Site R & D Pty Ltd v Byron Shire Council - [2022] NSWLEC 1121 - NSWLEC 2020 case summary — Zoe

NSWNSWLEC

Site R & D Pty Ltd v Byron Shire Council

[2022] NSWLEC 1121

Land and Environment Court (NSW)|2020-11-13

View original source

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2020-11-13

Catchwords

[1999] NSWLEC 246 Fastbuck$ v Byron Shire Council (1999) 103 LGERA 94

Source

Original judgment source is linked above.

Catchwords

[1999] NSWLEC 246 Fastbuck$ v Byron Shire Council (1999) 103 LGERA 94

Judgment (89 paragraphs)

[1]

Background to the WBURA

The Applicant's Statement of Environmental Effects (SEE) prepared by DAC Planning Pty Ltd in August 2019, records the long history of the proposed rezoning of land in the West Byron Bay area for urban use, and notes that: 1. the NSW Minister for Planning gazetted the West Byron Bay site as a potential State Significant Site in October 2009; 2. a State Significant Site Study was prepared on behalf of the West Byron Bay Landowners Association and was submitted to the Department of Planning in June 2011, and that study informed the rezoning of the lands within the West Byron Bay site for urban purposes; 3. the study was publicly exhibited in 2011, and following consideration of submissions received in response to that exhibition the Department of Planning prepared a draft proposal for rezoning of land in the West Byron Bay site which itself was exhibited between November 2013 and January 2014; 4. the site was rezoned for urban purposes in November 2014 by way of an amendment to the Byron Local Environmental Plan 1988 (BLEP 1988) pursuant to provisions of State Environmental Planning Policy (Major Development) 2005.
The West Byron Bay site, now referred to as the WBURA, is located approximately 3km west of the Byron Bay township, and south of Ewingsdale Road, opposite the West Byron light industrial area to the north of Ewingsdale Road. Its location to the south of Ewingsdale Road and west of the main Byron Bay township area is illustrated in the figure below, extracted from Part E8 of Byron Development Control Plan 2014 (BDCP).

[2]

[4]

Context of the Subject Site

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).
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.
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.
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."
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.
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.
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.
That request was considered through a notice of motion (NoM) moved by the Applicant.

[5]

Notice of motion to amend the development application

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.
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.
These documents were filed with the Court as directed.

[8]

Notification and objector submissions

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.
In response to this initial notification 2,218 objector submissions were received along with one submission in support of the Proposed Development.
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.
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.
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.
During the hearing, the Court received oral submissions from seven objectors. Each objector had also provided written submissions in support of their oral testimony.
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.

[9]

Contentions

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.
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.
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.
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.

[10]

Environmental Planning and Assessment Act 1979

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.
Section 3.43(5) of the EP&A Act provides that: (5) A provision of a development control plan (whenever made) has no effect to the extent that - (a) it is the same or substantially the same as a provision of an environmental planning instrument applying to the same land, or (b) it is inconsistent or incompatible with a provision of any such instrument.
Section 4.14 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.
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.
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.

[12]

Byron Local Environmental Plan 1988

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.

[13]

Byron Shire Development Control Plan 2014

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.
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".
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."

[15]

State Environmental Planning Policy (Infrastructure) 2007

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.
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.

[20]

State Environmental Planning Policy (Koala Habitat Protection) 2020

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.
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.
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.

[21]

Biodiversity Conservation Act 2016

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.

[25]

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

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.
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.
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.
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.
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.

[26]

Is Core Koala Habitat present on the Subject Site?

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.
Step 1 requires consideration as to whether or not the site of the proposed development contains potential koala habitat.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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)]).
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.
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.

[27]

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)?

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".
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.
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).
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.
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.
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.
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."

[28]

The Applicant's plans should be revised

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.
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.
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.
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."
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.

[29]

Timing of plan revision

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.
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.
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."
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.
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.
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.
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;
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.

[31]

Western Frog Habitat

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.
The following figure illustrates the southern extension of Bayshore Drive from Ewingsdale road passing between lots 161 and 162 as originally proposed:
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:
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'.
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.
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.
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:
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.
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:
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.
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".
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.
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.
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.
I will deal first with consideration in relation to ROAD01 before then considering matters concerning ROAD No. 2.
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.
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.

[32]

Eastern frog habitat

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.
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.
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.
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".
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.
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.

[33]

Conclusions re frogs

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].
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.
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.
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.
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.
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.
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.

[34]

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

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.
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.
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:
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.
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.
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.
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.
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.
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.
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.
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;
I will consider the evidence in relation to each of these matters in turn.

[35]

Width of road leading to IN2 lands

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.
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".
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.

[36]

Suitability of access for use by articulated vehicles (AVs)

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.
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.
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.
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.
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.

[37]

Stage 11 R2 and Stage 12 IN2 Interactions

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.
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.
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.
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.
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.

[38]

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

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.
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.
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.
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.
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.
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;
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.

[42]

The coastal zone

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.
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.
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.
Finally, State Environmental Planning Policy No 14 - Coastal Wetlands (SEPP 14) continues to apply to the Proposed Development, as amended.
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.
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.

[45]

Flood planning

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.
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.
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.
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.

[47]

Site R & D Pty Ltd v Byron Shire Council

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (89 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (12)