitable/excess material from the site.
3. In the alternative to the condition's deletion, the Applicant has also proposed that the various construction traffic types identified above (at [380]), should be replaced in the condition with the following two vehicle categories: 1. the number of truck importing fill into the site; and 2. the number of trucks leaving the site empty after delivering fill, or exporting unusable/excess material from the site.
4. The Applicant also proposes that the duration of reporting traffic monitoring results should be limited to the duration of the bulk earthworks, rather than for the duration of the subdivision construction works.
5. The Applicant submitted that it was not necessary to record every vehicle entering and leaving the Subject Site on every day of construction to address construction traffic impacts, noting that the highest volume of construction traffic relates to the bulk earthworks phase.
6. The Respondent presses the imposition of its proposed condition 82 as drafted, noting that its proposed conditions also place limits on construction traffic movements associated with the implementation of the subdivisions, and that the condition requires that other important aspects of construction traffic are monitored.
7. I have considered the submissions of the parties, including the Applicant's alternate proposed wording for proposed condition 82, and I am satisfied that the Respondent's proposed condition 82 should be imposed without amendment. In my assessment, the Applicant's proposed alternate version of condition 82 would unreasonably exclude significant volumes of construction traffic from the traffic monitoring and reporting regimes.
8. The identification, assessment and mitigation of potential traffic impacts of the proposed Development, as amended, was a significant focus of both evidence in the hearing and of public interest as expressed through submissions of objectors in the proceedings.
9. The Applicant's proposed amendments to condition 82 are not in the public interest and are not adopted.
10. I note that the form of the Respondent's proposed condition 82 is in the same form as a condition (condition 75) imposed through the grant of consent in the Villa World decision.
11. While I do not rely on this fact as a reason for maintaining the Respondent's draft condition 82 in this appeal, I note that the collection and reporting of traffic movement data in a consistent form as a consequence of the Villa World decision and any consent issued in relation to this appeal, will assist the Parties in the management and mitigation of potential traffic impacts within the WBURA across its development.

Condition 99 S88 B Instruments

1. The Respondent has proposed the imposition of a draft condition 99 requiring the submission of certain instruments made under s 88B of the Conveyancing Act 1919, and which, inter alia, must provide for certain restrictions on use of residual lots.
2. This requirement is included at condition 99(o), which specifies that restrictions on the use of land are to be registered on the so-called "association lots", to prohibit, other than in relation to identified exceptions, certain uses including "the creation and maintenance of any tracks through the area".
3. The Applicant has proposed that the words "the creation and maintenance of any tracks through the area" should be deleted on the basis that it may have a need to create and maintain tracks on the residual lots for the purpose of access for rehabilitation works.
4. The Responded has submitted that it would agree to the words that the Applicant seeks to have deleted being amended to read "creation of any tracks through the area", striking out the descriptor "or maintenance".
5. The Respondent's concession would continue to prohibit the creation of any tracks through the residual lots. Such new tracks as may have been envisaged by the Applicant could not then be created, and there would be no consequent maintenance required for tracks that are not made.
6. The Respondent's concessionary wording would permit, by implication, the maintenance of existing tracks on the residual "association lots".
7. I have considered the submissions of the parties in relation to this condition and note that a condition in the same terms as drafted by the respondent was imposed in the Villa World decision.
8. Given that the principal purpose of the residual "association lots" relates to the restoration and rehabilitation of the landscape for environmental purposes, I agree with the Respondent that it would counterproductive to permit the creation, and persistence through maintenance, of tracks on those lots.
9. Notwithstanding the imposition of a condition in the same terms as originally proposed by the Respondent within the consent granted in the Villa World decision, I accept the concession provided by the Respondent that the relevant phrase within condition 99(o) should read "the creation of any tracks in through the area", and I am satisfied that the condition should be imposed in the Respondent's amended form.

Condition 113 Developer Contributions to be paid

1. The Respondent has proposed the imposition of a draft condition 113 in relation to Developer Contributions in the following terms: "Contributions set out in the schedule contained at the end of these conditions, plus any relevant CPI increase are to be paid to Council prior to the release of each subdivision certificate. Contributions are levied in accordance with the Byron Shire Developer Contributions Plan 2012 (as amended). The Plan may be viewed on line or during office hours at the Council Offices located at Station Street, Mullumbimby. These contributions are to fund public amenities and services as listed in the schedule. Additional details on the specific amenities are to be found in the Byron Shire Developer Contributions Plan 2012 (as amended). The contributions as set out in the schedule may either be paid in full or they may be paid in stages on a proportional basis dependent on the number of lots to be released in the subdivision certificate. The first credit for a site will be retained on the residual lot. Any additional credits over one (1) will be allocated at the first stage. In lieu of payment of the developer contribution for bikeways and footpaths Council will accept the works as set out in condition 55 (b) (i) for the shared path and 55(b) (iii) for the shared path only as works in kind. Council will offset up to the full amount of the contribution for bikeways and footpaths provided that the value of the works is independently certified by a Quantity Surveyor who is registered with the Australian Institute of Quantity Surveyors. In lieu of payment of the developer contribution for local open space Council will accept the works as set out in condition 51 as works in kind. Council will offset up to the full amount of the contribution for local open space provided that the value of the works is independently certified by a Quantity Surveyor who is registered with the Australian Institute of Quantity Surveyors. In lieu of payment of the developer contribution for local open space Council will accept the dedication of the recreation lot as shown on plan 15024-9R. Council will offset up to the full amount of the contribution for local open space provided that the value of the land to be dedicated is independently valued by a registered valuer. The contributions in the schedule are current at the date of this consent. The contributions payable will be adjusted in accordance with the relevant plan and the amount payable will be calculated on the basis of the contribution rates that are applicable at the time of payment. The schedule contains a date for which the schedule remains valid, after this date you will have to contact Council for an updated schedule."
2. I note that this condition is in the same form as a homologous condition imposed with the grant of consent in the Villa World decision (condition 015).
3. In response to an initial proposal from the Applicant to delete certain elements of the first, second and six paragraph of the condition as drafted, the Respondent provided a indicated that it would accept certain amendments to the first and final (sixth) paragraphs of the condition.
4. The Applicant submitted that it did not accept the Respondent's concessionary wording in the condition, because it viewed the Respondents amended wording as having the potential to cause confusion, and it preferred to maintain its own amended version of draft condition 113.
5. I have considered the Parties submissions in relation to proposed draft condition 113, and I am satisfied that the Respondent's version of the condition as originally drafted should be imposed as that version is, in my assessment, more complete and clearer than the alternative proposed by the Applicant. It has the further advantage of consistency with the condition imposed in the Villa World decision but I do not rely on this as the reason for my decision concerning condition 113.

Schedule s 7.11 Contributions

1. The Applicant has proposed that there is no need to include a "valid date" field in the schedule as, in its submission, this creates unnecessary ambiguity as to whether the Schedule specifies a fixed amount or a variable amount.
2. The Respondent submitted that the "valid date" field should be retained because "from this date the contributions amount may change due to CPI".
3. I have considered the Parties' submissions in relation to the inclusion of a valid date field in the s 7.11 Schedule and, noting the form of the Schedule imposed with the consent in the Villa World decision, anticipate that the final form of this Schedule can be agreed by the Parties in the context of finalising agreed conditions of consent in this appeal, and which will be the subject of a direction at the conclusion of this judgment.

Conclusions

1. The background to the WBURA, the details of Subject Site, its context within the WBURA was described above (at [5] to [31] and [19] to [26]).
2. As noted above at [27] and [28], the Applicant's Proposed Development was amended on 5 May 2021 following the Court's consideration of a Notice of Motion on 23 and 30 April 2021, and its amended application was described above at [30] and [31].
3. Contentions raised by the Respondent in relation to the Proposed Development, as amended, were recorded within the Respondent's FASFAC and these were the subject of significant written and oral evidence from the Parties' experts during the appeal.
4. The evidence and recommendations of the Parties' experts resolved numerous of the Respondent's contentions as identified above (at [41]), including through the Parties' agreed adoption of the expert's recommended conditions of consent.
5. The remaining contention in the appeal were identified above (at [73]), and these: 1. required resolution of the following questions: 1. does the Proposed Development satisfy the provisions of the Koala SEPP 2020 such that it can be determined through the grant of consent? 2. should the Proposed Development be approved given the Respondent's contended inconsistencies between various plans of management? 3. are the potential impacts of the Proposed Development on certain frog species acceptable?, and 4. does the Applicant's proposed road system provide acceptable access to the IN2 lands within the Proposed Development? 1. were resolved as follows: 1. in relation to the provisions of the Koala SEPP 2020, I am satisfied that the Subject Site does not contain core koala habitat as defined within cl 4 of this SEPP, for reasons provided at [93(2)], and consequently, I concluded that: 1. consistent with the provisions of cl 9(3) of Koala SEPP 2020, if the council, or the Court on appeal, is satisfied that the Subject Site is not core koala habitat, it is not prevented, because of the SEPP, from granting consent to the Applicant's development application; 2. there is no requirement for the Applicant to satisfy the provisions of cl 10 of Koala SEPP 2020 and a koala plan of management is not required to be prepared in accordance with Part 3 of the SEPP; and 3. it is unnecessary for me resolve the Applicant's contention that the provisions of Koala SEPP 2020 do not apply to the Proposed Development, because even if I were to favour the Applicant's submission, the outcome would be no different to the conclusion I have reached above (at [((i))]; 1. in relation to the Applicant's various plans of management and inconsistencies between these: 1. as noted above at [107], on the basis of the evidence of the Parties' expert ecologists, I am satisfied that the potential impacts of the Proposed Development, as amended, have been assessed, and agree that the plans should be amended to provide a consistency, as provided within paragraphs [108(1)] to [108(4)] of this judgement; 2. the Applicant is not required to update its plans to achieve consistency with the BCC KPoM; 3. the work to update the Applicant's plans should not be the subject of a deferred commencement condition; 4. the work should be completed prior to the issue of a subdivision works certificate for any stage of the development, whether for Stage 1 or any other stage; 1. in relation to whether potential impacts of the Proposed Development on certain frog species are acceptable: 1. as noted above (at [146]), I have concluded that the potential impacts of the Proposed Development, as amended, on the populations of the Wallum Sedge Frog and the Wallum Froglet on the Subject Site are acceptable for reasons provide above at [135(6)], [136(6)] and [140]; 2. as noted above (at [148]), the Applicant has agreed to maintain its commitment to purchase and retire the ecosystem and species credits required under its BDAR to off-set the residual impacts of the Proposed Development, as originally assessed, notwithstanding the avoidance of those impacts achieved under its now amended proposal; 3. the Applicant's proposed draft conditions of consent include a proposed condition 12B which requires that the ecosystem and species credits would be retired prior to the issue of any subdivision works certificate for Stage 1 of the Proposed Development, as amended; 4. consistent with the provisions of s 7.13(2) of the BC Act, no further consideration of the likely impact of the proposed development on biodiversity values, including in relation to the Wallum Froglet and the Wallum Sedge Frog, is required; and 5. consistent with the provisions of s 7.16 of the BC Act, Applicant's BDAR has considered whether the Proposed Development would have a serious and irreversible impact (SAII) on any threatened ecosystems or species and has concluded that it will not give rise to any SAII; 1. in relation to whether the Applicant's proposed road system would provide acceptable access to the IN2 lands within the Proposed Development: 1. as noted above (at [185]), the Applicant's proposed road system provides acceptable access to the IN2 lands within Stage 12 of the Proposed Development, as amended, and no aspect of this design provides a basis for refusal of the Applicant's development application;
6. As a consequence of my considerations and conclusions above (at [407] to [411]) I am satisfied that: 1. the matters that I am required to consider under s 4.15(1) of the EP&A Act have been considered; and 2. approval of the Proposed Development, as amended, is in the public interest.
7. I have also considered jurisdictional matters concerning the Applicant's Proposed Development, as amended (see above at [187] to [227]).
8. I am satisfied that all jurisdictional requirements have been satisfied, and there is no jurisdictional matter that would prevent the conditional grant of consent to the Applicant's Proposed Development, as amended, pursuant to s 4.16 of the EP&A Act.
9. Finally, in relation to conditions, I have: 1. provided guidance (see above at [108] to [119]) in relation to the conditions to be imposed concerning the revision of certain of the Applicant's plans of management; 2. noted that the Applicant's proposed draft conditions of consent include a proposed condition 12B requiring that the ecosystem and species credits to be retired in relation to biodiversity impacts and these will be retired prior to the issue of any subdivision works certificate for Stage 1 of the Proposed Development, as amended; 3. further noted (at [186]), that the Applicant has proposed that it would accept the imposition of certain conditions of development consent in relation to the movement of vehicles between ROAD01 and the IN2 lands and I agree that these conditions should be imposed with any grant of consent to the Proposed Development, as amended; and 4. considered the Parties' competing proposed conditions of consent, and differences in those conditions have been resolved as identified in the judgment above (at [247] to [406]).
10. As is evident from the above conclusions, in order to make final orders disposing of the appeal, it will be necessary for the Parties to revise their proposed draft conditions of consent and prepare a final agreed set of conditions reflecting the outcomes of the judgment. As a consequence, the Court makes the following directions.

Directions

1. The Court directs: 1. the Parties are to prepare final conditions of consent, reflecting the conclusions of this judgment above (at [407] to [415]), and are to file these with the Court by no later than Thursday 31 March 2022; 2. the matter is listed for mention on Monday 4 April 2022 at 4pm by Teams; 3. if the Parties comply with direction (1) above, the listing on Monday 4 April 2022 will be vacated; 4. the Parties are granted liberty to restore on 3 days notice.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 March 2022