Statewide Planning Pty Ltd v Blacktown City Council

Land and Environment Court (NSW)|2019-04-10

Swearingen et al, Plant Invaders of Mid-Atlantic Natural Areas (4th ed, 2010, National Park Service and U.S. Fish and Wildlife Service, Washington, DC) B J Preston, "Biodiversity Offsets: Adequacy and Efficacy in Theory and Practice" (2016) 33(2) EPLJ 93 Category: Principal judgment Parties: Statewide Planning Pty Ltd (Applicant) Blacktown City Council (Respondent) Representation: Counsel: P Tomasetti SC with J Doyle (Applicant) S Simington (Solicitor) (Respondent)

Solicitors: Colin Biggers & Paisley (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2018/125716 Publication restriction: No

Legislative framework

Given the agreement between the planners and the engineers, the remaining issues in contention relate to CPW. Accordingly, it is necessary to outline the legislative framework applicable to assessment of ecological issues in the particular circumstances of the case.
CPW was originally listed as an EEC under the TSC Act, which has now been repealed and replaced by the BC Act. The transition between the two Acts has been protracted and the path of the current application through the transitional arrangements is tortuous.
The BC Act commenced on 25 August 2017. Parts 6 and 7 of the new Act provide the regulatory framework for assessing and offsetting impacts of development on biodiversity through a biodiversity offset scheme.
The Biodiversity Conservation (Savings and Transitional) Regulation 2017 (Transitional Regulation) applies to the development application. Clause 27(1) is the definitions clause for Part 7 of the Regulation and defines "pending or interim planning application" as: pending or interim planning application means any of the following: (a) an application for planning approval (or for the modification of a planning approval) made before the commencement of the new Act but not finally determined immediately before that commencement …
Clause 28 deals with arrangements during the transition to full implementation of the BC Act: 28 Former planning provisions continue to apply to pending or interim planning applications (1) The former planning provisions continue to apply (and Part 7 of the new Act does not apply) to the determination of a pending or interim planning application. (2) However, Part 7 of the new Act applies to the determination of a pending or interim planning application referred to in paragraph (b), (c) or (d) of the definition of pending or interim planning application in clause 27 (1) if the applicant or proponent and the planning approval body for the application agree in writing that Part 7 of the new Act is to apply to the determination of the application instead of the former planning provisions.
The development application is a pending or interim planning application but cl 28(2) does not apply, so that Part 7 of the BC Act is not applicable to the consideration of the development application.
Part 7 of the BC Act deals with matters which were formerly provided for in the TSC Act:

Division 2 - Biodiversity assessment requirements
Division 3 - Consultation and concurrence
Division 4 - Biodiversity assessment and offsets
Division 5 - Preparation of species impact statements

Clause 27(1) of the Transitional Regulation defines former planning provisions as: former planning provisions means the provisions of the Environmental Planning and Assessment Act 1979 that would be in force if that Act had not been amended by the new Act.
The term "former planning provisions" is applicable only to provisions of the EPA Act. As Part 7 of the BC Act does not apply to the development application, and the corresponding provisions of the TSC Act have been repealed, there are currently no provisions which would establish an offsetting scheme which could be applied to the development application. Mr Tomasetti, in his submissions (at par 38), indicates that this is the view of the Office of Environment and Heritage (OEH) (in an email dated 27 March 2019 which is Ex C2, Tab 9). The OEH has also advised that it does not process applications for biobanking statements made under the TSC Act. Clause 21 of the Transitional Regulation states: 21 Pending applications for biobanking statements under the TSC Act (1) This clause applies to an application for a biobanking statement that was made under Part 7A of the Threatened Species Conservation Act 1995 and that had not been determined on the repeal of that Act. (2) The Environment Agency Head may, within 12 months after the commencement of the new Act, determine the application (and issue a biobanking statement) under Part 7A of the Threatened Species Conservation Act 1995 (as if that Act had not been repealed) if satisfied that the application substantially complies with Part 7A of that Act. The relevant provisions of that Act and the regulations under that Act continue to have effect for that purpose.
Only applications for biobanking statements made before the repeal of the TSC Act but not yet determined can continue to be processed.
Mr Tomasetti, in his submissions at paragraphs 41-42, pointed out that a further consequence of the BC Act not being applicable is that s 7.16 of the BC Act is not relevant: 7.16 Proposed development or activity that has serious and irreversible impacts on biodiversity values (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. (3) If the Minister for Planning is of the opinion that proposed State significant development or State significant infrastructure that is the subject of an application to which this Division applies is likely to have serious and irreversible impacts on biodiversity values, the Minister: (a) is required to take those impacts into consideration, and (b) is required to determine whether there are any additional and appropriate measures that will minimise those impacts if consent or approval is to be granted. (4) If the determining authority is of the opinion that the proposed activity to which this Division applies is likely to have serious and irreversible impacts on biodiversity values, the determining authority: (a) is required to take those impacts into consideration, and (b) is required to determine whether there are any additional and appropriate measures that will minimise those impacts if the activity is to be carried out or approved.

A role for the Commonwealth?

It is accepted that the site contains the CEEC listed under the EPBC Act as Cumberland Plain Shale Woodlands and Shale-Gravel Transition Forest.
On 10 October 2018, a delegate of the Department of Environment and Energy (Cth) determined that the proposed development was a controlled action for the purposes of the EPBC Act on the basis of likely significant impact on matters of national environmental significance, including, but not limited to, the listed CEEC as it would clear 2 ha of the community and indirectly impact an additional 0.8 ha (Ex 2, Tab 28).
The Respondent in its without prejudice condition of consent proposed as condition 2.7.4: "Controlled Action Approval 2.7.4 A controlled action approval is to be obtained from the Minister for the Environment and Energy pursuant to section 75 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth)." [Applicant proposes the deletion of this condition. Council does not agree to deletion.]
The Applicant opposes the inclusion of the condition.
The EPBC Act is Commonwealth, not State, legislation. It is not an Act which falls within the purview of the Land and Environment Court. The fact that a community is listed under the EPBC Act does not impose obligations on the Court standing in the shoes of Council. The recognition by the Commonwealth of CPW (albeit under a different name and with slightly different definitional limits from those applicable under State legislation) is further indication of the conservation significance of CPW, but the Land and Environment Court has no role in enforcing Commonwealth legislation. The Commonwealth listing could be considered to reflect public interest in the CEEC and its conservation, when considering matters to be taken into account under the former s 79C of the EPA Act, which is the version of the EPA Act applicable in this case.
A condition such as that proposed by the Respondent is not something which either Council or the Court could impose. The Applicant is aware of the requirements of the Commonwealth legislation and of the penalties for not complying. These requirements arise as a result of the enactment of the legislation by the Commonwealth Parliament and the Court has no powers under the Land and Environment Court Act 1979 (LEC Act) to compel a party to deal with the Commonwealth. (See Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited (2010) 210 LGERA 126; [2010] NSWLEC 48 at [77] (NHVSS).

The evidence

Three joint expert reports were tendered: - from the planners, Ms Palmer for the Respondent and Mr Jelicic for the Applicant (Ex 5); from the drainage experts Mr Merrilees for the Respondent and Mr England for the Applicant (Ex 6); and from the ecologists, Dr McLean for the Respondent and Drs Clement and Ambrose for the Applicant (Ex 7). Dr McLean's single authored report was tendered as Exhibit 4.
The planners and drainage experts were not required to give concurrent evidence. They reached substantial agreement in their reports and proposed appropriate conditions and amendments which were incorporated in the final amended plans (Ex D). I granted leave for the Applicant to rely on the amended plans.
The ecologists gave extensive concurrent evidence and were cross-examined. The Applicant's experts, Dr Ambrose, a fauna specialist, and Dr Clements, a plant ecologist, are both very experienced. The Respondent's expert, Dr McLean, has had a much shorter career which so far has covered a number of fields of study, including both flora and fauna. Relevantly in 2017 and 2018, he was a Senior Biodiversity Officer (Ecologist) at Blacktown City Council, where inter alia he took part in field surveys. Mr Tomasetti submitted that I should favour the evidence of the Applicant's experts in view of their considerable experience. While the experts were in agreement on a number of issues, there were matters on which they continued to disagree. Acknowledging the different experience of the three ecologists, I nevertheless assess the strength of the arguments presented on the particular issues, rather than automatically preferring the evidence of the Applicant's experts.
Major areas over which the ecology experts did not agree include the assessment of the significance of the site in terms of the broader context of CPW, the quality of CPW on the site and the alternatives to the development proposed.
The ecologists' report included a number of attachments including, as Attachment 5, a Conservation Plan of Management (CMP) prepared by Clements and Young. This was the subject of discussion during the concurrent evidence of the witnesses.

Quality of CPW on the site

The final determination for the listing of CPW as a CEEC (Ex 3, Tab 5) documents that half of the remaining area of CPW was in patches of less than 3 ha. The site and the adjacent Council Reserves contain more than 3 ha of CPW. (Dr Clements estimated 6.5 ha, although this is not a contiguous area, with the western Council reserve being separated from the eastern areas by Denis Winston Drive).
Both Drs Clements and McLean had recorded plant species occurrence data in biometric plots on the E2 land and made comparisons with stands elsewhere.
Dr McLean's data are discussed and represented graphically in Exhibit 4. These data show variability between quadrats, but some of the quadrats gave values (scores of 40 plus) which he regarded as the moderate to good category which is conceptually related to that in Exhibit F, but based on different data.
The definition of low condition vegetation in the BioBanking Assessment Methodology and Credit Calculator Operational Manual (Department of Environment and Climate Change 2008) is given below. Although the definition refers to low, moderate and good condition vegetation, the distinction is effectively binary between 'low' and 'moderate and good'. For woody vegetation (which would include CPW), the threshold below which a stand is in low condition is not absolute but depends on the vegetation type and the benchmark established for it. The qualifier on the meaning of 'less than 50% of groundcover vegetation is indigenous species' as referring to percentage cover and not to the number of species present (footnote 1) which is applied to native grassland, wetland and herb field would also be applicable to the groundcover in woody vegetation.
Dr Clements accepted that some quadrats from the subject site were in the moderate to good category but did not think that the values were 'anything to be proud of' (Tcpt, 10 April 2019, p 84(38)). She made reference to work she had done at Kemps Creek Nature Reserve (at Cecil Park, a location further west in the Cumberland Plain and a much larger site than the subject site at Doonside), where all quadrats gave high values in the order of 70. This comparison is not particularly helpful. Kemps Creek Nature Reserve has been a conservation reserve since 2003, and one of the reasons for its declaration was its vegetation condition. It is managed for its biodiversity values and thus would be expected to give higher condition scores than a site with a long history of management unsympathetic to the maintenance of CPW.
Dr McLean acknowledged that weeds were a conspicuous element in the understorey flora of the Doonside site, but regarded the biometric scores as being relevant to discussion about the value of the CPW on the site. I regard the condition scores as an indication of potential for improvement given appropriate management. If the existing management continues, the condition is likely to decline further; the rate of decline is difficult to predict although the sooner the slashing regime is changed the more likely the prospects for recovery. The experts were all in agreement that without cessation of the mowing/slashing regime, the condition of CPW within the E2 land and the Council reserves would continue to decline.

The 5 km radius issue

There was discussion between the experts about the different terminology for terms such as 'local occurrence' and 'locality' and the issue was covered in the submissions of both parties.
Although arguing that a SIS was not required, the Applicant had nevertheless prepared a SIS and had obtained Chief Executive's Requirements (CERS) for the SIS from OEH. The CERS (at Ex 2, Tab 29, p 388) differentiated between the two concepts: " 'locality' is the area within a 5km radius of the subject site 'study area' is the subject site and any additional areas that are likely to be affected by the proposal, either directly or indirectly."
The term "local occurrence" for the purposes of s 5A(2)(c)(ii) of the EPA Act was said in NHVSS at [94] per Preston CJ, not to be rigidly defined but to be determined by the particular circumstances of the EEC concerned.
Dr Clements, in her evidence during the concurrent evidence of the ecology experts, appeared to equate local occurrence with the 5 km radius locality within the CERS in the joint report (Ex 7), however, Dr Clements refers to the OEH (2018) Threatened Species Test of Significance Guidelines: "Local occurrence: the ecological community that occurs within the study area. However, the local occurrence may include adjacent areas if the ecological community on the study area forms part of a larger contiguous area of that ecological community and the movement of individuals and exchange of genetic material across the boundary of the study area can be clearly demonstrated Study area means the subject site and any additional areas which are likely to be affected by the proposal, either directly or indirectly. The study area should extend as far as is necessary to take all potential impacts into account."
The 2018 guidelines are not directly relevant as the BC Act does not apply to the proposal. However, Department of Environment, Climate Change and Water (2007) Threatened Species Assessment Guidelines contained identical definitions.
"Local occurrence" in the guideline definition may: "include adjacent areas if the ecological community on the study area forms part of a larger contiguous area of that local ecological community and the movement of individuals and exchange of genetic material across the border of the study area can be clearly demonstrated."
The exchange of genetic material is an important consideration as exchange provides the potential to reduce the risks of inbreeding and to offer evolutionary potential in the face of environmental change. Genetic exchange could occur through the movement of organisms, or in the case of plants, movement of pollen or propagules. The importance of genetic exchange is acknowledged by Mr Tomasetti in submissions at par 188.
Dr Clements gave as a reason for accepting the 5 km radius that it equated to the flight range of bees. She did not specify which species of bee. There are many species of bee in Australia, but I presume the reference is to honey bees, Apis mellifera, an introduced species. The range of some native species is likely to be less, although overseas studies on tropical native bees have shown that some species may range over very much longer distances. (Apis mellifera acts as an opportunistic pollinator of some native plant species, but can also act as a nectar robber, and feral, as distinct from hive, bees may compete with native arboreal mammals and birds for use of tree hollows).
Although the guidelines refer to movement of individuals and exchange of genetic material across the boundary of the study area 'which can be clearly demonstrated', the exchange of genetic material is not easily demonstrated, although it might be inferred. Movement of individuals would require observation of known (marked) individuals across the boundary, which would be easier for some taxa than others (for small pollinating insects it will be difficult to mark let alone follow). To test for exchange of genetic material will not generally be practical. However, it may be easier to demonstrate the converse - that there are either existing barriers which would limit the exchange of genetic material, or the proposal would create a barrier to the exchange of genetic material.
The concern about limited gene flow is obviously applicable to individual species, but harder to apply to ecological communities where several pollination or seed dispersal vectors may be in play and loss of one may be substituted for by another with little overall effect on community structure and function.
It is also important to recognise that the range of movement will vary between species. Grey-headed flying foxes (GHFF) are important pollination vectors, and also distribute fruit and seeds. Pollination by GHFF is potentially important in CPW, but seed dispersal, although important for rainforest plants, is not likely to be as relevant. As was referred to by both Drs Ambrose and McLean, nightly flights by GHFF could be tens of kilometres, so if GHFF is the focus of attention the relevant area for consideration could be much greater than a 5 km radius. On the other hand, pollinating insects for some understorey species might have ranges in the tens of metres. Seed dispersal by ants is likely to be in the order of metres, but over successive generations gene flow over longer distances within similar habitat might occur, but dispersal by ants over long distances across different habitats is possibly less likely. How species perceive the environment will vary between species and the interpretation of spatial pattern by some species may differ from what is perceived by humans. Statements interpreting connectivity in the environment often, even if subconsciously, reflect human biases.

Cumulative impacts

I communicated with the parties about the issue of assessment of cumulative impacts as this had been raised as a concern by the experts, particularly Dr McLean. Unfortunately, although an email had been sent by the Court to both parties, it was apparently not brought to the attention of Mr Simington. Mr Tomasetti helpfully provided a bundle of literature on the topic and addressed the issue in his submissions. The documents were given the identifier MFI1 and were not evidence in the case but were informative material of how the issue might have been approached elsewhere.
Cumulative impacts may be distinguished from the direct and indirect effects of the proposal itself (R Clark, "Cumulative effects assessment: a tool for sustainable development" (1994) 12 Impact Assessment 319-331).
It is generally acknowledged that the present conservation status of many species and ecological communities globally reflects years, often centuries, of human impacts. The outcome of the impacts is a consequence, but was not necessarily the intention, of many actions. It can also be acknowledged that not all species and communities have declined; some have benefited from human activities, most obviously in the case of introduced species, but also some native species. In eastern Australia, one native species which has benefited from human modification to its habitats is the noisy miner, a bird species present on the site, as was noted by both Drs Ambrose and McLean. However, there would be acceptance that more species and communities have suffered adversely from cumulative impacts than have benefited.
The CERS for the SIS prepared by the Applicant required cumulative impacts to be addressed.
Despite recognition of the importance of cumulative impacts going back for more than 50 years, Mr Tomasetti observed that discussion in the academic literature of how the issue should be considered in planning processes appears, from the material included in MFI1, not to have advanced greatly over the past 25 years. From my own, not exhaustive, reading, I would agree.
Cumulative impact is not a term defined in either the EPA Act or in the Environmental Planning and Assessment Regulation 2000, nor to my knowledge in any other NSW legislation.
However, there are a limited number of overseas examples of definitions which provide some assistance. For example, at the Federal level in the USA, the Electronic Code of Federal Regulations (August 2019) defined "cumulative impact" as: Ҥ1508.7 Cumulative impact. 'Cumulative impact' is the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (federal or non-federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time…" (https://gov.ecfr.io/cgi-bin/text-idx?SID=c655ce5197770296c5638f1c62b9dc6e&mc=true&node=se40.37.1508_17&rgn=div8 accessed on 12 August 2019)
The current version of the California Environmental Quality Act Guidelines (December 2018) discusses how the concept of cumulative impact is applied in assessment. Ҥ 15064. Determining the Significance of the Environmental Effects Caused by a Project … … h)(1) When assessing whether a cumulative effect requires an EIR, the lead agency shall consider whether the cumulative impact is significant and whether the effects of the project are cumulatively considerable. An EIR must be prepared if the cumulative impact may be significant and the project's incremental effect, though individually limited, is cumulatively considerable. "Cumulatively considerable" means that the incremental effects of an individual project are significant when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects. (2) A lead agency may determine in an initial study that a project's contribution to a significant cumulative impact will be rendered less than cumulatively considerable and thus is not significant. When a project might contribute to a significant cumulative impact, but the contribution will be rendered less than cumulatively considerable through mitigation measures set forth in a mitigated negative declaration, the initial study shall briefly indicate and explain how the contribution has been rendered less than cumulatively considerable. (3) A lead agency may determine that a project's incremental contribution to a cumulative effect is not cumulatively considerable if the project will comply with the requirements in a previously approved plan or mitigation program (including, but not limited to, water quality control plan, air quality attainment or maintenance plan, integrated waste management plan, habitat conservation plan, natural community conservation plan, plans or regulations for the reduction of greenhouse gas emissions) that provides specific requirements that will avoid or substantially lessen the cumulative problem within the geographic area in which the project is located. Such plans or programs must be specified in law or adopted by the public agency with jurisdiction over the affected resources through a public review process to implement, interpret, or make specific the law enforced or administered by the public agency. When relying on a plan, regulation or program, the lead agency should explain how implementing the particular requirements in the plan, regulation or program ensure that the project's incremental contribution to the cumulative effect is not cumulatively considerable. If there is substantial evidence that the possible effects of a particular project are still cumulatively considerable notwithstanding that the project complies with the specified plan or mitigation program addressing the cumulative problem, an EIR must be prepared for the project. (4) The mere existence of significant cumulative impacts caused by other projects alone shall not constitute substantial evidence that the proposed project's incremental effects are cumulatively considerable." (at 10-11)
Cumulative impacts can arise in relation to many aspects of the environment as has been considered in a number of decisions in this Court, most recently in Gloucester Resources Ltd v Minister for Planning [2019] NSWLEC 7 where Preston CJ discussed noise (at [38]) and visual effects (at [214]) were discussed.
Mr Tomasetti (submissions p 36, par 151) cited the approach to cumulative impacts taken by the Federal Court of Australia. In Tarkine National Coalition v Minister for the Environment (2015) 233 FCR 254; (2015) 208 LGERA 379; [2015] FCAFC 89 (Tarkine) where Jessup J analysed the approach to cumulative impact required by the EPBC Act. Mr Tomasetti concluded from Jessup J's discussion (particularly at [43]) in Tarkine that the EPBC Act: "did not require the Minister to take into account present and future cumulative impacts. Existing and past impacts arising from natural effects or third-party actions form part of the baseline state for considering cumulative impacts, but the Minister is only required to take account of the consequences arising from the proposed action itself. This does not include consequences of third-party actions which are not substantially caused by the proposed actions".
A proponent of the particular action will not necessarily know about actions contemplated by other parties, either now or at some time in the future. In this matter, the CERS required consideration of cumulative impacts that might arise, directly or indirectly from the proposal itself, and thus did not require consideration of hypothetical future development.
The question of consideration of cumulative impacts arose in BT Goldsmith Planning Services Pty Limited v Blacktown City Council [2005] NSWLEC 210 (BT Goldsmith) where Pain J rejected what she referred to at [80] as the 'Quantitative Approach' - 'that the percentage to be cut down is so small' given the remaining extent of CPW, and at [81] said: "81 Given that a high proportion of the remaining CPW identified by the NPWS 2002 Maps is in fragmented patches of varying degrees of quality, this approach in the context of threatened species conservation legislation is not helpful in achieving the objectives of the TSC Act. The understanding of the highly fragmented distribution of CPW gained from viewing the NPWS 2002 Maps is reinforced by data supplied by the Threatened Species Unit of the NPWS as summarised by Dr Robertson at par 35 above in relation to Shale Plains Woodland. Apart from determining that an area is small, medium or large, whether it is a tiny fraction of the remaining CPW does not appear to progress the conservation objectives of the TSC Act at all if the conservation value of the area is high. Most patches of CPW inevitably will be a tiny fraction of the regional whole. Well over half are likely to be 7ha or less applying the table obtained by Dr Robertson from the Threatened Species Unit of the NPWS concerning Shale Plains Woodland. This site together with Timbertop Reserve is arguably of reasonably large size when viewed on a regional distribution basis of CPW areas."
Her Honour considered cumulative impact at [89]-[90]: "89 The list of matters in s 5A which I must take into account when considering s 78A(8)(b) of the EP&A Act is not exhaustive. One matter not specifically identified in s 5A raised with the parties by the Court is the extent to which the cumulative impact of clearing of CPW can be taken into account in determining whether there is likely to be a significant effect on the CPW resulting from a single clearing event at one site. The Applicant argued that the wording of s 78A(8)(b) means that the decision as to whether an event is significant can only be made in relation to the single event before me and that cumulative impact cannot be taken into account. While not adopting the argument that cumulative impact is relevant, the Council's counsel argued that the objects of the TSC Act clearly suggest that such an issue could be relevant. 90 The difficulty with assessing cumulative impact is often that no single event, be it clearing or another threatening process, can be said to have such a significant impact that it will irretrievably or significantly harm a particular habitat or endangered ecological community. In the case of CPW, which is now highly fragmented, it is the cumulative impact of clearing which has caused it to be listed as an endangered ecological community. The Applicant's counsel argued that legislative action was necessary if cumulative impact was to be assessed under s 5A as this involved a policy change which required legislative amendment to implement. I reject that submission as I consider the broad discretion I have under s 78(8)(b) of the EP&A Act in light of the objects of the TSC Act does mean that taking into account cumulative impact is a relevant matter. By rejecting the quantitative approach as I have done above in par 80 - 82 above I have essentially dealt with one important aspect of a cumulative impact assessment. Arguing that a single site is a tiny percentage of what remains is really an argument which fails to acknowledge cumulative impacts."
The Applicant in the present case accepted that BT Goldsmith at [90] was a statement of general relevance (Mr Tomasetti in submissions at par 172), but continued at par 173: "173. However, just because the total impacts of all development on CPW are threatening its survival does not mean that every incidence of development has an equally significant contribution to the cumulative effect. That is, Pain J was not saying that once cumulative impacts are taken into account all removal of CPW no matter where situated, and no matter what its condition and importance as habitat, is unacceptable. 175. In this case the conclusion by Drs Clements and Ambrose accepts that the removal of a small quantity of CPW is acceptable. (a) The site is not identified as significant habitat or foraging land for any threatened fauna; (b) The bushland is situated on the extreme edge of the eastern reaches of bushland associated with the Western Sydney Parkland such that residential development along the western edge of this site will not fragment the larger contribution to the community. (c) The site is degraded and impacted upon by processes which are unlikely to cease unless and until there is a positive change initiated by a development such as that now proposed. (d) The positive benefit of securing and improving 0.8 hectares of land as an eastern edge to this area of bushland through a Conservation Management Plan of appropriate duration will acceptably ameliorate the [loss] of the bushland removed. (e) There will remain substantial areas of CPW in the immediate locality, particularly in public ownership, which render the removal of the bushland proposed which diminish the significance of the vegetation which will be removed."
The case law in Australia and the CEQA Guidelines indicate that it is the incremental effect of the additional impacts of the proposal under consideration that are to be assessed when cumulative impact is considered. The additional impacts of the current proposal are, as argued by the Applicant's ecology experts and Mr Tomasetti, small. However, there will come a stage when the addition of further impacts will result in crossing a threshold so that the cumulative effect becomes too great for the sustainability of the species or ecological community concerned. Unfortunately, the state of ecological knowledge is such that in many circumstances the tipping point may only be identified retrospectively.
If it is not reasonable to expect a proponent to anticipate the unknown unknowns and assess the potential cumulative impact of speculative future proposals on species or communities, how can the issue of cumulative impacts be addressed?
For species and communities, many future impacts will arise as a result of Key Threatening Processes. Both State and Commonwealth environmental legislation permits the listing of Key Threatening Processes, which may trigger the development of Threat Abatement Plans. However, many listed Key Threatening Processes have not, as yet, generated Threat Abatement Plans. Whether a proposal includes or will promote a Key Threatening Process is something to be considered as part of impact assessment, but there are few examples of where the occurrence of a Key Threatening Process has played a determinative role in development applications.
Another avenue to address Key Threatening Processes and cumulative impacts is through the recovery planning process for threatened species and communities (recovery planning does not address, except collaterally, conservation of the majority of biodiversity which is not formally listed as threatened). There is an approved recovery plan for the Cumberland Plain (Department of Environment, Climate Change and Water (2011) Cumberland Plain Recovery Plan DECCW, Sydney) (Ex E). This plan aims 'to provide for the long-term survival and protection of seven threatened species, four endangered populations and nine threatened ecological communities' - one of which is CPW. The plan is guided by a number of principles, including 'that the protection and management of large, intact remnants is more effective and efficient than for smaller fragmented remnants'. In consequence, the plan identifies Priority Conservation Lands (PCL). The subject site is not part of an identified PCL. The Applicant and its experts stress the importance for CPW conservation of the Western Sydney parklands which include a number of PCLs. Parts of the Western Sydney parklands are relatively close, and to the west, of the subject site, and the site is also reasonably close to one of the largest stands of CPW at Prospect Reservoir to the southwest.
While the PCLs occupy about 40% of the total area of bushland on the Cumberland Plain, they represent only a small fraction of the number of sites. There are a very large number of small sites of Cumberland Plain (including CPW) vegetation. These small stands have, collectively, important roles in the landscape (and individually may be important for individual species) and may form part of a network of stepping stones providing conductivity through the landscape (for some species). While priority is given to PCLs, it does not follow that all remaining stands have little value. The value of stands of CPW needs to be assessed on a case-by-case basis. I agree with Mr Tomasetti that there is no requirement that every single example of CPW has to be saved and that there will be situations where loss of individual stands can be justified.
The Cumberland Plain Recovery Plan is an important framework document which sets a large number of targets for managers (including for local government) but it is not a document that was intended to address planning issues of the sort generated by the development application and each application has to be considered on its own merits.

Alternatives

In assessing the proposal, it is a requirement to consider alternatives. A number of alternatives have been suggested:

Do nothing

The ecological experts were in agreement that maintaining the status quo and continuing the existing management practice of regular slashing would result in a continued loss of the ecological values and integrity of the site. Mr Simington, in his submissions at pars 41-42, argued: "41 However, the slashing of the CEEC understorey is unlawful under the Biodiversity Conservation Act 2016 without an appropriate defence. The fact that a council officer may in the past have inappropriately issued an order requiring slashing does not overcome the provisions of the Biodiversity Conservation Act 2016 which prohibits it. 42 The Court cannot assume an unlawful state of affairs will persist. In a similar context Moore SC rejected reliance being placed on an unlawful activity to sustain an objection to the refusal of an otherwise lawful application: Bailey v Oberon Shire Council [2006] NSWLEC 815 at [51]. The proposition that the Applicant will either carry out such slashing or permit 3rd parties to do so is inappropriate. The Applicant is able to fence the land if necessary. Dr McLean gave evidence of his observation of regrowth despite any slashing that may have occurred. Dr Clements accepted in oral evidence that there was regeneration (notwithstanding that she downplayed it by saying that it was not 'widespread')."
The management of those parts of the Council reserves containing CPW, if not otherwise authorised, may also be unlawful.

Alternative layout

The alternative discussed in the SIS was restricted to a proposal that the development be restricted to the western part of the site, along Denis Winston Drive, incorporating the R2 land at the western end of the proposed Lot 31. This was an option which had been advocated for by the Council during the rezoning application and had been rejected by the Minister. The alternative proposal would involve removal of a smaller area of CPW than the proposal the subject of the application.
In her evidence in Court, Dr Clements argued that the western alternative would result in decreased connectivity between CPW remnants on either side of Denis Winston Drive. However, the proposal for which consent is sought has an area of R2 land in proposed Lot 31 between the E2 land and Denis Winston Drive. This area will remain in the ownership of whoever owns Lot 31. Any consent will run with the land, and although the Applicant states that it has no intention of developing the piece of land at present, and that were a development proposal to be advanced, it would be subject to rigorous scrutiny, there is no indication of what might be proposed in the longer term, nor certainty that the land will always remain in its current ownership. There can be no certainty that the claimed advantage of the current proposal over the alternative in terms of conductivity will be maintained.
Mr Simington very briefly mentioned another alternative (submissions at par 44) which had been suggested by one of the resident objectors, Mr Wilson, at the start of the s34 conference. This is to establish the site as a biobanking site; Mr Wilson suggested that there may be demand for availability of biobanking credits to offset losses arising from the construction of Badgerys Creek airport. No details were developed by either the Applicant or the Respondent, so I am unaware of whether there would be a demand, or whether the economic benefits to the Applicant would be sufficient to make the idea attractive. In consequence, I cannot give any weight to this alternative.
However, Mr Tomasetti did raise biodiversity credits when questioning Dr Clements: "TOMASETTI: Then would this type of parcel of land, if it were successfully supporting CPW, form an appropriate parcel to, in the future, under legislation that doesn't apply at this stage to this application, be appropriate for getting credits on? WITNESS CLEMEN[TS]: Yeah. You'd go and credits on it, and you'd get credits for today, and then it would be worth more credits as time passes by." (Tcpt, 10 April 2019, p 66(35-41)).
The discussion of alternatives between the ecologists took place before the VPA was withdrawn, so was based on an assumption that funding would be available to be applied to improve management of the Council reserve land. If Council reserves continue under their existing management regime, then the improvement in the condition of CPW remaining in Council control anticipated by the ecology experts might not occur.

The Conservation Management Plan

The Applicant proposes a Conservation Management Plan (CMP), which given the proposal before the Court would apply only to the E2 land within proposed Lot 31.
The full CMP appears as Exhibit 7, Attachment 5. A useful summary of the essential elements of the CMP is provided in Mr Tomasetti's submissions at par 116(b)(i). "1. The Court can be satisfied that the proposal is designed, sited and will be managed to minimise any significant adverse environmental impact because: a. The entirety of the land that is zoned E2 Environmental Conservation is to be conserved; b. The CMP will apply to part of Lot 31. Conservation works in accordance with the CMP attached to the Joint Ecology Expert Report (Attachment 5) will be carried out as a condition of development consent. The CMP provides: i. Prior to construction works and conservation works: 1) Areas with rehabilitation assets will be identified for suitable reuse; 2) Sufficient suitable tube stock, seed, brush matting and or mulch material will be available for conservation area; 3) Conservation area will be clearly identified on maps and on the ground; 4) Perimeter fencing around conservation lot will be in place until shrub plantings are 1.5m tall; 5) Sediment fencing will be used where required; 6) Perimeter plantings to be undertaken on edge of conservation zone to protect from weed invasion and nutrient, sediment and water runoff. The species to be used are pioneer species listed in the CMP; 7) Rubbish to be removed from the area where Council constructed the concrete head wall and dug a drainage canal with native species and shrubs in the area to be carefully relocated; and 8) Weed control works that are designed to reduce the amount of herbicide that is needed to be used. ii. Natural soil levels in rear residential gardens will be retained - 10m wide area of retained native canopy tree species. iii. Prior to and during works: 1) Nurseries and nursery stocks will be inspected; and 2) Cleanliness onsite and adherence to nursery and bush generation protocols. iv. After works: 1) Piped stormwater runoff will be treated through a treatment train comprising a series of ponds. v. The CMP will be provided to the owners of the dwellings that adjoin Lot 31. vi. Monitoring, maintenance and reporting is to occur on a regular basis for at least 3 years. Monitoring reports are to be distributed to the relevant authorities. c. Within the Site, local native trees will be retained on insitu soils in the rear gardens. Local native trees will be retained in an approximately 10m wide strip; d. The buffer and the landscaped perimeter reduce the edge effects of the surrounding developments and the Council reserve on the conservation part of Lot 31; e. Litter trap/s in the street drain can be installed to reduce the gross pollutants entering the stormwater system at the source; f. Residential dwelling adjoining Lot 31 have a "front of house" design to the Environmental Conservation zoned land to promote the protection of the environment; g. Landscaping plans have been prepared by a qualified landscape architect to incorporate retention and planting of native canopy tree species aimed at supplementing the ecological contribution of the 0.8 hectares of CPW preserved within the Environmental zoning; h. The CMP will be enforced by registered covenant for the minimum period of 3 years necessary to secure and enhance the ecology of the CPW. The Applicant's expert told the Court that a period of 3 to 5 years is usually sufficient for neighbours to embrace the conservation area. The CMP involves engaging with the surrounding community to make them aware of the proper management of the land, including by erecting educational signage. i. The Site should be fenced with a simple strained wire fence." (citations omitted)
The ecology experts agreed that it would be appropriate to introduce the Cumberland Land Snail to the site. No specimens of this endangered species had been located during the surveys but there was suitable habitat present, and as the species is hermaphrodite, only a small number of individuals could potentially establish a viable population. The Applicant did not oppose the suggestion.
The reference in (b)(i)1 to 'rehabilitation assets' applies to features such as relatively 'weed free topsoil and tree trunks which might be relocated from areas which are developed and reused' in the E2 zone (submissions at par 108(b)(ii)).
Dr Clements was questioned by Mr Tomasetti about the CMP. "TOMASETTI: The proposal then is that that 8,006 square metres of E2 land will remain in the ownership of the applicant and managed in accordance with your conservation management plan. WITNESS CLEMEN[TS]: Yes, that's correct. TOMASETTI: The term of management in the plan was put to you as being for three years, but as I understood it, it was for a minimum of three years, wasn't it? WITNESS CLEMEN[TS]: It's at least three years. I have annual targets that need to be met, and at the end of meeting your annual target, which may take you a year, it may take you a bit longer, then you move into that next year and you have to achieve your targets for the end of that year, so for at least three years, you will be having targets set for you, and by the time you've got to the third year target, you've got a really low weed concentration on your land, you're getting good veg cover, and there's a much higher resilience of the land, so less chance of reverting back to a weed patch. TOMASETTI: The council is proposing that this management of the E2 land be extended for a 20 year period. Do you think that necessary? WITNESS CLEMEN[TS]: If you have done what you need to do within the conservation management plan, you've worked your neighbours and they're conservationally aware to have professional care and monitoring to achieve a pretty low weed concentration, that's sufficient, because you effect occasionally you will have a ongoing management will go through, but that will be, you know, done by the local residents or and that's what I'm seeing in parts now. TOMASETTI: Does your plan contemplate any educational signage to with in mind objects that three and four of the Cumberland Plain Recovery Plan? WITNESS CLEMEN[TS]: Of course you do. It's very important to signpost it, and quite often on sites which I work on, I do a flyer to the neighbours so the neighbours know what's going on and they're aware and I work with the neighbours. It's really important to have a community involvement if you're doing conservation works." (Tcpt, 10 April 2019, p 65(3-40))
There is a long history, going back over 50 years, of various groups of concerned and enthusiastic citizens (not necessarily neighbours) carrying out management activities in the form of bush regeneration in parts of Sydney. However, the sites worked upon are generally either Council land or some other form of reserve, with the relevant authority providing organisation, and frequently funding (for tools, herbicides and planting stock).
Dr McLean gave evidence that volunteers do work in bushland areas and said that they were about 12 such groups in Blacktown, and that because of licensing requirements, there was a requirement for a Council staff member to attend to the volunteers. As the E2 land is CPW, and a CEEC, there would need to be a licence from OEH for work to occur. I am aware that licenses can operate in an umbrella fashion, under which, following induction, volunteers could operate under the licence holder's supervision; the alternative would be that each individual volunteer would be required to be licensed.
Dr McLean suggested that most volunteer groups in Blacktown only had a small number of members, and that for some activities, like initial weed removal, it would be more efficient to employ paid staff with specialist knowledge, and the value of volunteer groups was more through community education and engagement.
If consent were given for the development application, the parties differed on the form of the condition specifying the CMP.
The Council proposes condition 2.7.3: "2.7.3 The Applicant shall prepare a Conservation Management Plan for the entirety of Lot 31 to the satisfaction of Council providing for a program of works to be carried out by the owner/s of the residential lots to recover, conserve and maintain the native flora and fauna on proposed Lot 31 for a period of 20 years from the date of issuing of the construction certificate."
Council also considered that the scope of the CMP should extend beyond the E2 land. "[Council does not agree that the CMP should be confined to the E2 land only. In this regard, Anne Clements emphasised in evidence on more than one occasion that the whole of Lot 31, and not merely the part zoned E2, should 'go into conservation' and be the subject of a CMP]"
The Applicant proposed a competing version of condition 2.7.3: "Conservation Management Plan 2.7.3 The Applicant shall prepare a Conservation Management Plan for that part of Lot 31 zoned E2 Environmental Conservation to the satisfaction of Council providing for a program of works to be carried out by the owner/s of the residential lots to recover, conserve and maintain the native flora and fauna on proposed Lot 31 for a period of 5 years from the date of issuing of the construction certificate. [The Applicant has already incorporated Council's request to include the remaining undeveloped part of the site that is zoned R2 Low Density Residential into Lot 31 so that it cannot be developed without careful assessment of any impact on the CPW. There is no present proposal to develop any part of that lot, but there are cleared areas within Lot 31 outside the E2 zone which might accommodate some form of residential development while potentially retaining the mapped CPW. If an application is made for such a development in the future, it would be subject to rigorous environmental assessment having regard to the mapped community. The Council's planning proposal to zone the subject area E2 Environmental Conservation was rejected by the Department of Planning. Instead, the land retained its R2 Low Density Residential zoning.]"
The Council considers that the CMP should operate for 20 years, the Applicant contends for five years. Dr Clements in the CMP discusses stages of activities required; in general terms, she equated stages to years, but indicated that depending on circumstances (such as drought), achievement of a particular stage might take longer. To allow for this, the Applicant has proposed the five year life of the CMP.
The proposal is for Torrens title subdivision, so that unlike a Community Title scheme there would be no formal body responsible, or be a representative of, the individual owners. The E2 land will remain in the ownership of the current Applicant or any successor company.
The 30 residential properties, which could be owner occupied or tenanted, would be new. They are likely to be mostly occupied by people new to the area, and each other, who would not necessarily have any interest in or experience of bushland. There are also critical issues in modern society of time pressures - the reason for the small number of active members in groups mentioned by Dr McLean was not discussed in any detail, but a lack of time and availability rather than lack of enthusiasm may be factors.
Of the 30 residences, only 15 would directly abut the E2 land. Mr Tomasetti stressed, in his submissions, that the design of the development was such that for the 15 residences, the bushland would be 'front-of house' and that this would be attractive to purchasers, and also encourage 'ownership' of the bushland and lead to surveillance by the residents to help minimise unauthorised access and vandalism. 'The development was design to avoid, minimise and mitigate any signify adverse environmental impact of the development….' for reasons including that 'The design of the residences uses front of house design to reduce edge effects.' (Mr Tomasetti's submissions at par 108).
Dr Clements (Tcpt, 10 April 2019, p 18(40-44)) said: "WITNESS CLEMEN[TS]: Yes. That's why you have community - you increase your community involvement in it so they appreciate the conservation, and most of the things - conservation areas we now see being managed, they're managed by the community as time passes by, but initially they need to be managed by professional bush regenerators." and went on to say (Tcpt, 10 April 2019, p 19(24-28)): "WITNESS CLEMEN[TS]: Having worked with these groups for a long time, I can tell you now some of the best work is done after the site is in good condition, and people walk through the site and go, "Look at that. There's a weed there" and they pull it out and take it away, but they're made aware of it. That's why you have a community awareness program."
As I read the CMP and the evidence, responsibility for carrying out the works would reside with the Applicant, who would presumably engage and manage the necessary contractors. After five years (in the Applicant's proposal), the CMP would come to an end; the E2 land would remain in the Applicant's ownership but any continuing management would be by the residents.
Dr Clements did not specifically identify those sites where the approach of involving neighbours in ongoing management had been successful. I do not doubt that there are such, but how translatable to the Doonside site are those other examples? Were they the same ecological community (CPW), were they threatened ecological communities, and if they were, how were the regulatory requirements for working in threatened communities addressed, what is the nature of the human community involved, and how has management proceeded after the initial three to five years?
The Applicant proposes that only that part of Lot 31 zoned E2 be the subject of the CMP, the Respondent that the whole of Lot 31 be the subject to the CMP. The Respondent points out that Dr Clements indicated on a number of occasions a preference that the CMP encompass more than just the E2 land (including that management in adjacent Council land would also be desirable).
Community awareness programs will be essential (and presumably multicultural programs be necessary). The CMP provide details of what is required, but for persons with no prior experience in bush management more information would be needed. Dr Clements stressed the importance of community awareness and that information and interpretive material would be prepared, but will these continue to be available and updated beyond the end of the CMP?
The CMP requires perimeter fencing to be in place until the shrub plantings are 1.5m tall. When they are sufficiently tall, the fence might be removed, but there would still be a need for a fence on the boundary of the E2 land and to prevent unauthorised access. To this end, there is a requirement in the CMP for a simple strained wire fence. It is not clear whether this would be the original fence or a new structure.
The CMP requires that "Monitoring, maintenance and reporting is to occur on a regular basis for at least 3 years. Monitoring reports are to be distributed to the relevant authorities". The Applicant, in its proposed version of the conditions of consent, has extended the life of the CMP from 3 to 5 years, so presumably the monitoring would extend for a similar period. However, if after 5 years the report does not show that the E2 land is in the desired condition, there would need to be wording in the conditions of consent to provide for continuing rehabilitation with ongoing monitoring. Whom the relevant authorities are is not stated. As the community is a CEEC and approval to carry out work will be required, the licensing authority might impose conditions differing from, or in addition to, those in the conditions of consent.
Bushland management is necessarily a continuing activity. It would be the hope that, as the condition of the vegetation improved, there would be a decline in the need for active interventionist management, but continued monitoring will be required to determine the level of management required.
The Applicant's expectation is that after the end of the life of the CMP (be it 5 or 20 years) bush management would be the responsibility of the neighbours. This would require some sort of organised structure with a mechanism for making decisions. Dr Clements, in her oral evidence, discussed the role of neighbours but gave no indication of how the neighbours would be organised and what sort of long term reporting will be needed.
The idea that a neighbour might see a 'weed' and remove it implies that neighbours will have access to the E2 land. However the land is to be fenced. Is there to be a gate providing access? Any such gate would need to be secured, who would have the key? What certainty could there be that what was plucked was indeed a weed, and if it were a weed that it would be correctly disposed of? Dr Clement's comments in relation to this issue imply that at least part of the long term management would be carried out on an opportunistic ad hoc basis.
I agree with Mr Simington's submissions that there is uncertainty about the effectiveness and appropriateness proposed in the CMP of the management of the E2 land, and the long term regime which would be in place in the long term. Even if there were an appropriate arrangement for the enhancement and then protection in perpetuity of the E2 land, it is difficult to see that the protection of a patch less than a hectare adequately compensates for the loss of double the area of CPW on that part of the site which will be developed.
The neighbours are prospective; even if the development application is approved, the dwellings would not be complete for some time. At this stage, nothing can be known about the identity of the eventual occupants. The proposed conditions of consent referring to the CMP, which is to run for 5 years if the Applicant's position is adopted, or 20 years if the Respondent's version is preferred, do not address management thereafter, despite Dr Clements assumption that the neighbours will care for the bushland in the longer term.
Even if it were possible, which I doubt, I would not impose a condition creating obligations for the future on the occupants of either all of the residences of the development or only on the residents on the 15 lots directly abutting Lot 31.

Other ameliorative measures

In addition to the CMP, a range of ameliorative measures was proposed.
One of the ameliorative measures proposed in the SIS (Ex B2 SIS, p 205) is: "9.3 Roadside and residential planting to include native canopy trees Eucalyptus tereticornis."
This was very strongly supported by Dr Clements (Tcpt, 10 April 2019, p 67(16-21)).
E.tereticornis is an important canopy tree in CPW and its flowers are an important resource for a number of fauna species.
However, in the without prejudice conditions of consent, one of the conditions about which there is no disagreement between the parties deals with street trees: "2.7.5 Street Trees 2.7.5 Landscape Plans LDA-01, LDA-02, and LDA-03 are to be amended as follows: (i) trees planted along the frontage of the development with Denis Winston Drive are to be [Lophostemon confertus]; (ii) all trees planted along the road marked 'new access driveway' are to be either [Lophostemon confertus or Pyrus calleryana]." (with corrections to spelling of species names)
Lophostemon confertus, brush box, is a native species, but one whose natural southern limit of distribution is several hundred kilometres north of Sydney. It is a tree of rainforest/sclerophyll forest transitions and can grow to a very considerable height. There is a long history of its planting as an amenity tree in Sydney, but street trees planted in Sydney are rarely of a good shape, due to the need for pruning to avoid utility wires, I am unaware of any evidence that it has the propensity to spread into nearby bush.
Pyrus calleryana is native to southern China and Vietnam. It is a flowering pear which has become a favourite tree for planting in warm temperate parts of the world. In the North American context, it has been identified by Jil Swearingen et al, Plant Invaders of Mid-Atlantic Natural Areas (4th ed, 2010, National Park Service and U.S. Fish and Wildlife Service, Washington, DC) as an invasive species in natural areas. It has a longer, more widespread planting history in America than in Australia, and I am not aware of any reports of it invading bush in Sydney. Nevertheless, in view of the American experience, I would be cautious about planting this species near high conservation value bushland, and were consent to be granted, I would require that condition 2.7.5 be amended to exclude the use of Pyrus.
Also as an ameliorative measure, in the developed area, CPW trees are to be retained in the gardens of sites on the southern side of the development and in the buffer zone. Trees in urban areas are important, but much of the floristic diversity of CPW is in the understorey and ground layers. In addition, the life of trees in urban settings is uncertain and legal protection is not absolute. The environment, even if it is in situ soil, in a garden setting is likely, for native plants, to be stressful. I support the requirement to retain the trees, which have value from an aesthetic and amenity perspective, but the contribution to maintaining conservation values of CPW by retaining the trees will not be high.

Consideration

The decision I am required to make relates only to the proposal before the Court. I am not assessing the proposal against some hypothetical best outcome. Neither am I considering better versions of the proposal. The discussion by the Applicant's ecology experts about including the Council reserves under an extended management plan may have led to a better outcome but is not part of the proposal. (However, the SIS was predicated on more amelioration than was ultimately part of the proposal). What I must decide is whether the proposal in the form before the Court is acceptable, not whether it could be improved. The jurisdictional hurdle to be overcome is that provided by cl 7.2 in the LEP - only if after applying the tests required by cl 7.2(4) I reach the necessary satisfaction, can I approve the development application.
The Respondent's position (Mr Simington's submissions at par 4) is that I must refuse consent as I could not be positively satisfied of the matters in cl 7.2(4) but if I was not of such mind, I could nevertheless refuse consent on merit grounds after considering the matters mandated by cl 7.2(3)(b).
Clause 7.2 applies to land identified as 'Biodiversity' in the Terrestrial Biodiversity Map, regardless of the underlying zoning. The areas of CPW on the site are mapped as 'Biodiversity', but not all of the site is CPW.
Clause 7.2(3)(a)(i) requires consideration of whether the development will have any adverse effects on the condition, ecological value and significance of the flora and fauna of the land. The adverse impacts need not be 'significant adverse impacts' as required in cl 7.2(4). The fauna and flora on the land collectively constitute the ecological community. The site includes CPW, which is a CEEC. The proposal involves clearing of CPW from the northern part of the site where development will occur. The Respondent argues that the clearing of CPW would constitute an adverse impact.
The Applicant made extensive submissions on cl 7.2(3)(a)(i) (Mr Tomasetti's submissions at pars 64-89). The crux of the Applicant's submission is that the current state of the CPW on the site is extremely degraded so that adverse impacts are not great.
In particular, Mr Tomasetti (submissions par 71) urges that Dr McLean's conclusion that the condition of the bushland on the site is moderate to good 'should not be accepted'. I acknowledge that the CPW on the site has been degraded. Nevertheless, applying the definition in the DECC (2008) BioBanking Assessment Methodology and Credit Calculator Operational Manual to Dr McLean's data (in Ex 4), and observations on the site inspection, I consider that parts of the site are appropriately categorised as being in a 'moderate to good condition'.
The critically endangered status of CPW is such that the ecological value and significance of the parts of the land supporting CPW is high. There will be impacts on those individuals of flora and fauna species present in the CPW to be cleared, but whether these constitute 'adverse', let alone 'significant adverse impacts' on the species per se is more difficult to assess. The Applicant argues that there will be no impact on species; Dr McLean suggests that they may be adverse impacts on some micro bat species and on noisy miners (although reduction in noisy miner numbers could be viewed favourably). Noisy miners are not threatened species, as Mr Tomasetti correctly points out (submissions at par 83) - but cl 7.2 applies to all species not just threatened ones, although threatened species could be regarded as more significant.
Mr Tomasetti agrees that the development will result in the removal of CPW from part of the site, but in par 75 of his submissions, argues: "1. Nevertheless, the development will be consistent with the objectives for development in the R2 zone - a recent rezoning by the Minister: BGP Properties." This is true, but cl 7.2 is blind to the zoning, so the fact that the land is R2, and the zoning is recent should not be part of the consideration in cl 7.2. If the jurisdictional test in cl 7.2 is met, then the weight to be given to the zoning would be a relevant consideration in the merits assessment.
Similarly the fact that the proposal includes instituting a CMP for the E2 land (submissions at par 89) does not alter any adverse impacts on other elements of CPW elsewhere on the site, and consideration would be necessary only if a merits assessment were required.

Clause 7.2.3(a)(ii) - any adverse impact on the importance of the vegetation on the land to the habitat and survival of native fauna, and

The Applicant's position (submission at par 90) is that the vegetation is not important to 'the habitat and survival of native fauna'.
The clause is not restricted to threatened species of fauna, nor to taxonomic subsets of the total fauna. The vast majority of the fauna species on the land will be invertebrates, and invertebrates are vital to many ecological processes and as components of the food web. Studies of invertebrates rarely feature in terrestrial environmental assessment of the removal of vegetation yet removal of vegetation inescapably involves the loss of many individual invertebrates.

(iii) any potential to fragment, disturb or diminish the biodiversity structure, function and composition of the land, and

The clearing will constitute a disturbance, but whether it will diminish structure, function or composition is difficult to evaluate and Dr Clements argued that there would be salvage of specimens from cleared areas: "WITNESS CLEMEN[TS]: It's not likely, but also when you do the conservation management ‑ implement the conservation management plan, you go around and you rescue anything that's about to get itself cleared, so that you can put it back into your conversation reserves" (Tcpt, 10 April 2019, p 81(9-11))

Clause 7.2(3)(a)(iv) - any adverse impact on the habitat elements providing connectivity on the land, and

As discussed earlier in this judgment, assessing conductivity may involve different considerations for different species. However, the broad scale proposal involves loss of vegetation in the northern part of the site, but conductivity between the E2 land and the Council reserve to the south will not be affected. Connectivity of the west may already be broken for some species by Denis Winston Drive, but for those species in the E2 land capable of crossing a road the connectivity will remain the same.

Clause 7.2(3)(b) - any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

This requires consideration of the extent to which the mitigation hierarchy has been employed. Internationally, there is widespread acceptance that the appropriate approach to addressing the impacts of proposals on biodiversity involves three stages - avoid, mitigate and offset - with offsetting, being the last resort. The three steps are frequently referred to as the mitigation hierarchy, and must be applied sequentially. (See B J Preston (2016) "Biodiversity offsets: adequacy and efficacy in theory and practice" 33 EPLJ 93 at pages 95-101). A specific example of an analysis of the application of the mitigation hierarchy is provided by Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited (2013) 194 LGERA 347; [2013] NSWLEC 48 at [147]-[255]. The OEH has developed guidelines for practitioners (Office of the Environment and Heritage, "OEH Principles for the use of biodiversity offsets in NSW" accessed 12 August 2019).
In the present matter, the formal scheme now provided in the BC Act for retirement of biodiversity credits is not available, but that would not preclude other arrangements being made between the parties which could have the same effect. Council did not accept the Applicant's proposal of a VPA, and the offer was withdrawn. However, Mr Simington (submissions at par 15) suggested that notwithstanding Council's rejection of the offer of the VPA, the Court was not prevented from accepting the VPA and imposing an appropriate condition 'if it were satisfied that it did satisfactorily address the impacts of the proposal'. Given the offer was withdrawn, it is not appropriate for me to consider whether or not the proposed VPA did satisfactorily address the impacts. It would also have been possible for the parties to have reached an agreement on mitigation measures outside of any VPA, which if reflected appropriately enforceable conditions, may have satisfactorily addressed the impacts. However, no such agreement had been proposed. Dr McLean in Attachment 8 to the ecology joint report (Ex 7) was critical of what was then on offer, which he argued was contrary to Principles 5, 6, 7, 9, 12, of the OEH Principles. Dr McLean's position influenced Council's decision not to accept the VPA. However, given the withdrawal of the VPA, and the lack of availability of a formal offsets scheme it is not necessary for me to analyse Dr McLean's reasons.
Clause 7.2(4) requires that the consent authority be satisfied that at least one of its subclauses is met. Evaluation of the mitigation measures proposed is appropriately part of the consideration required by cl 7.2(4).

Clause 7.2(4) (4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that: (a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or (b) if that impact cannot be reasonably avoided by adopting feasible alternatives - the development is designed, sited and will be managed to minimise that impact, or (c) if that impact cannot be minimised - the development will be managed to mitigate that impact.

Mr Tomasetti (submission at par 108) argued that: "1. There is no significant adverse impact from the development. The development is designed to avoid, minimise and mitigate any significant adverse environmental impact of the development for the reasons set out below: a. Impacts are avoided because: i. The entirety of the land that is zoned E2 Environmental Conservation will be conserved and managed; ii. Only the northern arm of the land that is zoned as R2 Low Density Residential is proposed to be developed, preserving continuity with the Council reserve to the west; iii. The development proposes a buffer to the reserve to the south. b. Impacts are minimised because: i. A Conservation Management Plan has been prepared to control the way in which the development is carried out and control the way in which part of Lot 31 is managed following the development. The CMP should be required to be applied as a condition of development consent; ii. The areas of native vegetation to be cleared on the proposed residential area are rehabilitation assets for re-use in the proposed Conservation Area, including relatively weed free topsoil and biomass as well as tree trunks (see Objective 1 of the Conservation Management Plan, page 7 located in Exhibit 7, Attachment 5); iii. Within the Site, the buffer is to reduce any indirect impacts of the proposed residential development on the proposed Conservation Area; iv. Within the Site, this buffer on insitu soils provides usable private open space, with lawn and retained local native trees, resulting in bushland being front-of house to the adjoining Conservation Area; v. The Site currently suffers from adverse edge effects along its eastern and northern boundaries which abut residential dwellings with fences of around 1.8m high. Dr McLean admits that the edge effects are going to continue into the future. The design of the residences uses front of house design to reduce edge effects. c. Impacts are mitigated because: The Conservation Management Plan will mitigate any impacts of the proposed development, preserving and improving 0.8 hectares of bushland. The bushland will be enhanced and embellished for a registered instrument the duration of which will be fixed by condition and protected into perpetuity by its environmental zoning" (citations omitted)
However, this was not the conclusion reached by the ecology experts (Ex 7) who agreed that the proposal did not avoid significant adverse impact, because of the clearing of the CPW on the R2 land. They did, however, agree about the amelioration measures. At the time the joint report was prepared, the amelioration proposed included an offset component, but this was withdrawn so the amelioration measure before me is effectively the management of the E2 Land.
I find that impacts are not avoided because the majority of the CPW on the site will be cleared to permit construction of the residences and road. The E2 land will not be developed, but, as will be discussed below, the uncertainties over the implementation of the CMP and the management after the CMP is concluded raise doubts about the long-term retention of the conservation values of this land.
The designed minimisation discussed by Mr Tomasetti in submission, at par 108(1)(b)(i)-(iii), may provide some minimisation, but, in my view, is insufficient given the extent of clearing of CPW on the R2 land. The CMP will operate for a limited period and the management in the longer term relies on the actions of neighbours, and there can be no guarantee that they will occur.
The reuse of 'rehabilitation assets' relocated from the R2 land to the E2 land is a measure which should be implemented in some form if consent were granted. However, the proposals are not developed in detail. Dead logs provide habitat for a diversity of biota, and provision of this habitat at an appropriate scale is desirable. Given the relatively young age of most of the existing trees in the E2 land, then any logs relocated may have rotted away before there is equivalent replenishment from the current canopy trees, so the continuity over the long-term of the amount of deadwood habitat is not certain.
The minimisation of impacts by provision of a buffer zone (Mr Tomasetti's submissions at par 108(1)(b)(iii)-(v)) is discussed further below.
Therefore, I cannot not be satisfied that the requirements of cl 7.2(4)(a) are met. This is not of itself fatal, if I can be satisfied in relation to either of cl 7.2(4)(b) or cl 7.2(4)(c).
The Applicant's response on cl 7.2(4)(b) was provided in submissions at pars 109-112: "109. Feasible alternatives are considered by the authors of the SIS at pages 179, 180 and 200 - 202. They state: 'The alternatives to the proposal being considered are as follows: • Restricting the development to the western edge of the subject site (Figure 9a) compared with the proposal in the norther of the subject site (Figures 3a, 9b); and • No development and maintaining the existing management of the subject site with regular slashing / mowing of the understorey and retaining existing trees as required by Council's Order compared with the proposal for a conservation area. … The two alternates considered (to restrict the development to western edge of the subject site, or to not permit development on the subject site) are likely to result in a continuation of the current mowing / slashing of the understorey and reduce the chance of natural regeneration and long-term survival of species and population habitat associated with CPW.' 110. They predict that there will inevitably be significant adverse impacts through continued mowing and slashing of the reserve and the Site even if there is no development. Dr Clements said the Site will continue to degrade and the CPW will become extinct if the current practices were to be continued. 111. Leaving this recently rezoned site (purchased from the State Government for $5 million) undeveloped is not feasible and is contrary to its zoning and the objectives for the use of the land in this zone. 112. Even if there were significant adverse environmental impacts on the land that is zoned R2 Low Density Residential cannot be avoided given the nature of the development that the land zoning and encourages." (citations omitted)
The deleterious effect of maintaining the existing management of both the subject site and the Council reserves was recognised by both parties. I have no power to impose conditions on Council's management regime, but the issue is now firmly identified and it cannot be assumed that management will be unchanged in the future.
Although the proposed development is permissible with consent, the consent authority is not absolved in consideration of the environmental impacts of the proposal and other legislative requirements. Clause 7.2(4) does not provide for different approaches depending on zoning. The clause does, however, establish a barrier which must be overcome before I can have power to grant consent.
Mr Tomasetti argued (submission at par 111) that not developing the site 'is not feasible' and is contrary to its zoning and the objectives of the R2 zone. Not developing the site is, operationally, feasible; it would mean that the development would not occur. From the Applicant's perspective, it would, financially, be undesirable not to carry out the development. Discussion of the zoning objectives and whether the development proposal meets them cannot occur if I am not positively satisfied that at least one element of cl 7.2(4) has been met. The argument in Mr Tomasetti's submission paragraph 112 similarly does not arise if the proposal falls at the cl 7.2(4) hurdle.
The consideration of alternatives was limited, but even if I were to consider that there were feasible alternatives, cl 7.2(4)(b) requires that the development be designed, sited and managed to minimise impact. The design of the development proposes to maintain existing trees in the buffer zone of 10 m from the rear boundary of the residences on the south side of the development. While there are important reasons to retain canopy, the amelioration is limited to the canopy component of CPW and does not address the more species rich understorey component. Retaining the canopy does not mitigate the loss of the area of CPW removed. The long-term management of the E2 land, after completion of the CMP, is uncertain and relies on the assumed goodwill of the neighbours.
The retention of the canopy is a step to 'mimimise' the impact of the proposal. However, the canopy contains only a few tree species, compared with the floristic richness of the understorey and ground layers. This would be true of the majority of forest and woodland communities, with the exception of rainforest. An ecological community is more than just a collection of plants species, and the identity and functioning of the community also depends on the presence of species of fauna and microorganisms. The canopy does support a range of avifauna and invertebrates, but the absence of the understorey and ground layer means that not only will a major component of the flora of CPW be absent, but the fauna and microorganisms which form part of the biota of these lower strata will also be absent. The understorey in the buffer will be lawn (Mr Tomasetti's submissions at par 108(b)(iv)). A lawn may be an aesthetic and amenity contribution to the transition from the residential development to CPW, but will have very limited biodiversity value.
The retention of the canopy trees has merit but is not guaranteed in the longer term. Trees may be relatively long-lived but are not immortal. To retain a canopy in perpetuity will require that there be regeneration. The management of a lawn is unlikely to permit seedling and sapling canopy trees to establish. The survival of the existing canopy trees to the end of the natural life in an urban setting is uncertain, given that if trees present a risk to human safety or may damage built structures there are mechanisms available which could require their removal.
Clause 7.2(4)(b) requires that if alternatives are not viable that the development is 'designed, sited and will be managed' to minimise 'that impact'-'that impact' being 'any adverse environmental impact' identified in cl 7.2(4)(a). Reliance on measures to manage the E2 land does not satisfactorily address the impacts of development on the R2 zoned land.
I am not satisfied that the requirements of cl 7.2(4)(b) can be met.
The case thus hinges on whether I can be satisfied in relation to cl 7.2(4)(c): (c) if that impact cannot be minimised--the development will be managed to mitigate that impact.
Mr Tomasetti (submissions at par 108(c)(i)) argues that the condition of the E2 land will be 'enhanced and embellished' by implementation of the CMP and that the E2 land will be 'protected into perpetuity by its environmental zoning'.
The E2 zoning would not permit any building development. The issue is whether the improved management of the E2 land will result in that land having increased value such that it will mitigate 'that impact' being the loss caused by the clearing of the land to be developed in that the R2 zone. The retention of the E2 land which cannot be developed does not, in itself, mitigate the loss of CPW on the R2 land; any mitigation would only arise from the improved condition of the E2 land.
The management of the E2 land 'into perpetuity' relies on the goodwill and active involvement of neighbours after the finalisation of the CMP. As discussed above, I do not consider that the involvement of neighbours can be assumed, so that even if the proposed management of the E2 land could potentially be regarded as satisfactory mitigation for the loss of CPW on the R2 land, the uncertainty over the achievement of the management objectives for the E2 lands 'into perpetuity' means that I cannot be satisfied that the mitigation of that impact will occur, and thus the requirements of cl 7.2(4)(c) cannot be met.
As discussed above, there is considerable uncertainty as to the effectiveness of the proposed management of the E2 land, but the success of that management is the major mitigation measure relied upon by the Applicant. I cannot be satisfied in relation to the requirements of cl 7.2(4)(c).
Clause 7.2(4) establishes a prerequisite to the exercise of the power of a consent authority to grant development consent to the development application. As the prerequisite is not met I have no power to grant approval and thus is no need to address the heads of consideration in s 79C of the EPA Act (in the circumstances of the case the provisions of the Act in its former form are relevant, and s 4.15 in the current form of the Act is not engaged).
The proposal is in the unfortunate position of falling through a gap in the transitional arrangements between the TSC Act and the BC Act, so that a formal offset regime is not available. However, the likely need for some form of offset has been recognised for some considerable time, and was raised in Dr Ambrose's initial assessment, which was included in the contract of sale for the subject land, and in the considerations of the ecology experts. It was assumed that offsets were required. The withdrawal of the VPA (following the refusal by Council) took the anticipated offsets off the table and no other measures were proposed. Whether the offsets would have been adequate and appropriate to provide sufficient amelioration to surmount the requirements of cl 7.2(4) is a hypothetical question, but the mitigation measures currently proposed are, in my view, inadequate.
As a consequence, the appeal must be dismissed.

Orders

Accordingly, the Court orders that: 1. Leave is granted for the Applicant to rely on the amended plans in Exhibit D. 2. The appeal is dismissed. 3. Development Application No. DA 16-03483 for Torrens title subdivision to create 30 residential lots, 1 residue lot for future development, 1 residue lot for public open space, the construction of 30 dwelling houses, a new public road, stormwater drainage works and landscaping at 35 Denis Winston Drive, Doonside be determined by refusal. 4. The exhibits may be returned, except for Exhibits 1, 4, 7, B1, B2 and D.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 August 2019

(2004) 138 LGERA 237

(2013) 194 LGERA 347

(2010) 210 LGERA 126

(2005) 208 LGERA 379

(2015) 208 LGERA 379

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (22 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (14)

Cited By (5)