Vigor Master Pty Ltd v Northern Beaches Council (No 2)

Texts Cited: Macquarie Dictionary

Category: Principal judgment

Parties: Vigor Master Pty Ltd (Applicant)
Northern Beached Council (Respondent)

Representation: Counsel:
T Robertson SC (Applicant)
S Patterson (Solicitor) (Respondent)
Solicitors:
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2024/122570

Publication restriction: Nil

JUDGMENT

Nature of Proceedings

1. On 27 November 2025 the Court remitted these proceedings to me “to be determined according to law and these reasons for judgment”: Northern Beaches Council v Vigor Master Pty Ltd [2025] NSWLEC 136, at [92] (NBC).

Scope of Remitter

2. The appeal grounds related to errors of law and the Court found two material legal errors (NBC at [86]).

3. The first material legal error was the failure to properly construe and address the provisions of Warringah Local Environmental Plan 2000 (WLEP) in my reasoning process. The second error was my finding of inconsistency between the provisions of the WLEP and the Biodiversity Conservation Act 2016 (NSW) (BC Act) where there was no requirement of “improvement” in the WLEP that would contradict the BC Act, or the Biodiversity Development Assessment Report (BDAR), under the provisions of s 7.13(2) of the BC Act. In that regard, the Chief Judge determined that s 7.13(2) of the BC Act could sit harmoniously with s 4.15(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), cll 12, 56, 58 and the relevant Locality Statement of the WLEP, and that they identified relevant considerations in the determination of the development application, that were cumulative, and not substituted considerations: NBC at [79], [82] (AWS at [3]).

4. The provisions being considered are cl 12 (1) and (3) of the WLEP and clls 56 and 58 and the relevant Locality Statement referred to in Pt 4 of that planning instrument and relate to the design of the development in the setting.

5. This judgment is prepared having regard to the determination made by the Chief Judge in NBC by addressing the proper construction of the provisions of the WLEP and applying the facts as found to those provisions (Vigor Master Pty Ltd v Northern Beaches Council [2025] NSWLEC 1520) (“my decision”). For the purpose of determining the matter on remitter, I have considered the transcript of the evidence before me at the initial hearing, particularly focusing upon that given by the landscape and ecology experts addressing the provisions of the WLEP. I have also been assisted by the written submissions of the Council, and the applicant dated 16 April and 17 April 2026 respectively. In its submissions, the Council reiterates the ASOFC filed on 18 February 2025, and its submissions filed on 25 March 2025.

6. As there has been no application by either party for leave to reopen the case to lead further evidence, my present decision is made upon the evidence given in the initial hearing before me: Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 161 LGERA 86; [2008] NSWLEC 247 at [24].

7. There was no right of appeal on the facts, and none of the findings of fact made were challenged on appeal as disclosing errors of law (T6:30-34 dated 21 April 2026). Therefore, I accept that the finding of facts at [69]-[72] of my decision remain, and should be applied, albeit in a legal context that has been clarified in the NBC (AWS at [1]).

8. Relevantly, my finding at [67] that the development is “…a low intensity, low impact use” was also not challenged or set aside, except to the extent that “enhancement” was ignored in my initial assessment. I accept that it is necessary for me to reconsider the B2 Oxford Falls Valley Desired Future Character Statement (Locality Statement) in the context that “landforms and vegetation will be protected, and where possible, enhanced”. In that consideration I will have regard to the whole of the evidence, including the applicant’s ecologist, Mr Smith’s evidence, as it cannot be ignored because of any perceived inconsistency with the BDAR.

9. That said, I also accept that I need to make further limited findings of fact, having regard to the evidence given before me.

Issues for determination

10. The Council submits (CWS at [3]) that the Court cannot grant consent to the development unless it is satisfied that:

(a) the proposed development is consistent with the desired future character for the B2 Oxford Falls Valley as expressed in the Locality Statement for that locality in Appendix B of the WLEP; and (b) the proposed development is consistent with the general principles of development controls set out in cll 56 and 58 in Pt 4 of the WLEP.

The legislation

11. Relevantly, s 4.15(1) of the EPA Act requires a consent authority, in determining a development application, to take into consideration:

(a) "the provisions of-

(i) any environmental planning instrument…

(b) the significant likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality

12. Clauses 12(1) and (3) of the WLEP provide:

(1) Before granting consent for development the consent authority must be satisfied that the development is consistent with-

(a) any relevant general principles of development control in Part 4, and

(b) any relevant State environmental planning policy described in Schedule 5 (State policies).

…

(3) In addition, before granting consent for development classified as-

(a) Category One, the consent authority must consider the desired future character described in the relevant Locality Statement, or

(b) Category Two or Three, the consent authority must be satisfied that the development is consistent with the desired future character described in the relevant Locality Statement,

but nothing in a description of desired future character creates a prohibition on the carrying out of development.

13. It is common ground between the parties that the subject application is a Category Two development and that the relevant desired future character statement is set out in B2 Oxford Falls Valley Locality in Appendix B – Narrabeen Lagoon Catchment Locality Statements of the WLEP.

14. The general principles of development control in Pt 4 of WLEP include cll 56 and 58 which provide:

56 Retaining distinctive environmental features on sites

Development is to be designed to retain and complement any distinctive environmental features of its site and on adjoining and nearby land.

In particular, development is to be designed to incorporate or be sympathetic to environmental features such as rock outcrops, remnant bushland and watercourses.

…

58 Protection of existing flora

Development is to be sited and designed to minimise the impact on remnant indigenous flora, including canopy trees and understorey vegetation, and on remnant native ground cover species.

15. The Locality Statement for Locality B2 Oxford Falls Valley describes the desired future character as:

The present character of the Oxford Falls locality will remain unchanged except in circumstances specifically addressed as follows.

Future development will be limited to new detached style housing conforming with the housing density standards set out below and low intensity, low impact uses. There will be no new development on ridgetops or in places that will disrupt the skyline when viewed from Narrabeen Lagoon and the Wakehurst Parkway.

The natural landscape including landforms and vegetation will be protected and, where possible, enhanced. Buildings will be located and grouped in areas that will minimise disturbance of vegetation and landforms whether as a result of the buildings themselves or the associated works including access roads and services. Buildings which are designed to blend with the colours and textures of the natural landscape will be strongly encouraged.

A dense bushland buffer will be retained or established along Forest Way and Wakehurst Parkway. Fencing is not to detract from the landscaped vista of the streetscape.

Development in the locality will not create siltation or pollution of Narrabeen Lagoon and its catchment and will ensure that ecological values of natural watercourses are maintained. (Underlining added)

Council’s position

16. The Council reiterates the approach to clls 56, 58, and the Locality Statement for the B2 Oxford Falls Valley in the WLEP as set out at [59]-[69], [79]-[80] and [89]-[92] of its written submissions filed on 25 March 2025, and that adopted by the Court in Retirement by Design Pty Limited v Warringah Council (2007) 153 LGERA 372; [2007] NSWLEC 87 [54]-[56]; Vigor Master Pty Limited v Warringah Shire Council (2008) NSWLEC 1128 [17], [22]-[23]; and Platform Architects v Northern Beaches Council [2020] NSWLEC 185 [48]-[52].

17. The Council submits following the Chief Judge’s determination my findings at paragraphs [66] and [67] of my decision need to be reconsidered without limitation on the evidence of the Council’s experts arising from consideration of the contents of the BDAR and any perceived inconsistency with that document.

18. In the present hearing, the Council submits that significant weight should be given to the evidence of Mr Calf (the Council’s landscape expert), particularly the following paragraphs in the Joint Report (Ex 4) at [16]-[18]:

“[16] …the APZ required for the proposal has a large footprint which detrimentally impacts the sites existing vegetation and subsequently its character, which is contrary to the WLEP2000 requirements stated above in paragraph 15. Figure 1 shows the heavy tree removal amongst or around the rock outcropping and TC considers the rock outcropping at risk of becoming icebergs in a landscape rather than an integrated natural feature with the surrounding vegetation.

[17] When comparing the viewpoints shown in Figure 1 to the established bushland character shown in the site photographs (Figures 2, 3, 4 and 5) the impact is significant.

[18] TC notes once the proposed APZ area is managed as an IPA and OPA, the bushland character will be permanently altered. The impact will be particularly evident along the distinctive environmental feature, to the west of the built form, due to the reduction in tree canopy and understorey vegetation management; a loss of two out of the three elements, which define this feature. Furthermore, any future natural processes of a bushland environment (natural regeneration etc.) will be heavily restricted within the APZ.”

19. The Council further submits that the concession by Mr Lakeman in cross examination that the proposed removal of trees will “take out part of that landscape character” is also pertinent (T118:30 dated 10 March 2025).

20. The Council also emphasises Mr Smith’s written evidence at paragraphs [17]-[21], [29], [34]-[39], [47]-[52] and [58]-[61] of Ex 5 Joint Ecology Report in respect to the proposal’s inconsistency with the Desired Future Character (DFC) requirements identified in WLEP 2000.

21. In the joint report, Mr Smith states that the proposal will require “…the removal of 192 trees and clear and or disturb an area of approximately 1.79ha of native vegetation, the equivalent of approximately 1.7 rugby fields of vegetation” (Ex 5 at [18]. Moreover, he believes that the bulk of the additional clearing for “associated works” is necessary to establish Special Fire Protection Purpose Asset Protection Zones (APZ) because the proposed use of the site is for housing for seniors development.

22. Whilst acknowledging that “…the DFC statement, and clls 56, 58 are not a prohibition on all developments which result in vegetation clearing or impacts upon a site’s environmental features”, Mr Smith described the proposed clearing as excessive and “...inconsistent with the ‘low impact use’ identified by the DFC” (Ex 5). He considers that the existing consents for the approved dwelling and boarding house offer “*…*a reasonable, balanced or acceptable (low) scale of impact to the site’s environmental features…and…a more balanced outcome that is sympathetic to the distinctive environmental features of the site, subject to compliance with consent conditions (see conditions online DA2013/052”5)” (Ex 5).

23. Mr Smith is of the opinion that the large offset obligation calculated in the BDAR (a total of 36 ecosystem credits and 446 species credits) demonstrates something other than a “low impact use” and the “…incompatibility of the current proposal with the site’s sensitive environmental features”. He is critical of the applicant’s recent clearing/under-scrubbing across Lots 810 and 811, including in areas which closely align with the currently proposed APZ (Ex 5 Attachment F, Figures 2 and 3, Photos 1, 2, 6, 7, 8, and 9) and the (alleged) clearing of the proposed APZ footprint during assessment of the current application. Mr Smith believes that this clearing gives a false perception that the proposal would not have an unreasonable scale of impacts and has been designed and located to avoid and minimise impacts. He is concerned about the ongoing management of the APZ (the removal of leaf litter), impact of weeds over time.

24. In respect to clls 56 and 58, Mr Smith stated (Ex 5 at [52]):

"I consider that the native vegetation, trees and rock outcrops on the site are distinctive environmental features that will be unreasonably impacted by the proposal. …

In summary, I state that the current proposal (housing for older people) does not 'retain and complement' the sites, or the 'adjoining and nearby lands' distinctive environmental features. Furthermore, I consider the scale of impacts is unreasonable and not sympathetic to environmental features of the site and does not acceptably minimise disturbance of vegetation. It is therefore my assessment, that the proposal is inconsistent with both Clauses 56, 58 and the low impact use required by the 82 DFC"

25. The Council also emphasises Mr Sheather-Reid’s (applicant’s ecologist) concession in cross examination that the extent of the removal of the vegetation proposed is not “protection of the vegetation” as relevant to my consideration (T81:45 dated 10 March 2025).

26. For these reasons, the Council submits that I will not be satisfied that the proposed development is consistent with the relevant general principles of development control in cll 56 and 58 of the WLEP and the Locality Statement having considered all the evidence and in particular that of Council’s landscape, architecture, and ecology experts.

Applicant’s position

27. The applicant submits at AWS at [11]-[31] that to determine whether the WLEP is a barrier to the grant of consent, as the Council argues, it is necessary to examine what the provisions do, in the context of the WLEP.

28. Clause 56 of the WLEP sits within Part 4 of the General principles of development control, with which permissible development must be consistent (cl 12(1)(a)), but not necessarily complaint to the satisfaction of the Court. It draws a distinction with cl 12(2) which does require compliance.

29. Division 4 is entitled “Site and planning and building design”, and s 35(1)(a) of the Interpretation Act 1987 (NSW) provides that the title is an intrinsic part of the WLEP. As such, cl 56 must be read in context and is a design principle. The applicant submits it does not require the development to have a particular outcome. It is a design principle not a biodiversity standard – as was made clear in the determination of the Chief Judge in NBC.

30. Put simply, cl 56 deals with the location and design of the building on a site, which must “be designed to retain and complement any distinctive environmental features of its site and on adjoining and nearby land”. The WLEP then requires that development be designed “to incorporate or be sympathetic to environmental features such as rock outcrops, remnant bushland and watercourses”.

31. As the example is part of the operative provisions, the applicant submits that it illustrates how the clause is to apply to that set of environmental features. It further submits that the examples at cl 56 (“rock outcrops, remnant bushland and watercourses”) can be used to understand what is intended by the words “to be designed to retain and complement” those features. Read in the context of the whole, the applicant contends that the purpose of cl 56 is to design around the features in a sympathetic way.

32. The applicant submits that the evidence demonstrates that it has gone to “extraordinary lengths” to design the development to be sympathetic to the distinctive environmental features of the site and on adjoining land and nearby land such as the rock outcrops, remnant bushland and water courses, and the distinctive environmental features identified by Mr Calf and Mr Lakeman (T81:5-20 dated 10 March 2025; Ex A Tab 3; Urban Design Study; Landscape Plan Tab 4; SEPP Housing Design Verification Statement Tab 21; Ex 6 Tab 4). It has responded to criticisms raised by the Design Panel and others, and invites the Court to accept the agreed evidence of the planning experts that the development complies with the design principles in the WLEP to the extent of their expertise (Ex 3).

33. The applicant is critical of the Council’s adoption at the trial of the construction given to the word “complement” in Altre Partners Pty Ltd v Northern Beaches Council [2023] NSWLEC 1145 (Altre), in the sense of requiring an improvement or positive contribution for the purpose of cl 56 of the WLEP. It submits that that construction was erroneous because it takes one dictionary meaning of a word (with several meanings) out of its context as a design principle and then applies that meaning as if it imposed as a rule applicable to all classes. The applicant submits that this method of construction diverts attention from the context in which the word is used, and the purpose of the provision: House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 4. It is further submitted that this mistake was compounded by the Council’s acceptance of the deconstruction of the phrase in cl 56: “retain and complement”, by defining each word as a separate idea rather than a composite term*.*

34. The applicant submits that the Council’s argument that the proposed removal or management of vegetation to accommodate the APZ does not “complement” or result in an outcome that improves or contributes to the distinctive environmental features of the site and should be rejected (CWS at [43] dated 24 March 2025).

35. The applicant submits that this interpretation of the provision is plainly wrong and that to “complement” in the design sense is to fit in, rather than clash (AWS at [17]-[19] dated 17 April 2026). With that definition in mind, the applicant submits that the proposal achieves a design that retains and complements any distinctive environmental feature of its site and on adjoining land and nearby land. In that regard the applicant identifies that the buildings have been designed to reduce visual impacts (by separation, roof forms, articulation and clever use of materials and colours) and have avoided the excavation of the rock outcrop (a significant problem in Altre) and by detailed design removed any uncertainty about construction impacts (there was no certainty in Altre). It is further submitted that the management regimes identified for the waterway (Ex A, Tab 23) and ecological restoration (Ex A, Tab 14) also "retain and complement" the distinctive environmental features of the site and surrounding area.

36. The applicant emphasises the particular importance of the landscape because the development reintroduces rock forms to the site and uses local vegetation rather than typical urban landscaping to "fit in" with the rock outcrop, which on the evidence is the dominant typology of the site. The applicant also emphasises that the building separation maintains view lines to the outcrop and vegetation, and by acquiring the third lot adjoining the Rural Fire Service and dedicating and managing it for conservation achieves what is agreed to be a positive outcome (better than existing).

37. The applicant submits the development will improve the existing landscape below the outcrop (which is largely a fill area dominated by weeds and building detritus), as well as restore creek functions. It has been designed to add a congruent form to cl 56 features, and hence it is consistent with the design principles in cl 56 and 58 in Div 4 of Pt 4 General provisions in the WLEP, which is also a design provision.

38. Put simply the applicant submits that in accord with the controls, based on its experts] oral and written evidence, the development is sited and designed to “minimise” the impact on “…remnant indigenous flora, including canopy trees and understorey vegetation, and on remnant native ground cover species”. The applicant emphasises that the clause does not require avoidance of all impact on the native vegetation, rather that the design and siting of the development only minimise impact. Both parties accept it to be inevitable that permissible development will involve some vegetation clearing.

39. The applicant submits that the efforts it has taken to design and site the building to minimise impacts can be understood from the BDAR (Urban Design Study; Ex A Tab 3; Landscape Plan Tab 4; SEPP Housing Design Verification Statement Tab 21; List of avoidance and minimisation of impacts in the BDAR s 6.2.1 pp 77-78, Tab A Tab 13).

40. The applicant further submits that there is nothing in the text of the Locality Statement that creates a prohibition on development.

41. While the Chief Judge’s determination did not take issue with my finding at [66] that “low intensity” referred to size, scale and extent of activities associated with the proposal, and “low impact” referred to the magnitude of environmental impacts which would be “unlikely to significantly change the amenity of the locality”, the applicant submits nonetheless that on remitter NBC requires that I reconsider the Locality Statement in the context that “landforms and vegetation will be protected and where possible enhanced”.

42. After undertaking that consideration based on all the evidence (including that of Mr Smith, Mr Calf, Mr Lakeman, Mr Sheather-Reid and Dr Henderson), the applicant submits that I will reject the Council’s assertion that the clearing of vegetation and associated management for the APZ means that the development does “not protect and enhance landforms and vegetation” and is something other than “low impact and low intensity”. It submits that the protection of the natural landscape including landforms and vegetation as a whole is consistent with the removal of some vegetation if it is for the purpose of allowing a permissible development, such as the proposed seniors living development.

43. The applicant submits that after the requisite reconsideration the Court will come to the same conclusion as found at [66] of my initial decision. It submits that the Court will accept that the buildings will be grouped in areas that will result in a minimum amount of disturbance to vegetation and landforms. As such, the landform and vegetation will be protected as a whole. Further, the Court will accept that permissible development within a bushland setting necessarily involves disturbance of vegetation at its outer periphery to accommodate an APZ otherwise no such development could be built. The applicant reiterates that the planners are agreed that the development meets both tests of “low intensity and low impact” as far as their disciplines are concerned (Ex F at [8]). And, after a consideration of the landscape and ecology evidence, particularly in response to the APZ, that I will find on the evidence, including the Tree Survey Summary (Ex D) and the Bushfire Report (Ex A Tab 15), that most of the vegetation removal is in this case unhealthy species; not concentrated in any particular sensitive areas and does not contain threatened species, habitat, or ecological communities.

44. The applicant submits that the Council’s interpretation of the Locality Statement attempts to introduce a prohibition on development which cl 12 precludes, and the WLEP otherwise encourages in the B2 Locality (Ex B). It emphasises that the Locality Statement cannot be read literally to prevent any clearing, and the loss of some vegetation can be accommodated whist still protecting the natural landscape including landforms and vegetation. In this regard it is submitted that Altre at [84]-[85] is correct.

45. In respect to “where possible, enhancement”, the applicant submits “…that this is achieved by the mitigation measures, proposed which will protect important vegetation, reinstate the creek, provide additional habitat by revegetation and improve existing habitat by weeding and fire protection, pursuant to an accountable management regime for the site as a whole” (AWS at [28] dated 17 April 2026). It is further submitted that the words “where possible” accommodates the clearing and vegetation management on the rock platform for the APZ. As all development in a bushland context requires an APZ, enhancement may not be possible for safety reasons in some areas but the site as whole can be enhanced as is the case at hand.

46. Finally, the applicant submits that none of the WLEP provisions erect barriers to an approval – they are matters for planning assessment on a broader scale than the detailed tree by tree and expert assessments of the biodiversity impacts required by Pt 7 of the BC Act. The conclusion of the planners was that the development satisfied them and that conclusion should not be disturbed, after a reconsideration of all of the evidence.

47. The applicant submits that nothing in the decision in NBC detracts from the fact that the BDAR assessment of likely impacts on biodiversity values is a fundamental aspect of the biodiversity offsets scheme, and the planning approvals system established by the BC Act. While the Court has a discretion to further consider likely biodiversity impacts it submits that this discretion would only be exercised if there is good reason to do so and it could not be exercised to set aside the BDAR assessment as that would contradict the scheme contrary to s 7.13(2). In this context the words “further” means “in addition to” (Macquarie Dictionary meanings 3 and 6).

48. The applicant submits that my findings at [69]-[72], which are unchallenged should be applied to the WLEP, properly construed. It submits that the BDAR demonstrates that any ecological impact generated by the development is low (AWS at [31]). No threatened species of fauna or flora will be adversely affected by the APZ. The toadlet's habitat is well preserved and will be enhanced by the management plan. Vegetation understorey within the APZ will be managed, not removed. Any habitat that the rock outcrop provides has been intensively studied in the BDAR (which is required to consider impacts on landscape features by s 6.1(1)(a) of the Biodiversity Conservation Regulation 2017) and no adverse outcome from the proposal has been recorded. The applicant submits that the Council’s assessment has ignored the Biodiversity Management Plan (BMP), the addition of the southern lot and the in-perpetuity conservation mechanism. The BMP is for a minimum of 10 years, will be audited and supervised by an independent ecologist. Only about a quarter of the site area will be developed, most of which is already cleared. The proposal offers substantial benefits to the community which alternatives (single house site) do not. It is entirely consistent with the Locality Statement and cll 56 and 58 of the LEP.

49. For those reasons, the Court would grant the conditional approval to the application, as amended.

Consideration and findings

50. At the outset it is important to distinguish between findings of fact that are necessarily voided by the Chief Judge’s determination and those findings which have not been the subject of challenge and are embedded in my original decision.

51. In that regard, I agree with the applicant’s submissions at [23]-[24] (AWS dated 17 April 2026). There are two relevant provisions. The first is at [67] of my decision, where I found that the proposal is for a low intensity, low impact use. There was no challenge to this finding, and it has not been set aside, except to the extent that “enhancement” was ignored as I considered it was inconsistent with the BDAR. Paragraph [67] of my decision states:

“[67] Leaving aside enhancement (which can be ignored as it is inconsistent with the BDAR) I find on the evidence that the development is consistent with “landforms and vegetation protection” because the proposed “building[s] will be grouped in areas that will result in the minimum amount of disturbance of vegetation and landforms”.”

52. I accept that it is necessary for me to reconsider the Locality Statement in the context that “the natural landscape including landforms and vegetation will be protected and, where possible, enhanced”.

53. At [66] of my decision, I found that “low intensity” referred to the size, scale and extent of activities associated with the proposal, while “low impact” referred to the magnitude of environmental impacts which would be “unlikely to significantly change the amenity of the locality”: Platform Architects Pty Ltd v Northern Beaches Council [2020] NSWLEC 185 at [53]-[54]. The decision in NBC does not criticise this finding. The planners are agreed, to the extent of their expertise, that the redesigned proposal meets both tests. The Council argues that because the APZ requires limited vegetation clearing and management that the use has been converted to one that ceases to be low intensity and low impact because it does not protect and enhance landforms and vegetation. At [67] of my decision I found that “the buildings will be grouped in areas that will result in the minimum amount of disturbance of vegetation and landforms”. After further consideration of the Locality Statement in the context that “the natural landscape including landforms and vegetation will be protected and, where possible, enhanced” I am satisfied on the evidence including that of Mr Smith that the landforms and vegetation have been protected and where possible enhanced as a whole by this development. The extent of the clearing and management of the vegetation is necessary to accommodate the APZ for this permissible purpose. The evidence demonstrates that the disturbance of vegetation and landforms has been minimised by the design of the development. As I will endeavour to explain, the proposed 240 plantings and restorative works to bushland and the creek will protect and where possible enhance the natural landforms.

54. The findings at [66] and [67] of my decision are unchanged for the reasons advanced by the applicant, as summarised above.

55. In reaching this conclusion, I accept, as is clear from the decision in NBC that the reference to “enhancement” is not directed to biodiversity. It is the natural landscape where possible, enhanced. The next sentence then immediately is qualified by stating “will minimise the disturbance of vegetation or landforms”.

56. It is common ground that the Locality Statement does not require the protection of all of the natural landscape, and where possible, enhancement because it asks for the minimisation of the impact. As Mr Smith states in his evidence, it is a question of balance – you may get rid of some of it but retain sufficient landscape, vegetation and landform that answers the description.

57. It is also clear from the determination of the Chief Judge in NBC, as the applicant submits, that on their proper construction, none of these provisions are inconsistent with clearing for the purposes of an APZ, which is a necessary element in any development of this land. Rather, it is to be assumed, as the provisions do, that there will be some impact on the natural environment. The question is whether the development minimises that impact, and whether it improves other aspects of the environment so it can be said that looking at the site overall, not just in the development area but overall, that it is consistent with the principles of design and the expected future character in the Locality Statement (T3:15-29 dated 21 April 2026).

58. Accepting this construction of the WLEP, the question about inconsistency with biodiversity is removed; and it simply becomes a design question as to whether the development has gone as far as it should go, having regard to the permissibility of the development and the availability of land for it on the site. Put simply, “…has the development succeeded in meeting the objectives expressed by those provisions, bearing in mind that each of those provisions accommodates some development within this area” (T3:36-38 dated 21 April 2026).

59. It is the Council’s case, on the evidence of Mr Smith and Mr Calf, that the development involves excessive clearing of vegetation and that the development does not minimise impacts on the distinctive environmental features of the site and surrounding land. On that basis it argues that I cannot be satisfied, as required by clls 56 and 58 and the Locality Statement, and that the development must be rejected.

60. Based on my observations of the landscape and a consideration of the evidence as summarised, I find that the site contains a flat area that is essentially cleared and filled, that area being where the buildings are to be constructed. During construction that area will be landscaped. There will be a reintroduction of rock forms, the buildings have all been designed and coloured to mitigate impacts when observed from public places, but they improve the visibility of distinctive environmental features such as the rock face. This is achieved because the development is set back from the rock face.

61. The development is also set back from the former creek.

62. As I observed, the former creek drops off from the flat area in the site. It has been filled and completely rejuvenated by this development. This is an important mitigation measure, which in my assessment will enhance the landscape. The non-functioning area now will become a functioning creek with all the benefits for biodiversity and for the environment generally.

63. The application also protects and enhances the land behind the fire station, which the experts agree is exceptionally good habitat for the eastern pygmy possum, and for other biota. To this end, the evidence establishes that this area will be preserved by this development instead of developed and left to decline. The proposal includes a management plan that will have a ten-year life span to ensure that the site is rejuvenated over that time frame, and despite Mr Smith’s reservations, I accept the applicant’s evidence that it will be accountable. There are methods for ensuring that it is complied with, such as audit requirements that are imposed under the consent conditions.

64. As for the site, as I observed, it contains rubbish, a car body and areas that have been neglected over time. Those areas are intended to be rehabilitated, and the important vegetation, which is upslope from the rock face and the subject of a Threatened Ecological Community, will not be interfered with by the development, but it will have the benefit of having the APZ, which will minimise fire risks to that area. In that way, as the applicant submits, the APZ works both ways; it not just protects the lower built form and the human habitation, but it also has an impact, a beneficial impact, on the vegetation, because it reduces the incidence or severity of fire. It was noted at the view that the area had been severely impacted by bushfire in the past.

65. The substantive factual proposition advanced by the Council through its witnesses and in its written submissions is that the proposed development is a massive clearing exercise. Mr Smith gave evidence that the proposal involves the clearance of 1.79ha of vegetation and 192 trees, and, that such clearing is “not protection of vegetation”.

66. However, as Mr Sheather-Reid clarified in Court, the 1.79ha of clearing of the site referred to by Mr Smith included areas of historical clearing, some under earlier consents which the development proposes to extend. The applicant’s experts’ description of the vegetation that will be removed to accommodate the APZ (which is “a necessary function of this use”) is more accurate than Mr Smith’s because it accords with my observations. Generally, it is not mature vegetation; but spindly, poor regrowth or it is vegetation which is removing one stalk, leaving other stalks or other stands of trees in the vicinity. This description is consistent with Mr Lakeman’s evidence that the trees proposed to be removed for the APZ are generally low grade (Ex D Tree Survey), where 57 of them are identified as dangerous and in his assessment their removal does not change how the area is characterised (T119:11-17 dated 10 March 2025). Ultimately, the vegetation clearing must be balanced against the replanting outlined in Appendix A1 of the BMP Plan (at pp 66, 68). The BMP specifies which species are to be used for restoration having divided the land into three management zones (A), (B), and (C), with (C) being the internal footprint. At p 68, the BMP references management area (B1) and (B2) which is the inner protection zone outside the development footprint and there are 13 Banksia ericifolia, which are fire retardant naturally occurring species to be planted there. Then, in the bush conservation area there will be 195 Banksia plants in management zone C in the PCT 3585 and PCT 3586. A total of 240 plants are proposed to be planted to encourage natural regeneration. I accept Mr Lakeman and Mr Sheather-Reids’ evidence that after the clearing for the APZ, the landscape will appear as filtered but with the existing vegetation, largely sitting on the rock face. Any removed landscape will be accommodated, to some extent, in the proposed conservation areas and maintained under the BMP and the conditions.

67. The proposal also involves a small area of vegetation removal adjoining the former creek, which will be rehabilitated. The applicant’s evidence is that this landscape will also appear as “…a small thinning of the vegetation” (T4:41 dated 21 April 2026), and I accept Mr Lakeman’s assessment that the impact on this landscape view will not be of significance.

68. The evidence supports a finding that development has been designed to be located in areas of existing disturbance and that the proposed asset protection zones, although extended by this development, include areas already impacted by the existing development consent (T93:30 dated 10 March 2025). The three distinctive environmental features identified by Mr Calf, by reference to cl 56, (Ex 4 at [13]) being “tree canopy, rock outcropping and native understorey vegetation”, and accepted by Mr Lakeman (T110:18-30 dated 10 March 2025) will be retained and complemented by this development based on the applicant’s evidence which I accept. (I accept that “complement” in this context means to “fit in”, as submitted by the applicant at [35] above). As Mr Lakeman explained “…while some vegetation above the rock outcrop would be modified to accommodate the necessary the APZ the building itself was designed to be located where there is no existing or little existing tree canopy” (T110:16-21 dated 10 March 2025). I accept Mr Lakeman’s evidence that the BMP as proposed will ensure regeneration and the maintenance of appropriate vegetation within the landscape, and the reconstruction of the streetscape and the buildings read as a whole is consistent with the character of the Oxford Falls locality (T118:49-50 dated 10 March 2025).

69. For these reasons I am also satisfied that the development has been designed to retain and complement the identified distinctive environmental features of the site and on the adjoining and nearby land. In particular, the development has been designed to be sympathetic to environmental features such as rock outcrops, remnant bushland and watercourses: cl 56.

70. I am also satisfied on the evidence that the development is sited and designed to minimise the impact on remnant indigenous flora, including canopy tress and understorey vegetation and on remnant native ground cover species: cl 58.

71. Finally, I am satisfied that the development is consistent with the Locality Statement for the reasons identified by the applicant and based on its experts’ evidence, as summarised.

Conclusion

72. For the reasons stated, I am satisfied as required by cl 12(1) that the proposed development is consistent with the general principles of development controls set out in cll 56 and 58 in Pt 4 of the WLEP. I am also satisfied as required by cl 12(3) of the WLEP that the proposed development is consistent with the desired future character for the B2 Oxford Falls Valley as expressed in the Locality Statement for that locality in Appendix B of the WLEP.

73. After a consideration of all relevant matters under s 4.15(1) of the EPA Act, I have determined to grant consent to the development, subject to the conditions of consent in Annexure A.

Orders

74. The Court orders:

75. The appeal is upheld.

76. Development consent is granted to development application DA2023/1932 for a senior living development located at 72 to 76 Willandra road, Oxford Falls NSW of Lot 807, Lot 810 and Lot 811 in DP 752038, subject to the conditions of consent in Annexure A.

77. Exhibits are returned.

S Dixon

Senior Commissioner of the Court

122570.24 Annexure A

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