Statewide Planning Pty Ltd v Blacktown City Council

Issues

1. Despite the amendments and provision of additional information, the Respondent maintains the development application warrants refusal, primarily as a result of the biodiversity impacts of the proposal. Specifically, the Respondent contends: 1. The proposal will have a serious and irreversible impact on CPW, and consent must be refused under s 7.16(2) of the BC Act. 2. The development application fails to take appropriate and sufficient steps to avoid or minimise impacts to the biodiversity values of the land. 3. That in assessing the biodiversity impacts arising from the development pursuant to cl 7.2 of the Blacktown Local Environmental Plan 2015 (LEP 2015) the Court would conclude that the development warrants refusal (subcl (3)) and/or would conclude that the precondition is not satisfied (subcl (4)). 4. That the Court should not accept the Applicant's requested reduction in the number of biodiversity credits required to be retired. 5. That having regard to the impacts on terrestrial biodiversity arising from the development, the site is unsuitable for the development proposed. 6. That the Applicant has not provided sufficient clarity as to the mechanism proposed for the long-term responsibility and management of Lot 31 and 32 (lots for environmental preservation). In the absence of clarity there is a lack of information that is sufficient to assess the likely impacts on biodiversity values arising from the development.

The Site

1. Under LEP 2015 the subject site is zoned in part R2 Low Density Residential and part E2 Environmental Conservation. An extract of the zoning map is provided below: Figure 1: Zoning Map extract (https://www.planningportal.nsw.gov.au/spatialviewer/)
2. As can be seen in the following aerial plan, the site has an irregular shape and is bounded to the west by Denis Winston Drive. To the north and east it borders existing low-density residential development of a mix of single and two storey dwellings. To the south of the site is an existing Council Reserve (No. 739) which is zoned RE1 Public Recreation under LEP 2015. A further Council reserve (No. 738), also zoned RE1 Public Recreation is located across Denis Winston Drive to the west of the site. Figure 2:Aerial Imagery extract (https://www.google.com/maps/place/35+Denis+Winston+Dr,+Doonside+NSW+2767)
3. The site is partially mapped as Terrestrial biodiversity under LEP 2015 as it contains vegetation identified as CPW. An extract of the mapping in LEP 2015 is provided below: Figure 3:Extract of the Biodiversity Map under LEP 2015 (https://www.planningportal.nsw.gov.au/spatialviewer/)
4. The proposed subdivision design is shown in the following extract of the architectural plans: (Exhibit C)

Public submissions

1. In determining the development application, the Court is to take into consideration any submissions made during the notification of the development application. The submissions received by Blacktown City Council since the lodgement of the development application were tendered in the proceedings as part of the Respondent's evidence. I have read and considered those submissions.
2. The Respondent confirms that the original development application was publicly exhibited in 2020, and the amended development application in 2021, in accordance with the requirements of the Regulation and Blacktown Development Control Plan 2015 (DCP 2015). The issues raised by submissions on the amended development application can be summarised as: 1. Frustration about repeated development applications on the same property; 2. The lack of amendments to the development when compared to the development application that was refused by the Court in 2019; 3. The frequency of the use of the site by surrounding residents as open space and for recreation; 4. The importance of the CPW on the site as a connection for fauna movement; 5. The design of the dwellings is unsympathetic to the surrounding residential development; 6. The importance of the views to stands of trees for adjoining residents, the streetscape and in assisting to regulate the local climate and temperature; 7. That the development of a residential subdivision on the residential zoned land will create impacts (such as run off) on the land zoned E2 Environmental Conservation. 8. The duration and extent of construction proposed will have detrimental impacts on adjoining and nearby residents. 9. The increase in vehicle numbers (60+) will put pressure on the local roads which can already be difficult and dangerous. 10. The Applicant has not attempted to communicate with the community since they purchased the site in 2015.
3. During the hearing provision was made for a number of objectors to address the Court directly and give evidence of their concerns in relation to the proposed development. A collation of their written notes was tendered by the Respondent as Exhibit 3. These objections emphasised many of the concerns summarised in the proceeding. In their oral submissions the residents emphasised the following objections: 1. That the environmental and open space values of the site that are valued by the community will be detrimentally impacted by the proposed development. Many of the community chose to live in this locality due to the presence of these natural values in the locality. 2. The removal of extensive flora and fauna, and their habitat on the site is unacceptable. 3. The proposed development does not satisfy the objectives of the two applicable zonings and does not comply with LEP 2015. 4. That the site currently provides environmental services to adjoining properties such as filtering air, reducing temperatures and providing shade. These benefits will be lost through the redevelopment of the site as residential dwellings. 5. That for decades the residents have enjoyed the site as open space for public recreation. Whilst owned by the State Government, no signs or barriers had been put up by the Government to prevent the use of the site as open space public recreation. The community wishes to continue to have access to the site in this way. 6. The CPW on the site is regenerating since mowing has ceased. 7. That no consideration has been given to the cultural heritage of the site. That research undertaken by a local historian argues that the subject site is the location identified by Captain Arthur Phillip as Bungarribee Hill (Huntington Heights). 8. Irrespective of the offsetting of biodiversity impacts from the development by the purchase of credits, the development will result in a net loss of CPW in the local area and in totality. 9. It is likely that the development will result in a reduction in bird life due to the increase in noise and air pollution from construction.

Endangered Ecological Community: Cumberland Plain Woodland

1. The parties and their experts agree that that the vegetation on the site is CPW. Importantly, CPW in the Sydney Basin Bioregion is listed as a critically endangered ecological community in Pt 1 of Sch 2 of the BC Act, which relies on its description in the determination of the Scientific Committee to list CPW as a critically endangered ecological community (the final determination). The following extract of the final determination is relevant: "… 11. Cumberland Plain Woodland is restricted to the Sydney Basin Bioregion (sensu Thackway and Cresswell) and is currently known to occur within the local government areas of Auburn, Bankstown, Baulkham Hills, Blacktown, Camden, Campbelltown, Fairfield, Hawkesbury, Holroyd, Liverpool, Parramatta, Penrith and Wollondilly, but may occur elsewhere within the bioregion. Using map data from Tozer (2003), Cumberland Plain Woodland was estimated to occur within an extent of occurrence of 2810 km2, and an area of occupancy of just under 2 100 km2 based on 2 x 2 km grid cells, the spatial scale recommended by IUCN (2008) for assessing areas of occupancy for species. … 13. Based on aerial photography flown in November 1998, Tozer (2003) estimated the total extent of woody vegetation referred to as Cumberland Plain Woodland was 11 054 (±1 564) ha (upper and lower plausible bounds, sensu Keith et al. 2009), representing 8.8 (±1.2)% of the pre-European distribution of the community. Patches of the community lacking woody vegetation are very small in extent and can be considered to be included within the plausible bounds. For that part of the community's distribution to the east of the Hawkesbury-Nepean River, earlier mapping at coarser resolution by Benson & Howell (1990b) suggests a similar level of depletion, with an estimated 6 420 ha of 'Cumberland Plain Woodlands', representing 6% of the pre-European distribution east of the Hawkesbury-Nepean River. An update of Tozer's (2003) map, based on interpretation of imagery flown in January-March 2007 shows that the extent of Cumberland Plain Woodland east of the Hawkesbury - Nepean River had declined by 442±46 ha, a reduction of 5.2±0.6% in 9 years (NSW Scientific Committee & Simpson 2008). These estimates indicate that the geographic distribution of the community has undergone a very large reduction over a time frame appropriate to the life cycle and habitat characteristics of its component species. 14. Some areas of Cumberland Plain Woodland subjected to a history of partial clearing and grazing have recently undergone a change in management to conserve the community. Examples include Mt Annan Botanic Garden, Scheyville National Park, Western Sydney Regional Park, Elizabeth Macarthur Agricultural Institute, Orchard Hills Defence Site and the former Australian Defence Industries site at St Marys. Experience from these areas suggests that the community is capable of some recovery, provided the soil has not been disturbed by earthworks, cultivation, fertiliser application or other means of nutrient or moisture enrichment (Benson & Howell 2002; Pellow 2003; Keith et al. 2005; J. Howell in litt. August 2007; J. Sanders in litt. January 2008). In contrast, restoration of Cumberland Plain Woodland has proved to be problematic on sites that have been exposed to such soil disturbance. At Western Sydney Regional Park, for example, Wilkins et al. (2003), Nichols (2005) and Nichols et al. (2005) studied the recovery of abandoned pastures that had been planted with more than 20 native tree and shrub species of Cumberland Plain Woodland. Over 10 years they found no evidence of convergence in species composition with nearby remnant stands of the community and the species composition of restored areas remained indistinguishable from untreated pastures. There was some evidence that restored vegetation had begun to develop more species-rich assemblages of moths and butterflies compared to untreated pastures, although after 10 years, it lacked a number of species characteristic of remnant woodland (Lomov et al. 2006). Ant communities also showed marked differences between restored and remnant vegetation although some ecological processes, such as pollination and seed dispersal, showed some evidence of development at restored sites (Lomov 2005). These results suggest that sites with a history of soil disturbance will be extremely slow to recover characteristics of Cumberland Plain Woodland, if at all, and that experimentation with alternative restoration technologies is required. As a large proportion of the former distribution of the community has either undergone similar histories of soil disturbance or are now occupied by urban development, opportunities for restoration of the community across significant areas appear limited. … 15. The reduction in the geographic distribution of Cumberland Plain Woodland was initially due to tree-felling for timber and clearing for crops and pastures (Benson & Howell 1990a). Benson & Howell (1990b) estimated that the community had been reduced to approximately half of its pre-European extent by 1850. Following World War II, there was a marked acceleration in urban and industrial development, which continues to deplete the distribution of the community to the present day. These trends appear likely to continue into the future as the urban area continues to expand to accommodate Sydney's increasing population, which is projected to grow by 1.0-1.1 million people during the 20 years 2007-2026 and 2.2-3.3 million during the 50 years 2007-2056 (Australian Bureau of Statistics 2008). Recent draft plans to develop growth centres in north-west and south-west Sydney, for example, identify staged release of land for residential and employment development over the next 25 years. These areas contain approximately 2000 ha (one-fifth) of the estimated remaining Cumberland Plain Woodland based on Tozer (2003), of which about two-thirds will be available for development, the loss of which is planned for offsetting through voluntary land acquisition and/or the establishment of conservation agreements on lands outside the Growth Centres (Growth Centres Commission 2007) for the primary purpose of biodiversity conservation. While important examples of Cumberland Plain Woodland are represented within conservation reserves, much of the remaining area of the community occurs on private land or on public easements, where it is at risk from small-scale clearing associated with housing, industrial development and transport infrastructure. There are significant logistic and technological constraints and time lags associated with efforts to restore the community (Wilkins et al. 2003; Nichols 2005; Nichols et al. 2005). 'Clearing of native vegetation' is listed as a Key Threatening Process under the Threatened Species Conservation Act 1995. 16. Fragmentation of habitat associated with clearing has resulted in a very large reduction in the ecological function of Cumberland Plain Woodland. The remaining area of the community is severely fragmented, with more than half of the remaining tree cover mapped by Tozer (2003) occurring in patches of less than 80 ha and half of all mapped patches being smaller than 3 ha (Tozer in litt. October 2007). The integrity and survival of small, isolated stands is impaired by the small population size of many species, enhanced risks from environmental stochasticity, disruption to pollination and dispersal of fruits or seeds, and likely reductions in the genetic diversity of isolated populations (Young et al. 1996; Young & Clarke 2000). The impacts of fragmentation and associated processes are most evident in the loss of vertebrate fauna from the community (Farrell 2005; Farrell in litt. June 2007; Leary 2005; in litt, August 2007). As well, some invertebrate species, such as the Endangered Cumberland Land Snail, appear to be in decline, at least in the smaller fragments (M. Shea in litt. June 2007). The dieback of eucalypt canopies observed in stands of Cumberland Plain Woodland at Scheyville (D. Keith pers. comm. October 2008) may be a result of complex interactions involving insect attack, weed invasion, nutrient enrichment and drought, in which fragmentation also plays a role (Reid & Landsberg 2000; Wardell-Johnson et al. 2006). Despite their history of fragmentation, some very small and apparently degraded remnants may contain a surprisingly high diversity of species and important examples of rare species, particularly plants (James et al. 1999; Benson & Keith 1984; McBarron et al. 1988; Benson & Howell 1990a; Kirkpatrick & Gilfedder 1995). However, clearing and continuing degradation of these patches reduces the likelihood that all of these species will persist, particularly because a large proportion of species are known from very few locations which are not clustered in predictable ways (Benson & Howell 2002; Tozer 2003). Fragmentation also results in reduced fire frequencies within some patches, which may reduce the viability of some native plant populations, and hence the diversity of species within the patches (Clarke 2000; Watson 2005). … 19. Weed invasion also poses a major threat to Cumberland Plain Woodland. While very large numbers of weed species have invaded many different areas of the community, principal weed species include (Benson 1992; Tozer 2003; Benson & von Richter 2008): Centaurium tenuiflorum … Chloris gayana Rhodes Grass … Conyza sumatrensis Tall Fleabane … Ehrharta erecta Panic Veldtgrass Eragrostis curvula African Lovegrass … Hypochaeris radicata Catsear … Paspalum dilatatum Paspalum … Plantago lanceolata Lamb's Tongues, Plantain Richardia stellaris … Senecio madagascariensis Fireweed … Solanum spp. Nightshades … Several of these species, particularly grasses, form a dense ground layer capable of smothering indigenous plants, reducing both reproduction and survival, and inhibiting emergence and establishment of their seedlings. … 23. Cumberland Plain Woodland in the Sydney Basin Bioregion is eligible to be listed as a Critically Endangered Ecological Community as, in the opinion of the Scientific Committee, it is facing an extremely high risk of extinction in New South Wales in the immediate future, as determined in accordance with the following criteria as prescribed by the Threatened Species Conservation Regulation 2002: Clause 25 The ecological community has undergone, is observed, estimated, inferred or reasonably suspected to have undergone or is likely to undergo within a time span appropriate to the life cycle and habitat characteristics of its component species: (a) a very large reduction in geographic distribution. Clause 27 The ecological community has undergone, is observed, estimated, inferred or reasonably suspected to have undergone or is likely to undergo within a time span appropriate to the life cycle and habitat characteristics of its component species: (a) a very large reduction in ecological function, as indicated by any of the following: (d) a change in community structure (e) a change in species composition (f) disruption of ecological processes (g) invasion and establishment of exotic species (h) degradation of habitat (i) fragmentation of habitat. (https://www.environment.nsw.gov.au/topics/animals-and-plants/threatened-species/nsw-threatened-species-scientific-committee/determinations/final-determinations/2008-2010/cumberland-plain-woodland-critically-endangered-ecological-community-listing)"
2. I note that the weed species listed at par (22) from the final determination as principal weed species are identified as occurring on the site (Exhibit C).

Expert Evidence

1. The ecology experts, Nicholas Skelton (for the Applicant) and Dr Meredith Henderson (for the Respondent), joint conferenced on the proposed development and prepared a joint report that was tendered in the proceedings as Exhibit 2. The experts were also called for cross examination.
2. The BDAR, prepared by Mr Skelton, details the following matters in relation to CPW:

• There remains 21,951ha of CPW in the Sydney basin: 'Threatened Ecological Communities Greater Sydney' dated 14 April 2021 cited in BDAR.
• The amount of vegetation proposed to be removed represents 0.009% of the remaining CPW in the Sydney basin.
• That there is a total area of CPW of 5.7ha within 500m of the subject site, which will reduce to 3.96ha as a result of the subject development. (Exhibit C)

1. As part of the BDAR a vegetation integrity assessment was completed to assess the existing level of disturbance of CPW on the subject site. The condition of vegetation on the site was delineated into three categories: VZ1- CPW Moderate Disturbance (integrity score of 47.2); VZ2 - CPW Disturbed (Integrity score of 20.9) and VZ3 - Non CPW very disturbed (Integrity score of 4.2). The results are summarised in the following table: NB: the values contained in the last column represent the areas to be cleared of vegetation. (BDAR, Exhibit C)
2. Dr Henderson agrees with the description of biodiversity on the site contained in the BDAR.
3. The ecology experts agree with the conclusion of the BDAR that "… It is most likely that the vegetation on the site now and in the past is correctly classified as Grey Box - Forest Red Gum Grassy Woodland on flats of the Cumberland Plain, a type of Cumberland Plain Woodland". (BDAR, Exhibit C)
4. Further, BDAR assesses the subject site for habitat suitability for threatened fauna species. Using the BAM calculator, Mr Skelton identified 17 species "reliably predicted to utilise the site". These species are listed below. "Anthochaera phrygia (Regent Honeyeater) Artanus cyanopterus cyanopterus (Dusky Woodswallow) Chthonnicola sagittata (Speckled Warbler) Climacteris picumnus victoriae (Brown Treecreeper (eastern sub species)) Dasyurus maculatus (spotted-tail quoll) Glassopsitta pusilla (Little Lorrikeet) Halieetus leucogaster (White bellied sea eagle) Lathamus discolor (Swift Parrot) Melanodryas cucullata cucullate (Hooded Robin (south-eastern form)) Micronomus norfokensis or Mormopterus norfokensis (Eastern coastal free-tailed bat) Miniopterus australis (Little bent winged bat) Miniopterus oriane ocenaensis (Large bent winged bat) Petroica boodang (Scarlet Robin) Petroica phoenicea (Flame Robin) Phascolarctos cinereus (Koala) Pteropus poliocephalus (Grey Headed flying fox) Stagonopleura guttata (Diamond firetail)" (BDAR, Exhibit C)
5. The BDAR further notes that these species are 'ecosystem credit' species as their likely occurrence is predicted by planned community types (PCT) or where targeted surveys have a low probability for detection. Each of these species are noted as having suitable habitat in VZ1 (refer to par [1]). The Flame Robin and Diamond Firetail are also noted as having habitat preferences in VZ2 and VZ3.
6. Further, the BDAR notes the following spaces have been recorded from observations on the site: "the Swift parrot(Lathamus discolor) was observed on site by Dr Ambrose. This species is a jewel ecosystem credit species and species credit species (breeding) and is retained as an ecosystem species in table 5.one to be offset, and is removed as a candidate species credit species on table 5.3 as it does not breed in this area and it is a vagrant. The Swift parrot has potential to be a S a II species for breeding. The little lorikeet (Glassopsitta pulissa) was also observed on the site, it is an ecosystem credit species only and has retained and will be offset as part of the ecosystem credit." (BDAR, Exhibit C)
7. The BDAR summarises the fauna recorded in field work undertaken on the site as follows: (BDAR, Exhibit C)
8. In the joint report Dr Henderson notes her agreement that the BDAR accurately assesses threatened species habitat suitability of the site, and the identification and assessment prescribed impacts. In particular, the experts agree that:

• the proposal does not require any species credits for threatened flora species, and
• that "the calculation of offset credits in Section 10 and Subsections 8.1(Direct Impacts), 8.2 and 8.3, Subsections 9.2, 9.3 and 9.4 of the BDAR have been correctly carried out and the BAM calculation to offset credits for the proposed vegetation loss, requires 46 Cumberland Plain Woodland ecosystem credits to be retired". (Exhibit 2)

1. Despite the lack of requirement to offset any impact, or habitat loss for these fauna species, there remains a likely impact arising from the development application relevant to the merit assessment of the development application.
2. In relation to whether the development will have a serious and irreversible impact on CPW, the ecology experts agree the following: "Points of agreement The experts agree that Cumberland Plain Woodland is listed on the DPIE [Department of Planning Infrastructure and Environment] website as a candidate Serious and Irreversible Impact entity. The experts agree that the data expressed in the BDAR in section 9.1 are correct (after the correction of the areas and % in 9.1.2). The experts agree that DPIE have not published any thresholds for Cumberland Plain Woodland in the Threatened Biodiversity Data Collection. The experts agree the proposal would not result in a Serious and Irreversible Impact at the state, IBRA region or IBRA sub-region scales. The amount of Cumberland Plain Woodland that would be removed is approximately 2 ha, and that the amount of Cumberland Plain Woodland in existence as of 2021 is 21,951 ha (Threatened Ecological Communities of the Greater Sydney Area 2021) as shown on Map A in Annexure 4. The proposal will remove approximately 0.009% of the extent of Cumberland Plain Woodland in the Sydney Basin bioregion. The experts further agree that the area of Cumberland Plain Woodland within 500 m of the development site is about 5.7 ha. The proposal would reduce the area to 3.96 ha of Cumberland Plain Woodland within 500 m of the development site." (Exhibit 2)
3. In the joint report Mr Skelton argues that the amount of mapped CPW has increased fourfold since 1990, when CPW was mapped as part of its original 1997 listing as an endangered ecological community (EEC). To support this conclusion, Mr Skelton notes that in 1990 the extent of CPW was noted as 6,420ha. Later, when the community was listed as a Critically Endangered Ecological Community, the final determination noted that the extent of CPW was 11,054ha in 1998. Finally, Mr Skelton notes that in April 2021, data extracted from the Threatened Biodiversity Data collection quantifies the extent of CPW as 21,951ha. On this basis the BDAR concludes the amount of CPW that will be removed by the proposal 1.7ha or 0.009% of the CPW currently in existence. I note that the current distribution of CPW is discussed further at [144] and [145].
4. On the basis of the above data and reasoning, Mr Skelton concludes that "this is clearly not a significant loss and will not be a serious and irreversible impact and will not cause Cumberland Plain Woodland to be come extinct". (Exhibit 2) To support this conclusion he reasons: "CPW is the most abundant vegetation type in the Blacktown Local Government Area, …. If you use 500m from the site as a locality then the reduction of the occurrence of CPW from 5.7 [ha] to 3.96 [ha] will not contribute significantly to the risk of CPW becoming extinct" (Exhibit 2)
5. The BDAR includes a map of CPW in proximity to the site, with the patch size of CPW within 500m of the site nominated as 5.7ha. (Exhibit C)

• The proposed development will reduce the overall patch (as defined in the BDAR as the CPW within 500m of the site) from 5.7ha to 3.96ha; or by 30%.
• CPW has been nominated as a candidate serious and irreversible impact species because it is in a state of rapid decline.
• The final determination notes that more than 90% of CPW has been cleared since 1750.
• The proposal will contribute further to ongoing degradation by increasing the perimeter to area ratio, increasing edge effects.
• The proposed development will remove areas of CPW that have a high integrity value. (Exhibit 2)

1. In response to the evidence of Mr Skelton, Dr Henderson argues that cl 6.7(2) of the BC Regulation "does not direct the decision maker to consider or apply the SAII [serious and irreversible impact] principles and the risk of extinction at any particular scale. Therefore, all scales can be considered, and no weight or preference is given to one scale over another". (Exhibit 2)

Avoidance and Minimisation of Impacts.

1. The Respondent argues that the development application fails to take appropriate and sufficient steps to avoid or minimise impacts to the biodiversity values of the land. (Exhibit 1)

Avoidance

1. As part of their joint report, the ecology experts prepared a summary of the environmental measures proposed by the development and the opinion of the experts as to the classification of these measures as either: avoidance, minimisation, mitigation or additional active restoration.
2. Mr Skelton classifies the following measures as avoidance of impacts to biodiversity values: 1. Avoidance of clearing of Lot 31, zoned R2: 1,837m² of CPW; 2. Avoidance of clearing of Lot 32, zoned E2: 7,776m² of CPW; 3. Avoid development of area with highest corridor value (to the south and west of the subject site); 4. Avoid, retain trees in urban area with an 88B restriction on title; 5. Avoid construction impact by temporary fencing of construction interface; and 6. Avoid edge effects to tree roots in CA (conservation area) by installing a low retaining wall to maintain soil levels with 88B restriction on title. (Exhibit 2)
3. Dr Henderson disagrees that either items 2, 5, or 6 above should be classified as avoidance measures. Instead, she nominates these environmental measures as neutral, mitigation, minimise respectively. (Exhibit 2)
4. Further, in his evidence, Mr Skelton makes reference to section 7.1 of the BDAR. This section documents the steps taken by the Applicant to avoid ecological impact. The avoidance steps, documented in the BDAR, can be summarised as follows:

• identifying the ecological constraints of the site prior to the commencement of the design of the proposed development.
• Reliance on the decision-making behind the zoning of the various areas of the subject site. The BDAR states: "the site has a split zoning of R2 and E2 and the rezoning is recent. The draftsperson of the LEP (the Minister) has identified the areas of the land suitable for urban development, and those areas that should be retained for environmental conservation (E2) and the decision included ecological advice. With such a recent rezoning it follows that the test of avoiding impacts is inherent in the zoning of the land and the Minister has decided (on advice) that low density housing is the appropriate landuse for the R2 zoned land and the constraint of E2 Environmental zoning was the appropriate landuse for the E2 part of the site." (BDAR, Exhibit C)
• consideration of alternative development options, and comparison of their parameters and impacts summary of this analysis is produced at table 7.1.4 of the BDAR: (BDAR, Exhibit C)

1. Dr Henderson notes that the BAM, at section 7.1.1(3) provides clear directions as to means of avoiding impacts including locating a proposal where native vegetation is in the poorest condition or where threatened species or ecological communities do not occur. It is her assessment that this approach has not been applied in the BDAR. She argues: "The proposal as described in the BDAR at 7.1.3 (page 67) describes that 34 lots could be permitted and that there is no obligation to manage the E2 zone. Alternatives are posed in the table on page 67 of the BDAR. The alternatives explored only provide for the maximum yield from the R2 zoned land on which the 30 lots are proposed. Figure 7.1 of the BDAR clearly shows that no reduction in development was contemplated. The alternatives include an option that suggests the entire E2 could be developed for permissible uses, however this is not further discussed. The alternatives do not explore how the 30 urban lots could have been reduced and that the options only ever explored maximum yield from the northern R2 zoned land (excluding Lot 31). In my opinion, there are potential additional scenarios where further avoidance of vegetation could occur." (Exhibit 2)
2. As part of the joint conferencing process, Dr Henderson proffered four additional scenarios for the potential redevelopment of the site. Dr Henderson concludes avoidance of impacts on biodiversity values on the R2 zoned portion of the site has not been adequately explored by the Applicant. She argues "the alternatives [explored in the BDAR] do not explore how the 30 urban lots could have been reduced and that the options only ever explored maximum yield for the northern R2 zoned land (excluding Lot 31)." (Exhibit 2)
3. More broadly, in relation to the applicant's approach to the avoidance of impacts Dr Henderson argues:

• agrees that the inclusion of Lot 31 as an environmental preservation lot does "provide an element of avoidance". (Exhibit 2)
• disagrees with the weight given in the BDAR are to the fact of the sites R2 zoning. She states in part: "application of BAM directs assesses to describe how a proposal has avoided impacts through location and design, regardless of the zoning. At section 7.11 (3) of BAM, there are clear directions to assist in avoiding impacts including locating a proposal where native vegetation is in the poorest condition or where threatened ecological communities do not occur. This has not been applied in the area proposed for development at this site. The directions in BAM include a discount for land that is zoned for development" (Exhibit 2)

1. Dr Henderson concludes that the development is not designed to avoid significant impact on the biodiversity values of the land. (Exhibit 2)

Minimise

1. In response to the Respondent's contention that the development application fails to take appropriate and sufficient steps to avoid or minimise impacts on biodiversity values Mr Skelton provides the following evidence:

• If there was no development of the land, biodiversity values of the site would continue to decline. Over time this would result in the vegetation no longer meeting the definition of CPW. He argues that at this point "the level of integrity becomes so low the ecosystem cannot be regenerated and the community and habitat would be lost" (Exhibit 2)
• that the measures identified (summarised at [47] and [50]), in combination with the offsets proposed, meet the "no net loss" standard at section 10 of the BAM.
• That the proposed development has been located in areas of the worst quality bushland on the site, the area of the site with CPW which has the best connectivity is retained.

1. In the BDAR Mr Skelton classifies the following measures as measures to minimise impact on biodiversity values: "10.Minimise edge effects by positioning the development downstream 11.Prevent disturbance by having see-through fence to allow passive surveillance of CA. 12.Minimise edge effects by having 5m wide eco-buffer with 88B. 13.Ecological supervision of stormwater installation and restore 14.Fence permanent between Council reserve and road. 15.Prevent disturbance by permanent 1.8m high fencing between urban and conservation areas. 16.Construction Environmental Management Plan CEMP to prevent construction impacts. 17.Conservation management plan to improve native vegetation and habitat for a minimum of 5 years." (Exhibit 2)
2. Dr Henderson disagrees that item 16 and 17 are appropriately classified as minimising impact on biodiversity values and instead classifies these measures as "mitigation" but accepts that measures 10-15 are appropriately directed to minimising impacts (Exhibit 2). She maintains her evidence that siting and location of the proposed development are relevant to both avoidance of impact and its minimisation. (Exhibit 2)
3. Applying the Macquarie Dictionary definition of 'minimise': to reduce to the smallest possible amount or degree, I accept the evidence of Dr Henderson that the proposed conservation management plan (CMP) does not minimise the impacts of the development which occurs predominately in the area of the subject site nominated for development lots. Rather, I am satisfied the CMP is directed to mitigating, or reducing, those impacts by improving the vegetation integrity of the environmental preservation lots.

Mitigation

1. The final category of measures are those taken to mitigate impacts to biodiversity values on the site. Both experts nominate the following measures as mitigation measures: "19. Fauna rescued during tree removal in urban area 20. Qualified site ecologist to supervise during construction and advise." (Exhibit 2)
2. Given my findings at [48], I consider below the expert evidence on the CMP as a mitigation measure.
3. The development application includes work contained in the Conservation Management Plan (CMP) (Exhibit C). The CMP involves two stages of works, firstly, prior to the issue of an occupation certificate for the development, secondly, a maintenance phase. The CMP then envisages a phase of ongoing management. The CMP defines the construction period prior to occupation of the dwellings for stage 1 and a period of five years for stage 2. The CMP divides the two environmental preservation lots (refer to par [11]) into three management areas, mirroring the delineation of vegetation integrity detailed at par [19]. Zone 1, the majority of two environmental preservation lots is proposed to be improved by active removal of weeds using an assisted regeneration method. The CMP notes that the approach taken in Zone 1 is to apply the techniques detailed in 'Recovering Bushland in the Cumberland Plain' prepared by the Department of Environment and Climate Change in 2005. Zone 2 of approximately 1000 sqm, is proposed to be managed through regeneration and weed removal. Finally, Zone 3, comprising narrow strips fronting Denis Winston Drive and the existing residential development at the rear of the site, along with a patch at the existing drainage outlet, will be subject to relocation of topsoil and revegetation.
4. In her oral evidence Dr Henderson raised concern about the consideration of 'African Lovegrass' in the CMP. In particular she expressed concern that the CMP provides no quantitative or measurable target or defined timeframe for the management of the African Lovegrass, as it excepted from the key performance indicators and performance measures in the CMP, despite its known threat to CPW (Transcript 2 September 2021, p 82 at [45]).
5. The CMP details the following in Stage 1 for control of eragrostis curvula (African Lovegrass): "Eragrostis curvula (African Lovegrass) is largely present in conservation management zone 2 with scattered patches within zone 1. Eragrostis curvula infestations are usually found in disturbed and neglected areas. Germination of eragrostis curvula usually occurs during the summer period but can arise at any time after rain once soil moisture reaches a sufficient level and temperature. (citations omitted) Management of eragrostis curvula is difficult and needs to be persistent. Slashing and mowing of eragrostis curvula promotes spread and reinfestation and is not seen as an effective management control. Effective herbicide needs foliar application when the plant is actively growing after recent rain between spring and summer. (citations omitted) The use of fire as a management tools is effective for control of eragrostis curvula, but is likely to be difficult to implement on this site due to the close proximity of the urban area. The proposed practical management strategy for this site currently is to initially establish as dense as possible native tree and shrub cover. Then weeding of eragrostis curvula will need to occur either by hand prior to the establishment of weeds, or using herbicide, with native planting to be done to fill these gaps in vegetation cover and working towards the most disturbed areas. Doing this allows for natural regeneration to occur and ensures the weeds are replaced with native species, rather than more weeds. Persistence and ability to disperse should be considered when selecting herbicides, as an important measure to ensure the surrounding CPW is not affected. As there is currently no clearly effective treatment for eragrostis curvula, the site ecologist will be responsible for keeping track of any research published in relation to eragrostis curvula in case a more effective strategy is developed, and will need to adapt the management strategy to this." (Exhibit C)
6. In his oral evidence, Mr Skelton argued that the risk of African Lovegrass is addressed in the CMP by the use of higher densities of planting in the areas of proposed revegetation. He argues that this is a technique that is utilised to 'shade out' the weed species to reduce its spread (Transcript 2 September 2021, p 129 at [35]). I note that Appendix A of the CMP notes the following planting densities: … "All plants must be maintained to achieve an 80% survival rate, within any 100 sqm area. Planting Quantities/ Densities There is to be planting of 1 tube stock tree and 2 tube stock shrub/ 4sqm in zones 2 and 3 and in the parts of Zone 1 where there is no tree canopy present." … (Exhibit C)
7. As part of the concurrent evidence of the ecology experts, they determined and agreed that the application of the above planting densities to the two environmental preservation lots would result in the planting of some 678 trees of species that are characteristic of CPW (Exhibit G). In his oral evidence Mr Skelton noted that it was not his expectation that all of these trees would survive. Rather, he concluded that at five years a rate of 1 tree per 10m² is more likely, resulting in some 141 trees (Transcript 2 September 2021, p 132 at [50]).
8. As a final matter in relation to the CMP, the Respondent raised concern about the duration of its operation. In the CMP Mr Skelton nominates a period of five years after the issue of the construction certificate for stage 2 of the CMP, 'ecological maintenance'. The CMP defines the following measures to occur during this period: "The measures for post construction impact to threatened species mitigation - Weed control - Monitoring - Adaptive management triggers and measures allow for modification for, unusual weather, bushfire, and other expected changes." (Exhibit C)
9. In is oral evidence Mr Skelton confirmed that his reasoning behind the nomination of the 5-year duration for stage 2 was based on conformity with industry practice. However, he further noted that, in response to the concerns of Dr Henderson, he was aware that the Applicant had given consideration to a condition of consent requiring ongoing monitoring of the site in perpetuity (Transcript 2 September 2021, p 124 at [50]).
10. Further, in his oral evidence Mr Skelton appeared to concede that ongoing management of the environmental preservation lots is required to maintain its environmental values as an EEC. "TOMASETTI: But if you seize (sic) management after five years and if, for example, the fence were taken down, especially given this is approximate to a subdivision, it would follow, wouldn't it, that without that management, on your evidence you wouldn't be left with or be recognised as the Cumberland Plain Woodland community; you would only be left with some of the characteristic species, such as canopy trees? WITNESS SKELTON: It would slowly degrade over the next few decades, yes. TOMASETTI: Doesn't that mean then that to ensure that you retain it as a community that's recognised in the final determination, you need management perpetuity? WITNESS SKELTON: That would be desirable. I'm not sure how the legislation will be in five years or ten years time about the requirements of the owners to maintain an endangered ecological on land, community on land that they own. So, it's hard to tell that far ahead in the future what's going to happen." (Transcript 2 September 2021, p 137 at [15])
11. This is consistent with Dr Henderson's evidence is that without any ongoing management the activities outlined in the CMP may achieve gains, but that they would be eroded over time. In support of her conclusion, in her oral evidence Dr Henderson referenced a study of the Western Sydney Parklands where researchers looked at sites that had been re‑established and planted. She noted that the researchers concluded that after 20 years of being re-established, there was no evidence of a self-sustaining patch of CPW. She noted she was not aware of any other empirical research that defined the types of inputs, management and duration required to establish a self-sustaining community of CPW (Transcript 2 September 2021, p 135 at [35]).
12. In her oral evidence Dr Henderson stated that to achieve benchmark canopy cover and trees of mature height would take between seven to ten years. Importantly, however she clarified that: "… they would be substantial canopy trees, but they wouldn't then from part of what would be the Cumberland Plain for an ecological community. So, what would be proposed is removal of something that is critical and endangered to be replaced with plants of unknown provenance in an area that would no longer meet the threatened ecological community. But yes, they would be, could be, elements of the community." (Transcript 2 September 2021 p 110 at [50])
13. In his oral evidence Mr Skelton appeared to agree with the conclusion of Dr Henderson as follows: "WRIGHT: You'd agree with me that even although the development might propose replanting of certain characteristic species, whether it be individual canopy trees or some shrubs that were identified in the final determination, that does not replace the community does it; it just gives us individual specimens which are characteristic? WITNESS SKELTON: That's correct; it's not creating Cumberland Plain Woodland, that's correct." (Transcript 2 September 2021 p 115 at [25])
14. I acknowledge that the experts also discussed and classified a range of measures nominated in the BDAR as 'additional active restoration measures'.
15. Mr Skelton, applying the BAM at 11.3.2, nominates the following actions as active restoration measures to improve the conservation area (the two environmental preservation lots). He argues that these actions are in addition, and separate to, actions taken to avoid, minimise or mitigate the impact of the proposal: "Planting CPW trees and shrubs in urban lots to provide habitat and re-establish native canopy. Monitoring to ensure goals [of CMP] are met. Street tree planting using CPW species to improve habitat and re-establish native canopy. Integrated pest animal control to minimise impact by feral animals. Supplemental Planting of CPW species in the ecobuffer. Translocation of 400m of logs to improve and enhance habitat. Install 40 nest boxes for habitat enhancement. Fire management to improve species richness. Weed control using industry best practice bush regeneration techniques Integrated weed management of high threat exotic grasses Planting to improve native vegetation in the CA [the two environmental preservation lots]. Planting CPW tree species along Dennis Winston Drive to improve corridor value. Prevent removal of habitat by firewood collectors. Topsoil translocation to zone 3. Removal of all rubbish. Adaptive management of unforeseen events. Use of qualified bush regenerators during construction and for a minimum of five years. Use of qualified Site Ecologist after construction. Ongoing ecological maintenance for a minimum of 5 years. Threatened species management by reintroducing threatened snails." (Exhibit 2)
16. Importantly, Mr Skelton argues that the development application will result in the halting of the existing and future degradation of the land and improve the state of the CPW community (and concurrently its Biodiversity Values) through the implementation of the CMP. He states: "Without the active restoration measures proposed, the vegetation and habitat on the site will continue to degrade and the flora and fauna species currently using this site will disappear from the locality (Blacktown Local Government Area). … Most of the fauna that use the site are highly mobile species that use resources outside of the site. The proposed habitat improvement and additional planting around the conservation area [the two environmental preservation lots] will improve the connectivity of the site to nearby areas of native vegetation in the locality, including Nurragingy Reserve and the extensive Western Sydney Parklands to the south west." (Exhibit 2)
17. In the alternative, Dr Henderson argues that each of the measures detailed at par [63] as 'active restoration measures' are more appropriately defined as mitigation measures, as defined at 8.4.1 of the BAM as including techniques during construction or procedures to reduce the residual impact of the carrying out and operation of the development or arising from a change in land use pattern. Her reasoning is as follows: "It is my opinion, in referencing section 7.1.2 (1) (e) and section 8.4.1 of BAM, that the activities in the Conservation Management Plan are contemplated as either minimization or mitigation measures. For example, at section 7.1.2 (1) (e), BAM specifies that measures for minimising impacts include: • actions and activities that provide for rehabilitation, ecological restoration and/or ongoing maintenance of retained areas of native vegetation, threatened species, threatened ecological communities and their habitat on the subject land. In section 8.4.1 (3) (i) and (j), BAM specifies that measures for mitigating impacts on native vegetation include: • i. preparing a vegetation management plan to regulate activity in vegetation and habitats adjacent to residential developments. The plan may include controls on pet ownership, rubbish disposal, wood collection, fire management, and disturbance to nests and other niche habitats • j. providing for the ecological restoration, rehabilitation and/or ongoing maintenance of retained native vegetation habitat on, or adjacent to, the development or clearing site or land to be biodiversity certified. The activities proposed in the CMP are improvements to the land, but these are in the context of minimisation or mitigation. I do not agree that these activities can be described in terms of 'active restoration actions' as per section 11.3.2 of BAM. That part of BAM is reserved for actions used in establishing a Biodiversity Stewardship Site, which is not proposed for Lots 31 and 32." (Exhibit 2)

Submissions

1. Mr Tomasetti, counsel for the Applicant, argues that in considering whether the development will have a serious and irreversible impact on CPW, the Court should consider a number of documents and studies in determining whether CPW is at risk of extinction. He refers the Court to:

• The NSW Government Cumberland Plain Recovery Plan (CPW Recovery Plan). In particular, four elements, firstly that the CPW Recovery Plan has as one of its guiding principles that 'the protection and management of large intact remnants of vegetation is more effective than [management] for smaller fragmented remnants' (Exhibit D). Secondly, that the CPW Recovery Plan does not nominate the subject site as a priority conservation land. Thirdly, that the degradation of CPW has and is occurring and that active management of CPW is required. Finally, that where impacts cannot be avoided, they should be offset.
• The Growth Centres Biodiversity offset program which 'aims to protect some of the best remaining bushland in Western Sydney for current and future generations' (Exhibit J). By reference to the Annual Report for 2018-19 Mr Tomasetti identifies that: prior to 2018-19 an area of 309ha of CPW was protected by the program, which increased to a total of 368.6ha by 2020 through either land purchase or stewardship agreements.

1. In relation to the CPW Recovery Plan, Mr Tomasetti concludes that it "provides a strategy for conserving inter alia CPW through acquisition of land with reasonable sized stands of CPW and for protection of CPW in reserves and parklands. Significant funding has been allocated for this action. Any argument that CPW is facing extinction from this development cannot be maintained" (Applicant's closing submissions, 3 September 2021).
2. I note that that the subject site is outside the scope of the Growth Centres Biodiversity offset program which is described as: "The program delivers offsets for the NSW Government under three agreements: - Biodiversity Certification of State Environmental Planning Policy (Sydney Region Growth Centres) 2006 - Strategic assessment approval of the Western Sydney Growth Centres (2012) - Mulgoa biobank site funding agreement with Australian Government (2013)" (Exhibit J)
3. Further, Mr Tomasetti submits that the proposed development relevant to the Court's consideration under s 7.16 of the BC Act includes the vegetation management works proposed on proposed lots 30 and 31. He notes that such an approach was taken by the Court in Blake v Ku-ring-gai Council [2021] NSWLEC 1461 at [95].
4. Finally, Mr Tomasetti addresses the approach to the interpretation of s 7.16 of the BC Act and argues:

• The text, context and purpose of the clause are relevant to the statutory interpretation.
• In circumstances where 'extinction' is not defined it would be appropriate to give regard to its definition in the Macquarie Dictionary, namely: 'becoming extinct; a coming to an end or dying out'.
• Given the BC Act applies to NSW and the term 'extinction' is not further qualified '(t)here is no ambiguity as to the meaning of extinction and extinction is to be assessed at a State level'. This is further supported by the aims of the BC Act which include '(a) to conserve biodiversity at bioregional and State scales.' (Applicant's closing submissions, 3 September 2021)

1. Mr Tomasetti notes that it is the agreed position of the ecological experts that the proposal would not result in a serious and irreversible impact on CPW at the state, IBRA region or IBRA sub-region scales. He submits that the BC Act, the BC Regulation and SII Guidance Document direct an assessment of serious and irreversible impact at a state scale, not at a local scale as contended by the Respondent. Mr Tomasetti submits that, in particular, the SII Guidance Document at 3.2.2 directs that the risk of extinction is to be assessed at State, not local level. The relevant section of the SII Guidance Document is extracted below (emphasis added): "3.2.2 Step 2: Evaluate the extinction risk of the entity to be impacted The assessor is required to report on the factors influencing the extinction risk of the entity. For species this is evidence of: • rapid decline (Principle 1) • small population size (Principle 2) • limited geographic distribution (Principle 3) • the species being unlikely to respond to management (Principle 4). For TECs this is evidence of: • reduction in geographic extent (Principle 1) • environmental degradation or disruption of biotic processes (Principle 2) • restricted geographic distribution (Principle 3). In forming an opinion on the proposed impact, the decision-maker should remember the context of listing a species at risk of a SAII. The principles in the BC Regulation broadly align with the IUCN (IUCN 2017; Keith et al. 2013) requirements to list a species or ecological community as critically endangered (Appendix A). For example, under Principle 2, species that have fewer than 50 mature individuals, independent of whether there are any threats operating on the population, would meet the threshold for critically endangered. Similarly, under Principle 3, species that have an area of occupancy of less than 10 km2 would be critically endangered. In applying the criteria, the Department has made the assessment at the state scale." (Exhibit 1)
2. In response to Mr Tomasetti's submissions, Mr Wright argues that the CPW Recovery Plan and of the Growth Centres Biodiversity offset program are not relevant to the Court's assessment of the development application. He submits that these broad policy documents are not relevant to the assessment of the application under s 4.15 of the EPA Act.
3. Mr Wright emphasises that the Court does not have power to grant consent if it is of the opinion that the proposed development is likely to have a serious and irreversible impact on CPW. Further, he argues that cl 6.7 of the BC Regulation should be interpreted so that an impact is to be regarded as a serious and irreversible impact only if: 1. It is likely to contribute significantly to the risk of a threatened community becoming extinct, and 2. This is because it falls within one of the principles listed in cl 6.7(2) (a) - (d) of the BC Regulation, i.e. it will cause a further decline of the species that is already in a rapid state of the decline. (Respondent's closing submissions, 3 September 2021)
4. In relation to the second requirement, Mr Wright notes that in their joint report the ecology experts agree that CPW is an entity at risk of serious and irreversible impact. Further, he submits that applying the SII Guidance Document the fact of CPW being listed as a CEEC meets subcl (a), namely : '(a) it will cause a further decline of the species or ecological community that is currently observed, estimated, inferred or reasonably suspected to be in a rapid rate of decline', having experienced a 90% reduction since 1750. Mr Wright concludes the second limb is met.

• That in addition to the provisions of the BC Act and BC Regulation, criteria to interpret cl 6.7 of the BC Regulation are set out in Appendix A of the SII Guidance Document,
• That the SII Guidance document provides a "framework for decision makers to take into account the scale of an impact and the potential for avoidance and mitigation within the context of the principles involving five steps:
• • Step 1: Identifying relevant entities at risk of a SAII.
• • Step 2: Evaluate the extinction risk of the entity to be impacted.
• • Step 3: Detail measures taken to avoid, minimise and mitigate impacts on the entity.
• • Step 4: Evaluate a serious and irreversible impact
• • Step 5: Decision making"
• That in making a determination, reference should be made to the relevant final determinations and that no express independent finding of significance is necessary.
• That the critical word in cl 6.7 of the BC Regulation is 'because', and that "the satisfaction of criteria (a) or (b) define the existence of the requisite significant risk of extinction." (Respondent's further written submissions 24 November 2021)

1. Mr Wright argues that applying these principles to the current proceedings, the Court must find that the further amended DA will have a SAII on the critically endangered community CPW, and therefore must be refused under s 7.16 of the BC Act. His reasoning can be summarised as:

• firstly, CPW meets the criteria under cll 6.7(2)(a) and (b) of the BC Regulation;
• secondly, the ecology experts agree that CPW is listed on the DPIE website as a candidate SAII entity;
• thirdly, as set out in the Final Determination, CPW was facing an extremely high risk of extinction in the immediate future;
• fourthly, in terms of cl 6.7(2)(a) of the BC Act the development application will result in further decline of the CPW population, which by reference to the Final Determination is in a rapid state of decline; and
• finally, in terms of cl 6.7(2)(b) of the BC Act, by reference to the Final Determination, the development application will reduce the population size of CPW which already has a very small population size remaining. (Respondent's further written submissions 24 November 2021)

1. Finally, Mr Wright concludes that applying Planners North the Court is not required by cl 6.7 (2) of the BC Act to consider: firstly, whether the impact of the development application is 'likely to contribute significantly to the risk of CPW becoming extinct; and secondly, whether the phrase 'becoming extinct' is to be interpreted at a local, IBRA sub-region or state level. (Respondent's further written submissions 24 November 2021)
2. In the alternative, Mr Tomasetti's further submissions addressing the decision in Planners North emphasise the following:

• That the decision in Planners North is relevant to its own set of facts and the development application the subject of the current proceedings must be considered on its own merits. Given this Mr Tomasetti argues that the decision in Planners North has limited application to the proceedings.
• That the principles enunciated in Planners North would lead the Court to uphold the appeal and approve the development application.

1. Mr Tomasetti emphasises that the development application proposes each of the following: "a) the subdivision and development of the northern strip of the site zoned R2 Low Density Residential; and b) the conservation, pursuant to the Conservation Management Plan submitted with the Further Amended DA, of the southern strip of the Site zoned R2 Low Density Residential and E2 Environmental Conservation (Lot 31 and 31) respectively; and c) retention of many trees within the development footprint, and other measures to minimise impacts on root zones and edge effects." (Applicant's further written submissions 8 December 2021)
2. Applying the first statement, Mr Tomasetti argues that in considering the findings of Preston CJ at [173] of Planners North, the following facts distinguish the current proceedings. Firstly, in Planners North the Applicant had entered into a stewardship agreement with the Office of Environment and Heritage over much of the land and had generated Biodiversity credits. Mr Tomasetti argues this was key to the Court's conclusion that the applicant in that matter could not assert it was avoiding impacts by not developing the land as it could not be developed in the first place. Mr Tomasetti notes that permissible uses in the E2 Environmental Conservation land include roads and recreational areas, however, the Applicant has chosen to avoid development of the E2 land Mr Tomasetti concludes that, in contrast to Planners North, the Applicant in these proceedings is "entitled to apply for consent to carry out permitted development on Lot 32 zoned E2 Environmental Conservation under the LEP. It has studiously avoided development in Lot 32 and proposed only to rehabilitate it for conservation purposes (as part of the development application itself)". (Applicant's further written submissions 8 December 2021)
3. Secondly, Mr Tomasetti argues that the CPW in the Sydney basin cannot be compared with the Coastal Saltmarsh EEC and the Swamp Oak EEC which were the focus of the decision in Planners North, nor can the extent of clearing be compared between the two proceedings.
4. Further, Mr Tomasetti notes that the ecology experts in the proceedings agree that avoidance impacts are reflected in the development application. He notes that agreed avoidance measures include the avoidance of clearing on Lot 31, the avoidance of developing land with the highest corridor value and retention of trees in the 'eco-buffer' zone. He emphasises that "(t)he incorporation of Lot 31 into the CMP allowing for additional connectivity with the vegetation on the western side of Denis Winston Drive is a substantive avoidance measure on R2 Low Density Residential zoned land." He concludes that for the Court to find that the development application proposes no avoidance, measures would be contrary to the agreed position of the ecology experts. (Applicant's further written submissions 8 December 2021)
5. Applying the second statement, Mr Tomasetti maintains his argument that the approach of Dr Henderson should be rejected as it departs from the statutory language, including that of the SII Guidance Document, which evaluates the risk at a State level and that the application of a 500m radius from the site is arbitrary and subjective. He concludes that on the evidence before the Court, a serious and irreversible impact on CPW in the State, IBRA region or IBRA sub regional scale is not established. (Applicant's further written submissions 8 December 2021)

The impact from the proposed development is serious and irreversible.

1. The Respondent contends that the proposed development will result in a serious and irreversible impact on CPW pursuant to s 7.16(2) of the BC Act.
2. Section 7.16(2) of the BC Act precludes the grant of consent in the event that there is a serious and irreversible impact on biodiversity values. It provides: 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.
3. The concept of "biodiversity values" is defined at s 1.5(2) of the BC Act as follows: (2) For the purposes of this Act, biodiversity values are the following biodiversity values - (a) vegetation integrity - being the degree to which the composition, structure and function of vegetation at a particular site and the surrounding landscape has been altered from a near natural state, (b) habitat suitability - being the degree to which the habitat needs of threatened species are present at a particular site, (c) biodiversity values, or biodiversity-related values, prescribed by the regulations.
4. Additional biodiversity values are prescribed at cl 1.4 of the BC Regulation as follows: 1.4 Additional biodiversity values (section 1.5 of the Act) The following are prescribed as additional biodiversity values for the purposes of the Act - (a) threatened species abundance - being the occurrence and abundance of threatened species or threatened ecological communities, or their habitat, at a particular site, (b) vegetation abundance - being the occurrence and abundance of vegetation at a particular site, (c) habitat connectivity - being the degree to which a particular site connects different areas of habitat of threatened species to facilitate the movement of those species across their range, (d) threatened species movement - being the degree to which a particular site contributes to the movement of threatened species to maintain their lifecycle, (e) flight path integrity - being the degree to which the flight paths of protected animals over a particular site are free from interference, (f) water sustainability - being the degree to which water quality, water bodies and hydrological processes sustain threatened species and threatened ecological communities at a particular site.
5. Section 7.16(1) refers to s 6.5 of the BC Act, which explains how serious and irreversible impacts on biodiversity values are to be determined: 6.5 Serious and irreversible impacts on biodiversity values (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.
6. As detailed in the decision of Preston CJ in Planners North at [90], pursuant to s 6.5(2) of the BC Act, guidelines have been produced by the Department of Planning Infrastructure and Environment. The document "Guidance to assist a decision-maker to determine a serious and irreversible impact" (SII Guidance Document) has been published to assist decision-makers in the application of the principles in cl 6.7 of the BC Regulation.
7. As detailed in Planners North at [90], the format of the SII Guidance Document is as follows: "The criteria to interpret the principles in cl 6.7 of the BC Regulation are set out in Appendix A. The Department applied the criteria in Appendix A to all threatened species and threatened ecological communities listed under the BC Act. Entities that meet the criteria under one or more of the principles in cl 6.7 of the BC Regulation are identified as entities at risk of a serious and irreversible impact (SAII) in the Threatened Biodiversity Data Collection housed in BioNet and displayed on the Department website. This list includes a number of species that occur in and around the site on which the development is proposed to be carried out. In section 3, the Guidance document provides a framework for decision-makers to take into account the scale of an impact and the potential for avoidance and mitigation within the context of the principles in cl 6.7 of the BC Regulation and the supporting criteria in Appendix A. The framework involves five steps: Step 1: Identify relevant entities at risk of a SAII Step 2: Evaluate the extinction risk of the entity to be impacted Step 3: Detail measures taken to avoid, minimise and mitigate impacts on the entity Step 4: Evaluate a serious and irreversible impact Step 5: Decision-making"
8. I have adopted the preceding decision-making framework in this judgement.
9. As held by Preston CJ in Planners North at [91] "the precondition at s 7.16 (2) of the BC Act is distinct from two other requirements in Part 7 of the BC Act dealing with biodiversity assessment and approval under the EPA Act" those are:

• Firstly, the requirement in s 7.7(2) of the BC Act that if the development is likely to significantly affect threatened species (or threatened ecological communities): s 7.2(1)) the application must be accompanied by a BDAR. Such a BDAR is prepared and submitted by the Applicant as part of Exhibit C.
• Secondly, that the development exceeds the biodiversity offsets scheme threshold if the biodiversity scheme applies to the impacts of the development on biodiversity values.

1. It was an agreed position of the parties that pursuant to s 7.2 (1)(B) of the BC Act:

• the property is mapped on the Biodiversity Values Map. The Biodiversity Values Map is defined in the Biodiversity Assessment Manual (BAM) as the map published in accordance with cl 7.3 of the BC Regulation. That map nominates the site has having high biodiversity values. An extract of the map is included in the BDAR which states that the biodiversity values of the site are the CPW. (Exhibit C)
• that the amount of native vegetation disturbed by the proposed development will exceed the clearing threshold. The applicable clearing threshold is detailed at cl 7.2 of the BC Regulation. As the subject site has a minimum lot size control under LEP 2015 of less than a hectare, applying cl 7.2 (2) of the BC Regulation, the area of clearing proposed exceeds the standard of 0.25 ha. The proposed extent of clearing, taken to be the construction footprint is 2ha (BDAR). If a more conservative approach is adopted, the extent of clearing of CPW is 0.74ha, which would still exceed the nominated threshold.
• Therefore, the proposed development exceeds the biodiversity offsets threshold pursuant to s 7.2 (clearing threshold) and s 7.3 (biodiversity values map) of the BC Regulation.

1. The third criterion, at cl 7.2 (1) of the BC Act does not apply as the subject site is not declared as an area of outstanding biodiversity value.
2. The Applicant accepts that the development application is required to be accompanied by a BDAR as the development exceeds biodiversity offsets scheme threshold. Therefore, as detailed in Planners North at [104], the requirements of s 7.13 are triggered: "In the event a development application is required to be accompanied by a BDAR, a second requirement under Part 7 of the BC Act, in s 7.13, is triggered: s 7.13(1) of the BC Act. Section 7.13(2) requires a consent authority, when determining a development application that is required to be accompanied by a BDAR, to take into consideration under the EPA Act the likely impact of the proposed development on biodiversity values as assessed in the BDAR that relates to that application. Apart from this consideration that is required by s 7.13(2), the consent authority may (but is not required to) further consider under the EPA Acy the likely impact of the proposed development on biodiversity values: s 7.13(2) of the BC Act."
3. The further requirements of Pt 7 of the BC Act, and their interaction, is summarised in Planners North as follows: "110. These other requirements in Part 7 of the BC Act, under s 7.7(2) and s 7.13(2), although distinct from the precondition in s 7.16(2), nevertheless overlap with that precondition. Section 7.16(2) requires the consent authority to refuse consent if it is of the opinion that the proposed development is likely to have serious and irreversible impacts on biodiversity values. In deciding whether or not it is of this opinion, the consent authority must determine the seriousness and irreversibility of the impacts on biodiversity values in accordance with s 7.16(1) and s 6.5 of the BC Act, the principles prescribed by cl 6.7 of the BC Regulation, and the Guidance document published by DPIE under s 6.5(2) of the BC Act. However, the consent authority, when determining in accordance with the EPA Act the development application, may also take into consideration the likely impact of the proposed development on biodiversity values as assessed in any BDAR that relates to and accompanies the development application and otherwise may further consider, under s 4.15(1)(b) of the EPA Act, the likely impact of the proposed development on biodiversity values, as required and permitted respectively by s 7.13(2) of the BC Act. 111. As a consequence, a consent authority might form the opinion, for the purposes of s 7.16(2) of the BC Act, that a proposed development is likely to have serious and irreversible impacts on biodiversity values not only by reason of the consideration required by s 7.16(1) and s 6.5 of the BC Act and the principles and guidance prescribed under s 6.5 of the BC Act, but also by reason of the consideration given under s 7.13(2) of the BC Act and s 4.15(1)(b) of the EPA Act."
4. Under the BC Act, a determination of whether an impact is serious and irreversible must be made in accordance with the principles prescribed in cl 6.7 of the BC Regulation as follows: 6.7 Principles applicable to determination of "serious and irreversible impacts on biodiversity values" (section 6.5(1)) (1) This clause applies for the purposes of determining whether an impact on diversity values is a serious and irreversible impact for the purposes of the biodiversity offsets scheme. (2) An impact is to be regarded as serious and irreversible if it is likely to contribute significantly to the risk of a threatened species or ecological community becoming extinct because - (a) it will cause a further decline of the species or ecological community that is currently observed, estimated, inferred or reasonably suspected to be in a rapid rate of decline, or (b) it will further reduce the population size of the species or ecological community that is currently observed, estimated, inferred or reasonably suspected to have a very small population size, or (c) it is an impact on the habitat of the species or ecological community that is currently observed, estimated, inferred or reasonably suspected to have a very limited geographic distribution, or (d) the impacted species or ecological community is unlikely to respond to measures to improve its habitat and vegetation integrity and therefore its members are not replaceable. (3) For the purpose of this clause, a decline of a species or ecological community is a continuing or projected decline in - (a) an index of abundance appropriate to the taxon, or (b) the geographic distribution and habitat quality of the species or ecological community. (4) If the guidance published by the Environment Agency Head under section 6.5(2) of the Act is changed, a biodiversity assessment report may, during the period of 90 days after the guidance was changed, be prepared on the basis of the guidance in force before the change, but only if the report states that it has been prepared on that basis.

Measures to avoid and minimise

1. I accept the evidence of Dr Henderson that the Applicant has demonstrated insufficient measures to avoid and minimise the impacts of the development on CPW on the R2 zoned land, being the focus of the development of the subject site. Further, applying the BAM and Planners North I prefer Dr Henderson's classification of the measures proposed by the Applicant as detailed at [39], [47], and [65]. The reasoning that supports this conclusion follows.
2. The development application takes an approach to the development of the R2 portion of the land that involves firstly clearing the vegetation within the development lots (refer to par [11]), and secondly undertaking bulk earthworks within the entirety of the over 20,000sqm construction footprint (the area of the development lots, excepting the area proposed to an 'eco-buffer' subject to an 88B restriction) . These works are acknowledged to result in the destruction of the CPW in this portion of the site and the habitat of the threatened species. The subdivision design does not seek to retain any existing CPW within the construction footprint.
3. The development application proposes an "eco-buffer" in the private open spaces of the houses that will have their rear yards oriented to the two environmental preservation lots. By reference to the Civil Engineering and Landscape Plans in Exhibit C, no existing CPW trees are retained in this buffer area. The eco buffer is instead relied on by the Applicant as areas for canopy planting at a rate of three trees per lot, alternating Acacia implexa, Angophora bakeri and Angophora floribunda. I note that this "eco-buffer" is also traversed by a stormwater easement. Despite seeking clarification from the Applicant during the hearing of why a number of existing trees within the proposed "eco-buffer" could not have been retained and instead are proposed to be removed and replaced, the answer remains unclear. (Transcript 21 September 2021, 57).
4. I accept that an 88B restrictive caveat is proposed to be applied to the eco-buffer on lots 18 through 28 to prevent changes to soil, retaining wall or harm to trees in this area. However, I accept the Respondent's submission that it is insufficient to minimise the adverse impact of the development for the following reasons:

• There is no practicable mechanism to ensure that this buffer is maintained by the individual future owners of the residential lots.
• There is no monitoring mechanism to ensure that the 'eco-buffer' achieves the intended objectives.
• In any event, the trees within the buffer may be removed without further approval where they are a risk to human life or property: cl 8(3) of the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017.

1. Despite the assertion in the BDAR that trees are to be retained in the area of the site zoned R2 Low Density Residential, it is clear from the cut and fill plan in the Civil Engineering drawings that the entirety of the construction footprint is subject to bulk earthworks including within the structural root zone of the existing CPW. Further, the Landscape plan details the removal of existing trees in Lot 28, 27, 25, 24, 20 and 18 despite these areas being excluded from cut and fill. I am not persuaded on the evidence that any of the existing trees within the development footprint will be retained. On these grounds, I find Item 4 described at par [47] as 'the avoidance of impact by the retention of trees in the urban area with an 88B restriction' is not made out on the evidence.
2. The Applicant asks the Court to give significant weight to the avoidance of impacts on the ecological values of the site by the avoidance of residential development on the portion of the site is zoned E2: Environmental Conservation (proposed Lot 32, the larger of the environmental preservation lots). Applying the reasoning of Planners North at [173] I find that this action is not appropriately an avoidance of impact. Firstly, pursuant to LEP 2015 residential development is a prohibited use in the E2 Environmental Conservation zone. As stated in Planners North "avoidance of the impact of a development presupposes that the development is otherwise permitted to be carried out on the land. If that land is not permitted to be developed for a purpose, there can be no avoidance of the impact of a development that cannot be carried out on the land in any event" (emphasis added). On these grounds, I find Item 2 described at par [47] is not avoidance of impacts. I am not persuaded by the submissions of Mr Tomasetti that it is appropriate to give significant weight to the fact that the Applicant has avoided all development of the E2 Environmental Conservation zoned land, including permissible development such as access roads and the like. The purpose of the proposed development is subdivision and residential development, a use which is not permitted and the impacts of which are therefore not avoided by not developing this lot.
3. Further, I accept the submissions of Mr Wright at [79] which firstly, conclude that not developing Lot 32 (zoned E2 Environmental Conservation) is not avoidance of impacts and secondly, that the provisions of the BC Act prevail over the EPA Act, in particular in the consideration of the R2 Low Density Residential zone objectives for the reasons detailed at [80]. I adopt his reasoning in my determination.
4. However, I accept the agreed evidence of the ecology experts that the avoidance of clearing of Lot 32, zoned R2 Low Density Residential is appropriately categorised as avoidance. However utilising Figure 8.1 of the BDAR at the location of Lot 32: 538m² of CPW on this lot is categorised disturbed, 206m² is vegetation that is not CPW and the remaining 1299m² (62.5%) of the lot is nominated as moderately disturbed CPW.
5. However, I am not satisfied on the evidence, that the assertion in the BDAR that the design of the development avoids areas of CPW of the highest vegetation integrity and biodiversity value. The area of the site mapped VZ1 and exhibiting the highest tree coverage plainly does not align with the area to be retained. In fact, by reference to the evidence, the areas of CPW of the highest integrity and density occur in the vicinity of the proposed road, proposed lots 4-9 and 28-25. On the evidence I am not satisfied that, as asserted in the BDAR, the proposed development appropriately avoids development on areas of the highest value CPW.

Measures to mitigate

1. Broadly, as detailed in the BDAR, the development application proposes to mitigate the impacts of the development through the implementation of a Construction Environmental Management Plan (CEMP), including for example fauna rescue, use of a qualified ecologist on site, the CMP and those actions detailed at par [63].
2. Despite the reliance of the BDAR on a CEMP as a means of mitigating the impacts of the proposed development, no draft CEMP is before the Court. Both the Respondent's and the Applicant's draft proposed conditions of consent include the following: "7.6 Construction Environmental Management Plan 7.6.1 A Construction Environmental Management Plan to the satisfaction of Council is to be submitted to Council prior to the issue of any Construction Certificate." (Exhibit H)
3. I note that the preparation of such a document is not required until after the issue of Construction Certificate, which on the Applicant's draft proposed conditions of consent would be after any vegetation clearing occurs, as can be seen by the Applicant's proposed condition 2.4.1: "2.4.1 No construction preparatory work (including tree or vegetation removal, ground clearing, excavation or the like) shall be undertaken on the land prior to a valid construction certificate being issued for the works. Applicant note: vegetation removal and clearing is not the erection of a building and does not require a construction certificate." (Exhibit H), emphasis original
4. In the absence of a draft CEMP, and the preceding uncertainty as to when and to what works it will apply, it is not possible to assess the effectiveness of the proposed CEMP as a means to mitigate the impacts of the proposed development. For example, whilst the BDAR indicates a CEMP will incorporate requirements for fauna recovery such a measure is in conflict with the Applicant's proposed condition 2.4.1 which does not require a CEMP until after vegetation removal.
5. I am satisfied that the CMP is not an appropriate measure to mitigate the impacts of the proposed development on the CPW. My finding arises from the CMP's insufficiency in two regards: firstly, lack of certainty as to the scope and frequency of actions required under the CMP; and secondly whether the time period of its operation is sufficient to ensure a maintenance of the biodiversity values of the CPW. My reasoning follows:

• The ecology experts agree that the CPW on the site requires ongoing management to maintain the integrity of the community and arrest the declining biodiversity values. I accept the evidence of Dr Henderson at [59]- [60] and Mr Skelton at [45]-[58] in this regard.
• I accept and prefer the evidence of Dr Henderson that the CMP fails to adequately address the risk of African Lovegrass to the CPW community. For example, the CMP fails to nominate the density of planting necessary to 'shade out' the weed species or detail the minimum frequency of weeding required. Further, the CMP specifically excludes African Lovegrass from the weed percentage targets, effectively exempting its management from having any defined outcome under the CMP.
• The Final Determination lists weed invasion as a major threat to CPW. Further, it lists African lovegrass amongst the principal weed species. The threat is described in the Final Determination as producing a dense ground cover capable of smothering indigenous plants, reducing both reproduction and survival and inhabiting emergence and establishment of their seedlings.
• I accept Dr Henderson's evidence, summarised at [52] that the CMP is insufficient in that it provides no quantitative or measurable timeframe for the management of this weed species. However, in my view it is also a failure of the CMP more generally. For example, whilst there is provision of goals and key performance indicators applicable to the construction monitoring times, given the reliance on this measure in the BDAR, the CMP should incorporate targets, such as vegetation integrity scores for each of the zones at the completion of the implementation of the CMP to demonstrate the achievement of improved environmental values.
• In my view the CMP is also deficient in the provision of certainty of the resources or effort that will be applied by actions detailed within it. For example, there is no stated minimum frequency of weeding, watering or other management actions such as pest fauna control. Instead, the CMP relies on key performance indicators to be monitored at three monthly intervals during construction and then six monthly for the term of the plan.
• I accept the oral evidence of Dr Henderson that, on the evidence before the Court, it is uncertain at what stage of maturity any revegetation, even if managed under the CMP, would reach a state of maturity, integrity and diversity to meet the elements of CPW.

1. It may be the case that in other matters such specificity is not required in a CMP, however in this matter I am of the view such certainty and specificity is required on two grounds, firstly the listing of CPW as an EEC and as a critically endangered ecological community under Sch 2 of the BC Act. Secondly, the reliance in the BDAR on the management of the environmental preservation lots through the CMP.
2. The CMP and the Applicant's draft proposed conditions of consent nominate a period of five years for its operation. The relevant condition is as follows: "10.2 Conservation Management Plan 10.2.1 Prior to the issue of the final occupation Certificate for a dwelling: - all performance criteria for the Approved CMP establishment phase (5 years) must be complied with, and - a statement certifying such compliance must be provided to Council by the Project ecologist / Environmental Manager / Author of the CMP or an equally qualified and experienced person." (Exhibit H)
3. The Respondent's position, on the evidence of Dr Henderson, is that the CMP should be required to apply in perpetuity. I note that in closing submissions, despite maintaining a duration of the CMP of five years during the proceeding and examination of the experts, Mr Tomasetti stated that the Applicant was willing to accept the Respondent's requirement for management of the two environmental preservation lots under the CMP in perpetuity. (Transcript 3 September 2021 p 160 at [50])
4. Section 4.17(1)(g) of the EPA Act provides that the consent authority, in determining the development application, may impose a condition which modifies the details of the development the subject of the development application. It is relevant that conditions are imposed in a development consent which 'runs with the land' and imposes obligations on the landowner. Despite my findings at [150] and [157] that there is no power to grant consent to the proposed development, in my view the imposition of such a condition would be unreasonable in the circumstances.
5. There are three broad tests for valid consent conditions: (i) Conditions must be for a planning purpose, (ii) Conditions must reasonably relate to the development to which they are addressed, and (iii) Conditions must themselves be reasonable: Newbury District Council v Secretary of State for the Environment [1981] AC 578. In my view, it is this last test that is offended by the proposal that the CMP should apply in perpetuity to the two environmental preservation lots, with concurrent costs and actions required, in the context of a 30 lot residential subdivision.
6. Further, I find that such a condition is inappropriate given the deficiency of the CMP outlined above. I am not persuaded that the CMP will appropriately mitigate the impact of the proposed development on CPW.
7. I accept the evidence of Dr Henderson that the remaining matters listed at [64] are matters that would be industry practice to incorporate in the CMP (for example the installation of nest boxes, rubbish removal, and use of a qualified ecologist). These measures do not persuade me that the proposed development has appropriately mitigated the impacts of the proposed development.

• Occurring only in the Sydney Bio Region
• That whilst important examples of CPW are represented within conservation reserves, much of the remaining CPW occurs on private land or public easements.
• That CPW on private land is at risk from small scale clearing associated with development such as housing.
• That over 50% of the remaining patches of CPW are less than 3ha.
• There are significant logistical and technological constraints and time lags with efforts to restore the CPW community.
• CPW has undergone a significant reduction in geographic distribution with, at the time of the Final Determination, a distribution of 11,054ha, or only 8.8% of the pre-European distribution remaining.

1. The analysis detailed at [112] indicates that based on academic research, the 2008 CPW population distribution was 8,170.4ha. However, I note that the CPW Recovery Plan published in 2010, notes the geographic population distribution of CPW as 10,612ha. Applying Mr Skelton's analysis of the SEED data set, the Applicant argues the current CPW population distribution is some 21,951ha. The Growth Centres Biodiversity Offset Program Annual report, advanced by the Applicant in submissions, notes the CPW population distribution in the Growth Centres (not the entirety of the Sydney Bioregion) as 1,916.6ha in 2007 and 1,527.1 in 2019, incorporating both 'developable' and 'protected lands' in Table 2. The Annual report also notes a net loss of CPW in the Growth Centre over the year of 107.5ha. I note that the BDAR includes the following commentary about the available data on CPW: 'Information for CPW CEEC is scattered across many documents, many of which are out of date' and 'there is a current project to map the vegetation (CPW) of the east coast, this project is overdue'. (Exhibit C)
2. I accept the submission of Mr Wright that it is appropriate for the Court, in making a decision under s 7.16 of the BC Act as to whether a development is likely to have serious and irreversible impacts on biodiversity values, to be informed by the principles of ecologically sustainable development (ESD). I note that the BC Act adopts these principles at s 1.3. Applying Telstra Corp Ltd v Hornsby Shire Council (2006) 67 NSWLR 256; [2006] NSWLEC 133 at [128], I am satisfied that the two conditions necessary for the application of the precautionary principle are met. I am satisfied the first condition, that there is a threat of serious and irreversible environmental damage, is met as the development application seeks to remove 1.74ha of a patch of CPW that is currently 5.7ha and the agreed evidence of the ecology experts is that the proposed revegetation of CPW would not, in a reasonable time period, be either self-sustaining or equivalent to the CPW removed. I am satisfied that the second condition in my view is satisfied. Firstly, in relation to the uncertainty of the current CPW population numbers, given the inconsistency of data detailed at [144] with only the SEED data indicating any increase in population distribution in contrast to the other data sets demonstrating decline in CPW distribution. Secondly, the uncertainty noted in the Final Determination, of the potential of restoration of CPW and its ability to be self-sustaining, and finally as DPIE has not provided a threshold for CPW which provides guidance as to the level of impact that can be sustained, beyond which any impact will contribute to a risk of CPW extinction.
3. On the basis of the proceeding, I have taken a precautionary approach to determining whether the proposed development will have a serious and irreversible impact on CPW. I find that the impacts of the proposed development on the CPW EEC are to be regarded as serious and irreversible as they are likely to contribute significantly to the risk of the EEC becoming extinct pursuant to the principles at subcll (2) (a) and (b) of cl 6.7 of the BC Regulation. In making this determination, I accept and adopt the reasoning of Dr Henderson, summarised at [33]-[34] and the submissions of Mr Wright at [81] and [83].

The precondition to consent at cl 7.2(4) of LEP 2015 is not met.

1. Applying the preceding reasoning, I find that the development application fails to meet the test at cl 7.2(4) of LEP 2015 which contains the following precondition to consent: (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; (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; (c) if that impact cannot be minimised - the development will be managed to mitigate that impact.
2. I accept that to satisfy the precondition I need only be satisfied that one of the subcl provisions are met: Statewide Planning at 176.
3. Clause 7.2 applies to the site as it is identified as 'Biodiversity' on the relevant Terrestrial Biodiversity Map. In determining the development application, I have given consideration to the matters listed at cl 7.2 (3): (a) whether the development is likely to have - (i) any adverse impact on the condition, ecological value and significance of the fauna and flora on the land, and (ii) any adverse impact on the importance of the vegetation on the land to the habitat and survival of native fauna, and (iii) any potential to fragment, disturb or diminish the biodiversity structure, function and composition of the land, and (iv) any adverse impact on the habitat elements providing connectivity on the land, and (b) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.
4. In relation to cl 7.24(a) of LEP 2015, at [117]-[128] I found that the Applicant has demonstrated insufficient measures to avoid the impacts of the development on CPW. Utilising the same reasoning and my considerations in the body of the judgment, I find I cannot be satisfied that the proposed development is designed, sited and will be managed to avoid any significant adverse environmental impact.
5. In relation to cl 7.24(b) of LEP 2015, at [127] I accepted the evidence of Dr Henderson that the BDAR analysis of feasible alternative approaches to the development of the site was deficient. Further, at [128] I found that the development is not designed or sited to minimise the impact of the proposed development on CPW. Utilising the same reasoning and my considerations in the body of the judgment, I find I cannot be satisfied that the proposed development is designed, sited and will be managed to minimise any significant adverse environmental impact.
6. Finally, in relation to cl 7.24(c) of LEP 2015 for the reasons detailed at [129] -[140] including the uncertainty of the CEMP, the lack of certainty and specificity of the CMP and the agreed evidence of the ecology experts as to the efficacy of revegetation of the CPW community, I find I cannot be satisfied that the development the development will be managed to mitigate any significant adverse environmental impact.
7. Clause 7.2(4) of LEP 2015 establishes a prerequisite to the exercise of power by the consent authority to grant consent to the development application. As the prerequisite is not met, I have no power to grant approval and therefore no requirement to further consider the contentions raised by the Respondent in the proceedings or the merit assessment of the development application pursuant to s 4.15 of the EPA Act.

Orders

1. The orders of the Court are: 1. The appeal is dismissed 2. Development application DA-19-01882 seeking consent for torrens title subdivision, tree removal, earthworks, construction of residential dwellings and ancillary civil works at 35-37 Denis Winston Drive, Doonside (Lot 1268 DP 803528) is determined by way of refusal 3. Exhibits are returned with the exception of A, B, C and 1.

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