Mr and Mrs White, have appealed under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the First Respondent, Ballina Shire Council (Council), of Development Application No. DA 2018/381 for the decommissioning of an existing dwelling and construction of a new two-storey dwelling and swimming pool and the upgrading of an existing internal access way at Lot 2 DP 1065811 also known as No. 404 Old Byron Bay Road, Newrybar.
The Notice of Determination (Ex 1 Tab 14 folio 574) gave as reasons for the decision:
"1 The proposed development is inconsistent with the objectives of the 7 (d 1) Environmental Protection (Newrybar Scenic/Escarpment) Zone under the Ballina Local Environmental Plan 1987
2 The impacts of the proposed development do not meet the requirements of the Ballina Shire Development Control Plan 2012."
The matter was allocated by the Court on 17 February 2020 to a conciliation and hearing under s 34AA of the Land and Environment Court Act 1979 (LEC Act).
On 15 July 2020, Mr Kenny of 420 Old Byron Bay Road, the neighbour immediately to the north of the entrance to the subject site sought, through a Notice of Motion, to be joined to the proceedings. Leave was granted by the Court. Mr Kenny is a party for all purposes to the proceedings, but particularly wished to raise planning and engineering matters.
When the development application (DA) was first before Council on 28 November 2019, it was approved on the recommendation of Council officers subject to conditions, including a condition requiring the Applicants to submit for approval a Culvert Rectification Plan (CRP). The purpose of the CRP was to "ensure the natural flow regimes of the creek which traversed the approved internal driveway are restored to their predevelopment state" (Ex 1 Tab 15 folio 581).
However, at the Council Meeting on 19 December 2019, a recission motion was passed, and Council then voted to refuse the application.
Mr Astill, barrister for the Applicants, in his submissions, at footnote 1, stated that:
"the professional staff of the Council comprehensively assessed the DA and recommended approval of it, but the elected representatives refused to follow that recommendation presumably due to lobbying from objectors or some other impetus"
and in par 7 of the submissions continued:
"7. However, to illustrate how a rationale and comprehensive assessment of the DA should be (and in fact was) undertaken outside the adversarial setting of the Court process the Applicant relies on the careful and comprehensive assessment of the professional staff…"
The Council officers' report is included within the Council bundle (Ex 1 Tab 16 and Tab 17 - the s 4.15 assessment) and is part of the factual matrix of the case.
The appeal is against the decision of the full Council so the outcome will be determined by assessment of the reasons for the decision, the contentions and the evidence presented by the parties, within the framework established by the relevant planning law.
The subject site has an area of 36 ha. The Lot has an irregular shape, shown in the figure below taken from the Council's assessment report (Fig 2 - Ex 1 Tab 16 folio 585).
The subject site is Lot 2 DP1065811 which was created by subdivision of the original Lot 1 in 2002 when DA 2002/1132 was granted approval by the Council. The remaining Lot 1 is situated to the north of Lot 2. When subdivision occurred, a panhandle was created extending north to Midgen Flat Road. There is a s 88B instrument under the Conveyancing Act 1919 in favour of the Council applying to the northern end of the panhandle which prohibits access from Midgen Flat Road. The figure shows the location, in yellow, of the existing dwelling. This is to be decommissioned. Also shown in black is the site of the proposed new dwelling. The Lot drops from the west on Old Byron Bay Road to a creek and then rises to a ridge of the Newrybar escarpment, which runs roughly north-south. The site of the proposed new dwelling is just to the east of the ridgeline. From the ridgeline, the property slopes steeply down towards the coastal plain.
When the original Lot 1 was subdivided, the new Lot 1 (which is to the north of Lot 2) was identified as being capable of supporting a dwelling and a building envelope within which a potential dwelling might be situated was delineated. The building envelope is shown in Fig 4 in Ex E (the joint expert report of the planners). The building envelope, which is far larger than the footprint of any building which might eventually be constructed within it, occupies nearly all of the ridgeline within Lot 1 DP 1065811.
The s34AA conciliation commenced on site at the entrance to the property from Old Byron Bay Road, at the start of the access track. Present were the parties, their legal representatives and experts.
The inspection continued along the access track, with particular attention being given to the culvert crossing, and the environment of the stream, both upstream and downstream of the crossing. The track was then followed up to the ridge and the location of the proposed new dwelling.
The weather during the inspection was fine, and the view from the ridge was extensive, with clear views of Lennox Head to the south-east and of the coastal plain. Dr Robertson, the Applicants' ecology expert, pointed out the patches of woody vegetation on the lower slopes below the proposed dwelling site and in the panhandle.
Conditions during the inspection made the attractions of the site for a residence clear. However, the issues raised in the case require the Court to consider consequences of occasions when the weather is much less clement.
After inspection of the proposed house site, observations were made from properties to the south, 382 and 400 Old Byron Bay Road (see Ex 5). This enabled observation of the rainforest downstream of the culvert crossing. At Ms Cramp's property (No 400), the stream was observed and Dr McLean (the expert ecologist for Council) pointed to what he regarded as deposits of recent sediment in the creek, which he attributed to erosion arising from the access track and its construction.
The party then moved north of the subject site to 'Four Winds', a residence and tourist villas, at 448 Old Byron Bay Road. Mrs and Mr De Leede, who own and operate the property, were concerned that the proposed new dwelling and swimming pool "would impact heavily on the scenic amenity of our property, our privacy, and indeed on the viability of our tourism business" (Ex 5 p 29).
The view from 'Four Winds' looking south along the ridgeline to the proposed site of the new dwelling is shown in the photograph below:
(Ex F Attachment C Photo 11 - Photo by Mr Grech)
In the photograph above, the proposed house site is to the left of the clump of eucalypt trees in the middle distance, to the left of the second from the left of the four trees forming a line in the nearer distance. Between the second and third of the four trees, the access track can be seen.
Mr Roberts' evidence was concerned not only by the visual impacts of the dwelling but also those of the swimming pool, which would be to the north of the dwelling. He raised concerns about the possible use of the pool at night, in relation to both noise and lighting.
He also raised that there was a possibility of another residence being constructed between 'Four Winds' and the proposed new dwelling the subject of these proceedings. This would be on Lot 1 DP 1065811 within the delineated building envelope (see [12] above). No details were provided of what and when development might be proposed, and so this cannot be further considered (but see [136]-[137] below).
The proposed access to the dwelling site is from Old Byron Bay Road. However, the potential for the panhandle to be used to provide access to the site from Midgen Flat Road had been suggested by the Second Respondent. The party moved from 'Four Winds' to the northern end of the panhandle at Midgen Flat Road (illustrated in Ex 2R2), and walked southwards. Dr Robertson, the Applicants' ecologist, pointed out that crossing a number of small creeks would involve considerable environmental impacts, both to the creek systems themselves and to the associated riparian woodland community.
The site inspection only looked at the panhandle; a possible route for a trafficable track from the foot of the slope to the ridge top was not identified.
The site inspection was completed at Midgen Flat Road and the conciliation was adjourned to Ballina Shire Council Chambers where discussion between the experts continued. At the end of the afternoon, it was clear that there was little possibility of an agreement between the parties. Accordingly, I terminated the conciliation. As the matter was allocated to s 34AA of the LEC Act, it therefore proceeded to a hearing forthwith (s 34AA(2)(b)(i)), so that on the next morning the hearing commenced in Court in Sydney.
It is important to note what was not visited during the site inspection. Mr Astill in his submissions (at par 5) said:
"5. The second respondent (Objector) by definition objects to the development by virtue of his perception of personal impacts on his own property although strangely, the Court was not invited to view the development site from his property." (emphasis in the original)
However, the Court was also not invited to inspect the existing residence on the subject site. Objectors had suggested that an alternative location for a new dwelling existed on the site of the existing residence. Mr Astill adopted for the purposes of his submissions (at par 16) the observations in assessment of the Council officers (Ex 1 Tab 16) which included (submissions at par 16(e), taken from Ex 1 Tab 16 folio 591):
"… It is not an unreasonable expectation of the applicant to be able to construct a dwelling of this scale and appearance in the proposed location. This is particularly so when a swimming pool is proposed in association with the building. The limited size and shape of the land adjacent to Old Byron Bay Road is not conducive to construction of a dwelling and swimming pool such as that which is proposed".
The Second Respondent and the Applicants made choices as to how their cases were run, and if this has resulted in the Court not being informed of certain matters, I cannot draw inferences about the reasons for these choices nor can I make assumptions about what might have been revealed if additional locations had been inspected.
[2]
Relevant controls
Mr Harker, solicitor for the Council, commenced his analysis of relevant controls (Tcpt, 15 September 2020, p 5(46) et seq) with discussion of the application of the Biodiversity Conservation Act 2016 (BC Act). This has an important part to play in this case and will be discussed extensively later, but I will start first with the planning instruments which apply to the site.
The parties are in agreement that the Ballina Local Environmental Plan 2012 (BLEP 2012) does not apply to the parts of the subject site subject of the application, because of cl 1.3 of the BLEP 2012 and the Land Application Map in BLEP 2012.
1.3 Land to which Plan applies
(1) This Plan applies to the land identified on the Land Application Map.
(1A) Despite subclause (1), this Plan does not apply to the land identified as "Deferred matter" on the Land Application Map.
LAP_001 from BLEP 2012 - Ex 1, folio 346
The subject land is within the red bounded polygon in the north-west of the map, which contains Newrybar, Knockrow and Brooklet. This means that the subject land is identified as "Deferred Matter" (DM) so that BLEP 2012 does not apply, rather it is the provisions of Ballina Local Environmental Plan 1987 (BLEP 1987) which control development of the site and is therefore the applicable LEP.
Notwithstanding that the site falls outside the coverage of BLEP 2012, the applicable development control plan is Ballina Development Control Plan 2012 (BDCP 2012). Chapter 1 Section 1.2 states:
"This DCP applies to land in the Ballina Shire Local Government Area.
This DCP applies to development that requires development consent".
The subject land is within the local government area (LGA) and the proposed development requires development consent. For the purposes of applying the BDCP 2012, a table of equivalences is provided in Chapter 1 Section 1.5A; Zone 7(d1) in BLEP 1987 is the equivalent of Zone E3 Environmental Management in BLEP 2012. The eastern slope and the flats below of 404 Old Broken Head Road is, however, outside the DM area and is zoned RU1 Primary Production under BLEP 2012 (see Plan 4.1 Zoning included in the DA prepared by Planners North included in the Class 1 Application - Ex A). However, the DA before the Court does not involve any development within the RU1 Zone, so that the Land Use Table for the zone need not be considered.
The aims and objectives of BLEP 1987 are provided in cl 2:
2 Aims, objectives etc
(1) The general aims of this plan are to encourage the proper management, development and conservation of natural and man made resources, to promote the social and economic welfare of the community and to provide a better environment.
(2) The particular aims of this plan are -
(aa) to protect and promote the use and development of land for arts and cultural activity, including music and other performance arts,
(a) to divide land into the zones referred to in clause 8 and to achieve in respect of land within each of those zones the objectives specified for that land in the Table to clause 9,
(b) to encourage the council to make development control plans regulating the carrying out of development in any zone -
(i) by restricting the carrying out of that development to a specified area within the zone, or
(ii) by fixing standards or specifying requirements in respect of any aspect of that development,
(c) to promote the efficient utilisation of land, services and support facilities in existing urban areas and to provide for the orderly growth of new urban areas which promise a high level of residential amenity,
(d) to recognise and provide for the variety of agricultural, recreational, residential, natural and other land uses which form the rural environment of the Shire of Ballina,
(e) to contribute to continued economic growth of the Shire of Ballina by encouraging a pattern of development which will help to diversify and increase local employment opportunities,
(f) to take account of the physical nature of the environment of the Shire of Ballina so that development is in harmony with scenic and ecological resources,
(g) to co-ordinate the economic and equitable provision and utilisation of community facilities and services,
(h) to provide for appropriate and efficient transportation and utility services, and
(i) to encourage further development of tourist and recreational activities within the Shire of Ballina, while minimising its adverse impact on the natural attractions and amenity enjoyed by permanent residents.
Mr Harker identified the aim in cl 2(2)(f) as being the most relevant consideration for the application - although the general aims (cll 2(1) and 2(2)(d)) are also important.
BLEP 1987 preceded the introduction of the standard template format for LEPs. The range of zones to which land was allocated (cl 8) was different from those in BLEP 2012. The subject land is zoned 7(d1) Environmental Protection (Newrybar Scenic/Escarpment Zone). The land within the 7(d1) zone is discrete and occupies a relatively small area.
(Ex E p 7)
Clause 9 of BLEP 1987 provides the zone objectives and the Development Control Table (the equivalent to the Land Use Table in standard template LEPs). Clauses 9(1)-(7) provide background against which the zone objectives are applied.
9 Zone objectives and development control table
(1) The objectives of a zone are set out in the Table to this clause under the heading "Objectives of zone" appearing in the matter relating to the zone.
(2) Except as otherwise provided by this plan, in relation to land within a zone specified in the Table to this clause -
(a) development for a purpose specified under the heading "Without development consent" may be carried out without development consent,
(b) development for a purpose specified under the heading "Only with development consent" may be carried out only with development consent,
(c) development for a purpose specified under the heading "Advertised development - only with development consent" may be carried out only with development consent granted after the provisions of subclauses (3)-(5) have, except as provided by subclause (6), been compiled with, and
(d) development for a purpose specified under the heading "Prohibited development" may not be carried out.
(3) The provisions of section 84, 85, 86, 87 (1) and 90 of the Act apply to and in respect of development (not being designated development) referred to in subclause (2) (c) in the same way as those provisions apply to and in respect of designated development.
(4) A development application to carry out development (not being designated development referred to in subclause (2) (c) shall be accompanied by an environmental impact report which contains -
(a) a full description of the development proposed by the development application,
(b) a statement of the objectives of the proposed development, and how those objectives relate to the objectives of the zone,
(c) a full description of the existing environment likely to be affected by the proposed development, if carried out,
(d) identification and analysis of the likely environmental interactions between the proposed development and the environment,
(e) analysis of the likely environmental impact or consequences of carrying out the proposed development,
(f) justification of the proposed development in terms of environmental, economic and social considerations,
(g) measures to be taken in conjunction with the proposed development to protect the environment and an assessment of the likely effectiveness of those measures,
(h) any feasible alternatives to the carrying out of the proposed development and reasons for choosing the latter, and
(i) consequences of not carrying out the proposed development.
(5) In the preparation of an environmental impact report referred to in subclause (4), the person preparing the report shall consult with the council and shall, in completing the preparation of the report, have regard to any requirements notified to the person in writing by the council in respect of the form and content of the report.
(6) Where development (not being designated development) referred to in subclause (2) (c) involves only alterations or additions to existing development, being alterations or additions of a minor nature which do not to any significant extent change the scale, size or degree of the existing development, subclauses (3)-(5) shall not apply to the development or the application in respect of the development.
(7) Except as otherwise provided by this plan, the council shall not grant consent to the carrying out of development on land to which this plan applies unless the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out.
Mr Harker drew attention to cl 9(2) which makes the Development Control Table subject to other provisions in the Plan. Mr To, barrister for Mr Kenny, the Second Respondent, drew my attention to other subclauses in cl 9, to which I will need to return. He pointed out that cl 9(7) requires a positive determination by the consent authority that the development proposed is consistent with the zone objectives. This is a different formulation from that which now applies in the standard instrument LEP which requires that zone objectives be considered. He suggested (Tcpt, 15 September 2020, p 23(14-28)) that if the consent authority was not satisfied that the development was consistent with the objectives of the zone, then the effect would be to preclude the ability to grant consent.
The Development Control Table provides that:
Zone No 7 (d1) Environmental Protection (Newrybar Scenic/Escarpment) Zone
1 Objectives of zone
A The primary objectives are -
(a) to protect and enhance areas of particular scenic value to the local government area of Ballina, and
(b) to encourage the productive use of land within the zone and enable development ancillary to agricultural land uses, particularly dwelling-houses, rural workers' dwellings and rural industries, and
(c) to ensure development within the zone maintains the rural character of the locality and minimises any detrimental scenic impact, and
(d) to ensure development within the zone is of a scale and nature that will not adversely impact on the existing amenity of the area.
B The secondary objectives are -
(a) to minimise soil erosion from escarpment areas and prevent development in geologically hazardous areas and areas of excessive gradient, and
(b) to ensure that development within the zone does not create unreasonable or uneconomic demands, or both, for the provision or extension of public amenities or services.
C The exception to these objectives is development of public works and services, outside the parameters specified in the primary and secondary objectives, but only in cases of demonstrated and overriding public need and subject to the visual impact being minimised as much as is reasonably practicable.
2 Without development consent
Agriculture (other than feed lots, piggeries, poultry farms, stock homes and other intensive keeping of animals, and not including the erection of buildings).
3 Only with development consent
Agriculture (other than agriculture allowed without development consent as specified in item 2); bush fire hazard reduction; community buildings; dwelling-houses; home industries; roads; roadside stalls; rural industries; rural workers' dwellings; telecommunications facilities; tourist facilities comprising only bed and breakfast establishments or holiday cabins, or both; utility installations.
4 Advertised development - only with development consent
Nil.
5 Prohibited development
Any development other than development included in item 2 or 3.
Dwelling houses are permitted within the zone only with development consent.
I note that the phrase "particular scenic value" in 1A(a) is not defined in cl 5 (Interpretation) of BLEP 1987, and so must take a meaning determined by the common use of the words.
Clause 12 sets conditions for the erection of dwelling houses within the zone. It was agreed between the parties that the land was not vacant land given the presence of the existing house.
12 Dwelling-houses within Zone No 1 (a1), 1 (a2), 1 (b), 1 (d), 1 (e), 7 (a), 7 (c), 7 (d), 7 (d1), 7 (f), 7 (i) or 7 (l)
(1) This clause applies to land within Zone No 1 (a1), 1 (a2), 1 (b), 1 (d), 1 (e), 7 (a), 7 (c), 7 (d), 7 (d1), 7 (f), 7 (i) or 7 (l).
(1A) For the purpose of this clause, a reference to a dwelling-house includes a reference to a dwelling-house operated as a bed and breakfast establishment.
(2) The Council shall not consent to the erection of a dwelling-house on land to which this clause applies except in accordance with this clause.
(3) A dwelling-house may, with the consent of the council, be erected on vacant land to which this clause applies only where that land -
(a) has an area of not less than -
(i) in the case of land within Zone No 1 (a1) or 7 (i) - 20 hectares,
(ii) in the case of land within Zone No 1 (a2), 1 (b), 1 (d), 1 (e), 7 (a), 7 (c), 7 (d), 7 (d1), 7 (f) or 7 (l) - 40 hectares,
(b) is an existing holding,
(c) is an allotment created by subdivision to which development consent has been granted in accordance with clause 11,
(d) is an allotment created by a subdivision to which development consent has been granted in accordance with clause 13 as in force when consent for the subdivision was granted but before the gazettal of Ballina Local Environmental Plan 1987 (Amendment No 36), or
(e) is an allotment created by a subdivision to which development consent, or approval, was granted by the Council in accordance with the provisions of Interim Development Order No 1 - Municipality of Ballina or Interim Development Order No 1 - Shire of Tintenbar before the appointed day, not being development consent, or approval, that was granted subject to a condition that a dwelling could not be erected on the allotment.
(f) (Repealed)
(3A) (Repealed)
(3B) The council may consent to the erection of a dwelling-house on vacant land to which this clause applies that would have complied with subclause (3) but for the fact that part of the land has been acquired by a public authority for a public purpose.
(4) A rural workers' dwelling may, with the consent of the council, be erected on an allotment of land, being an allotment having an area of not less than -
(a) in the case of land within Zone No 1 (a1) or 7 (i) - 10 hectares for the first rural workers' dwelling and 30 hectares for each subsequent rural workers' dwelling, and
(b) in the case of land within Zone No 1 (a2), 1 (b), 1 (d), 7 (a), 7 (c), 7 (d), 7 (d1), 7 (f) or 7 (l) - 20 hectares for the first rural workers' dwelling and 60 hectares for each subsequent rural workers' dwelling,
if the council is satisfied that -
(c) the erection of each such additional dwelling will not impair the suitability of the land for agriculture,
(d) the needs of existing agriculture genuinely require that rural workers reside on the land, and
(e) any other rural workers' dwellings on the holding are being used by persons substantially engaged in agricultural employment on that land.
(5) (Repealed)
Clause 14 defines the circumstances in which dual occupancy might be permitted within the zone.
14 Dual occupancy
(1) This clause applies to land within Zone No 1 (a1), 1 (a2), 1 (b), 1 (d), 1 (e), 2 (a), 2 (b), 2 (t), 7 (a), 7 (c), 7 (d), 7 (d1), 7 (f), 7 (i) or 7 (l).
(2) Where, in pursuance of this plan, development for the purposes of a dwelling-house may be carried out on an allotment of land to which this clause applies, a person may, with the consent of the council -
(a) alter or add to a dwelling-house erected on the allotment so as to create 2 dwellings, or
(b) erect 2 attached dwellings on the allotment,
if, but only if, there will be no more than 2 dwellings on the allotment after the development has been carried out (excluding the dwellings of workers engaged in rural activities on the allotment).
(3) A person must not subdivide land on which development has been carried out in pursuance of this clause if the subdivision would permit the separate ownership of each dwelling.
Clause 17 imposes a limitation on building height.
17 Limitation on building height
(1) In this clause height, in relation to a building the topmost floor of which has a ceiling, means the distance measured vertically from any point on the ceiling of the topmost floor of the building to the ground level immediately below that point.
(2) Except as provided by subclauses (2A), (4), a person shall not, only any land to which this plan applies, erect a building taller than 6.4 metres in height unless the council is satisfied that the building will not -
(a) adversely affect the existing or future amenity of adjoining properties by overshadowing or causing loss of privacy,
(b) significantly obstruct views from adjacent buildings and public places,
(c) have an adverse impact on the scenic or landscape quality of the locality, or
(d) exceed 2 storeys.
(2A) Notwithstanding subclause (2) (d), a person may, with the consent of the Council, erect a building containing more than two storeys on land on which the Ballina Racecourse operates, being allotment 3 DP 820688 Racecourse Road, Ballina.
(3) (Repealed)
(4) A person may, with the consent of the council, erect a building on land in the central business district of Ballina shown hatched green on the map only if the building does not exceed 16 metres in height.
Height is identified (cl 17(1)) as being the height of the ceiling measured from the ground level to the lower surface of the ceiling. It makes no reference to the height of the top of the roof which will obviously, regardless of roof form, be higher than that of the ceiling of the upper floor.
Clause 23 deals with destroying trees (except trees which were planted for commercial (which is not relevant in this case) or landscaping purposes), and altering the surface level of land without consent.
23 Development within Zone No 1 (d), 7 (c), 7 (d), 7 (d1), 7 (f), 7 (i) or 7 (l)
A person shall not, on land within Zone No 1 (d), 7 (c), 7 (d), 7 (d1), 7 (f), 7 (i) or 7 (l) -
(a) notwithstanding clause 8 of the Environmental Planning and Assessment Model Provisions 1980, cut down, top, lop or otherwise destroy a tree (other than a tree planted for commercial or landscaping purposes), or
(b) clear, fill or otherwise alter the surface level of land,
without the consent of the council.
The clause makes reference to the Environmental Planning and Assessment Model Provisions 1980 (Model Provisions) of which cl 8 was the standard tree protection order which does not include a definition of "tree" (nor did the definitions included in the EPA Act, as made, include a definition). However, the BDCP 2012, in Chapter 1, Appendix 2 Dictionary, includes a definition of "tree" as:
"…a perennial plant with a woody self supporting stem or trunk/s having a height of more than 3 metres and a trunk circumference of more than 300 millimetres when measured from 1 metre above ground level."
Clause 25(3) requires the consent authority to make an assessment of whether or not it should apply conditions relating to height and location of the building, and colours of material used for the building.
25 Development within Zone No 7 (d), 7 (d1) or 7 (i)
(1) This clause applies to land within Zone No 7 (d), 7 (d1) or 7 (i).
(2) A person shall not erect a building on land to which this clause applies without the consent of the council.
(3) The council shall not grant consent to the erection of a building on land to which this clause applies unless it has made an assessment as to whether it should impose conditions relating to -
(a) the height and location of the building, and
(b) the colour of materials, so as to ensure that the building blends with the surrounding landscape and other development and preserves or enhances the scenic quality of the land.
The BDCP 2012 provides more detailed provisions which apply to the DA. Chapter 2 General and Environmental Considerations addresses development on ridgelines and scenic areas - matters which are of particular relevance and reads:
"3.2 Ridgelines and Scenic Areas
3.2.1 Application
Applies to:
Location/s: Land identified on the Ridgelines and Scenic Areas Map
Development Type/s: All development
[3]
3.2.2 Planning Objectives
a. Protect and enhance those areas of particular scenic value to the Ballina Shire;
b. Encourage development that minimises intrusion into the skyline when viewed from public land;
c. Encourage retention of prominent vegetation along ridgelines and visually prominent areas; and
d. Encourage development that maintains the rural character of the locality and minimises any adverse scenic impacts.
3.2.3 Development Controls
i. Development must be designed to be compatible in appearance with the natural environment and scenic qualities of the land and the immediate locality;
ii. Buildings and works should not be sited on ridgelines unless it can be demonstrated that no suitable alternative location is available. Where it can be clearly demonstrated that there is no suitable alternative site for the building or works, the following measures are to be incorporated into the design of the development to minimise its potential visual impact:
• Site selection should focus on areas that avoid the need for vegetation removal;
• Buildings should be clustered in less visually prominent areas of the site when viewed from public land;
• Buildings should not intrude into the skyline when viewed from public land;
• Building materials and colours are to mitigate potential adverse visual impacts. Materials should be non-reflective and earthy colours and tones are to be used; and
• Landscaping comprised predominately of native species endemic to the subject locality should be used to screen the buildings or works from public land and surrounding properties. Where existing vegetation will not adequately screen the development, a landscaping plan shall be submitted detailing proposed planting to augment existing vegetation."
Note Planning Objective 3.2.2(b) Development Controls 3.3.3 (ii) dot points 2, 3 and 5 refer to views from public land. "Public land" is defined in the Dictionary in Appendix 2 to Chapter 1 of the BDCP 2012 as:
"public land means land owned by or in the care, control or management of Council and includes roads, road reserves, public reserves and foreshore areas."
Dot point 1 of BDCP 2012 Section 3.2.1 refers to vegetation which is defined as "a plant or mass of plants growing in a particular place" (BDCP 2012, Chapter 1, p 21).
"Native vegetation" is defined in BDCP 2012 as:
"native vegetation means vegetation that existed in New South Wales before European settlement and includes:
a) trees (including any sapling or shrub, or any scrub),
b) understorey plants,
c) groundcover (being any type of herbaceous vegetation),
d) plants occurring in a wetland,
but does not include any mangroves, seagrasses or any other type of marine vegetation to which section 205 of the Fisheries Management Act 1994 applies"
(BDCP 2012 adopts the Dictionary in BLEP 2012, but adds additional terms in its own dictionary)
BDCP 2012 Chapter 2 Section 3.3 is relevant to the considerations required.
"3.3 Natural Areas and Habitat
3.3.1 Application
Applies to:
Location/s: Land shown on the Natural Areas and Habitat Map and Wildlife Corridors Map.
Development Type/s: All development
[4]
3.3.2 Planning Objectives
a. Protect and enhance ecologically significant areas;
b. Provide for development that is compatible with ecological values and that minimises risk to ecologically sensitive environments; and
c. Encourage development that contributes to the maintenance, enhancement or rehabilitation of environmental values and ecologically sensitive areas.
3.3.3 Development Controls
i. Development is to be sited, designed and managed to avoid or mitigate potential adverse impacts on natural areas and habitat;
ii. All development (except dwellings, basic agricultural buildings and routine agricultural management activities) must demonstrate a net environmental benefit;
iii. A development application for land containing a wildlife corridor (as identified on the Wildlife Corridors Map), must demonstrate a long term net benefit to the operation and retention of the wildlife corridor. Compliance with this provision may also meet the requirements of (ii);
iv. Where development is unable to be sited, designed and managed to avoid potential adverse impacts on natural areas (as identified on the Natural Areas and Habitat Map), a proposal to remove habitat may be considered. If habitat is proposed to be removed or impacted as part of a development, an offset for the loss of biodiversity may be considered by Council provided it can be demonstrated that the proposed offset will maintain or improve biodiversity outcomes and values.
v. Development applications relating to land to which this section applies are to be accompanied by an ecological assessment report prepared by an appropriately qualified and experienced professional."
All the land on the subject site within the 7(d1) zone but not that area within the RU1 zone, is included within the Natural Areas and Habitats Map (Ex 1 Tab 11 folio 477). About half the subject site is included on the Wildlife Corridors Map (Ex 1 Tab 11 folio 478) reproduced below:
[5]
Contentions
The Respondents both submitted Statements of Facts and Contentions (Ex 6 from the Council, dated 20 March 2020 and Ex 2R1 Amended Statement of Facts and Contentions from the Second Respondent dated 3 September 2020). These are outlined below - omitting particulars.
In summary the Council's contentions were:
1. Inadequate Biodiversity Development Assessment Report (BDAR)
"The Court must not grant consent to the DA if the BDAR submitted with the DA does not substantially comply with the requirements for a valid BDAR."
1. Serious and irreversible impact
"The BDAR has failed to adequately assess whether the DA will have serious and irreversible impacts on the biodiversity values of the Site such that the Court cannot be satisfied that it has power to grant consent to the DA."
1. Riparian impacts have not been adequately assessed
"The riparian impacts of the construction of a culvert over the stream on the Site have not been adequately assessed."
1. Other ecological impacts have not been adequately assessed
"The BDAR submitted with the DA does not take into account the impacts of clearing for the access way such that the Court cannot be satisfied that the development will not have an adverse ecological impact."
1. Ecological impacts of the development are not adequately avoided or mitigated
"The clearing of 0.1 ha of Lowland Rainforest has not been adequately avoided or mitigated onsite, such as through proposed implementation of restoration activities."
1. Access to proposed development
"Development consent should not be granted as the proposed access from Byron Bay Road to the proposed dwelling is not lawful, reliable, or appropriate."
The Second Respondent's contentions are:
1. The proposed dwelling house is not permitted pursuant to cl 12 of BLEP 1987
"Development consent for the erection of a dwelling house on land zoned 7 (d1) Environmental Protection (Newrybar/Scenic Escarpment) Zone may only be granted in accordance with clause 12 of LEP 1987. Clause 12(3), which is the only provision in clause 12 relevant to the proposed development, is not engaged because the Site is not vacant land."
1. Inconsistent with the aims and objectives of BLEP 1987
"The proposed development is on land zoned 7(d1) Environmental Protection (Newrybar/Scenic Escarpment) Zone. The proposed development is inconsistent with a number of clauses of the LEP 1987 regarding the aims and objectives."
1. Use of existing dwelling
"The site contains an existing useable dwelling. Although dual occupancy is not requested with this DA, the application would be refused in circumstances where it is unclear what is being proposed and whether this meets the requirements of the LEP 1987."
1. Height and location
"The height and location of the proposed dwelling is unacceptable."
1. Inconsistent with BDCP 2012
"The proposed development is inconsistent with the following controls within the Ballina Shire DCP 2012."
1. Insufficient information
"The information submitted with the DA is not adequate. The DA does not propose tree removal, however, the proposed use and extension to the unapproved driveway access works requires assessment based on adequate engineering and arboricultural information. The additional information required is also necessary to ensure a complete ecological assessment is undertaken."
1. Public interest
"Pursuant to s 4.15(1)(e) of the Environmental Planning and Assessment Act 1979, the Second Respondent contends that the proposed development application should not be approved having regard to the matters raised in this SOFAC."
The Second Respondent also added additional particulars to the Council's contentions:
1. Serious and irreversible impact
"The proposed additional works rely on works on an internal accessway completed without formal approval. The accessway traverses an area containing a Lowland Rainforest EEC and crosses a first order stream.
The engineering plans do not identify existing vegetation, no trees are identified in the survey plan and no Tree Protection Zones (TPZs) are outlined. The site is mapped bushfire prone in accordance with Council's mapping and the proposed dwelling will require an APZ between 20m - 45m around the building footprint. Consequently, a complete assessment of the impact on existing vegetation has not been made."
1. Access to proposed development
"The proposed use of the unapproved accessway off Old Byron Bay Road is not in a suitable location and was not previously approved in the location. The existing unapproved accessway is on a steep (often 1:4 slope gradient) area of the site, over riparian areas and EEC for the length of over 450m. The proposed accessway has a longitudinal grade of up to 26.38% before upgrading and just under 25% after upgrading. Other locations available on site include:
- The existing useable dwelling on site with existing access off Old Byron Bay Road that has the potential to accommodate renovations and a pool subject to council approval.
- The north east boundary of the site is a 30m wide approximately 550m long battle-axe with road frontage to Midgen Flat Road. This area of the site sits below the scenic escarpment, has a gentle slope and varying pockets of vegetation (not Biodiversity Values mapped), with approximately 15 other properties gaining access off Midgen Flat Road. The site is burdened by a 0.5m easement over the width of the battleaxe boundary (from east to west) to Midgen Flat Road. The Section 88B restriction identifies "no vehicular access shall be permitted from Midgen Flat Road to Lot 2 across the part of Lot 2 marked A on the title diagram". Council is identified as the authority benefited and the authority to vary, release or modify the restriction. Should council believe that the site is suitable for construction of a new dwelling, council are able to allow access from Midgen Flat Road."
Both Respondents raised in particulars the fact that Lowland Rainforest is listed as an Endangered Ecological Community (EEC) on the Schedules of the BC Act, and as a Critically Endangered Ecological Community (CEEC) on the Schedules of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).
This is an issue which frequently arises in proceedings before the Court. There are important implications for an applicant if their land contains species or communities listed under the EPBC Act, but raising it as an issue before the Court in this matter, is, with respect, to introduce a red herring for two reasons - one general and the other specific.
The Land and Environment Court has no role to play in regard to the EPBC Act (Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council (2010) 210 LGERA 126; [2010] NSWLEC 48 (NHVSS) at [77], Statewide Planning Pty Ltd v Blacktown City Council [2019] NSWLEC 1397 at [72]). If, however, the Court did have a role to play in the application of the EPBC Act, it would not apply to the particular circumstances of this case. Whether or not a particular stand of Lowland Rainforest is eligible for the protection afforded by a listing under the EPBC Act requires certain condition standards to be met and the rainforest on the subject land does not meet these requirements.
[6]
Amended plans
At the end of the first day of the hearing, the parties agreed that Mr Lucena, the engineering expert for the Applicants, and Mr Hoban, the engineering expert for the Second Respondent should continue to confer, to produce a further joint report. It would then be necessary for the ecology experts and for the arborists to convene to consider the new engineers' report, and address any implications for ecological issues in a supplementary joint report.
The engineering experts prepared a joint report which became Ex 8. The Applicants' experts included Mr Giles as a drainage expert. Due to COVID-19 restrictions, he had been unable to visit the site but based his evidence on his professional experience and the plans. The experts were extensively cross-examined when the hearing resumed on 3 December 2020.
Mr Astill formally applied for leave to be granted for the Applicants to rely on the amended plans included within Ex 8. Neither Mr Harker nor Mr To objected to this. I granted leave to rely on the drawings in Ex 8, Attachment C, engineering drawings C1- C5 Rev B dated 30 October 2020.
[7]
Planning evidence
The Second Respondent raised a number of contentions to planning issues. Discussion of the first (permissibility of the dwelling house) is conveniently discussed along with the third (decommissioning of the existing dwelling), and the second (inconsistency with the aims and objectives of BLEP 1987) is applicable to all the planning contentions.
[8]
Is approval of a dwelling house permissible?
The planning issues were the subject of a joint report of the Applicants' planning expert, Mr Roberts, and Mr Grech for the Second Respondent, who also gave concurrent oral evidence on the first day of the hearing.
The Second Respondent's first contention is that the proposed dwelling house is not permissible pursuant to cl 12 of BLEP 1987. If that is correct, then that would be the end of the matter but, if I did not find for the Second Respondent on contention 1, Mr To nevertheless argued that I would find, on the merits, that it should not receive consent for a number of reasons (Tcpt, 15 September 2020, p 27(1-2)).
The experts were in agreement that the resolution of contention 1 was a matter for legal argument over the correct construction of cl 12, and not a matter for planning evidence.
There is an existing dwelling on the Lot. There was no evidence presented as to when it was constructed. However, in Ex 5 at folio 4, there is a letter from Mr Alan Heathcote, a previous owner of Lot 1 prior to its subdivision in 2002. Mr Heathcote was not the owner of the property when it was purchased by the Whites. In the third paragraph of the letter, he refers to a dam from which he drew water, "which was used to irrigate the rainforest planting that I undertook to the north and south of the house." This indicates that in 1998 there was a house on the subject land. (Mr Heathcote provided no information as to when the house was built, whether it is still the building present or whether it has been replaced in the interim.) At the time of subdivision in 2002, the dwelling on the much larger original Lot 1 became the dwelling on the new Lot 2. (Hence, presumably, the reason for delineating a building envelope on the new smaller Lot 1.) There is also situated on Lot 2, against the southern boundary of the Lot below the escarpment, a farm building.
Dwelling houses are permissible with consent within the 7(d1) zone but cl 12(2) (see [41] above) prevents Council from consenting to the erection of a dwelling house, except as provided for elsewhere in cl 12. Clause 12(4) permits the erection of rural workers' dwellings, but that is not what is being applied for. The permissibility of rural workers' dwellings reflects the objects of the 7 (d1) zone, including the maintenance of rural uses of the land.
It is well accepted that when construing planning instruments, words should be given their normal meaning (unless the dictionary to an instrument dictates otherwise) and that clauses should not be subjected to a fine-toothcomb analysis in recognition of the fact that planning instruments were not drafted with the rigour required in the drafting of legislation. Accepting this, it has to be said that there are aspects of both BLEP 1987 and of BDCP 2012 which cannot easily be interpreted and where there may be residual ambiguity.
Clause 12(3) provides an example of the problems which can arise - where the interpretation is clear to both Mr Astill and Mr To, except that they arrive at diametrically opposed interpretations.
One of the potential uncertainties arises from the use of "vacant". Is "vacant" to be interpreted as meaning devoid of any signs of use - such that any signs of agricultural use like tracks, fences, stockyards farm buildings or sheds would preclude land being regarded as vacant - or does "vacant" refer to absence of human habitation? Given that all parties agreed that the land contained a dwelling, they also agreed that the land was not vacant, so that any distinction between agricultural and residential use need not be debated.
However, what is the consequence of there being an existing dwelling house on the land?
Mr To argued that the effect of cl 12 is to limit a consent authority's ability to grant consent for erection of a dwelling house to the circumstances set out in cl 12. This constrains the permissibility of dwelling houses otherwise provided for by cl 9 of BLEP 1987 and the Development Control Table.
Clause 12(3) permits the granting of consent for erection of dwelling houses in the circumstances provided for in pars (a)-(e). However, Mr To argues that cl 12(3) is engaged only if the proposed dwelling site would be located on vacant land, and the land in question is not vacant, so cl 12(3) is not engaged and cl 12(2) precludes the granting of consent (Mr To - submissions at pars 25-31).
The Applicants argue to the contrary that the Second Respondent's contention 1 "raises a legal issue that can be readily addressed and dismissed" (Applicants' written submissions at par 129).
Mr Astill agrees that the land is not vacant, and that cl 12(3) is not engaged. If the clause is not engaged, that is "the end of the matter as no criteria are imposed on land not identified by the clause" (Applicants' written submissions at pars 133-134).
In Mr Astill's view of cl 12(3), he says:
"that dwelling houses may only be erected on vacant land in certain circumstances. It does not say that dwelling houses may not be erected on land that is not vacant. If that was the intention the form of the words would have been (but is not)
A dwelling-house may, with the consent of the Council, be erected on vacant land to which this clause applies only where the land is vacant and…
or
A dwelling-house may, with the consent of the Council, only be erected on vacant land to which this clause applies and where…"
(Applicants' written submissions at par 136)
In cl 12(3), the qualification "vacant" defines the land to which the listed restrictions apply. In the hypothetical alternative clauses, Mr Astill presented, being vacant is the qualification for being able to erect a dwelling (Applicants' written submissions at par 137).
Mr Astill supports this interpretation by reference to a number of decisions of higher courts that discuss principles of statutory construction of legislation.
What is of concern here is not the construction of legislation but the interpretation of an environmental planning instrument. Mr Astill cites (submissions at par 142) Whittaker v Northern Beaches Council (No 3) (2018) 235 LGERA 5; [2018] NSWLEC 143 at [28], where it was argued that the principles of statutory construction applicable to primary and delegated legislation were the same.
Mr To argued (submissions at par 38):
"38. The plain terms of clause 12(2) must be given effect. The applicant's approach seeks to read into the clause words which would expand the circumstances to which it applies beyond 'vacant land'. This is contrary to settled principles of statutory interpretation: see, for example, Central Coast Council v. 40 Gindurra Road Somersby Pty Ltd No. 2 [2019] NSWLEC 171 at [51]-[54] (Pain J)."
In Central Coast Council v 40 Gindurra Road Somersby Pty Ltd (No 2) (2019) 241 LGERA 133; [2019] NSWLEC 171, Pain J at [53] said that "additional words should not lightly be implied in legislation." Mr Astill (in submissions at par 136) was construing cl 12(3) in accordance with the ordinary meaning of the words used, and not seeking to imply inclusions of other words or change the structure of the sentence so as to meet his favoured interpretation. The two hypothetical clauses he suggested in par 136 were what he considered needed to be implied if the interpretation favoured by Council were to be supported.
Council's interpretation is made clear in the email letter of advice dated 17 August 2017 from Council (through Ms Lee, a town planner) given in response to a query regarding 420 Old Byron Bay Road, which forms folio 1 of Ex 2R6. (The addressee of the email is only identified in the email address as "m2m" and the terms of the original enquiry are not provided). The response is in relation to 420 Old Byron Bay Road, not to 404, but offers a general interpretation applicable within the 7 (d1) zone. The second and third paragraphs of the email appear below:
"…
As defined in the Environmental Planning and Assessment Model Provision 1980, a dwelling-house means "a building containing 1 but not more than 1 dwelling". The erection of a dwelling-house is permissible with consent within the 7(d1) zone, but only on vacant land (i.e. no existing dwelling-house on the property). The land must also meet the requirements of Clause 12 within BLEP 1987 in order to enjoy a 'dwelling entitlement':
https://www.legislation.nsw.gov.au/#/view/EPI/1987/95/part3/cl12
As the above property contains an existing dwelling-house, an additional dwelling-house is therefore not permitted on the property. Notwithstanding, Clause 14 within BLEP 1987 states that attached dual occupancies are permissible with consent within the 7(d1) zone:
https://www.legislation.nsw.gov.au/#/view/EPI/1987/95/part3/cl14
..."
(Ex 2R6 folio 1)
Council's interpretation is that the erection of a dwelling house would only be possible on vacant land (and vacant land means an absence of an existing dwelling). Council's interpretation thus accords with that of Mr To.
Mr Astill (in submissions at par 140) argues that "Legislation has the meaning that the Courts find it has, irrespective of what the Legislature let alone the Executive arm of government including in the context what the Council may think."
Clause 12(3) does not mean that there is a restriction to there being only one habitable building on a lot. Provision is made for farm workers' accommodation (which is not applicable in this case) and cl 14 sets requirements for consideration of dual occupancy.
The planners (Ex E) agreed a dual occupancy is not proposed (and the Second Respondent does not accept, given the provisions of cl 14, that dual occupancy would be permissible - Mr To's submissions at par 78; see Mr Grech's opinion in Ex E at par 50, contrasted with Mr Roberts' view in Ex E at par 49).
[9]
Decommissioning the existing dwelling
There is an existing dwelling on the site. What is to become of it? A decommissioning plan has been proposed - there is some doubt as to whether it is part of the application, but for the purposes of his submissions, Mr To accepted that it was. The Applicants' proposal for decommissioning the existing house is Ex D Tab 2. Certainly, the Council officers, in their report, discussed decommissioning of the existing dwelling in 5.3.2 in folios 605-608 of Ex 1, Tab 14 at some length.
The Second Respondent's contention 3 in regard to use of the existing dwelling proposes that "the application be refused in circumstances where it is unclear what is being proposed or whether this meets the requirements of LEP 1987." - amongst the particulars, the Second Respondent identified that the re-notified DA contained no mention of decommissioning of the existing building but the plan discussed by the Council officers involved removal of all kitchen and laundry plumbing, but that the building would be retained for the storage of farm equipment and machinery with the garage retained for storage and backup electricity source.
Council officers consider that the proposed work was insufficient to conclusively surrender the habitable status of the building, and if approval were granted, would impose conditions requiring removal of certain internal walls (as shown in Fig 12 in folio 608 of Ex 1 Tab 14). The use of the decommissioned dwelling was to be as an uninhabitable building, the use of which was to be ancillary to the agricultural use of the land and ancillary non-habitable purposes associated with a new dwelling.
No information was provided as to the nature of any agricultural machinery and equipment which might be used on the property, let alone whether it might fit in the building.
The Council officers' report on the decommissioning (Ex 1 Tab 14 folio 607) includes the speculative comment:
"The applicant's desire not to fully demolish the building may also relate to the potential for detached dual occupancy to become permissible on the land in future should Council integrate the DM areas into the BLEP 2012."
There is nothing in evidence which provides an indication of the Applicants' intentions, nor was their planner, Mr Roberts, questioned about this. There was no indication as to whether Council would, and if so when, incorporate DM into BLEP 2012 (a change which would remove any reliance on BLEP 1987). (Mr Roberts in Ex E at par 27d referred to the Department of Planning's Review (see [136]-[137]).
The planning experts were in agreement that the existing dwelling was not suitable for storing farming equipment (Ex E par 37) and, that the proposed new dwelling was to be off-grid self-sufficient in terms of electricity supply and would be serviced by solar/batteries (Ex E par 38). No provision was made in the plans before the Court for electricity connection between the existing dwelling and the new dwelling.
Mr Astill (in submissions at pars 145-146) suggests that cl 14 was being interpreted by Council as meaning that dwelling houses may not be erected on land if the erection would result in there being more than one dwelling house on a lot. He suggested that there is little which would support this interpretation, but nevertheless it appears to be the way in which Council has, in fact, applied cl 14. Where there is any existing dwelling, the Council has approved a new dwelling on conditions which require the existing dwelling to be decommissioned as such, and not used for a dwelling - see the consent for 423 Old Byron Bay Road in 2008 in which condition 23 required:
"23. Render building uninhabitable
All other dwellings or buildings used for residential accommodation upon the land shall be removed or vacated and rendered uninhabitable by the removal of all domestic fittings (including the kitchen sink and all cooking facilities). Such work shall be completed prior to occupation of the new building."
(Ex 2R6 folio 72)
and the Consolidated Notice of Determination of a Development Application (Amendment No 11) for 54 Old Byron Bay Road in 2018 in which Condition 13 committed temporary residential occupation of stables within the property while a new dwelling was constructed, but upon occupation of the approved new dwelling, the stables were to be decommissioned (Ex 2R6 folio 104).
54 Old Byron Bay Road is at the southern end of the 7(1d) zone. It was mentioned during the site inspection by Mr Astill, who invited members of the party to observe it as we drove past on the return journey to Ballina (which I did).
If the DA were to be approved and an appropriate condition were drafted requiring a greater extent of decommissioning of the existing dwelling house at 404 Old Byron Bay Road, with a prohibition on further residential occupation, it would be enforceable. I must assume regularity, so that in that circumstance I must assume the requirements would be met, and, in the event of breaches, action could be taken by the Council.
[10]
Conclusion in relation to the Second Respondent's Contentions 1 and 3
Clause 12 applies to a number of zones within the deferred areas within which BLEP 1987 continues to apply, including the 7(d1) zone. Clause 12(2) prevents Council (or the Court standing in the shoes of Council) from consenting to the erection of a dwelling house. Clause 12(3) permits approval of a dwelling house on 7(d1) land in certain circumstances. There are differences between the parties as to how cl 12(3) is to be applied. In my view, the interpretation advanced by Mr To, and the view held by the Council as expressed by a Council planner (Ms Lee, at [83] above) is to be preferred to that of Mr Astill. The difficulties of interpretation arise from the drafting of cl 12(3), and, in particular, the inclusion and placing of the word 'only', which create potential ambiguity. Mr Astill (see [77] above) agrees that cl 12(3) provides for the erection of a dwelling house in the 7(d1) zone in a limited range of circumstances, and also agrees that these grounds do not exist in the particular circumstances of the case. However, he argues that the clause does not say that dwelling houses might not be built on land that is not vacant (Applicants' submissions at pars 133-135).
On the Second Respondent's interpretation, if cl 12(3) is not engaged, cl 12(2) precludes the granting of consent. Clause 12(2) applies to all the land in the 7(d1) zone, not just land that is vacant and satisfies the specific exemptions provided for in cl 12(3). As the land is agreed not to be vacant, then under cl 12(2) Council cannot grant consent for the construction of a dwelling house, as the "except in accordance with this clause" can only operate if cl 12(3) is engaged.
Not only do I consider that the Second Respondent's interpretation better reflects a straightforward reading of cl 12(3), but it also better reflects the objectives for the 7(d1) zone. The zone objectives are presented in BLEP 1987 in a somewhat unusual form in that they are described as primary (A) and secondary (B). The relevant objectives in the present context are the primary objectives, so I do not need to consider whether the distinction between primary and secondary implies that secondary objectives are to be given lesser weight.
There is an element of internal tension between the intent of primary objectives A(a) and A(c). Objective A(a) is "to protect and enhance areas of particular scenic value to the local government area of Ballina". Mr To drew attention to the inclusion of "protect and enhance" which, in his view, "unquestionably embrace a positive outcome, as distinct from a negative or adverse outcome for areas of particular scenic value" (submissions par 46).
Objective A(c) is "to ensure development within the zone maintains the rural character of the locality and minimises any detrimental scenic impact". This acknowledges that maintaining the rural character does not preclude impacts on scenic values, but any development should minimise detrimental impacts. It would be a matter for the consent authority to assess on a case by case basis whether a proposed development has minimised detrimental impact.
Objective A(b) is to 'encourage productive use of land' and 'enable development ancillary to agricultural land uses', where ancillary includes 'particularly dwelling houses, rural workers' dwellings and rural industries'. Many forms of agriculture (specified in the Land Use Table at 2) require development consent - the only forms of agriculture permitted without consent would be grazing and possibly cropping, although this does not currently occur on the land, and no suggestion was made that there was any possibility of cropping being proposed in the future.
While construction of dwelling houses is permitted with consent in the 7(d1) zone, the consent authority is constrained by cl 12, which sets a prerequisite to be met before consent can be granted. The zone objectives promote agricultural use, maintenance of the rural character of the locality and the need to ensure that the scale and nature of what is proposed minimises detrimental scenic impact (object A(c)).
The intent is to limit proliferation of dwelling houses while reducing loss of agricultural land, maintaining rural character and minimising visual impacts.
Rural workers' dwellings are permitted on the land subject to the restrictions, which are numerous, in cl 12(4). These include that the needs of existing agriculture genuinely require that rural workers reside on the land. The reference to existing agriculture means that changes in the nature of agriculture practised on the land, as for example, from grazing to cropping, each of which would be permissible without consent within the zone, are not possible under cl 12(4).
The Applicants' proposal is, to my mind, contrary to the intent of the zoning and a straightforward reading of cl 12(3), and reaching this conclusion does not require rewriting cl 12(3) in one of the ways suggested by Mr Astill.
I conclude, therefore, that cl 12(3) does not provide for the granting of consent for a dwelling house and that cl 12(2) does not permit a dwelling house so that the development application must be refused.
The arguments advanced by Mr To and Mr Astill are finally balanced. In the event that I am wrong in my conclusion, I will therefore consider the other contentions raised by the Respondents.
If I am correct in my finding, the Applicants would still be able, subject to merits assessment, to make a proposal for the decommissioning or demolition of the existing dwelling and its replacement with a new dwelling. If this avenue were pursued, then it would not be an invitation for a proposed new dwelling anywhere on the whole Lot, but there could be possibilities for relocation within the existing cleared area associated with the present dwelling. This might permit continuing occupation of the existing dwelling until completion of the new dwelling, although this would be a matter for a future consent authority that could be addressed by conditions.
Use of the existing dwelling site area would have advantages of: not requiring loss of existing grazing land; not involving building of a new dwelling in part of the Lot where it would become an exception to the existing pattern of dwelling site location in the neighbourhood; and not requiring a wastewater treatment facility to be built on a new part of the Lot so the existing wastewater treatment facility could be retained with or without a need for upgrade. Additionally, the emergency access would be shorter and the distance between the house to the public road would not be increased. The RFS would therefore not need to grant an exemption from its normal requirement that where there is only a single access to a property, the access road not exceed a length of 200 m.
[11]
Height of the proposed dwelling
The experts expressed some doubt as to the accuracy of the surveys, so that there was possible uncertainty as to the exact height of the building proposed. Nevertheless, even though there was no resurvey to establish levels to the agreement of the parties, the experts were of the view that any exceedance of height limits was small, but:
"61. While the contravention of the height standard is numerically minor and does not result in external amenity impacts, we agree that compliance with the development standard would be appropriate in this case."
(Ex E p 20 par 61)
In addition, Mr Roberts noted in pars 62a and 63a:
"62. In addition to the above PG notes:
a. Given the size of the site and the possible opportunities for different sites to locate a dwelling house (as I discuss in response to Contention 4) I cannot see any basis to support a variation to the height standard for a new site.
…
63. In addition to the above DR notes:
a. Further detail in the form of a NSW registered surveyor providing a spot level of the existing ground level at the south-eastern corner of the proposed building would provide an exact figure on whether the proposal complies with the numerical aspect of clause 17 of BLEP 1987. DR agrees that if the dwelling is in fact greater than the 6.4m (as defined by the control) that it should be amended to comply."
(Ex E)
This was not adopted by the Applicants, Mr Astill arguing (in submissions at par 155):
"155. This minor exceedance (100mm) is not sufficient to warrant refusal of the DA in light of the potential concessions available under cl 17(2) which allow exceedance where the building satisfies any one of the following, namely that it will not-
(a) adversely affect the existing or future amenity of adjoining properties by overshadowing or causing loss of privacy,
(b) significantly obstruct views from adjacent buildings and public places,
(c) have an adverse impact on the scenic or landscape quality of the locality, or
(d) exceed 2 storeys."
although suggesting (at par 159) that:
"159. In the alternative to all this a condition could be imposed requiring the plans to be amended prior to CC that the building not exceed 6.4m calculated in accordance with the LEP."
Clause 17 of BLEP 1987 differs from clauses with the same or similar objective of regulating building height in template LEPs, in that it does not set a standard which could only be varied by satisfying the provisions of State Environmental Planning Policy No 1 - Development Standards or, if the LEP contains the standard provisions, cl 4.6. Rather, as Mr Astill pointed out, cl 17, which includes subcll (2)(a)-(d) provides a route that, if applicable, would permit the consent authority to relax strict adherence to the 6.4 m height limit.
The Second Respondent's position in relation to the subclauses in cl 17(2) is:
"67. The second respondent does not say sub-clauses 17(2)(b) or (d) are not satisfied."
(Mr To's submissions at par 67)
There is no doubt that cl 17(2)(d) is satisfied as the application is for a two-storey building.
Whether cl 17(2)(b) is satisfied depends on the interpretation of 'significantly obstruct views'. The Applicants argued that:
"157. Criterion (b) is satisfied as, whilst the building may be visible from certain points, it could not reasonably be said to "significantly obstruct" any views; rather it is barely visible."
(Applicants' written submissions at par 157)
The nearest existing buildings are some distance away; if obstruction is assessed by the proportion of the view obscured by the proposed dwelling (without taking into account any other factors such as colour or reflectivity), the fraction of the view obscured would be small and would not offend against this clause.
The parties are diametrically opposed in relation to cl 17(2)(c).
The Second Respondent's position is:
"68. However, it is clear, on the evidence, that sub-clause 17(2)(c) cannot be satisfied. This is because the clause requires satisfaction that the building "will not .. have an adverse impact". That is, any impact. This is deliberately high hurdle, designed to be triggered when a building exceeds a predetermined height in an environment protection zone designed to protect scenic values.
69. The remarks of the Court in Marshall Rural Pty Ltd v. Hawkesbury City Council [2015] NSWLEC 197 at [112]-[117] (Moore AJ, as he then was) are apposite. When the height limit is exceeded, development is prohibited unless the exception (a satisfaction of no adverse impact) is engaged. The Court here must approach the consideration and determination against this deliberately 'very high hurdle' with a marked degree of precision and caution."
(Mr To's submissions at pars 68-69)
The issue in Marshall Rural Pty Ltd v Hawkesbury City Council [2015] NSWLEC 197 (Marshall Rural) was in relation to temporary use of land in the Hawkesbury City Council LGA to which the Hawkesbury Local Environmental Plan 2012 (HLEP) applied. Clause 2.8 of the HLEP was relevantly:
2.8 Temporary use of land
(1) The objective of this clause is to provide for the temporary use of land if the use does not compromise future development of the land, or have detrimental economic, social, amenity or environmental effects on the land.
(2) Despite any other provision of this Plan, development consent may be granted for development on land in any zone for a temporary use for a maximum period of 28 days (whether or not consecutive days) in any period of 12 months.
(3) Development consent must not be granted unless the consent authority is satisfied that -
(a) the temporary use will not prejudice the subsequent carrying out of development on the land in accordance with this Plan and any other applicable environmental planning instrument, and
(b) the temporary use will not adversely impact on any adjoining land or the amenity of the neighbourhood, and
(c) the temporary use and location of any structures related to the use will not adversely impact on environmental attributes or features of the land, or increase the risk of natural hazards that may affect the land, and
(d) at the end of the temporary use period the land will, as far as is practicable, be restored to the condition in which it was before the commencement of the use.
…
The clause permits approval being granted to activities which would not otherwise be permitted. Both cl 2.8(3)(b) and (d) refer to 'adversely impact.'.
Moore AJ (as he his Honour then was) in Marshall Rural at [116] stated that the test provided in cl 2.8 of HLEP set a high hurdle, but he did not define "adversely impact".
Mr To (in submissions at par 68) argued that there needed to be satisfaction that the building "'will not …have an adverse impact'. That is, 'any impact'".
I do not accept the proposition. The draughtsperson presumably included 'adverse' as a qualifier of impact for a reason - it is not just any impact that would trigger rejection but an adverse impact.
If it were "any impact" as suggested by Mr To, then even positive or neutral impacts would result in refusal of the application for want of power. There are circumstances where, in the context of a rural landscape, an architect could argue that a proposed building enhanced the landscape - this might not find universal acceptance, but it could be a defensible position. In other circumstances, a structure might have an impact to the extent that it can be seen but be neutral in terms of changes to landscape quality. The BLEP 1987 refers to adverse impact, but adverse itself is not qualified - it is any adverse impact and not severely or significantly adverse. It is unhelpful that no guidance is given in BLEP 1987 as to what constitutes 'adverse' - but it must require more than that the building be visible.
The landscape into which the proposed building will be placed is a rural landscape, which contains, when viewed from a distance, dwellings, sheds and other structures - and the presence of these built objects is part of the determining character of the landscape. The built structures have an impact - they can be seen - but to be an adverse impact would require that in some way they are unsympathetic to the landscape. It is not a case that anything can be built in rural landscape - what is built is required to be sympathetic and appropriate to its setting. The situation would be different if the building was to be inserted into a large expanse of natural vegetation - that is not what is proposed in the present matter.
The Applicants' position was presented by Mr Astill (in submissions at par 158):
"158. Criterion (c) is relevant to other issues and if the Court is satisfied that the DA is otherwise acceptable then this 100mm exceedance would not alter that assessment. The proposed dwelling fits comfortably into the scenic values of the locality which is already characterised by dwellings, fences, sheds and other rural structures."
I conclude that application of cl 17 of BLEP 1987 in the circumstances of the case does not impose a jurisdictional barrier to my determining the matter.
If I had decided otherwise, then I would have been bound to refuse the application; absent an agreed amendment to the application, I would not have the ability to address the issue through imposition of conditions.
[12]
Visual issues - the proposed development from afar
This is not the end, however, of issues related to visual impact.
The Second Respondent contends (Contention 2) that the proposal is inconsistent with the aims and objectives of the BLEP 1987. In particular, it is argued that cl 2(f) which requires the physical environment be taken into account "so that development is in harmony with scenic and ecological resources". "Harmony" is not defined or clarified and thus must take its normal meaning, but that requires a subjective evaluation of aesthetics, and different people may hold widely differing views as to what constitutes "harmony".
The scenic character of the area is discussed in the report on Visibility and Visual Matters prepared by Ms Da-Re of Design Team Ink for the Applicants (Ex D Tab 8). Ms Da-Re was not called to give evidence and nor was her detailed report subject to much discussion during the hearing. The area for which the scenic character was assessed included the coastal plain, Lennox Head and the ocean as seen from residences within the 7(d1) zone and the view of the escarpment seen from the coastal plain, outside the 7(d1) zone.
Contention 2 is also that the proposed development does not meet the objectives of cl 9, in particular cl 9(7), so that the consent authority (and the Court acting in Council's shoes) cannot grant consent except as otherwise provided for in the plan unless the development would be consistent with zone objectives.
BLEP 1987 continues to apply to the 7(d1) zone as it is a "deferred matter" in BLEP 2012. It has been deferred for a number of years. Mr Roberts, in Ex E at par 27d states that:
"d. The e-zone review undertaken by the Department of Planning and the recommendations coming out of such have clearly stated that being on a scenic escarpment is not an adequate reason for an environmental zone and that Council must zone these areas as either RU1 or RU2 under the standard instrument. This will ultimately result in the zone objectives and the 7(d1) zone being repealed from the subject land and the Shire as a whole."
However, when 'ultimately' will be is unknown; there was no indication given that any change is 'imminent and certain', and BLEP 1987 remains the applicable planning instrument in this matter.
The site for the proposed dwelling is near a ridgeline identified on the Ridgelines and Scenic Areas Map in the BLEP 1987 so that the provisions of Chapter 2 Section 3.2 of BDCP 2012 are an important consideration. However, their interpretation is not simple.
The Applicants (submissions at par 161) suggested that the dwelling is not on a ridgeline, so the concerns of the Second Respondent are "factually wrong".
Mr Astill supported this by reference to the original report of the Council officers (Ex 1 Tab 16) when they were of a mind to approve the DA. He includes in his submission excerpts from the officers' report (at par 16) including:
"…
(b) The site selection has avoided the need for vegetation removal on the ridgeline. The proposed dwelling does not unreasonably protrude into the skyline and is not visually prominent when viewed from the public land.
…
(g) In specific response to an objection from the Scenic Escarpment Protection Alliance (SEPA) that the proposal is inconsistent with the objectives of protecting the unique and sensitive environment of the escarpment, and the rural character, scenic beauty and wildlife protection objectives - the design of the dwelling and associated development and the characteristics of the locality, the development does not result in significant adverse impact on the scenic amenity of the area or the rural character to the locality…"
The applicable development controls are in BDCP 2012 Chapter 2 Section 3.3.3. These relate to the scenic qualities of the land, the intrusion into the skyline of the development, and the location of the proposed dwelling relative to other dwellings in the vicinity.
Will the dwelling be 'on a ridgeline'? The topography does not present as a sharp, narrow ridgeline (arête), rather it is a broad gentle dome where the line of the highest elevation is not readily discernible at first glance. To the east there is a break in slope below which it descends more steeply. The Applicants say that the proposed development will be set below the actual ridge to the east of the highest point, in an excavated area.
In the strict sense, the proposed dwelling is to the east of the ridgeline; but while it is necessary to apply the BDCP 2012, it should not be interpreted in an overly narrow way.
Mr Grech considered that:
"74. PG considers that, because:
a. The site is located on a ridge, albeit offset from the crest of the ridge (ie the ridgeline). A ridge is not a single line but a terrain feature that extends beyond the ridgeline. The dwelling house is to be sited only marginally to the east of the ridgeline such that the top of the building will still extend above the ridgeline. In my opinion the dwelling house will be located on what would be visually read as part of the ridge even though not centred along the ridgeline.
(Ex E p 25 par 74(a))
I agree with Mr Grech that the ridge in the local context would be considered, not only by him but by members of the public, to be a terrain feature rather than a single line. The very narrow interpretation favoured by the Applicants does not accord with the nature of the site as seen, and appreciated, by the general observer.
Even if Mr Astill is correct and that the dwelling is not on the ridgeline, the BDCP 2012 also requires that the dwelling should not 'intrude into the sky line when viewed from a public place'.
In Bottomline Group Pty Ltd v Snowy Monaro Regional Council [2020] NSWLEC 1115 (Bottomline), the possible impacts of a proposed development on views from Lake Jindabyne was required to be considered under cl 7.6 of the Snowy River Local Environmental Plan 2013.
7.6 Development within the Lake Eucumbene and Lake Jindabyne scenic protection areas
(1) The objective of this clause is to protect the following attributes within the catchments of Lake Eucumbene and Lake Jindabyne:
(a) the visual qualities and scenery,
(b) the sense of isolation that can be enjoyed in many areas on and adjacent to the lakes,
(c) the recreational functions of the lakes, including its attraction as a fishing destination,
(d) the water storage functions of the lakes.
(2) This clause applies to land identified as "Lake Eucumbene and Lake Jindabyne" on the Scenic Protection Area Map.
(3) 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 will not have an unacceptable visual impact on the scenic quality of the area when viewed from the relevant lake at its full supply level or from a public place, and
(b) the development has been designed to prevent any intrusion into the view from the lake at its full supply level.
(4) In deciding whether to grant development consent to development on any land to which this clause applies, the consent authority must consider:
(a) the visual impact of the development when viewed from the relevant lake at its full supply level or from a public place, and
(b) whether the design and construction of any new buildings (including ancillary development) prevent any intrusion into the view from the lake and minimises any adverse impacts on the view from the lake and surrounding areas, and
(c) the number, type and location of existing trees and shrubs that are to be retained and the extent of landscaping to be carried out on the site, and whether provision has been made for the planting of appropriate native species where the planting would visually screen the development.
The objectives of this clause are broadly similar to those in BLEP 1987; cl 7.6(3)(b) refers to preventing "any intrusion into the view" and cl 7.6(4)(b) also refers to "intrusion".
In Bottomline (at [104]), I considered how "intrusion" was to be interpreted and concluded that it was necessary to read into it connotations of offensiveness or undesirability and I see no reason to adopt a different position in this case. Dwellings, unless subterranean, are necessarily visible, even if only from very close to them. Dwellings are a feature of the rural landscape, so the implied test is more - is the building offensive to the character of the broader rural landscape in which it is set? The term used in the original Council officers' report was that the proposed dwelling "does not unreasonably protrude into the skyline"; the first definition of "protrude" in the Macquarie Australian Dictionary 8th edition 2020 is "to project". The second definition of "protrusive" is "obtrusive" so that in some circumstances something which protrudes might be obtrusive and thus carry negative connotations, but, although dependent on context, to intrude more generally has the connotation of unwanted. In the Council officers' report, "protrude" is qualified by "not unreasonably" so that to apply the test would require a subjective assessment, and the balancing of the opinions of a viewing objector with the expectations of a proponent.
Unlike the situation in Bottomline, where the parties had not provided a detailed assessment of the visual impacts, in the present case the report by a visual assessment expert (Ms Da-Re) had been tendered by the Applicants (Ex D Tab 8).
The Court has developed two planning principles relating to views - in Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity), where a four-step approach (at [26]-[29]) to assessing impacts on views from private property were applied, and in Rose Bay Marina Pty Limited v Woollahra Municipal Council [2013] NSWLEC 1046 (Rose Bay Marina) at [44]-[49], with an explanation of how the analysis required by the principle is applied at [50]-[59]. The Tenacity principles have been applied in numerous cases, the Rose Bay Marina principles have less often been explicitly applied.
Planning principles are guidance rather than being binding, and their application must recognise the context of each individual site to which they are applied. Both the view principles were developed in, and largely applied to, urban situations.
The Applicants' visual study referred to Tenacity - the principle being applicable to the concerns of residents along Old Byron Bay Road. Unfortunately, Ms Da-Re was refused access to properties, so was not able to strictly apply the tests set by Tenacity, which would have required knowledge of the use of particular rooms within the relevant properties. However, through use of a drone, digital photomontages were generated from an average eye-height of a hypothetical viewer on verandas of a number of the properties, with a line of sight to the proposed dwelling (images on pp 27-29 of Ex D, Tab 8).
For the objectors, the presence of any building in the line of sight, where presently there is no building, might be regarded as grounds for objection and represent a loss of the amenity they currently enjoy. However, the proportion of the field of view occupied by the proposed building would, under the Tenacity principle, not be grounds for rejection of the proposal.
The Rose Bay Marina principle was not cited in Ms Da-Re's report.
Potentially, the proposed dwelling could be seen from public land as far away as Lennox Head, but with the naked eye would be scarcely visible at this distance. With binoculars or a telescope, it would be more visible, but most assessments of visual impact are based on what can be seen with the naked eye. Even if a building cannot be made out, at certain times of day and under the right weather conditions, reflections from surfaces might transiently result in highly visible flashes of light, but this is a matter that could be addressed by conditions. The proposed finishes and colours would not suggest that reflections would be an issue. BDCP 2012 Chapter 2 Section 3.2.3 ii requires that building materials and colours are to mitigate potential adverse impacts, and this requirement has been addressed in the design. The third dot point in BDCP 2012 Chapter 2 Section 3.2.3 ii refers to "intrusion into the skyline when viewed from public land". In response to a query from me, Mr Harker responded on the run in the following terms:
"…Just an observation in terms of your question, I think that the operative word, I believe, would be intrude, and being able to view a house from a road from some distance on the escarpment really amounts to an intrusion."
(Tcpt, 15 September 2020, p 18(39-42))
I consider that this interpretation is more restrictive than what, in the context of a rural landscape, the BDCP 2012 intended.
BDCP 2012 Chapter 2 Section 3.2.3 ii requires that buildings should not be sited on ridgelines unless no site for alternative location is available. I have already stated that I prefer Mr Grech's interpretation of ridgeline, and that what is proposed could be perceived, at least from certain directions, as being on the ridgeline. In a property as large as the subject site, a dwelling could be sited in a number of locations, so alternatives are potentially available - although the parties differed as to whether they would be suitable.
If it could be argued that there are no suitable alternative sites, BDCP 2012 specifies that building should be clustered in less visibly prominent areas of the site when viewed from public land. (In this context, site can be equated with the escarpment and ridgelines which comprise the 7(d1) zone.) Over the years, a number of properties have been approved and constructed on ridgelines in the area. The Applicants' Ex H provides details of approvals. However, not all of these were approved under BLEP 1987 and BDCP 2012, so that the restrictions and requirements which applied at the time of approval may have been different from those that currently apply. If the sites where older approvals were granted had, instead, remained vacant, any applications made under the present planning regime might not be granted approval. The properties along Old Byron Bay Road fall (loosely) into two clusters. The dwellings are mostly set in reasonably dense vegetation, and although discernible from a distance are not prominent in the view.
(Ex E, Photo taken by Mr Grech)
The proposed new dwelling is not on the Old Byron Bay Road ridge, but on a different ridge some 200 metres to the east. The existing property on 404 Old Byron Bay Road is part of the cluster of dwellings along the road.
(Ex E)
One of the features of the proposed dwelling is that it would be set at a location which is currently largely grassland, and while grassland is vegetation, the construction would not involve clearing of woody vegetation, and thus would satisfy one of the controls in BDCP 2012 Chapter 2 Section 3.2.3 ii. However, it might take some time before screening through landscaping would be achieved.
Mr Roberts (Ex E par 27) suggested that Council had not upheld the objectives of the zone through their approval of developments on the ridgeline. In par 27e, he refers to the fact that the zone objectives have been substantially eroded through lack of application by the consent authority of the controls, and at par 27c in relation to the building envelope indicated on the current Lot 1, he says that the envelope runs along almost the entire ridgeline within the current Lot 1 "this approval clearly shows that Council have consistently approved dwellings over the past 33 years (since the gazettal of LEP 1987) in the 7(d1) zone on ridgelines".
Mr To (in submissions at pars 54-55) suggested that Mr Roberts was in error:
"54. However, this overlooks that the subdivision that resulted in the creation of the subject lot, in 2002, preceded the creation of the 7(d1) zone in November 2003: Ballina Local Environmental Plan 1987 (Amendment No 82).
55. This also overlooks that the approvals relied upon by Mr Roberts were permitted either because they predate the 2003 amendment creating zone 7(d1), or the existence of the previous clause 12(3A) which provided an additional path to permissible dwelling house development, even on land that was not vacant land."
Option 3 for an alternative location for the dwelling would introduce new elements into the views of the escarpment from the coastal plain, and shielding the access track by a fringe of trees would result in lines of trees which might be a discordant element, changing the character of the rural landscape.
The Applicants' visual analysis did not discuss the visual impact of the access track. The new track is a prominent feature in the view from the objectors' residences visited during the site inspection, as shown in numerous images in evidence.
Mr To, in his final oral submissions said:
"…When one goes back in the mind's eye to that photograph of the ridge line and thinks about no road, no building, and then compares it with, I will admit with some advocate's flourish, the scar across the landscape of the road, the Court would conclude there is an adverse impact, and once there is an adverse impact, consent may not be granted."
(Tcpt, 4 December 2020, p 218(6-9))
While to describe the road as a "scar across the landscape" may be a rhetorical flourish, it would be supported by many of the objectors.
Two points can be made. The current "scar" could be made less visually offensive by choice of colouring of the road surface, which could be the subject of conditions. Secondly, replanting and encouragement of the regrowth adjacent of the track is proposed, and from many angles this will in time shield the track from view and either completely remove it from vision or substantially reduce the visible footprint. How long this will take is not known, but the visual impact of the road will be transient. Indeed, the loss of existing views, as a result of tree growth, might itself become a source of criticism.
The options proposed by Mr Grech for access from Midgen Flat Road to either the proposed dwelling site or to his Option 3 site for location of a new dwelling would introduce new elements into views of the escarpment from the coastal plain and shielding the road by a fringe of trees would result in lines of trees which might be a discordant element, changing the character of the rural landscape.
I find that the Second Respondent's Contention 2 is not made out and that the proposal is consistent with the aims and objectives of BLEP 1987. The proposed development is not contrary to cl 2(f) and that the building proposed would not be obtrusive in the rural landscape.
[13]
Wastewater treatment
A matter of concern to Mr Grech was the arrangements for on-site treatment of wastewater. Attachment E to the joint report of the planners (Ex E) contains a s 68 application (Local Government Act 1993). This is accompanied by a report prepared by Charlie Hewitt Engineering Design for the proposed on-site treatment facility which would be situated west of the site of the proposed dwelling.
Mr Grech was questioned by Mr Astill in the following exchange:
"ASTILL: Site constraints under a table.
WITNESS GRECH: It identifies the site constraints, being a number of trees on the western side of the spur and the proposed dwelling on the eastern side, so he's obviously tried to locate it within some constraints. And the calculations that he undertakes to determine an appropriate location are quite complex, and there are a series of parameters, including things such as proximity to water courses, proximity to other dwellings, proximity to vegetation and slope, and a range of other considerations. So it's not for me, because I'm not that expert, but there are a number of considerations required to determine an appropriate location that would fit a particular siting of a dwelling. And there is a requirement to ensure that that is satisfied, by way of clause 30 of the model provisions which are adopted via LEP 1987, and there are a range of criteria in section 3.11 of chapter 2 of the DCP.
ASTILL: You are not saying that there is nowhere on this 36 hectare site that this could be adequately done, are you?
WITNESS GRECH: I can repeat that, I am saying that there is no clear understanding on where this onsite irrigation area will be located to understand whether there is an appropriate location for it that is not going to have unacceptable impacts, and it works acceptably in regard to the various criteria that an expert that is not me needs to assess. I can't agree to that, it is something for that sort of expert.
(Tcpt, 15 September 2020, p 40(24-47))
Mr Grech indicated that, as a planner, he had concerns, but that he was not an expert in effluent disposal. The matter was not raised as a contention by Council and no wastewater expert was called by any party.
Mr To in his submissions raised the issue again:
"96.4 The potential impacts of the onsite sewage management system, adjacent to the dwelling house, are unknown. This is because the information for it is conflicting, and may site the irrigation fields in conflict with existing stands of native vegetation.
Contrary to Mr Roberts' view, this is not a matter that should be simply be left for condition. He has overlooked that clause 30 of the EPA Model Provisions 1980, adopted by the LEP, requires the consent authority to be satisfied, at least, of suitable arrangements having been made. See also s3.11 of the DCP."
The Model Provisions are called up by cl 6 of BLEP 1987:
6 Adoption of Model Provisions
The Environmental Planning and Assessment Model Provisions 1980 are adopted except for -
(a) the definitions of commercial premises, map, residential flat building, rural industry and tourist facilities in clause 4 (1),
(b) the reference to the words "the Traffic Authority of New South Wales and the Commissioner for Main Roads" in clause 10 (2), and
(c) clauses 5 (2) (c), 5 (3), 6, 15, 16, 17, 29 and 36.
Clause 30 of the Model Provisions is not excluded by cl 6 of BLEP 1987 and reads:
30 Services
The consent authority shall not grant its consent to the carrying out of any development on any land unless:
(a) a water supply and facilities for the removal or disposal of sewage and drainage are available to that land, or
(b) arrangements satisfactory to it have been made for the provision of that supply and those facilities.
Clause 30(b) requires that satisfactory 'arrangements have been made' - it is in the past tense and the arrangements exist. The requirement is not that arrangements 'can' or 'will' be made.
The requirements in cl 30 of the Model Provisions are similar to those specified in cl 45 of the Byron Local Environmental Plan 1988 which read:
45 Provision of services
(1) The Council shall not consent to the carrying out of development on any land to which this plan applies unless it is satisfied that prior adequate arrangements have been made for the provision of sewerage, drainage and water services to the land.
(2) (Repealed)
The Council could not consent to the carrying out of development, unless it was satisfied that 'prior arrangements' have been made. The interpretation and application of cl 45 were discussed by Stein JA in Codlea Pty Ltd v Byron Shire Council (1999) 105 LGERA 370; [1999] NSWCA 399 (Codlea). In Codlea, Stein JA at [36] said "the stress placed in cl 45 on arrangements already having been made with the Council emphasises an exercise of a function or power being a condition precedent to approval".
In Crighton Properties Pty Ltd V Kiama Municipal Council (2006) 146 LGERA 271; [2006] NSWLEC 297 (Crighton), Preston CJ contrasted the circumstances of that case with those in Codlea. Crighton concerned a development application for provision of accommodation for seniors under State Environmental Planning Policy (Seniors Living) 2004 (SEPP (Seniors Living)) in which cl 27(1) read:
27 Water and sewer
(1) A consent authority must not consent to a development application made pursuant to this Chapter unless the consent authority is satisfied, by written evidence, that the housing will be connected to a reticulated water system and have adequate facilities for the removal or disposal of sewage.
(This provision is now cl 28 of the current State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004.)
This establishes a condition precedent before a consent authority could grant consent. Written evidence must be before the consent authority at the time the authority is making its determination but need not have been included in the DA as it was originally submitted.
Clause 27(1) is prospective and does not include the word 'arrangements'; rather it requires written evidence, but does not specify what must be included within the evidence. In Crighton, Preston CJ (at [44]-[52]) discussed various ways in which the provisions of cl 27(1) could be met, including (at [45]):
"That an applicant could satisfy a consent authority that the matters referred to in the clauses will be made, by providing written evidence that an arrangement in respect to matters will be made in the future, even though such an arrangement has not yet been made".
The Applicants' approach follows the requirements of BDCP 2012; but they did not recognise the problem created by the need to meet the requirements of cl 30 of the Model Provisions.
Mr Roberts in Ex E at par 69 noted:
"DR notes that a section 68 approval for the installation of an onsite sewerage management system was lodged with Council but is currently on hold pending the outcome of the DA. The question that needs to be answered is whether the property being some 36 hectares in size has the ability to cater for the disposal of sewerage via an onsite sewerage system. It should be noted that there is an existing dwelling that is to be decommissioned that has approval for the disposal of sewerage onsite and has an existing approval to operate. It should also be noted that there are properties that successfully cater for the disposal of onsite sewerage in the vicinity of the proposed development that are 0.8 of a hectare (420 Old Byron Bay Road). The subject allotment is 45 times the size of 420 Old Byron Bay Road and in my opinion there is no question to whether the property has the ability to cater for the disposal of onsite sewerage. This matter can easily be addressed via conditions of consent."
The s 68 application was not part of the DA. A separate application under s 68 of the Local Government Act 1993 was made to Council but has been deferred pending the outcome of these proceedings.
I note the apparent discrepancy between the layout for the facility shown in the Landscape Plan and that in the s 68 application.
What is required by the planning instruments - BLEP 1987 and BDCP 2012 Chapter 2 Sections 3.8 and 3.11?
BDCP 2012 Chapter 2 Section 3.11C ii specifies that wastewater disposal must meet the requirements of Section 3.8 in relation to on-site sewage management. In Chapter 2 Section 3.8, there is only one development control - 3.8.3.i.
"All development must comply with the Ballina Shire Council On-site Sewage and Wastewater Management Strategy 2017."
The note to the control advises that application for a s 68 approval should be made concurrently with a development application. The Applicants have submitted a s 68 application to Council.
Before Council can address the s 68 application, it must be satisfied that under cl 30 of the Model Provisions arrangements have been made for the provision of sewage disposal. As was the case in Codlea, arrangements have not been made.
Stein JA in Codlea at [39]-[40] discussed what was meant by 'arrangements' in cl 45 of Byron LEP 1988. He considered that they were arrangements of the type explained by the Privy Council in Newton v Federal Commissioner of Taxation [1958] UKPCHCA 1; (1958) 98 CLR 1 at 7:
"Their Lordships are of opinion that the word "arrangement" is apt to describe something less than a binding contract or agreement, something in the nature of an understanding between two or more persons - a plan arranged between them which may not be enforceable at law."
In Codlea (at [40]), Stein JA said:
"…It is true that the arrangements under cl 45 need not have been implemented. But they still have to exist and must pre- exist the 'satisfaction' of Council with them. They are prior arrangements which have been made. And they must exist to Council's satisfaction prior to consent."
If, instead of relying upon cl 30, BLEP 1897 contained a provision similar to that in SEPP (Seniors Living) cl 27(1), and was not worded in the past tense, then there would be flexibility in how the consent authority could have responded. The consent authority would need to be satisfied that there was a mechanism that would allow approval in the future, but that mechanism would not need have been worked through prior to the development application being submitted.
The situation has some similarities to those where a Grampian condition might be applied (see Visionary Investment Group Pty Ltd v Wollongong City Council [2019] NSWLEC 1234 at [196]-[209]; Mullaley Gas and Pipeline Accord Inc v Santos NSW (Eastern) Pty Ltd [2021] NSWLEC 110 at [150]). Grampian conditions can be applied in circumstances where a proposal could only operate if some activity essential for the proposal to become functionally operative requires some work or activity at a site not controlled by the applicant and require approval from another consent authority. Consent might be granted by the substantive consent authority if there were a mechanism in place to allow the off-site activity to be assessed and approved - the mechanism must exist but there need be no certainty that an approval would be forthcoming.
However, as long as BLEP 1987 applies cl 30 of the Model Provisions, the process by which on-site wastewater treatment facilities are assessed and approved cannot employ the provisions established by BDCP 2012 Chapter 2 section 3.8.3 i to lands within the 7(d1) zone, because BDCP 2012 requires assessment of a s 68 application after, or in parallel with, assessment of the development application, whereas cl 30 requires that arrangements have to have been made prior to lodging the DA. This outcome is perverse, but follows from a plain reading of cl 30(b) and Codlea.
Approval of only part of the current application, by not granting approval for the on- site wastewater facility, would be futile, as any dwelling which cannot be connected to a sewer necessarily requires some form of treatment of sewage and wastewater on site.
The issue of needing to satisfy cl 30 had been raised by Mr Grech (see [168] above), and by Mr To (submissions at par 96.4). However, these mentions were brief, and did not refer to Codlea.
Accordingly, I find that, as the arrangements required by cl 30 have not been made, I do not have power to approve the DA.
[14]
Alternatives discussed by the planners
Clause 9(4) of BLEP 1987 requires that a development application to carry out development other than designated development (for which an environmental impact statement would be required) is required to be accompanied by an environmental impact report. "Environmental impact report" is not a term otherwise defined, but more important than what it is called is what it contains; cl 9(4)(h) requires:
(h) any feasible alternatives to the carrying out of the proposed development and reasons for choosing the latter…
There was discussion as to whether there had been adequate consideration of alternatives during the preparation of the development application.
The planners, in Ex E, raised a number of alternatives to what is proposed in the DA (which is different from what alternatives may have been considered in preparation of the DA).
Number 404 Old Byron Bay Road has an area of 36 ha so that there may be a number of potential sites where a dwelling could be sited. Mr Grech discussed three possible alternative locations for the dwelling, although clearly this is not an exhaustive list. These are illustrated above at [160].
Option 1 is the proposed site the subject of the DA. Mr Grech considered a number of disadvantages with this location (Ex E par 74).
The proposed dwelling site is not flat, with the variation in elevation of 7 m, and requires substantial site modification before construction.
Upgrading the access track has ecological impacts
The effluent management system could impact on a copse of eucalypt trees, but inadequate survey data have been provided to assess the impact.
The Applicants have stated that the proposed dwelling house will be self-sufficient for power, but Mr Grech is uncertain that this could be achieved.
The location breaks the pattern of house sites along the eastern side of Old Byron Bay Road, and requires a long access track. The house will be visible from existing houses along the road and use of the upgraded road would be a potential source of disturbance (from noise or vehicle lights at night) to nearby residents. This concern was not explored in any detail.
Option 2 was the existing house site. The existing house could be modified or replaced by a new building. Mr Grech considered that advantages of using the existing site included:
site modification works could be minimised;
there is an existing onsite sewage disposal system;
upgrade of the access track would not be required;
a house close to the location of the existing dwelling would be screened by existing vegetation and retain the pattern of dwellings along Old Byron Bay Road;
would not interfere with views from existing dwellings; and
would not interfere with potential agricultural use of the eastern part of the site.
Option 2 which was advanced by both Respondents was to redevelop on or near the existing house site. This was not supported, and indeed was strongly opposed, by the Applicants.
Mr Roberts in cross-examination said of the suggestion that the existing house site should be redeveloped that he did not consider this to be a preferable solution:
"TO: Would you agree with me and say there are other considerations?
WITNESS ROBERTS: There are other considerations, not just visually prominent areas, yes, that's correct, as listed in the DCP, with the control of 3.2.
TO: And a house in the existing location would not require the construction of an access road of the kind that we walked, with difficult grades, through erodible soils, through endangered ecological communities, would it?
WITNESS ROBERTS: If you're suggesting that if we just kept the existing dwelling, and did not propose a new dwelling over the ridge line, that the access road would not be required, I would be in complete agreement with that.
TO: Equally, you are familiar with option 3, which Mr Grech identified in the joint report?"
(Tcpt, 15 September 2020, p 49(8-24)
Option 3 is for a position lower than the proposed site. Mr Grech identified this location on his site inspection and the site has not been subjected to detailed investigation. He suggests that it is cleared of woody vegetation, provides 180-degree views and could be of sufficient size to accommodate the proposed house, pool and effluent irrigation area. This is speculation on his part, and given the uncertainties that he had expressed regarding the proposed effluent irrigation area at the proposed dwelling house (Option 1), similar concerns might be expressed about Option 3. The site connects with an existing farm track and is en route to the potential grazing land on the eastern side of the property. However, Mr Grech acknowledges that this site would have all the disadvantages associated with a need to upgrade and use the access road, but the dwelling would be lower down on the eastern side of the ridge and would be less prominent in the scenic landscape and shielded from surrounding residences. While it might be lower down and thus potentially shielded from view from existing residents, further analysis would be required to determine the impacts on views from the coastal plain.
The appropriate first step in considering alternatives is not to ask whether a proposed alternative is the best choice - but to ask whether what is proposed is viable - if there is not some fundamental constraint which would mean that a consent authority would not have the power to approve it, then there needs to be a considered merits review of the alternatives.
The Respondents in raising Option 2 were not obliged to go into specific details, but I do not understand them to have necessarily been advocating for a rebuild on exactly the same footprint, so that any issue over setback from Old Byron Bay Road would be capable of being addressed by a change in position. During the site inspection, we did not inspect the current house or its immediate surrounds, but it would be my understanding that a house in the vicinity of the present dwelling would have extensive views, even if not from exactly the same perspective as the views from the proposed dwelling. The image in Mr Grech's report showing the entrance to the current dwelling indicates that a vista would be available.
(Ex E Fig 4 - Photo taken by Mr Grech)
[15]
The alternative proposed access from Midgen Flat Road
Mr Grech considered that both Options 2 and 3 had the potential for alternative vehicular access to Midgen Flat Road.
Lot 2 is connected by a long, approximately 30 m wide, access handle that connects the main part of the Lot to Midgen Flat Road. There is a s 88B restriction which prevents vehicular access from Midgen Flat Road to Lot 2 via this access handle. Mr Grech finds it "difficult to understand the purpose of the access handle being provided with the creation of Lot 1, if not to provide access to Midgen Flat Road" (Ex E p 29 par 74j). The provision of the access handle at the same time as imposing a restriction on vehicular access does appear to be strange. No advice was provided by the Council to explain why the restriction had been imposed.
Mr Grech suggested:
"j. …I accept there are advantages and disadvantages with this access route but in my view if a new house site is to proposed away from the existing house site adjacent to Old Byron Bay Road it is a route that should be considered, and overall provides a number of considerations that on balance could be superior to the proposed access route:
i. The access handle would provide more direct access to the larger rear section of the site that comprises pasture land that the proponent advises is used for grazing and to the farm building near the southern boundary of the site.
ii. The driveway crossover on Midget Flat Road would be on the bend of a road that would require engineering investigations in regard to sight distances but adjoins an existing driveway with less sight distance.
iii. An access road that extended from Midget Flat Road to either Options 1 or 3 house sites could follow and traverse contours to achieve gentle grades. The route would avoid the escarpment and Lowland Rainforest EEC and would require minimal significant tree removal. A route could be found through the main site area that avoided trees. In the access corridor there is one small cluster of trees that would be affected while a route through the balance of the corridor could be investigated that affected minimal trees ..."
(Ex E par 74j)
On the site inspection, we walked along the access handle from Midgen Flat Road. Despite Dr McLean stating, at par 29 (not 28 as cited by Mr Grech) that:
"29. Based on my field inspection of the site, the accessway off Midgen Flat Road is devoid of native vegetation with the canopy trees shown on the aerial photography consist of the exotic Camphor. Photographs of this area are included in my individual report."
(Ex 4 par 29)
Dr McLean's observations do not accord with what I saw. Certainly, a number of large Camphor Laurel trees are present, but in the course of the inspection, we crossed a number of stream lines with associated riparian vegetation.
Other than from the Second Respondent and Dr McLean, the alternative road access from Midgen Flat Road did not attract support from the Applicants or the Council. Given the absence of detailed ecological assessment, but based on what was seen in the inspection, I consider that there would be environmental impacts from constructing an access track along the access handle, and the impacts of construction of a steep track from the access handle to the house site have not been considered at all. The access to Midgen Flat Road was also observed; investigation by road and traffic experts would be required to assess sightlines; first impressions were that there would be issues in achieving a safe junction. In its present state, I would agree with Mr Astill (submissions, par 124) that access off Midgen Flat Road "presents clear and obvious safety issues".
The planners agreed in Ex E at par 83:
"We agree that the s88B restriction could be varied, released or modified to allow the use of the access corridor to provide vehicular access to Midgen Flat Road."
Mr To questioned Mr Roberts on alternative access:
"TO: Then in terms of access roads, if you were considering alternatives, one being driving a new access road from Midgen Flat Road to option 3, as against constructing an access road from Old Byron Bay Road along the alignment of what we have actually seen to be constructed, it is quite apparent that the topography of Old Midgen Flat access is far less challenging than the road that has been constructed?
WITNESS ROBERTS: My visual assessment is there are substantial topography issues associated with the access of Midgen Flat Road, there is a substantial cut required at the start, there are steep gradients located down towards that creek which we stood around for a fair amount of time. It is difficult to comment on the suitability of topography when we have no information in that regard, Mr To.
TO: Yes, and the problem with that is because the applicant hasn't done what the LEP and the DCP require, that is to consider the alternatives, justify and reject them?
WITNESS ROBERTS: Which of the LEP and the DCP require to consider access, sorry, Mr To? I am a bit confused.
TO: In considering alternatives to the proposed development, so clause 9(4) expressly requires that.
WITNESS ROBERTS: We are working with a restriction, I am told, which prevents access from that particular area, Mr To.
TO: Mr Roberts, if you are agreed that the restriction on access is not one that stands in the way of access from Midgen Flat Road?
WITNESS ROBERTS: It is that the parties and the body authorised to vary and modify that easement does not agree with it, Mr To, that is a substantial issue.
TO: Mr Roberts, you know that this LEP permits the consent authority to suspend the operation of that covenant, whether it be the council, who happens to be a party to it, or the Court standing in the shoes of the consent authority on appeal, don't you?
WITNESS ROBERTS: No, I'm not aware of the legal ability for the Land and Environment Court underneath this current provision to vary or modify an easement at all, Mr To.
TO: I see. So on what basis did you express the agreement at paragraph 83?
WITNESS ROBERTS: On the assumption that we were referring to council as the consent authority, and the authorisation for that easement, and there is no doubt in my mind that if someone as listed as having the legal ability to vary or modify an easement, that they can do so. It was the substance of that particular comment and the agreement."
(Tcpt, 15 September 2020, pp 49(42)-50(41))
The Midgen Flat Road access was not advanced by the Applicants and prior to them receiving Mr Grech's report, I am not aware of whether or not it was considered by them as an alternative. The s 88B restriction on use of access is in favour of Council, and Council has the ability to amend or remove the restriction. The planners considered that, standing in the shoes of Council, I would similarly be able to amend or remove the restriction. I am not required to make a decision as access from Midgen Flat Road is not part of the application; but considering the combination of the access issues and the ecological issues arising from the construction of the track, then on the basis of what is currently known, a change to the access restriction would be inappropriate.
[16]
The history of rainforest and of the access track
The Newrybar Escarpment is located close to what is considered to be the eastern boundary of the Big Scrub rainforest - once the largest almost contiguous area of subtropical rainforest in Australia, an area of predominantly subtropical rainforest but with smaller areas of interspersed sclerophyll forest and other communities. Between the start of the 19th century and the turn of the 20th century, 99% of the area of the original rainforest had been cleared (compare the before and after maps on pp 10 and 11 in Shannon Baunach-Greenfields (ed), The Big Scrub Rainforest: A Journey Through Time (2017, Rous County Council and Big Scrub Landcare, Lismore) (hereafter referred to as "The Big Scrub Book")).
Dr Robertson, the Applicants' ecologist, in his individual report (Ex D Tab 5) provided an analysis of a time series of images in section 3.1, p 7, with the images themselves reproduced at the rear of the report. The oldest aerial photograph dated from 1947 (Ex D Tab 5 Fig 4) shows that most of the landscape on the coastal plain, the escarpment and the area west of Old Byron Bay Road was cleared of forest/woodland, except for a few small remnant stands. There was dense woody vegetation along either side of the stream on the subject property. By 1958 (Fig 5), most of the woody vegetation on the subject land had gone, except for a narrow fringe associated with stream. Dr Robertson presumed that, at this time, the area was used for cattle grazing (Ex D p 7). In Fig 5, as reproduced in Ex D Tab 5, Midgen Flat Road and Old Byron Bay Road are clearly visible, but there are no clearly visible small farm tracks.
The regeneration and spread of rainforest over recent decades have been a feature of the whole Big Scrub landscape. This has been achieved by natural dispersal of propagules, prevention of access by grazing stock, and in some sites by active bush regeneration programs, including planting of material of known local provenance (see Carla P Catterall, "Threats, opportunities and challenges" in The Big Scrub Book at 143-150, and Tony Parkes, "Restoration - part of the Big Scrub's journey through time" in The Big Scrub Book at 151-160).
Rainforest stands developed from natural recolonisation and those actively regenerated are regarded as native vegetation and treated as representative, if they have the appropriate species composition, examples of the Lowland Rainforest EEC listed on Sch 2 Pt 2 of the BC Act.
While it will be necessary to discuss the nature of the vegetation disturbed by the creation of the access track, there was no questioning that the Lowland Rainforest EEC occurred on the subject land.
The process of rainforest spread is ongoing. On the site inspection, we walked along the panhandle from Midgen Flat Road, but did not walk up the steep slope from the panhandle to the proposed house site. As part of his investigation of the site, Dr Robertson had traversed the slope and reported, during the concurrent evidence of the ecologists, on the vegetation that would be traversed by a possible access route from the panhandle:
"WITNESS ROBERTSON: … If you compare that to the option from going through [Midgen] Flat Road, you'd have to go through four creek crossings, brand new, never had a road built across them, you'd have to go through a patch of rainforest that's a solid patch of rainforest, and incidentally that patch of rainforest is recognisable in the 1940s and 50s aerial photography, so it's been around for a while, and then all across the hillside as you track your way back up to the house over a much longer distance on quite steep slopes, you'd have to then cope with scattered rainforest regeneration. So I think that it's - it's clear in my mind that it's going up to the hilltop from the existing roadway would be a better choice than [Midgen] Flat Road."
(Tcpt, 3 December 2020, p 175(20-30))
The "scattered rainforest regeneration" is not discussed in detail - but its presence would need to be considered and assessed if there were ever any serious proposal for a road to be constructed across the slope - or in relation to the alternative house location on the slope advocated for by Mr Grech. The house site which is the subject of the application involves clearing vegetation and substantial excavation. There is not, in the documentation, any consideration of whether the area to be cleared for the proposed house has any biodiversity interest, including rainforest regeneration.
The identification of rainforest regeneration on the slope raises other issues. There was no sign during the site inspection of any grazing cattle, or signs of cattle having recently been present. The occurrence of scattered rainforest regeneration perhaps indicates that the recent grazing pressure has not been particularly high or consistent. As rainforest regeneration continues and expands in the future, how is the growing forest to be managed - given that the objects of both the RU1 zone and the adjacent 7(d1) zone include the maintenance of a rural landscape? The regenerating rainforest would constitute examples of the EEC, so there would potentially be a conflict between obligations to protect and conserve rainforest and meeting the planning zone objectives.
The access track from Old Byron Bay Road was the focus of much discussion particularly in relation to when it was built, and what was the nature of the vegetation on and around it at certain times.
There is no obvious track visible on the aerial photograph from 1979 (Ex D Fig 6) although there is in Figure 8, an image from 2006.
Exhibit 5 is the statements of objectors. In the submission of Mr Ian Peter, of 382 Old Byron Bay Road, there is included as folio 4 an open letter from Mr Alan Heathcote, who had owned the property at 404 Old Byron Bay Road at an earlier time.
The letter dates the origin of the track to about 1998, running from Old Byron Bay Road to close to the stream, but Mr Heathcote clearly states that the track did not cross the stream. The track was gravelled. Downstream from the culvert, which now crosses the stream, a rock bund is presently visible. Mr Heathcote indicates that he did not build the structure although he did increase the height. When, by whom and for what purpose the dam had originally been constructed is not known.
The Court received no information that there had been any follow-up correspondence with Mr Heathcote, nor was he called upon to give evidence so that a lot of questions are left hanging.
The letter provides information that a gravel track was constructed in 1998 and that it stops short of the creek. Was it an entirely new route or had there been an earlier less formal track?
Dr Robertson, when giving evidence, speculated that there may well have been informal access at an earlier time as it was an obvious route from Old Byron Bay Road onto the property which had been used for grazing for a long period:
"HARKER: I withdraw it. Do you agree with what Mr Astill said beforehand, that the previous access track before 2016 did not cross the creek?
WITNESS ROBERTSON: I suspect that it probably did looking at the aerial photography, and also I did some LiDAR imagery, but it's ambiguous and I can't be sure, so I can say that it's definitely run up to it including the creek and it includes the preparation of a bund, which is like a - almost like a dam within the creek, that's still the evidence today, and I strongly suspect, knowing what farmers were like, or landowners were like, that would have used it to go across the creek, but there's no absolutely unambiguous evidence that the track existed on the other side."
(Tcpt, 3 December 2020, p 132(16-26))
Dr Robertson also prepared, as Fig 9 in Ex D, an image representing Light Detection and Ranging (LiDAR) data of tree height in 2010 superimposed over a 2016 aerial photograph. LiDAR is a remote sensing technique involving scanning the target area with a pulsed laser beam and recording the reflected pulses of different wavelengths. The technique lets us 'see' through vegetation, allowing the height of trees to be determined as well as the topography of the underlying land surface. Dr Robertson discussed his interpretation of Fig 9:
"WITNESS ROBERTSON: Can I take the Court to the LiDAR image in the back of my expert report and just attempt to sort of show my screen. Can people see that now?
COMMISSIONER: Yes.
WITNESS ROBERTSON: There is an outline on this that I'm tracing with the cursor is the - let's call it the current road in its current sort of format that we've traced, and, you know, we've looked at various things, and there's aerial photography that I've provided elsewhere in my reports that show this has been cleared, so this area down to here has definitely been cleared, but when I look at the LiDAR which shows the sort of ground surface, can you see that there's a track cut in around here and it seems to go up there and possibly there seems to be a bit that goes up in that area there that I can see if you look closely at that image. There's also something that's been cut in along this area here historically that's picked up in the LiDAR. So I can only say I have no absolute proof that there was an access track going up on here. I'm just suspicious of it because of these markings here that I can see on the LiDAR, and also because, you know, somebody has gone to the trouble of putting a track in and it goes down to a little tiny stony creek. With or without the culvert, a four-wheel drive could easily just get up on to the other side of the property and, you know, knowing what people with, you know, this sized landholdings would do, I suspect there has been some previous use on the other side. I just - I can't tell the Court that I absolutely know that, but these markings make me suspicious. This one here too.
HARKER: Perhaps to put it beyond doubt by you've only got your reports; is that correct?
WITNESS ROBERTSON: That's right.
HARKER: I'll have to share my screen as well. Sorry to take over. We actually have in the notice the objectives a letter from the previous owner, which I will share now. Can you see that?"
(Tcpt, 3 December 2020, pp 133(24)-134(8))
This discussion adds little to our understanding of what tracks might have existed at different times and in what condition.
There is no indication of whether approval had been sought by, and granted to, Mr Heathcote to open an access to Old Byron Bay Road and to construct a track. In 1998, the Threatened Species Conservation Act 1995 (TSCA) was in force. Lowland Rainforest had not at that time been listed as an EEC, although a number of species potentially occurring in stands of Lowland Rainforest in the general vicinity of the subject site were already listed as threatened (i.e. endangered or vulnerable). The aerial photographs included in Dr Robertson's Ex D indicate some presence of rainforest within the vicinity of the subject site over the period since the late 1940s.
The track, the upgrading of which is now part of the development application, only extended in 1998 approximately 195 m east from Old Byron Bay Road and did not cross the creek. The track now present extends on a box culvert across the creek and up to the ridgeline close to the proposed house site. When did this extension occur?
The history is explained in an affidavit of Jason White included in the Council's bundle (Ex 1 Tab 36 folios 1246-1281). This affidavit was not prepared for these current proceedings, but in the course of an action against Mr White initiated by Council in the Local Court. No objection was taken to the inclusion of the affidavit in the Council bundle, nor were any statements in the affidavit and its various annexures challenged.
Mr and Mrs White became aware that 404 Old Byron Bay Road was on the market (Affidavit par 2). The Whites carried out a number of investigations into the property. One of the matters of concern was that:
"There was no available access to the 25 acres of flat primary production, agricultural land at the north east of the property, so that we needed to investigate how we could obtain access to that area."
(Affidavit par 4)
In mid-2016, the Whites had been introduced to Mr Heathcote who had advised them of an existing farm access track which had become overgrown and eroded and would need to be restored (Affidavit par 5).
Mr White had two meetings in early May 2016 at Ballina Shire Council with a Council officer, Mr Kieran Wade, "to discuss the zoning of the land and the restricted access to the land via Midgen Flat Road (Affidavit par 6(a)).
On 25 May 2016, Mr and Mrs White met with Mr David Tyler, a Council planning officer. In the course of the conversation, there were words to the effect of:
"I said (i.e. Mr White): There is an existing farm track on the property. Do I need Council approval to restore the road?
He said (i.e. Mr Tyler): You don't need a DA for a farm track that's already been created."
(Affidavit par 6(c))
In mid-2016, the Whites engaged Mr Lucena to inspect the site and advise on required engineering for the restored access route (Affidavit par 6(d)).
An Erosion and Sediment Control Concept Plan prepared by Mr Lucena forms Annexure "B" to Mr White's affidavit (Ex 1 Tab 36 folios 1251-1254). This was prepared by Mr Lucena in February 2018 after initial works have been carried out and provides details of proposed surface drainage management works. However, Mr Lucena also expands on Mr White's account of the earlier history in the description section on p 3 to his report (Ex 1 Tab 36 folio 1253).
He states:
"The current property owners investigated the prospect of accessing the eastern portion of the property from the old Byron Bay Road frontage in mid-2016. Peter Lucena from our office attended site on a number of occasions to review possible pathways to access the eastern side, using a path crossing the existing natural gully immediately downhill from the residence.
Over some time from the initial inspections, the property owner Mr Jason White progressed scrub clearing operations including removal of lantana and tall grasses. As part of that process, an existing farm track was exposed which runs along the alignment that is now identified on the current survey plan. Peter Lucena can attest that this farm track formation existed prior to any earthmoving machinery being activated on the site. The access way became visible once cleared of scrub using handheld brush cutting equipment.
Once the access pathway was made visible, the owner introduced earthmoving equipment to clear off the surface and add additional gravel to the wearing surface. This has resulted in the need to install sediment control measures to manage run-off until such time as vegetation has the opportunity to establish and stabilise exposed surfaces."
In September 2016, the Whites purchased the property in Mrs White's name (Affidavit par 7).
In his affidavit, Mr White (at par 6(e)) deposed that on:
"31 October 2016 Mr Peter Parker, Environmental Consultant was engaged to undertake an inspection of the existing farm track to advice on what (if any) vegetation would require removal. Mr Parker advised that no native vegetation would require removal and only weeds would need to be cleared for the restoration of the farm track."
Mr Parker's letter, dated 28 February 2018, documenting his inspection on 31 October 2016 is Annexure "C" to Mr White's affidavit, and will need to be considered in detail later in this judgment.
On 2 November 2016, Mr White contacted the Fisheries group in the NSW Department of Primary Industries to ascertain whether any approvals were required for the stream crossing as part of the farm track restoration works. The response from Mr Yantsch is Annexure "D" to Mr White's affidavit and will be discussed later.
The work on the upgrading of the track commenced in December 2016. This led to complaints from neighbours and Mr Kieran Wade of Council visiting the site (Mr White's Affidavit, Ex 1 Tab 36 folio 1276 Annexure "F" in which reference is made to a number of documents regarding the pre-existing track, only some of which were included in the documentation in Council's Ex 1 Tab 36).
The nature of the work carried out in late 2016 to early 2017 is made clear in a comparison of Figs 1 and 2 of Dr Robertson's reports (Ex D Tab 5):
On 27 October 2017, the Whites lodged a development application to upgrade the road, which was to be sealed, and for a new dwelling. The application was subsequently withdrawn in the light of concerns raised by neighbours.
On 1 August 2018, the Whites submitted the development application which led to the current proceedings.
When the development application was placed on public display, it attracted a large number of submissions (Ex 1 Tab 27 folios 834-1075). The majority of submissions was opposed to the proposal, but a number was supportive particularly in relation to the upgraded road being important for continuance of agricultural use of the land.
Of those who made submissions opposing the proposal a number was selected to present statements and to show that Court views from their properties during the onsite inspection. The additional submissions made by this group of objectors became Ex 5.
A concern of a number of those who have views of the subject land was of the visual intrusion of the access road east of the creek. Ms Cramp of 400 Old Byron Bay Road provided a chronology of her interactions with Council (Ex 1 Tab 27 folios 834-5). She reported that in December 2016 she observed what she referred to as major earthworks being undertaken. She rang Council and was advised that no DA was in place and one was not required as the road was existing and was being resurfaced. Ms Cramp refuted this, having lived at her home for 26 years; she stated that the road construction was not on an existing road but a new one.
The issue was taken up by Mr Peter making a submission on behalf of the Scenic Escarpment Protection Alliance (Ex 5 folio 8). He included two photographs he sourced from Council records, the first taken in 1993 and the second in December 2016. The first photograph had apparently been referred to by Ms White as evidence of a pre-existing road, with a quotation from a document not in evidence "Please see photos taken from Council records in 1993 which illustrates cuts through applicants and objectors properties...". The two photographs can be related to each other by reference to the landform and to the position of a clump of trees. The 1993 photograph does indeed show a small track cutting across a slope - but neither in position nor orientation could it be claimed to be that in the photograph in 2016.
Photo 2 does appear to show an older, smaller track heading towards the clump of trees, to the north of the new track and clearly the new track is not on the line of the older track.
No objection was taken to the tendering of Ex 5 or any part of it.
[17]
Ecology and biodiversity
The focus of the Council's contentions was on the proposed access way and works pertaining to it, which, on Council's case, would have a range of serious and adverse impacts. Council did not consider that the proposed dwelling as sited would have an adverse impact on ecological values (Council's written submissions par 5).
A development application is necessarily prospective - the applicant is seeking approval to carry out some action. However, some of what is proposed in the current application makes use of works executed in late 2016 (and probably also 2017 - the exact dates cannot be specified).
It is not disputed that an access track had been constructed by the previous owner, Mr Heathcote, from Old Byron Bay Road to just short of the creek. Mr Astill (submissions pars 24-25) supported the views expressed by Dr Robertson (Tcpt, 3 December 2020, pp 132(19-26), 133(30-48)) that it is likely that there was a number of less formal tracks on the site, both before and after Mr Heathcote's works were completed.
It is not known when the track constructed by Mr Heathcote was last maintained prior to the 2016 works. However, after maintenance ceased, natural regeneration occurred, involving both native and introduced species.
There is a substantial body of case law in different jurisdictions around Australia which supports the proposition "that consideration of future development is to be done without regard to the past unlawful works and unlawful use" (Preston CJ in Ralph Lauren Pty Ltd v New South Wales Transitional Coastal Panel; Stewartville Pty Ltd v New South Wales Transitional Coastal Panel; Robert Watson v New South Wales Transitional Coastal Panel (2018) 235 LGERA 345; [2018] NSWLEC 207 at [128] (Ralph Lauren)). The chain of precedents commences with Kouflidis v Corporation of the City of Salisbury (1982) 29 SASR 321; (1982) 49 LGERA 17. In Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99 (Jonah), Preston CJ at [38]-[39] provided examples of circumstances where past use would be relevant -
"past use would, therefore, be of relevance, but it is for proper planning reasons, not because the past use happened to be unlawful. The unlawfulness of the past use is not relevant" (at [38]).
In Ralph Lauren, Preston CJ summarised the position as:
"127 Seventhly, such limitation on public access to and use of the beach or impeding or diminishing of the right of access of the public to or along the coastal foreshore, do not cease to be a limitation, impediment or diminishment of public access and use merely because the existing sea walls currently limit, impede or diminish public access to and use of the beach. The assessment of the degree and significance of the limitation, impediment or diminishment of public access to and use of the beach, and of any unreasonableness of such limitation, is to be undertaken without regard to the existing sea walls and the extent to which they limit, impede or diminish public access to or use of the beach. The existing sea walls are not lawful. No development consent has been sought or obtained for the carrying out of the existing sea walls on the beach in front of each of the land owners' properties. By law, the sea walls should not exist on the beach.
128 The unlawfulness of the existing sea walls does not preclude the land owners applying for development consent under the EPA Act to carry out works to repair the existing sea walls. Development consent can be granted to the future carrying out of a work and the future use of works on land. However, the consideration of such future development is to be done without regard to the past unlawful works and unlawful use. As King CJ said in Kouflidis v City of Salisbury at 324: "The unlawful user of the land should gain no advantage from having established an unlawful use. Any argument based either directly or indirectly upon the unlawful use should be firmly rejected."
129 In this case, the land owners' argument that the repaired sea walls will not result in any additional limiting, impeding or diminishing of public access to or use of the beach beyond the limitation, impediment or diminishment caused by the existing works, and hence that the limitation caused by the repaired works cannot be considered to be unreasonable, is based on and seeks to take advantage of the unlawful existing works and use. It is to be rejected."
(at [127]-[129])
What was unapproved and hence "should not exist" in Ralph Lauren were seawalls. In the present matter, it is the access road (including the box culvert and the drains) which should not exist. Thus, in assessing the impacts of what is proposed, the area to be affected includes the land which became the track, but in the condition it was in prior to the unauthorised work being commenced.
Mr Harker, with whom Mr Astill agreed (submissions par 39), took the reference point as being prior to the commencement of construction in 2016 for the whole length of the access track from Old Byron Bay Road, so that the state of the first 195 m of the track is taken to be the condition of the track originally constructed by Mr Heathcote in 1998, and not its condition prior to Mr Heathcote's work. Thus, it is only the works carried out by the present Applicants which are deemed not to exist.
Mr Harker took the Court through the BC Act and the Biodiversity Conservation Regulation 2017 (BC Regulation) that establish the assessment process for biodiversity and defined the questions which must be asked.
The purpose of the BC Act is established in s 1.3:
1.3 Purpose of Act
The purpose of this Act is to maintain a healthy, productive and resilient environment for the greatest well-being of the community, now and into the future, consistent with the principles of ecologically sustainable development (described in section 6(2) of the Protection of the Environment Administration Act 1991), and in particular -
(a) to conserve biodiversity at bioregional and State scales, and
(b) to maintain the diversity and quality of ecosystems and enhance their capacity to adapt to change and provide for the needs of future generations, and
(c) to improve, share and use knowledge, including local and traditional Aboriginal ecological knowledge, about biodiversity conservation, and
(d) to support biodiversity conservation in the context of a changing climate, and
(e) to support collating and sharing data, and monitoring and reporting on the status of biodiversity and the effectiveness of conservation actions, and
(f) to assess the extinction risk of species and ecological communities, and identify key threatening processes, through an independent and rigorous scientific process, and
(g) to regulate human interactions with wildlife by applying a risk-based approach, and
(h) to support conservation and threat abatement action to slow the rate of biodiversity loss and conserve threatened species and ecological communities in nature, and
(i) to support and guide prioritised and strategic investment in biodiversity conservation, and
(j) to encourage and enable landholders to enter into voluntary agreements over land for the conservation of biodiversity, and
(k) to establish a framework to avoid, minimise and offset the impacts of proposed development and land use change on biodiversity, and
(l) to establish a scientific method for assessing the likely impacts on biodiversity values of proposed development and land use change, for calculating measures to offset those impacts and for assessing improvements in biodiversity values, and
(m) to establish market-based conservation mechanisms through which the biodiversity impacts of development and land use change can be offset at landscape and site scales, and
(n) to support public consultation and participation in biodiversity conservation and decision-making about biodiversity conservation, and
(o) to make expert advice and knowledge available to assist the Minister in the administration of this Act
In the present matter of particular relevance are subss 1.3(a), (f), (i), (k) and (l).
Part 6 of the BC Act covers the Biodiversity Offsets Scheme (BOS). The essential elements of the BOS are provided in s 6.2:
6.2 Biodiversity offsets scheme
The biodiversity offsets scheme under this Act and related legislation has the following key elements -
(a) The establishment of biodiversity stewardship sites on land by means of biodiversity stewardship agreements entered into between the Minister and the owners of the land concerned. Management actions will be required to be carried out on the sites by the owners under those agreements and will be funded from the Biodiversity Stewardship Payments Fund.
(b) The creation of biodiversity credits in respect of those management actions to be held initially by the owners of those sites following a report by an accredited person on the biodiversity value of those management actions.
(c) A system for those biodiversity credits to be traded (and thereby enable them to be acquired by developers or other persons who have an obligation to retire biodiversity credits under the scheme). When those credits are first transferred (or retired by the owners of the sites without being first transferred), the Biodiversity Stewardship Payments Fund is to be reimbursed for the payments to be made in future to fund the required management actions on the site that enabled the creation of those credits.
(d) In relation to proposed development above a threshold prescribed by the regulations under this Act or proposed clearing of native vegetation not authorised without approval - biodiversity assessment and reports by accredited persons about the biodiversity values of the land concerned and the impacts on those values of the proposed development or clearing, and of the biodiversity conservation measures (including the retirement of biodiversity credits) proposed to offset the residual impact on biodiversity values after action that is required to be taken to avoid or minimise that impact. Those biodiversity assessment reports are to be taken into consideration in the determination under relevant legislation of the grant of (and biodiversity conservation actions required under) planning approvals for the proposed development or vegetation clearing approvals for the proposed clearing.
(e) In relation to environmental impact assessment of proposed activities under Part 5 of the Environmental Planning and Assessment Act 1979 - the option for proponents of those activities to use those biodiversity assessment reports and offsetting measures to comply with their obligations under that Part.
(f) In relation to future development in an area - biodiversity assessment and reports by accredited persons about the area and biodiversity certification of that part of the area where future development may be carried out without further biodiversity impact assessment. The impact on biodiversity values of the clearing of native vegetation and the loss of habitat in the area of future development is to be offset by the retirement of biodiversity credits or other conservation measures in connection with the remainder of the area or other areas (or both).
(g) As an alternative to any requirement under the scheme to retire biodiversity credits - the payment into the Biodiversity Conservation Fund of an amount equivalent to the cost of acquiring those credits determined in accordance with an offsets payment calculator. The Biodiversity Conservation Trust will be under an obligation to later secure biodiversity offsets from the money paid into the Fund.
(h) The establishment of a biodiversity assessment method for use by accredited persons in biodiversity assessment and reports under the scheme.
(i) The determination in accordance with principles prescribed by the regulations under this Act of serious and irreversible impacts on biodiversity values. The determination of such an impact by the relevant decision-maker will prevent the grant of planning approval for proposed development, but the determination will only be required to be taken into consideration in the case of State significant development or infrastructure, in the case of environmental impact assessment of certain proposed activities or in the case of proposals for the biodiversity certification of land.
The Biodiversity Assessment Method (s 6.2(h)) is referred to by the acronym "BAM". The establishment of a BAM is provided for in s 6.7. Section 6.7(1) requires the Minister to establish a BAM ('The Minister is to…') despite the wording of the bold heading to the section ('The Minister may…').
The BAM is to be used to assess impacts of a proposed action.
The impacts may fall into two categories:
6.3 Impacts on biodiversity values to which biodiversity offsets scheme applies
The impacts of actions on biodiversity values that are subject to assessment and offset under the biodiversity offsets scheme are as follows -
(a) the impacts of the clearing of native vegetation and the loss of habitat,
(b) the impacts of action that are prescribed by the regulations.
Note -
See section 1.5 for a definition of the values that are biodiversity values.
Pursuant to s 6.3(b), additional impacts have been prescribed by cl 6.1 of the BC Regulation.
6.1 Additional biodiversity impacts to which scheme applies (sections 6.3 and 6.6(2))
(1) The impacts on biodiversity values of the following actions are prescribed (subject to subclause (2)) as biodiversity impacts to be assessed under the biodiversity offsets scheme -
(a) the impacts of development on the following habitat of threatened species or ecological communities -
(i) karst, caves, crevices, cliffs and other geological features of significance,
(ii) rocks,
(iii) human made structures,
(iv) non-native vegetation,
(b) the impacts of development on the connectivity of different areas of habitat of threatened species that facilitates the movement of those species across their range,
(c) the impacts of development on movement of threatened species that maintains their lifecycle,
(d) the impacts of development on water quality, water bodies and hydrological processes that sustain threatened species and threatened ecological communities (including from subsidence or upsidence resulting from underground mining or other development),
(e) the impacts of wind turbine strikes on protected animals,
(f) the impacts of vehicle strikes on threatened species of animals or on animals that are part of a threatened ecological community.
(2) The additional biodiversity impacts prescribed by this clause -
(a) are prescribed for the purposes of assessment and biodiversity assessment reports under the Act, but are not additional biodiversity impacts for the purposes of calculating the number and class of biodiversity credits that are required under a biodiversity assessment report to be retired to offset the residual impact on biodiversity values of proposed development, proposed clearing of native vegetation or proposed biodiversity certification of land, and
(b) may be taken into account in the determination of the biodiversity credits required to be retired (or other conservation measures required to be taken) under a planning approval or vegetation clearing approval or under a biodiversity certification of land.
Mr Harker drew particular attention to cl 6.1(1)(d).
The relevant Biodiversity Values are those in s 1.5(2):
1.5 Biodiversity and biodiversity values for purposes of Act
(1) ...
(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.
Pursuant to s 1.5(2), additional biodiversity values have been prescribed by cl 1.4 of the BC Regulation.
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.
Clause 1.4(c) and (d) raise the question of connectivity, but only in respect to threatened species - being species on the Schedule to the BC Act at the time of assessment, rather than any species. The importance and function of particular sites for connectivity will depend on the particular species involved (See Bottomline [193]-[201]). Clause 1.4(f) is relevant to consideration of the impact on the stream of the drainage works and consequent sedimentation.
For purposes of the BOS, measures to offset or compensate impacts are provided in s 6.4:
6.4 Biodiversity conservation offsets under scheme
(1) For the purposes of the biodiversity offsets scheme, the biodiversity conservation measures to offset or compensate for impacts on biodiversity values after any steps taken to avoid or minimise those impacts are as follows -
(a) the retirement of biodiversity credits,
(b) other actions that benefit the biodiversity values of the impacted land or other biodiversity values.
(2) The regulations may make provision with respect to the following (offset rules) -
(a) the class of biodiversity credits to be retired,
(b) the other actions that qualify or do not qualify as biodiversity conservation measures,
(c) the circumstances in which biodiversity conservation measures may include a combination of the retirement of biodiversity credits and other actions.
Any such regulation may apply, adopt or incorporate a publication of the Environment Agency Head as in force from time to time.
(3) The other actions that benefit biodiversity values include -
(a) actions to conserve or enhance biodiversity (including threatened species and ecological communities), and
(b) actions for the purposes of research or education in relation to biodiversity, and
(c) actions under the Biodiversity Conservation Program under Part 4 or other government programs or policies for the conservation or enhancement of biodiversity.
(4) The regulations may set out the circumstances in which the ordinary rules for the determination of the number and class of biodiversity credits required as biodiversity offsets may be varied.
Serious and irreversible impacts for the purposes of the BOS are to be determined according to s 6.5:
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.
…
Pursuant to s 6.5(1), principles have been prescribed by cl 6.7 of the BC Regulation.
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.
Pursuant to s 6.5(2), the Department of Planning, Industry and Environment has published the document "Guidance to assist a decision-maker to determine a Serious and Irreversible Impact" (September 2019). This document was included as Appendix E in the Joint Expert Report of the Ecologists (Ex 4).
For the purposes of the BOS, s 6.4 specifies:
6.4 Biodiversity conservation offsets under scheme
(1) For the purposes of the biodiversity offsets scheme, the biodiversity conservation measures to offset or compensate for impacts on biodiversity values after any steps taken to avoid or minimise those impacts are as follows -
(a) the retirement of biodiversity credits,
(b) other actions that benefit the biodiversity values of the impacted land or other biodiversity values.
(2) The regulations may make provision with respect to the following (offset rules) -
(a) the class of biodiversity credits to be retired,
(b) the other actions that qualify or do not qualify as biodiversity conservation measures,
(c) the circumstances in which biodiversity conservation measures may include a combination of the retirement of biodiversity credits and other actions.
Any such regulation may apply, adopt or incorporate a publication of the Environment Agency Head as in force from time to time.
(3) The other actions that benefit biodiversity values include -
(a) actions to conserve or enhance biodiversity (including threatened species and ecological communities), and
(b) actions for the purposes of research or education in relation to biodiversity, and
(c) actions under the Biodiversity Conservation Program under Part 4 or other government programs or policies for the conservation or enhancement of biodiversity.
(4) The regulations may set out the circumstances in which the ordinary rules for the determination of the number and class of biodiversity credits required as biodiversity offsets may be varied.
Biodiversity conservation measures to offset or compensate for impacts on biodiversity values only come into play after any steps have been taken to "avoid" or "minimise" those impacts.
Section 6.12 sets out the requirements for the preparation of a BDAR.
6.12 Biodiversity development assessment report
For the purposes of the biodiversity offsets scheme, a biodiversity development assessment report is a report prepared by an accredited person in relation to proposed development or activity that would be authorised by a planning approval, or proposed clearing that would be authorised by a vegetation clearing approval, that -
(a) assesses in accordance with the biodiversity assessment method the biodiversity values of the land subject to the proposed development, activity or clearing, and
(b) assesses in accordance with that method the impact of proposed development, activity or clearing on the biodiversity values of that land, and
(c) sets out the measures that the proponent of the proposed development, activity or clearing proposes to take to avoid or minimise the impact of the proposed development, activity or clearing, and
(d) specifies in accordance with that method the number and class of biodiversity credits that are required to be retired to offset the residual impacts on biodiversity values of the actions to which the biodiversity offsets scheme applies.
…
Section 6.12(c) requires that the proponent include within the BDAR an account of how the mitigation hierarchy has been applied.
Part 7 of the BC Act explains the mechanism for applying biodiversity assessment in the process of determining applications for approval under the EPA Act; s 7.2 requires that:
7.2 Development or activity "likely to significantly affect threatened species"
(1) For the purposes of this Part, development or an activity is likely to significantly affect threatened species if -
(a) it is likely to significantly affect threatened species or ecological communities, or their habitats, according to the test in section 7.3, or
(b) the development exceeds the biodiversity offsets scheme threshold if the biodiversity offsets scheme applies to the impacts of the development on biodiversity values, or
(c) it is carried out in a declared area of outstanding biodiversity value.
…
Section 7.2(1)(a) clarifies that 'threatened species' is used as a portmanteau term to include threatened ecological communities (which in this context is qualified in s 7.1:
threatened ecological communities do not include vulnerable ecological communities (except so much of any such community as comprises a threatened species).
The ecological community recognised on the site is Lowland Rainforest (see the Scientific Committee Determination in Ex 1 Tab 12 folio 489 et seq). Importantly, not only are impacts on species and communities to be assessed but also impacts on habitat must be considered (s 7.2(1)(a)). The site is not a "declared site of outstanding biodiversity value" nor is it in the vicinity of one, so s 7.2(1)(c) is not relevant. The site is not biodiversity certified land so that s 7.6 is also not relevant.
The BC Regulation establishes the circumstances under which the BOS threshold is exceeded in cl 7.1(1):
7.1 Biodiversity offsets scheme threshold (section 7.4)
(1) Proposed development exceeds the biodiversity offsets scheme threshold for the purposes of Part 7 of the Act if it is or involves -
(a) the clearing of native vegetation of an area declared by clause 7.2 as exceeding the threshold, or
(b) the clearing of native vegetation, or other action prescribed by clause 6.1, on land included on the Biodiversity Values Map published under clause 7.3.
…
Clause 7.1(1)(a) is not triggered. Parts of the subject land were included on the Biodiversity Values Map, but following an application by the Applicants to the Office of Environment and Heritage (OEH) for a review of the map, OEH determined to amend the map by removing the area of the access track but adding additional areas (letter in Ex 1 Tab 11 folio 488 - the letter is undated). For the purpose of these proceedings, the relevant Biodiversity Values Map is that amended by the decision in folio 488, so the area of the track was not on the map at the time of the hearing. However, areas of the EEC, both upstream and downstream of the culvert, remain on the Biodiversity Values Map.
Section 7.13 of the BC Act requires the consent authority, if approval of a development is likely to have impacts on biodiversity values, to require the applicant to retire biodiversity credits to offset residual impacts on biodiversity.
7.13 Development other than State significant development or infrastructure
(1) This section applies to an application for development consent under Part 4 of the Environmental Planning and Assessment Act 1979 that is required under Division 2 to be accompanied by a biodiversity development assessment report, except -
(a) an application for development consent for State significant development, or
(b) an application for a complying development certificate.
(2) The consent authority, when determining in accordance with the Environmental Planning and Assessment Act 1979 any such application, is to take into consideration under that Act the likely impact of the proposed development on biodiversity values as assessed in the biodiversity development assessment report that relates to the application. The consent authority may (but is not required to) further consider under that Act the likely impact of the proposed development on biodiversity values.
(3) If the consent authority decides to grant consent and the biodiversity offsets scheme applies to the proposed development, the conditions of the consent must require the applicant to retire biodiversity credits to offset the residual impact on biodiversity values of the number and class specified in the report (subject to subsection (4)). The residual impact is the impact after the measures that are required to be carried out by the terms or conditions of the consent to avoid or minimise the impact on biodiversity values of the proposed development (being measures on which the report was based).
Note -
Division 6 of Part 6 enables a person who is required under this section to retire biodiversity credits to make a payment instead to the Biodiversity Conservation Fund of the value of the credits in accordance with the offsets payment calculator.
(4) The consent authority may reduce or increase the number of biodiversity credits that would otherwise be required to be retired if the consent authority determines that the reduction or increase is justified having regard to the environmental, social and economic impacts of the proposed development. The consent authority must give reasons for a decision to reduce or increase the number of biodiversity credits.
(5) A condition to retire biodiversity credits is required to be complied with before any development is carried out that would impact on biodiversity values. However, a consent to a concept development application may provide for a corresponding staged retirement of biodiversity credits before each stage of development is carried out and without the need for a further biodiversity development assessment report in connection with development applications for the subsequent stages of the development.
(6) This section does not operate to limit the matters that a consent authority may take into consideration -
(a) in relation to the impact of proposed development on biodiversity values, the measures that a consent authority may require to avoid or minimise those impacts or the power of a consent authority to refuse to grant consent because of those impacts, or
(b) in deciding whether to reduce or increase the number of biodiversity credits to be retired.
(7) If a consent authority fails to include a condition relating to the retirement of biodiversity credits required by this section (or fails to give reasons for a decision to reduce or increase the number of biodiversity credits), the Environment Agency Head may impose or vary that condition in accordance with this section in the same manner used by the consent authority in granting the development consent.
The Council's primary argument as to why the Court should not approve the application relied on its interpretation of the BC Act and BC Regulation, which would require production of a BDAR and a determination that there were likely to be Serious and Irreversible Impacts (SAII). The Applicants, on the other hand, argued that there was no requirement for a BDAR and that there could be no case for arguing serious and irreversible impact either on particular species or the EEC.
Before considering the Applicants' position, it is important to refer to the chronology of events which have implications for how the matter is to be assessed.
The BC Act commenced on 25 August 2017. The development application was lodged with Council on 29 June 2018 which was well after the commencement of the BC Act. The full application of all provisions of the BC Act was deferred for some parts of the State but that was not the situation here. There were savings provisions provided in the Biodiversity Conservation (Savings and Transitional) Regulation 2017. "Pending or Interim Planning Applications" continue to be assessed under the EPA Act in the form it was it in 2017 (cll 27 and 28). The present application does not fall in that category.
Therefore, the current assessment has to be conducted under the provisions of the BC Act and not under the TSCA, which would have been the relevant legislation if an application had been made prior to the 2016 works.
Council's Environmental Scientist, Mr Gaskell, when assessing the application considered that:
"in this case it is considered appropriate that the ecological impact of the development should be assessed on the condition of the land prior to the commencement of the unapproved construction activities. Consequently, the calculation of offsetting (biodiversity credits) needs to be assessed on the land being vegetated rather than being located on the unapproved access road as undertaken in the BDAR…" (Ex 1 Tab 22 folio 669).
This has been the Council's submission throughout the proceedings.
Mr Astill argued:
"The BC Act commenced on 25 August 2017 which was well after the 2016 Works. Had the 2016 Works significantly affected any matter with which the BC Act is concerned this would have been especially relevant. To the extent that there is any debate the matter is resolved by the simple fact that it was not in force at the date of the 2016 Works and so no question of thresholds or credits under the BC Act can possibly arise. The BC Act does not regulate actions that predate it."
(Applicants' written submissions at par 46)
The BC Act does not regulate actions that predate its commencement, but that is not the issue. The BC Act applies to the assessment of the current application, but in making the assessment, the authorities (see Jonah, Ralph Lauren and the numerous cases cited therein) require that prior unauthorised work is to be presumed not to exist - so what the assessment is required to do is to assess what would be the impact of what is currently proposed on what is known, or can be reasonably assumed to have been, the habitat and vegetation before the works conducted in late 2016 and early 2017.
The photographs from Dr Robertson's report (Ex D Tab 5 reproduced at [254] above) show there was little sign of the track in an image taken in 2016 prior to clearing, compared with the image from 2017.
[18]
What was the nature of the vegetation cleared by the 2016 works?
To Mr Astill, the answer was straightforward "prior to the 2016 works the access track had no Lowland Rainforest EEC on it. At the very highest it may have had some poor quality regrowth but mainly weeds." (Applicants' written submissions at par 34).
Mr Astill based his view of the state of the track on a letter from Mr Peter Parker to Mrs White which is Ex 1 Tab 36 folio 1268 (Applicants' written submissions at pars 31, 39 and 71).
Mr Peter Parker is an environmental consultant, who was requested by Mrs White to inspect the access track in 2016. His letter is reproduced below:
"28 February 2018
Ms J White
404 Old Byron Bay Road
NEWRYBAR NSW 2479
Property site inspection
I confirm that I undertook a site inspection of an old gravel access road at the above address on 31 October 2016. The purpose of this visit was to determine whether any native regrowth species would require removal in order to resurface the existing road and to improve the side spoon drains.
I confirm that I observed road base aggregate constituting the road and was able to walk along the road during my inspection. The road however, was overgrown with lantana, Lantana camara, small-leaved privet, Ligustrum sinense, and camphor laurel, Cinnamomum camphora.
I also confirm that no native trees or ground covers would need to be removed to complete road restoration and advised Mr White accordingly.
…"
(Ex 1 Tab 36 folio 1268)
This letter discussed his visit to the site made on 31 October 2016. It is not a contemporaneous record, and it is not very informative. Mr Parker was not called on by any of the parties, and there is no evidence that either of the Respondents had sought additional information. As a result, I do not know how long the inspection took, what the weather conditions were on the day, what sorts of observations were made (was it simply a perambulation along the track, or were quadrat data collected), how much of the track was investigated - was inspection limited to c195 m of the track made by Mr Heathcote in 1998, or did it extend to the route of the proposed track beyond the creek? Importantly, I do not know whether some clearing had already occurred (see [308] below).
Mr Parker "observed road base aggregate constituting the road and was able to walk along the road".
Mr Lucena, in his report, which is Annexure "B" to Mr White's affidavit (in Ex 1 Tab 36 folio 1251 et seq) reported on the state of the track in 2016. The report is dated 26 February 2018 and no specific dates of visits to the site are provided, but Mr Lucena states that "he attended the site on a number of occasions" in 2016 (folio 1253). He reports that Mr White "had progressed scrub clearing operations including removal of lantana and tall grasses." During the process "an existing farm track was exposed". The implication is that prior to the clearing, the track was not visible. Mr Lucena attests that "this farm track formation existed prior to earthmoving machinery being activated on the site. The access way became visible once cleared of scrub using handheld machinery".
If Mr Parker was able to observe the road base and walk along the track then, even if there was still some vegetation, the inspection on 31 October 2016 must have been after Mr White's initial clearance.
There is no evidence of what species may have been cleared prior to Mr Parker's visit.
In relation to the track first constructed by Mr Heathcote, there is no information provided about its width or the nature of any associated drainage works. It is thus not known whether the track works carried out by Mr White in 2016 on the old track alignment involved any widening (and if so whether that involved clearing of additional vegetation).
The Council prosecuted Mr White:
"74. Mr White cleared the Driveway in misunderstanding of the law and pleaded guilty to a prosecution brought by the Council for carrying out works (earthworks) without consent and polluting waters. He was not charged with any offence related to threatened species, cutting trees, removing native vegetation or the like. The Council never made any attempt at any action requiring restoration of the vegetation (weeds) on the access way, nor could it reasonably have done so. The clearing occurred about 4 years ago." (Applicants' written submissions at par 74)
Mr Astill stressed that Council did not charge Mr White with any offence relating to clearing of vegetation. The choice of what charge to lay is a decision of the prosecutor - the absence of charges for clearing vegetation reflects the prosecutor's choice, but it cannot be inferred that charges for clearing vegetation were not open to the prosecutor.
Mr Astill found support in the report of the inspection of the clearing carried out by a Council officer, Mr Wade:
"72. The inspection that was apparently carried out by Mr Kieran Wade of the Council on 6 December 2016 is consistent with this. In the report of this inspection and meeting with Mr White on site he states -
At the time of the meeting, I had not [sic] concerns about the owner clearing the vegetation of [sic] the track . .
73. The reason for this clear lack of concern about clearing of vegetation was obviously that it had no value. Mr Wade was concerned about the works being a new pavement, and that was the focus of the Council at that time in bringing its prosecution, and indeed that was the subject of the prosecution."
(Applicants' written submissions at pars 72-73)
Mr Wade visited the site again the following day (7 December 2016) and took photographs. Mr Wade's notes are reproduced in the Second Respondent's bundle of 11 September 2020 (Ex 2R3 folio 2):
"20161207_Notes and Photos from Initial Complain_07 Dec 2016
December 2016 Note Relating to Site Photos
"Wednesday, 7 December 2016 at 10:34:06 AM (GMT - 11:00) Wade, Kieran:"
On 07/12/2016 Kieran wade inspected the property and the owner advised that the old track was cleared of vegetation and no building to be constructed on the ridge.
Kieran Wade also spoke to complaints as to what the owner of the property was doing and no building to be erected on the ridge which would effect their views of the sea.
No further action
301117 - 18 60538 404 Old Byron Bay Road Newrybar - Statement - Kieran Wade
PN: 17642 knowns as 404 Old Byron Bay Road owner Mrs. J White.
On or about Tuesday 6th December 2016, I received a phone call in the morning from Ms L Cramp at 400 old Byron Bay Road NEWRYBAR.
At approximately 2.00Pm on Tuesday 6th December 2016, I arrived at Ms Cramp's house. I identified my to Ms Cramp as Building Surveyor from and that we had spoken on the phone early in the day.
Ms Cramp directed me onto the rear verandah of the dwelling where I took the photos "A and B", photos shown some road works had taken place on the adjoining property.
Following the conversation with Ms Cramp, I went next door to the property known as at 404 Old Byron Bay Road and spoke to gentleman who advised he was he owner of the property. I asked the owner what he was doing with the dozer and the track. The owner advised that he was clearing vegetation of the old existing gravel track so he could drive his vehicle to the rear of the property for the purpose to erect a farm shed in the future.
At the time of the meeting, I had not concerns about the owner clearing the vegetation of the track, but I gave no approval to provide a new pavement surface to the old track.
I think may have stated that the second driveway will need Civil Services approval (not absolutely sure)
Kieran Wade
30/11/2017"
Mr Wade stated that he had no concerns about the clearing of the track, but he "gave no approval to provide a new pavement surface to the old track". He also records that "he may have stated that the second driveway" [which I assume refers to the track beyond the creek] "will need Civil Services approval."
Mr Wade identified himself as a building surveyor so he would not have been qualified to make any assessment of the nature of the vegetation which might be affected by the clearing (this is not to be taken as a criticism of Mr Wade, whose file note reflects his professional expertise and quite properly he did not extend to speculation beyond this).
[19]
Lowland Rainforest EEC
The listing of Lowland Rainforest in the NSW North Coast and Sydney Basin Regions on Pt 3 of Sch 1 (Endangered Ecological Communities) of the TSCA occurred in December 2006. Minor amendments to the final determination were made in 2011. The amendments were in relation to the references to the distribution of the community and to clarify some details of the description. The Final Determination as it stood at the time of the hearing is provided in Ex 1 Tab 12 folios 489-503.
The community was characterised by a large number of plants species (Ex 1 Tab 12 folios 490-493). Not all of these species are present in every stand of the community, and there is no requirement for a minimum number of species to be present for a stand to be recognised as the EEC (Commonwealth of Australia v Randwick City Council [2001] NSWLEC 79 at [104]). Smaller stands are likely to have fewer species than larger stands. The Big Scrub rainforest has a particularly rich vascular flora (Claudia P Catterall, "Flora of the Big Scrub" in The Big Scrub Book at 59-67).
The Lowland Rainforest EEC is the habitat for numerous threatened species of both flora and fauna (listed in the Final Determination at folios 495-500). It is not necessary for any particular stand of the EEC to contain any listed threatened species.
Lowland Rainforest is listed as an ecological community; it is more than just an assemblage of plants, and fauna are an essential component of the community. As part of the assessment process, it is necessary for the plant community types (PCTs) within the area of interest to be identified. Dr Robertson carried out this exercise during the preparation of the BDAR (Ex 4 Tab 4) and concluded that the EEC on the site corresponded to PCT 1302 White Booyong - Fig Subtropical Rainforest of the NSW North Coast Bioregion (a number of different PCTs occur in Lowland Rainforest at different locations within the total geographic range of the EEC).
I agree with Dr Robertson's recognition of PCT 1302 on the site, but it is the listed EEC which is to be assessed, and not just the floristic component (the PCT).
The conceptual boundaries of the EEC need to be discussed in relation to two questions:
1. Are regenerating areas of rainforest to be regarded as part of the EEC?
2. Is the creek part of the EEC?
[20]
Rainforest regeneration
Mr Astill regarded the vegetation along the original track as it was in 2016 as mainly weeds but that it may have had some poor quality regeneration (submissions par 34) and Dr Robertson in his report (Ex D Tab 5) refers to a mixture of regenerating rainforest and exotic species (p 7, pars 35, 42) and in his revised vegetation mapping in Appendix I to the Joint Statement of the ecology experts (Ex 4), the legend to Fig 10 describes the vegetation along the track, shown in an aerial photograph dated 11 April 2020, as 'PCT 1302 (regrowth)'.
A number of introduced weeds are regarded as threats to the Lowland Rainforest EEC (par 12 of the Final Determination, Ex 1 Tab 12 folios 500-501) and that "many of these exotic species form dense thickets capable of smothering indigenous plants, reducing both reproduction and survival" (folio 501). A number of weed species identified in the Final Determination are present on the subject site, including Lantana (Lantana camara), Camphor Laurel (Cinnamomum camphora) and Privet (Ligustrum spp.). Dr Robertson, in his Vegetation Management Plan (VMP) (Ex D Tab 3) gives high priority to weed management and provides in Appendix C methods of both hand weeding and chemical control.
For some species of non-locally indigenous species (species introduced from overseas, and Australian native species growing outside their natural area of distribution), there may be statutory obligations on landholders for continuing control imposed by the Biosecurity Act 2015 or local weed management controls.
Camphor Laurel is marked with the Asset Protection symbol in Local Land Services, "Weeds of the North Coast of NSW. A guide to identification and control" (3rd ed, 2021) www.lls.nsw.gov.au/north-coast--weeds-guide, accessed on 30 August 2021. For interpretation of the symbol, reference is required to the Local Land Services, "North Coast Regional Strategic Weed Management Plan 2017-2022" (Version 2) https://northcoast.lls.nsw.gov.au/, accessed on 30 August 2021. Appendix A2.2 Additional Species of Concern in North Coast LLS Region contains a list of species:
"These species are high priority for asset protection. Many are actively managed under a number of current programs, or are commercial risks."
The Whites "poisoned a few Camphor Laurel trees on the property to minimize their impact in the rainforest and promote future growth. We considered the Camphor Laurel to have been established for landscaping purposes at the time and it did not require consent. In addition, we replaced any poison Camphor Laurel with rainforest trees. This method can also be seen on neighbouring properties and is visible from our property" (Ex 1 Tab 36 folio 1276). They also proposed to "Continue plant alongside the road to minimize view to neighbouring properties" (folio 1277).
Cutting or otherwise killing trees is prohibited by cl 23 of BLEP 1987; trees planted for landscaping are exempt from this provision. Camphor Laurel has been planted for landscaping purposes in the general area, but there was no identified previous owner who might have planted Camphor Laurel on the property. Even if some trees have been planted as landscape features, others may have been self-sown. Clause 23 of the BLEP 1987 does not provide an exemption for killing Camphor Laurel (or any other weedy tree species), but given the advice in the Regional Strategic Weed Management Plan, it is unlikely that there is any intention to restrict control of the species.
Despite these requirements, a more nuanced approach rather than complete, instantaneous removal may be required. There is ample evidence from the Big Scrub area, including within the vicinity of the subject site, of spread of rainforest during recent decades (as was shown in the aerial photographs included in Dr Robertson's report (Ex D Tab 5). In the older images, it is not easily possible to distinguish species, but it is clear that the nucleus of new patches of rainforest was Camphor Laurel, a subtropical rainforest species from Asia, and not native to Australia. However, given the reduction in fruit resources for fruit eating birds and bats as a result of the clearing of the original rainforest, Camphor Laurel became important for the survival of native birds, most particularly the topknot pigeon (H J Frith, Wildlife Conservation (1973, Angus & Robertson, Sydney) at 224). Although pigeons and other birds spread Camphor Laurel, birds attracted to Camphor Laurel also carried viable propagules of other rainforest species so that the Camphor Laurel trees acted as the nuclei for developing rainforest (T Low & L Weber, "Seed dispersal in the Big Scrub" in The Big Scrub Book at 69-75). The role of Camphor Laurel and other 'weeds' in facilitating the establishment of rainforest was discussed by John Kanowski, Carla P Catterall & Wendy Neilan, "Potential value of weedy regrowth for rainforest restoration" (2008) 9(2) Ecological Management & Restoration 88-99. This paper was included in the Council's Bundle (Ex 1 Tab 13 folios 554-565). It was, therefore, in evidence, although it was not discussed during the hearing; it was published in a reputable referred journal and is on the public record. The authors argue for management of Camphor Laurel (and other weeds) including removal to accelerate the development of rainforest, after other native species have arrived. The importance of Camphor Laurel, as a nurse, to be selectively removed as more native species naturally establish was also stressed by Carla P Catterall, "Threats, opportunities and challenges" in The Big Scrub Book at 143-150.
Mr Nowell, the Second Respondent's arborist, in the Joint Expert Report of the Ecologists (Ex 4 p 34) noted:
"187. j) A total of 17 Camphor laurel (Cinnamomum camphora) varying in sizes have been stem injected with herbicide and are either dead or very close to death. These trees are located on the Western side of the creek on the inside curve between chainage 120,000 and 200,000 approx. halfway up the slope. These trees are considered a class 4 weed under Rous County Council NOXIOUS WEEDS NSW Far North Coast Weed Identification Booklet. The [poisoning] of these trees may not be illegal in CEEC, however during this process defoliation can impact available sunshine, soil moisture fluctuations and microclimate, and can increase weed species.
188. "On the other hand, in some situations native subtropical rainforest species will germinate and grow for several years beneath Camphors which in this case act as a protective canopy and also shade out grasses and other weeds that might compete with the rainforest seedlings. However, these Camphors must be killed once the young rainforest saplings reach, say 2-4m and actually stop growing because of their demand for more light" - Camphor laurel control techniques - Janet Townsend updated April 2013."
It is accepted that for listed species the consequences of listing benefit all stages of the life cycle of the organism. Ecological communities are not 'super organisms' but during succession - either primary succession when organisms are able to colonise newly available habitat (for example mangroves colonising an accreting mud flat) or in secondary succession when previous habitat has been destroyed - either through natural processes or as a result of human activity. The developing ecological community passes through a series of recognisable stages, but these stages are not biologically equivalent to life-cycle stages of an organism, although they may be analogous to them. One obvious difference between ecological communities and organisms is that most individuals of organisms eventually die - some species are short lived, others may be potentially immortal but individuals succumb to competition, pathogens or natural impacts such as fire or storm. An organism at maturity has a predefined form, but for an ecological community there will, over long periods of time, in some cases gradually, in others intermittently, be change in composition, either stochastically or as a result of environmental change. (See discussion in Paul Adam, "Ecological communities - the context for biodiversity conservation or a source of confusion?" (2009) 13 Australasian Journal of Natural Resources Law and Policy 7 at 37, and more broadly at 19-44.)
In cases such as post-fire succession, the stages of recovery would be regarded as being representative of the pre-fire community on the way to recovery. The question of whether the presence of non-native species disqualifies a stand from being recognised as an EEC was discussed by Brian J Preston & Paul Adam (Brian J Preston & Paul Adam, "Describing and listing threatened ecological communities under the Threatened Species Conservation Act 1995 (NSW): Part 2 - The role of supplementary descriptors and the listing process" (2004) 21 Environmental and Planning Law Journal 372 at 390) who concluded that rather than using "ambiguous phrases such as very highly disturbed remnants", there should instead be reference "to the capacity of the vegetation to recover with appropriate management and in a reasonable timeframe, to a state where it contains in nature and in a particular area an assemblage of species constituting the community."
In relation to the area which became, in 2016-2017, the access track, I consider that there can be little doubt that the original (Mr Heathcote) track should be regarded as having been in 2016 regenerating Lowland Rainforest EEC. Unfortunately, neither Dr McLean nor Dr Robertson observed the track in that condition. It was observed by Mr Parker, although almost certainly after initial scrub cutting by Mr White. If Mr Parker had more detailed records than the information in his letter to Mrs White, these were not made available. There was no information available before the Court as to the presence of native rainforest species in seedling or sapling stage amongst the Lantana nor of the extent of clearing on the edge of the previously constructed road.
Photographs in Ex 4 (the Joint Expert Report of the Ecologists) assist clarification of the situation. Mr Nowell compares two Google Street views, showing the entrance to the access track from Old Byron Bay Road (Ex 4 par 179 pp 29-30 Images 1 and 2). The first, from approximately 2010, shows a fairly heavily vegetated view with the track not visible. This accords with the report of the track in 2016 given by Mr Lucena in Ex 1 Tab 36 folio 1253 that Mr White had carried out scrub clearing and only became aware of the track after clearing had started. This is compared with Image 2 which shows a cleared track and the present gate. Dr Robertson (Ex 4 par 105 pp 19-20), presents on p 28 a full-page image of the track in a completely cleared state. He said (p 19) that the photograph is one of a series "provided by the current landowners as part of the background to the project. Taken in 2016 before clearing the photograph show gravel lining the track amid twigs and bark." It seems to me highly likely that the time of the image capture has been misreported. (However, this discrepancy was not raised during the hearing. Indeed, despite a very large number of photographs being tendered in evidence only a few of them were specifically commented upon).
For the 'new' track beyond the culvert, there is again no record of what species were present in 2016, although the various aerial images in the evidence suggests that some of what was cleared may have been of small tree size.
Photographs in the submission of Ms Cramp (Ex 5 Images 3, 4 and 5) are of the 'original farm track' after clearing in 2016. These images show that small trees had been felled, although identification of species is not possible. It is unlikely, but not beyond the bounds of possibility, that some of the establishing species were themselves listed as threatened but the presence of threatened species is not an essential prerequisite for characterisation of a stand of vegetation as an EEC.
Dr McLean, when he gave evidence, was not fully aware of the history of the access track, and in particular that part of the track was originally created by Mr Heathcote in 1998, He was criticised by Mr Astill in cross-examination (Tcpt, 3 December 2020, pp 128-129) for assuming that all of the track was created at the same time. This was a valid criticism but does not mean that raising questions about the lack of detail provided by the Applicants on the pre-2016 clearing state of the track is not a relevant consideration (Tcpt, 3 December 2020, p 128(39-50)).
[21]
The stream
The access road crosses, over a box culvert installed in 2016, a first order stream. The impacts of run-off from the road into the stream are a major issue, which will be addressed later, but is the stream to be regarded as part of the Lowland Rainforest EEC?
The stream could not be regarded as part of PCT 1302, but in the context of the site, the stream could be described as bisecting the stand of the plant community. However, the EEC includes more than just plants, although assignment of stands of vegetation to the EEC requires an assessment of the list of plant species in the Final Determination. The Final Determination includes a list of threatened species for which the EEC is a habitat (Ex 1 Tab 13 folio 499), amongst which are three species of the frog genus Mixophyes. While adult frogs might be semi-terrestrial, venturing beyond the water into the adjacent vegetation, fertilisation occurs in water and the tadpoles develop within the stream.
The inclusion of aquatic species within the list of threatened species that might occur in the Lowland Rainforest EEC is an indication that the EEC includes aquatic habitat as a microhabitat within the EEC. (The Council in submissions at par 28 recognised that "The development is likely to have an adverse impact on quality of a riparian zone stream that forms part of the EEC…"). Acknowledgement that an EEC may contain distinct communities within it was discussed by Brian J Preston & Paul Adam, "Describing and listing threatened ecological communities under the Threatened Species Conservation Act 1995 (NSW): Part 1 - The assemblage of species and the particular area" (2004) 21 Environmental and Planning Law Journal 250 at 253-254 as being analogous to a nested set of Russian dolls. The example given was in terms of different floristically defined assemblages (which today would be referred to as PCTs) which collectively constituted the Lowland Rainforest on floodplain in the North Coast bioregion ECC (an earlier iteration of what became the Lowland Rainforest EEC relevant in the current matter). The component dolls discussed were wholly or part of floristic suballiances recognised in the classification in Alexander G Floyd, Australian rainforests in New South Wales (1990, Surrey Beatty & Sons in association with National Parks & Wildlife Service of New South Wales, Chipping Norton NSW). The dolls were conceptual entities within a classification, which found physical manifestation as actual stands of vegetation. However, within the conceptual dolls there were also nested physical entities - for example it would have been possible to recognise a faunal assemblage which occurred in the microhabitat formed by the leaf bases of bird's nest fern epiphytic on trunks and branches of rainforest trees. This microhabitat is referred to as a phytotelma (plural phytotelmata) - meaning 'plant pond'. In considering ecosystems at the landscape scale, it would be unnecessary to recognise phytotelmata separately, but for particular species which inhabit these 'ponds', their habitat is at a much smaller scale. Similarly, in discussing Lowland Rainforest at the stand or landscape scale, the stream microhabitats would be subsumed in the wider whole, but for addressing the requirements of particular species that recognising the microhabitats would be appropriate, but the species which occur in the stream habitat are, in this context, rainforest species.
Recognition of some waterways as being part of the Lowland Rainforest EEC is limited to low-order streams in the Strahler classification (first, second and third order) where the forest canopy extends over the stream. If a stand of rainforest occurs on the banks of a major river, the water body of the river is not part of the EEC; but the riparian fringe of the rainforest might have very different species composition from that further away from the river.
The fauna of streams in rainforest in north-east New South Wales is rich and of considerable interest. The nomination of New South Wales rainforests for inclusion in the World Heritage List prepared by the New South Wales government in November 1984 (Paul Adam, New South Wales Rainforests: The Nomination for the World Heritage List (1987, National Parks and Wildlife Service of New South Wales, Sydney)) drew attention to the value of streams (pp 36-37), including noting the presence of taxa of interest. The Applicants had, properly, sought advice from DPI Fisheries, and received the response reproduced below:
"From: Jonathan Yantsch …
Date: 7 November 2016 at 2:19:56 pm AEDT
To: Jason White …
Subject: Re: 404 Old Byron Bay Rd, Newrybar 2479
Hi Jason
I confirm that DPI Fisheries have no requirements for you proposed works on an unnamed waterway at Lot 2 DP 1065811 as the site does not contain Key Fish Habitat.
It should be noted that DPI Fisheries endorses the use of box culverts and, as previously mentioned, we recommend use of best management practice for all works undertaken in these areas including the use of appropriate erosion and sediment controls in accordance with all applicable requirements of The Blue Book (Landcom 2004, Managing Urban Stormwater: Soils and Construction [4th Edition]).
Please contact me on the details below if you have any questions.
Regards
Jonathan"
(Ex 1 folio 1269)
The objects of the Fisheries Management Act 1994 include
3 Objects of Act
(1) …
(2) In particular, the objects of this Act include -
(a) to conserve fish stocks and key fish habitats…
Despite the prominence given to conservation of key fish habitats, the term "key fish habitat" is not defined in the Fisheries Management Act. The Department has, however, produced a fact sheet explaining how it defines the term (NSW Department of Primary Industries, "Key Fish Habitat Maps", https://www.dpi.nsw.gov.au/fishing/habitat/publications/pubs/key-fish-habitat-maps, accessed on 15 July 2021).
The fact sheet includes a list of habitats which are classified as key fish habitats as well as a list of what is not. The 'what is not included' list commences with:
"1. Unmapped gullies and first and second order streams (based on the Strahler method of stream ordering) as determined from the largest scale topographic map produced for the area concerned (i.e. use 1:25 000 rather than 1:50 000 and use 1:50 000 rather than 1:100 000 and include all depicted streams). Note that this methodology only applies to 'gaining systems' - those where streams are coming together and becoming progressively larger."
The exclusions are not absolute as is clarified in par 9 of the included list:
"9. Any waterbody, regardless of whether or not it may be listed under the heading 'What is not included?' below, if it is known to support or could be confidently expected (based on predictive modelling) to support threatened species, threatened populations or threatened communities listed under the provisions of Part 7A of the Fisheries Management Act 1994."
This is further clarified in the final paragraph of the Policy Definition:
"The approach taken is to define what is, and what is not, included; however, there is a proviso that habitats that might otherwise be excluded (e.g. first and second order streams) but are known or likely to be habitat for listed threatened species, populations or communities are always included."
Listed threatened species, populations or communities are those included on Schs 4 and 4A of the Fisheries Management Act.
The advice received by the Whites was that the stream on the land was not "key fish habitat", and they are entitled to take this as a definitive statement. It was presumably based on a map interpretation that the stream was first or second order. There is no indication that there had been any visit by a Fisheries officer to determine whether the exemption applied or whether there were threatened species present. Given the current content of Schs 4 and 4A, it is very unlikely that there are.
There is virtually nothing reported about the particular stream as an ecosystem, even though I raised it a number of times. Although submissions from residents expanded upon the species' lists for terrestrial communities in the area, they did not mention the stream. Dr Robertson has familiarity with aquatic ecology as shown by the exchange in cross-examination:
"HARKER: Have you considered the ecological impact of allowing sediment to build up per year before it being removed?
WITNESS ROBERTSON: Yeah, I've got a pretty good understanding of that. I mean, I used to lecture in aquatic ecology for about eight years and I've done lots of other aquatic surveys since. You know, these [rainforest] streams, you know, they have a sort of [riffle] and pool structure, so, you know, in between the pools you have these little gravel beds or rock beds and things like that. There's a lot of concentration of stream life in those areas and that stream life is often predominantly invertebrates, so-called macro invertebrates so you can see with your naked eye. Many of those organisms have gills and things that are really quite fine and they depend upon a couple of things, a number of things, including flowing water that's well oxygenated as it percolates through, you know, rocks and gravels and around obstacles in the stream, and it also - that fauna is adapted to take decomposing plant material that drops from the trees above it, because these small streams, rainforest streams, were actually - they're fed by what they call allochthonous inputs of organic matter, which is, you know, the terrestrial vegetation, effectively, fed the streams. So if you were to deposit silt consistently into these areas in large quantities, you would degrade the habitats within the stream, and you do that in lots of different ways, but not the least of which you clog up pores between the rocks, you coat some of the organisms themselves with fine silt particles, et cetera, and progressively streams can become species poor as a result of that."
(Tcpt, 3 December 2020, p 148(19-41))
But he had not carried out a survey in this case. In the World Heritage List nomination, two features of streams within rainforest to which attention was drawn were the presence of crayfish of the genus Euastacus and small fish in the genus Galaxias. I have seen crayfish associated with small streams in NSW rainforests at a number of sites, and asked on the site inspection whether they occurred in this stream, but the response was that the experts did not know. I would not suggest that the subject site could ever qualify for inclusion on the World Heritage List but rather that it is part of the rainforests of NSW, of which a small number of outstanding sites have World Heritage status, and displays, in a limited form, some of the features of rainforest ecosystems recognized as being of value.
A complication when considering the stream habitat is that while frogs clearly fall within the purview of the BC Act, other potential inhabitants of the stream, including the macroinvertebrates mentioned by Dr Robertson would be considered as fish and thus fall within the Fisheries Management Act (see s 14.7 of the BC Act and the Policy Definition of Key Fish Habitats -
"In understanding this definition, it is important to remember that the term 'fish' includes all aquatic invertebrates such as yabbies, shrimps, oysters, mussels, insect larvae, beach worms, sea stars, jellyfish etc."
[22]
Issues with individual species
Dr McLean in Ex 3 identified a number of fauna species, which he considered might be present on the site and which should be assessed through the BAM process, and the Council bundle (Ex 1 Tab 12) included Final Determinations and species profiles of nine species which they regarded as requiring consideration. However, the Council's final position was that development consent should be refused because the proposal was likely to have serious and irreversible impacts on at least four threatened species - three plant species and one species of frog. These were:
Isoglossa eranthemoides
Rhodamnia rubescens
Rhodomrytus psidiodes
Mixophyes iteratus
The possible occurrence of all four species on the site is shrouded in mystery.
[23]
Isoglossa eranthemoides
Isoglossa eranthemoides is an understorey herb, with a limited distribution in north east NSW.
On the basis of a plant photographed on the site by Dr Meers (a botanist employed by Cumberland Ecology, Dr Robertson's company), the species was assumed to occur on the site, and, through the BDAR, this generated a requirement for the retirement of one species credit.
Dr McLean did not locate the species in his survey, and it had not been refound by Cumberland Ecology. Dr McLean assumed that the total species population across all known sites, was possibly less than 250, and applying the 4 Principles in Appendix A to the document Department of Planning, Industry and Environment, 'Guidance to assist a Decision-maker to determine a Serious and Irreversible Impact' (2019) (included as Appendix E of Ex 4) concluded that the species was a candidate for the SAII category.
Isoglossa is included in the OEH 'Save our Species' program, and is thus the subject of an annual report card. The Applicants tendered, as Ex K, the annual report card for 2015-2016. (Report cards were published for years preceding and subsequent to 2015-2016, but the data recorded in all the report cards are similar and shows the population size is substantially greater than 250 (possibly more than 100,000)).
Dr McLean was not aware of the report card, but was cross-examined on it by Mr Astill (Tcpt, 3 December 2020, pp 121(35)-122(26)). He accepted that in terms of population size Isoglossa was not a candidate SAII species but remained of the view that on area of distribution and number of populations grounds it was still a candidate.
Dr Robertson had, by the time of the joint conference, changed his view on the likely occurrence of Isoglossa on the site:
"53. The BDAR prepared by Cumberland Ecology mentions finding plants that are similar to Isoglossa eranthemoides. At the time, a precautionary approach was taken, and the plants were considered to be the threatened species. As such it was calculated that 1 species credit would be purchased and retired for that species, assuming that the species could have lost habitat when the track was cleared in 2016.
54. CM stated that he believes that Isoglossa eranthemoides could be considered to be SAII on the basis of extremely limited population size and restricted distribution. I agree but have since carefully reviewed the photographic material collected by Dr Trevor Meers and compared it against identification criteria in PlantNet, the botanic gardens database. The plants on site were actually of a common plant that is very similar to the threatened species: Pseuderanthemum variabile. As shown in Appendix K, the photograph shows a plant in a flower with a racemose inflorescence and symmetrical leaf bases. By contrast, Isoglossa eranthemoides has cymose (ie a different structure) to its inflorescences and asymmetrical leaf bases (refer to information in Appendix K).
55. I also note that the species profile for Isoglossa eranthemoides states that the habitat comprises "moist situations on floodplains and slopes". Such habitats would not have occurred on the track that was cleared.
56. I conclude that Isoglossa eranthemoides does not occur on site and will not be impacted by the proposed development."
(Ex 4 pars 53-56)
Pseudoantheremum variabile is a widespread species found in a range of, habitats and is not regarded as threatened. While the image of the plant photographed on the site reproduced as Appendix K to Ex 4 clearly shows the leaves, the non-flowering (bud) stage inflorescence is less clear. Dr Robertson suggests it is obviously racemous, a distinguishing feature of P. variabile. I agree that it is likely to be a raceme but it is not totally convincing (I have only seen the image reproduced in the exhibit and not the original which might have had sharper definition). Unfortunately, a voucher specimen had not been collected. As well as the photograph, Appendix K also includes drawings of P. variabile and Isoglossa taken from the NSW FloraOnline website (https://plantnet.rbgsyd.nsw.gov.au/floraonline.htm). A photograph of Isoglossa appears in Ex K. Interestingly, the leaves in the Ex K photograph and, in particular, the leaf margin (crenulate)) differ from those depicted in the two drawings (on pp 114-115 of Ex 4), in which the margins are smooth, agreeing with the description on p 114. The flowering inflorescence in the photograph in Ex K is clearly cymous. The leaves in P. variabile can vary between plants in shape and this may also be the case for Isoglossa. Isoglossa has a short flowering season so that it not been possible to revisit the plant photographed by Dr Meers at a time when it might have been in full flower enabling identification to be confirmed.
The experts were questioned extensively about the determination of Isoglossa:
"HARKER: Dr [Meers] indicated that when he was on the site he couldn't reliably tell whether a particular plant was isoglossa, and you might be able to help me with the pronunciation of the next term, which is the plant that is commonly confused with isoglossa.
WITNESS ROBERTSON: Pseuderanthemum.
HARKER: Pseuderanthemum when not in flower.
WITNESS ROBERTSON: Yeah.
HARKER: Isoglossa flowers, in my understanding, in September/October; that's correct?
WITNESS ROBERTSON: Broadly speaking, yes.
HARKER: Pseuderanthemum between December and May?
WITNESS ROBERTSON: Yes.
HARKER: And the surveys that were carried out were between March and May.
WITNESS ROBERTSON: Yes.
HARKER: Which is when the pseuderanthemum should have been in flower, and the image given to us is it's certainly not the plant that's in flower; would you agree?
WITNESS ROBERTSON: The image that I've given to you - sorry, I've misunderstood the question.
HARKER: It's not of a plant that is in flower?
WITNESS ROBERTSON: It is actually. It does have a flower stalk. If I make take the liberty, may I show you my screen because I might be able to give you a better view of it.
HARKER: Please do.
WITNESS ROBERTSON: If I can get it to work. Okay. Can you see that now?
HARKER: Yes, I can see that now.
WITNESS ROBERTSON: There's a person moving around it. This is the photograph that Dr [Meers] took, and I very much do have faith in his work, but when he was working on this site, he had a limited amount of time and he searched quite thoroughly along the edges of the road, and this is an individual that he found, and--
HARKER: This isn't the individual, is it? The individual is the one that he took the photo of?
WITNESS ROBERTSON: Sorry, this is the individual that he took a photograph, yeah, but it is one in the same thing.
HARKER: No, your opinion is it is one in the same thing. Dr [Meers'] opinion was he couldn't tell the difference. Do you have the photo?
WITNESS ROBERTSON: No. This is the photograph that Dr [Meers] supplied me of the individual that he found on site.
HARKER: The image that I've got on my computer is actually a drawing. I'm not sure if everyone--
WITNESS ROBERTSON: Sorry.
HARKER: That's why I was being - quite clearly it wasn't a photograph.
WITNESS ROBERTSON: Okay. I'm trying to - let me just see if I can do it another way. Just bear with me. I've got - yeah, sorry, we're at cross-purposes there because it's showing another part of my document here. I'll just see if I can get it. Okay. Can you see that now?
HARKER: Yes.
WITNESS ROBERTSON: Where I've got the cursor? And so this is on the leaves. Unfortunately, in pasting it, it's turned it upside down. So this is the flower stem that I'm talking about here and if I enlarge that somewhat, what you can see, and I don't know whether the Commissioner can see this or not, but there's a couple of things to note. There's an even shape to the leaves and the leaf places, and this is the flower stalk that was present, and I - when Dr [Meers] did the work, he took this and he gave it a precautionary diagnosis and said he wasn't absolutely sure whether it was isoglossa or not. He would have liked a second look at it, but, in any case, we called it isoglossa for the purposes of the report, and it's quite a precautionary basis. He was busy doing lots of other things, not only on the BDAR at the time but on other projects as well. When I came back to look at it, I thought, look, I'll just check it from first principles, so I had a very careful look at the photograph, I read and reread all of the descriptive information that I could lay my hands on for isoglossa and for pseuderanthemum, and one of the things that I think is really important is that the flower stalk structure, which is we call in botany the inflorescence. This is a raceme inflorescence, which means the stalk grows and if you can see my cursor moving, the youngest flowers are at the tip of the flower stalk.
So these, I think, are I think buds or fruits forming, but, nevertheless, you can see the biggest/oldest individuals on the flower stalk are at the base of it and the youngest ones are at the top. Now, in flowering plants there's a useful category that's often used to distinguish plants and that's the structure of the inflorescence and the way in which flowers are formed, and what I realised as I was looking through the fox, and I'm going to scroll up now to photographs of isoglossa, I actually went to - I searched the databases and I purchased some high-quality images of isoglossa and I also looked at the diagrams that were given from the Royal Botanic Gardens and a couple of things to note are that the leaf bases of this are slightly asymmetrical, so each side of the base of the leaf is - seems to be asymmetric, or not a carbon copy, and in this case the gene inflorescences for isoglossa are what they call cymose inflorescences, so you have one large old flower at the top of the flower still and then beneath it the younger flowers grow and they come from the base.
So you have an older flower at the top, younger flowers coming around from the base. So it does the reverse of a raceme inflorescence; right? When I looked at some of the photographs, and these images, apologies, they're not great for sort of showing this, but this particular image here is of a flower and the younger flowers are coming out beneath that. So you can see - when you look at the images, and lots of different images of isoglossa, the leaves look different, the symmetry of the leaf bases, when you can get a good look at it, is asymmetrical, and when you do get a look at the inflorescences, they're cymose inflorescences, so on the balance of probability I spoke to Dr [Meers] again and we sort of exchanged ideas about this, and we concluded that it wasn't pseuderanthemum - that it was most likely pseuderanthemum I should say, not isoglossa. We also had regard to the specific habitat conditions in which it grows. If it were to be pseuderanthemum variabile, and as the part of the name suggests it's variable, it can grow in a variety of different habitats. Isoglossa on the other hand is a little bit more specialised that grows in sort of flatter, volcanic sort of areas with sort of deeper soils. It didn't exactly fit the bill for the habitat that we found it in beside this site. So that's why I reached that opinion and I absolutely do have a great respect of Trevor [Meers'] botanical work which is very methodical.
HARKER: Dr McLean, do you have any response to that?
WITNESS MCLEAN: I guess I don't really want to - sorry, I'm getting some feedback here off someone. Anyway, what I'd say is that the photo's kind of out of focus a bit there, so it's quite hard to determine what's actually going on, and as Dr Robertson has alluded to, plants of pseuderanthemum I've seen, the leaves are very variable in that some leaves are quite narrow margins, others have got quite broad margins, and I think to determine - looking at these two species I don't think you can necessarily use this seeming out-of-focus photo to differentiate, and if it was me I'd probably be trying to send the specimen to a herbarium to get a proper confirmation, so I think Dr [Meers'] approach of the precautionary principle was probably the correct one.
WITNESS ROBERTSON: Well, I think - I strongly disagree that you can't see the inflorescence because you can zoom in on this image and you can see that it's raceme inflorescence. I also believe that you can see that the leaf bases pretty clearly and I think whereas pseuderanthemum variabile is quite variable, the photographs that I've looked at, and I've looked at quite a large number, and also the diagrams in PlantNET in the Botanic Gardens, they look quite distinctly - the features of the plant that we found was not like this. It wasn't like this particular species, isoglossa, and we - because there was only one specimen at the time and because we were talking the precautionary approach, we didn't collect a specimen from that small plant to take to the gardens. Under normal circumstances, if there had been more material, I would have done so.
(Tcpt, 3 December 2020, pp 142(25)-145(30))
[24]
Rhodamnia and Rhodomyrtus
These species are both rainforest trees or shrubs in the family Myrtaceae. Their natural area of distribution includes the subject site. Over the last decade, many species of the family Myrtaceae in Australia have been infected by the introduced plant pathogen, myrtle rust. Not all species of the family are susceptible, and of those that are susceptible not all suffer equally severely. Unfortunately, Rhodamnia and Rhodomyrtus are both extremely susceptible to the pathogen to the extent that, following the introduction of myrtle rust to Australia, within a few years both species had declined to the extent that they have now been listed as critically endangered. In December 2019, the Department of Planning, Industry and Environment issued BAM Assessor Update 28, which included advice in the following terms:
"Given the severity of the myrtle rust on these species, any individuals that are currently alive are potentially significant to the survival of the species and as such, should be given the opportunity to flower and produce seed. A precautionary approach to assessing potential impacts on these species needs to be undertaken, including the assumption that any individuals or populations that remain are potentially viable, particularly where they are on a proposed biodiversity stewardship site. where feasible, these individuals or populations need to be afforded protection to optimise the survival and recovery of these species. Note that some individuals thought dead, have been observed re-sprouting including from root suckers."
(Ex 1 folio 344)
[25]
Does either species occur on the site?
A plant species list for the site was included in a restoration plan prepared for the Applicants by Mr Binetruy of Ecoplus Regen in January 2019 (Ex 2 Tab 1). A species list for the site prepared by Mr Binetruy included both Rhodamnia and Rhodomyrtus (at folio 15). Subsequently, none of Dr McLean, Mr Parker, Dr Meers or Dr Robertson recorded the species during their surveys. Dr McLean was of the opinion the site had not been extensively surveyed sufficiently (Ex 4 p 212 par 84) and that the species may still be present. No information was available on the location of the trees apparently found by Mr Binetruy.
Dr Robertson contacted Mr Binetruy:
"50. I also contacted the original bush regeneration contractor who allegedly found these species on site, Phillipe Binetruy. I questioned him about the species and as threatened species weren't the focus of his work at the time, he volunteered to recheck the site. As set out below, he resurveyed the site looking for both species and failed to find them.
Begin forward message:
From: Philipe Binetruy …
Date: 18 August 2020 at 16:32:59 AEST
To: joanne White …
Subject: Rhodamnia
Dear Joanne,
It was nice to catch up today.
I have thoroughly surveyed the site (twice) and have not found any of the two species Rhodamnia rubescens and Rhodomyrtus psidioides. One ecologist and a botanist did not find these either so I could have made an error during the writing of the action plan. I generally keep the notes I take during surveys for a while but it has been more than a year and half since the writing of the plan so the notes have gone. Also, at the time of the surveys, I don't believe Rhodamnia rubescens was yet classed as critically endangered. Had it been an endangered species at the time, I would have tagged the plant and put a dot on the map.
Don't hesitate to contact me if needed and feel free to share this email with David Robertson.
Kind regards,
Philippe
(Ex 4 pp 10-11 par 50)
Dr Robertson was questioned about the occurrence of the species on the site:
"WITNESS ROBERTSON: Look, absolutely, but, you know, and, you know, we want to approach these things sort of with caution because, you know, in a lot of the sites like this you get a tangle of vegetation, and so with the best intentions and even with great experience people - you can miss certain things, and so that's why I went back to the person who had it on his list, but when you look at it on the face of things, this species wasn't mentioned by Peter Parker, wasn't found by Dr Trevor [Meers] and myself, it wasn't found by Dr McLean, and the person who was responsible for the original report had no recollection of where specifically on the site he found it and he went back and had a look at it and he also said that it could be a typographical area, so--
HARKER: He doesn't say that in his email to you, but, in any event, he did indicate to you that he is familiar with both of the species, having worked in the Northern Rivers.
WITNESS ROBERTSON: Yeah, he spoke to me on the phone after the survey.
HARKER: In terms of myrtle rust, how is that commonly spread?
WITNESS ROBERTSON: It's spread through the atmosphere by lightweight spores.
HARKER: Dr McLean, do you agree with that?
WITNESS MCLEAN: Well, it has to also have a vector to move it, so it could be animals, so mammals, so wallabies, people, vehicles. Yeah, so something that can move it around, but then when it's on an individual site, it might blow around, but the disbursal of that probably is not as efficient as, yeah, something that moves far great distances like a car or a person, so something coming in contact with the plant that has it on it and so this particular fungus can affect a wide range of genera, so including common things like lilly pillies and other eucalypts and paper bark trees and so it's reasonably common. I think gardens, like, in residential areas would have myrtle rust fungus in it.
WITNESS ROBERTSON: I believe that there's also airborne spores play an important role. It is such a widespread fungus, but, you know, pathogen, so in any case, it has a very efficient means of disbursal and that most of the patches in New South Wales where rhodamnia and rhodomyrtus occur are infected by this pathogen at the moment.
HARKER: I think that's correct, and I can take you to - you don't have the bundle, do you, the Council's bundle?
WITNESS ROBERTSON: No, I don't.
HARKER: Are you familiar with the biodiversity assessor's updates that have been released by what was previously the Office of Environment and Heritage?
WITNESS ROBERTSON: I'm certainly familiar with some of them, yes.
HARKER: Are you familiar with one issued on 17 December 2019?
WITNESS ROBERTSON: You might need to take me to it.
HARKER: I can. It's a bit difficult without the documents. I'll have to read it to you. It's at page 333 of exhibit 1, part 1, and unfortunately I don't have the electronic copy on the computer that I'm currently using, so I'm going to have to read it.
WITNESS ROBERTSON: Yeah.
HARKER: This is issued by the Department of Planning, Industry and Environment on 17 December 2019 and it states that individuals and populations of rhodamnia rubescens and rhodomyrtus - I can't say that--
WITNESS ROBERTSON: That's all right, I can read it.
HARKER: --are being severely impacted by the pathogen of myrtle rust and as such have been listed as critically endangered.
WITNESS ROBERTSON: Yes.
HARKER: There are a number of uncertainties regarding impact of myrtle rust, including how long infected plants are likely to persist for and why some individuals or populations persist better than others. Observations of plants and flower or bearing fruit are considered to be relatively rare, and it goes on to say that most fruit tends to be seedless, possibly due to important fertilisation or seed abortion as a result of the myrtle rust infection.
WITNESS ROBERTSON: Yes.
HARKER: In the next paragraph it says that given the severity of the myrtle rust on these species, any individuals that are currently alive are potentially significant to the survival of the species and as such should be given the opportunity to flower and produce seed. It goes on to emphasise the need for a precautionary approach.
WITNESS ROBERTSON: Yes. Just the point there talking about the species, we have worked on a number of sites before. We have found it and I'm familiar with that literature. I'm also familiar with somebody who is doing a PhD on it and she's searching for areas where there's any, you know, examples of where the plant might be resistant to this disease with relatively little success, but before it was told that this fungus, you know, can be spread by a whole lot of different vectors, but if you read the blurb on it on the DPIE website, or the Department of Primary Industries website, it says under - the disease cycle it says the visible yellow pustules of myrtle rust are made up of millions of power yellow spores, and that means, obviously, that they're minute, spores as spread by wind to other host plants.
Okay, so the spores germinate and the myrtle rust infects - grows, piercing plant cells to obtain nutrients from the plant. So it talks about the conditions that they require, so spores require darkness, moisture and temperatures of 15 to 25 degrees. The spread, it goes on to say, can occur naturally by wind, water, insects and animals. Rust spread can occur rapidly. Rust spores can travel very long distances and may infect susceptible plants many kilometres from the initial site of infection. The point I wanted to make was that it's not something that inevitably occurs with a human or animal vector or earthmoving machinery as often happens in other diseases like phytophthora. It's one that is - you know, can just blow on the wind quite extensively.
HARKER: Dr McLean, do you have any response to that?
WITNESS MCLEAN: Well, in that, it would be something that comes into contact with it, so that evidence there that Dr Robertson read did talk about animals, and so my opinion is more if something comes into contact with a plant that's infected by myrtle rust fungus. These spores are rather small. You might not even notice that you've brushed against it and then you move into another area that's got a potential myrtle plant that can be infected, so lilly pillies or paper barks or whatever, that can then start it growing, and I think what we saw ten or so years ago when this pathogen arrived, the spread was really rapid and it wasn't necessarily a linear spread, as you might assume like what we've seen with, say, cane toads. There were populations occurring in places that - where there were other areas that still hadn't been infected.
WITNESS ROBERTSON: What seems to be being implied by what you're saying is that, you know, during the construction of the track or the resurfacing of the track they could have brought in spores and that might have eliminated this plant that was found by the original vegetation person. Hypothetically that's true, but I think it's more accurate to say, as it does in this website, this is written by plant pathologists, rust spores can travel very long distances and they infect susceptible plants many kilometres from the initial site, so it's--
HARKER: ..(not transcribable).. What website are you looking at?
WITNESS ROBERTSON: I'll give you the exact title. It's ..(not transcribable)..
HARKER: If you could just tell me.
WITNESS ROBERTSON: Department of Primary Industries.
HARKER: Of New South Wales?
WITNESS ROBERTSON: Yes, yeah, New South Wales DPI.
HARKER: You heard Mr Astill to take Dr McLean to clause 6.7 of the biodiversity conservation regulations. Are you familiar with those?
WITNESS ROBERTSON: Yeah.
HARKER: In the context of what I just read to you in relation to the current state according to the Office of Environment and Heritage of rhodamnia and rhodomyrtus, would you agree that it's a species in rapid decline?
WITNESS ROBERTSON: Yes, I would.
HARKER: Would you also agree that any further loss of this species, given what was said by the Office of Environment and Heritage, as a significant impact?
WITNESS ROBERTSON: No, I wouldn't, based on what I've seen on a number of sites in New South Wales, and I've done some work in, you know, the Central Coast, for example, where there is still large areas where the plant exists, albeit in a diseased state, to the effect that there are hundreds of thousands of individuals of the plant scattered around different areas. The loss of a couple of those on some of the sites that I've seen would make no material difference to the overall thrust of the disease because, you know, in certain circumstances eventually all plants are diseased and you're taking a very small proportion. So it goes to the first part of that sort of statement about under part 2 that was discussed before. You've got to weigh up or provide evidence to gauge the material effects or the significance.
HARKER: Yes. But the Office of Environment and Heritage, as I read to you before, says that any individuals that are currently live could potentially significantly affect the survival of the species.
WITNESS ROBERTSON: The word "potentially" significant to the survival of the species is important. That word "potential" means, yes, I agree, you might come across a little cluster of these plants that, you know, appears to be in very good condition, might be the last in a district, yet you've got to - my argument, and my interpretation of that part 2, and also that advice that you just read out, is that you'd have to evaluate it based on the context. So the word "potentially" is important.
HARKER: Do you also agree the word "individuals" is important?
WITNESS ROBERTSON: Possibly it is, but it depends on the context. You know, if it was the last two or three individuals in a broad area and particularly if they were not diseased, if you proposed to clear those it would be significant. If you take the Central Coast example that I was, you know, alluding to, clearance of even, you know, quite a few hundred or thousand of those plants would make no real significant difference in that context, and then take it back to this site, because I think this is the really important thing, I agree that myrtle rust and the effects on these two genera are important considerations, and if they were found on the site, we would have written something different, but I believe that I've shown due diligence and I believe that there's a whole - you know, I think there's four or five ecologists that have looked for it and haven't found it. The man that originally wrote it in his report has sort of qualified that and looked for--
HARKER: ..(not transcribable)..
WITNESS ROBERTSON: You know, so I don't think it's a relevant consideration for serious and irreversible impacts with the data available.
HARKER: You're talking about certain populations in particular areas where there may not be much rhodamnia, but isn't clause 6.7 focused on the State-wide species? It's focused on extinction at a State-wide level, not necessarily a local level?
WITNESS ROBERTSON: I've just called it up on my screen at the moment. So you're saying - which part of that is focused on a State-wide level?
HARKER: Does it say "local" anywhere?
WITNESS ROBERTSON: I'm just reading it from the start. I think it says - it doesn't refer to either "State" or "local", and, again, this needs to be applied by the practitioner to the actual project at hand and the context."
(Tcpt, 3 December 2020, pp 136(24)-140(43))
Subsequently, Dr McLean was asked to respond:
"HARKER: Dr McLean, do you have anything to respond to in relation to that?
WITNESS MCLEAN: So I tried to determine whether or not there's been any work on this, and there wasn't, really, and so I think you've got to just apply the principles attached to the genera, which is myrtaceae, or myrtles, and generally the longevity of seeds for that group is somewhere between seven and 20 years, and so, yeah, in terms of seed store, and that's in a wild form as opposed to climate-controlled bunkers at minus 40 or whatever, but in that, that's - in terms of quality of things, seven to 20 years is quite a short amount of time for a seed compared to other things that are much longer, longer lived as seed, but in this context if these plants had occurred on the site, and to me there's no evidence to say they did, and there's still potential for stored seed in the ground.
HARKER: Do you have any response to what Dr Robertson said before about significant contribution?
WITNESS MCLEAN: So in this I've recently been doing some quadrats on the central coast crap 2 for both rhodamnia and rhodomyrtus, and I agree with Dr Robertson that rhodamnia is quite common. Out of the 50 quadrats 22 of those had rhodamnia present. Only one had rhodomyrtus, so rhodomyrtus is probably doing a lot worse, at least in that region, but out of that the caveat there is that even though the surveys were done at a time of flowering, none of those plants were flowering. They were all - every plant was affected by fungus. There was not one that wasn't, so when you look at the longevity, essentially you might call it an extinction death, so they're a living dead, but once those individuals that are present on that many sites die, there's not going to be any new recruitment and that plant will become extinct if seeds can't germinate in the ground.
WITNESS ROBERTSON: The final determination says soil-stored seed banks are unlikely to be extensive for this species given it's typically in rainforest environments with high-level composition rates. So you can't draw a line and saw that it's necessarily like other myrtaceae. There's insufficient information around. The inference that they're drawing in the final determination is that the seeds are not likely to last very long. So it may not have a very good seed store.
HARKER: Now just finally, Dr Robertson, you indicated that hard-packed soil, I think in your joint report, that hard-packed soil is not necessarily suitable for rhodomyrtus or rhodamnia to grow. Have you considered paragraph 65 of the joint report, the first joint report, where Dr McLean refers to having seen rhodamnia, at the very least, at disused tracks in the state forest. Does that affect your opinion in any way?
WITNESS ROBERTSON: I'd like to clarify my opinion, yes. I think where you have a previously-used track made of gravel where, you know, the species colonising the track as per, like, Peter Parker described, you know, included along the sort of weedy shrubs and things like that, I believe that particularly in the short-term after the tracks become disused, it would be relatively unlikely for rhodamnia to occur there. However, to make it clear, I don't rule it out absolutely and, you know, it could potentially have grown on that sort of surface, you know, and I've seen other native trees and shrubs growing on unused tracks many, many times, but I just - I think, firstly, it would be relatively unlikely and, secondly, we're really the only ecologists that viewed the track, didn't find it and it was relatively distinctive, so that was to view the track before the track was resurfaced."
(Tcpt, 3 December 2020, pp 141(9)-142(15))
I have, on a few occasions, observed Rhodamnia seedlings on snig tracks on the mid North Coast. I do not know whether they survived to become saplings or adult stage trees. A snig track is different from a vehicular track - I would acknowledge Dr McLean's observation suggesting a possibility, but tend to agree with Dr Robertson as to probability. However, occurrence beside the track, on less compacted soil, is, if the species is on the site, more likely.
Mr Binetruy (see [365] above) did not say that he had not observed Rhodamnia or Rhodomyrtus on the site but that he "could have made an error". For a botanist familiar with the North Coast rainforest flora both species should have been readily identifiable. Unfortunately, Mr Binetruy was not made available for questioning in Court, so it was not possible to resolve whether an error, if it had been made, was in recording or observation. I would not leap to the conclusion, as Dr Robertson appears to do, that there was no observation but that the species had accidentally been included on the record.
It is possible that one or both may have occurred on the site in the recent past but, because of myrtle rust, have died.
[26]
Mixophyes iteratus - the Giant Barred Frog
The Giant Barred Frog is a very large frog (it is sexually dimorphic and females are very much larger than males). It is one of several species in the genus Mixophyes occurring in north-east New South Wales. It was considered by the experts to be potentially the most likely species of the genus to occur on the subject site.
A detailed account of the biology of this species was provided by Mr Wellington in Appendix J to the Joint Expert Report of the Ecologists (Ex 4).
There are no confirmed records of M. iteratus from the site, nor was it recorded during any of the ecological investigations specific to the proposal. Dr McLean has been involved in surveys for this species at various locations over many years and is familiar with it. He considered that the habitat was suitable for the species, and that there was a recent record about 4.5 km from the site (in a different catchment). In the Joint Expert Report of the Ecologists (Ex 4). He did not consider that there was certainty that local extinction had occurred (Ex 4 p 14 par 81).
Dr Robertson was questioned by Mr Harker about his knowledge of the Giant Barred Frog:
"HARKER: Have you ever surveyed specifically for the giant barred frog, Dr Robertson?
WITNESS ROBERTSON: I have on a couple of occasions, yes, up on the Timbarra Plateau.
HARKER: So you've seen the frog before?
WITNESS ROBERTSON: Yes, I have.
HARKER: Why did you then need to get Dr Wellington involved?
WITNESS ROBERTSON: When you prepare a BDAR, and particularly when you're dealing with areas in northern New South Wales where there's a high biodiversity, you run the risk of sort of being a jack of all trades and a master of none, and this was a subject of great debate between Dr McLean and myself about the relevance of this stream habitat to various mixophyes, and I've worked repeatedly with Ross Wellington before. I knew that he had quite a lot of expertise with some of these frogs. So we could have gone out and done a survey, but at the time that this thing came together it was not the right survey period, and so I wanted to use his expertise to provide an opinion about whether or not the frogs were likely to be there.
HARKER: You asked him to do it in relation to the giant barred frog as well, didn't you?
WITNESS ROBERTSON: I asked for, yes, the mixophyes species because I wasn't actually sure which one of those species was more likely to occur.
HARKER: Did you do that because in your view he was an expert created by the OEH under the regulations?
WITNESS ROBERTSON: I did that because I knew that he was accredited to work on other species of frog and also because I knew he had expertise in this species of frog, but I say to the Court that I don't think that - it's one of those large number of species for which experts have not been formally assigned at the moment. I think he's on a list that's nominated him for - to be considered as an expert in these species, but I don't - he is for the green and golden bell frog but not formally for these two species.
HARKER: Yes, and not in the Northern Rivers region either?
WITNESS ROBERTSON: I agree and - that's right."
(Tcpt, 3 December 2020, pp 149(9)-150(1))
"HARKER: In forming your opinion in relation to the giant barred frog, Dr Robertson, you rely entirely on the opinion of Dr Wellington, don't you?
WITNESS ROBERTSON: Largely, but not entirely, because I know--
HARKER: Can I take you to paragraph 60 of your joint report.
WITNESS ROBERTSON: Yeah, certainly.
HARKER: Have you got it in front of you?
WITNESS ROBERTSON: I think I'm looking at the right paragraph, yes.
HARKER: 60 starts with "CM also mentions one endangered frog".
WITNESS ROBERTSON: Yeah.
HARKER: It's the frog that we're talking about. You say that you commissioned Dr Wellington. Dr Wellington said that the species is unlikely to occur in the stream. He believes that the historic clearance of the site, it is unlikely to occur. Consequently no SII section is required for the BDAR for this business. You're entirely reliant on what Dr Wellington has told you, aren't you?
WITNESS ROBERTSON: I'm not entirely reliant on that because I actually also have had serious regard to the historic clearing of the site and noted that it is quite an intensive sort of grazing pressure that prevailed in the past, and I've done my own aerial photography which is appended to my statement of evidence which shows when in the 1950s the site was very extensively cleared. It was widely separated from a lot of other forest areas. You know, the areas to the west, for example, were, you know, very, very extensively cleared. So, you know, I'm basing it largely but not entirely on his advice.
HARKER: If you go to paragraph 73 of the joint report, which is a screen shot taken by, I understand, Dr McLean of the BioNet database from about 4.5 kilometres west of the site.
WITNESS ROBERTSON: Yes.
HARKER: That land is substantially cleared, isn't it?
WITNESS ROBERTSON: Yes, it is.
HARKER: Yet the frog has been found and recorded at that site?
WITNESS ROBERTSON: Look, I agree and that it can occur in some disturbed sites, and I didn't want to actually absolutely make a call on it myself, and so, you know, I've had regard to Ross Wellington's advice.
HARKER: But the report that's attached to the joint report from Lewis, which is at appendix P, page 3 of that document says in addition to what Dr McLean found in the BioNet database, this report says that the frog has been found in cleared or disturbed areas, for example, agricultural landscapes, vegetated riparian strips and regenerated logged areas.
WITNESS ROBERTSON: I'm reading that. That's also present as a quote in paragraph 72 of the report, and I actually went back and read some of that material directly and what it - and there's a couple of things there, is that my interpretation of that statement where vegetated riparian strips and regenerated logged areas exist, it's an important part. You know, there is native vegetation persisting as a strip along the creek, not completely cleared areas.
HARKER: When you said "revegetated logged areas" ..(not transcribable).. for revegetated--
WITNESS ROBERTSON: Regenerated. Regenerated logged areas. So they've been logged but never completely cleared.
HARKER: Well, I think you're reading words into the--
WITNESS ROBERTSON: No. I'm quoting it. I'm looking at it now. "Observations of the species have been found in ..(not transcribable).. disturbed areas, for example", and I thought cleared or disturbed, okay, "cattle farms with vegetated riparian strips and regenerated logged areas"; all right? So that's as opposed to completely cleared riparian areas.
HARKER: And regenerated logged areas.
WITNESS ROBERTSON: Regenerated logged areas. My understanding of "regenerated logged areas" is where logging has occurred and the native vegetation has since regenerated. It's not - it's as distinct from replanted.
HARKER: Are you aware of any replantings that occurred between the 1950s and now on the site or whether the site is just organically regenerated?
WITNESS ROBERTSON: The site's organically regenerated.
HARKER: Is that not similar?
WITNESS ROBERTSON: Well, look, it does too, and it - and that's - you know, as I said, it has been extensively cleared, so much so in the 1950s photograph it seems to have been completely cleared. It doesn't appear to, on the aerial photographs, have vegetated riparian strips and it doesn't have regenerated logged areas. It was completely cleared in the 50s, but like all good threatened species, I'm forming an opinion based on expert advice and there's no absolute answer, so particularly when you're dealing with threatened fauna, you can't absolutely be sure.
HARKER: We've got at least one report and a BioNet record which, essentially, indicates that they can - the frog can return to areas that have been re-cleared.
WITNESS ROBERTSON: But under the processes for a BDAR, you're entitled as an accredited assessor to form your opinion and that opinion can be formed and based on a number of different factors to do with habitat. It doesn't say that you're always going to get it right and, you know, we've tried to form our opinion in this regard, and the other thing that's a bit different about this site, this project, and is a bit quirky is that the bend to the road took place in 2016 before the BDAR legislation occurred; all right? We've tried to retrospectively do a BDAR, but the DA is for resurfacing of this road and for improving conditions, so I suppose it's a strange mixture of things that we have to assess. So we've done the best that we can to try and assess it, but if the Court was of a mind to approve this project from hereon in, and the project was constructed, you would be, I suppose, improving the ecology of the current situation by resurfacing the road, and so, you know, to what extent should you have regard to a frog that may potentially be downstream, and the other thing that has come out since the joint report is there's some guidelines for surveying assessment of threatened frog, and it says streams of this says don't need to be, effectively, assessed for - as potential habitat for the frog."
(Tcpt, 3 December 2020, pp 151(3)-153(21))
Dr McLean responded:
"WITNESS MCLEAN: … and so I think to discount that this frog - and in this my position is not that the frog necessarily occurs. All I'm saying is there needs to be - the frog's occurrence needs to be just counted through just doing a survey, which, in my opinion, is not an onerous task.
WITNESS ROBERTSON: But it's a part of the accreditation process for a BDAR, or for this new legislation, you have to go through the training course, you have to demonstrate that you've got sufficient experience in this type of assessment; all right? Once you're accredited, you're entitled to follow the guidelines for that. You do not have to do a survey for each and every species, and you can form an opinion based on expert advice, and we've agreed that there's no formal expert that's been appointed for these frogs in this area, but I've--
HARKER: That's actually ..(not transcribable).. Dr [Lemckert], I understand, who is in - authored one of the reports that have been attached to the joint report. My understanding is he's been certified as an appropriate expert of the giant barred frog; do you agree with that?
WITNESS ROBERTSON: I wasn't aware of that, no.
HARKER: I'll just take you to it, but, in any event, you've traversed the stream?
WITNESS ROBERTSON: Yes.
HARKER: Dr McLean, you have as well?
WITNESS MCLEAN: Yes.
HARKER: Dr McLean, what's your view in terms of why you think that this could be habitat for frogs?
WITNESS MCLEAN: So I've been looking at mixophyes iteratus for quite a while, well over 15-odd years, right up and down the New South Wales coast, and I've observed them in streams that look similar to this which is why I suggested this species rather than the smaller mixophyes balbus, or the stuttering frog. There's [riffles] in here, there's pools that this frog can breathe in, there's sufficient water, there's rainforest adjacent. You know, there's that high chance that, yeah, and they occur, and there's also local records that are 4 kilometres away and the head waters of the catchments that they're known from, the watershed for that is only several hundred metres to - yeah, from the watershed to this particular catchment, and so an exploring frog only has to walk a few hundred metres to then find this particular catchment.
HARKER: Dr Robertson, do you agree that the particular characteristics of the creek would be suited to the giant barred frog?
WITNESS ROBERTSON: Well, if you have a look at that image that you showed before in that part of the report that showed, I think it was a dropped pin on a satellite image, right, that's certainly a meandering lowland stream, right, with silt all around it. It's not a rocky stream, and where the culvert is at the moment is in a rocky stream, and I've provided lots of photographs of the reports, as part of the joint export report and the reports. I've taken advice from Ross Wellington, and if you look at that photograph where the dropped pin is, it's actually in a silty, muddy environment, and it's at a lower level and it's not exactly the same as the stream on site.
HARKER: That compares it to another site, but you've walked the creek, and my question was, and if you go to the attachments to the joint report in the species profile, it actually says that moist riparian habitats such as rainforest or wet sclerophyll forest, a faded deep leaf litter that they provide for shelter and foraging.
WITNESS ROBERTSON: And I agree, and if you read the report by Ross Wellington, he said that either one of those at the species could have been broadly in the area historically and that was particularly before it was cleared. So, you know, he said that, you know, the regenerated rain forest now has some good habitat characteristics, so I--
HARKER: Is that in your view as well?
WITNESS ROBERTSON: Yes, it is.
HARKER: That's based on having heard from Dr Wellington?
WITNESS ROBERTSON: Yes.
HARKER: And any part of your own observations?
WITNESS ROBERTSON: Yes.
HARKER: Being what?
WITNESS ROBERTSON: So could you - I think I've explained before the things that formed the basis of my sort of opinion.
(Tcpt, 3 December 2020, pp 153(32)-155(16))
Mr Harker, in his submissions, suggested that I should give little weight to Dr Robertson's opinion:
"Dr Robertson solely relies upon the report of Dr Wellington to inform his opinion that the frog is not likely to occur on the site. that opinion should be given little weight. Dr Robertson accepted that Dr Wellington has not been certified under the BC Act as an expert for the frog, let alone other frogs for the purposes of projects in the Northern Rivers. He is not an expert in these proceedings, and his evidence cannot be tested. More significantly, his view that the frog's habitat is mostly 2nd to 4th order streams is based on personal communications of which none of the parties are aware (Joint Report)."
(Council's submissions at par 50)
Mr Wellington is a well-known and experienced herpetologist. He was not the expert in the case, and was not called to give evidence and so could not be questioned - as neither was Dr Meers. While this is not perhaps best practice, I take Mr Wellington's report (in Ex 4) and Dr Robertson's evidence into account, along with Dr McLean's evidence and the papers and reports he included as appendices in Ex 4. There was agreement that Mr Wellington's observations of the site was made at a time when M. iteratus was not likely to have been present. Dr McLean considered suitable habitat for the species was present. Dr Robertson, on the basis of advice from Mr Wellington, was of the opposite view. He also analysed the data presented in the paper by B D Lewis and D A Rohweder, "Distribution, habitat, and conservation status of the Giant Barred Frog Mixophyes iteratus in the Bungawalbin catchment, northeastern New South Wales" (2005) 11 Pacific Conservation Biology 189 (included by Dr McLean as Appendix O in Ex 4). This analysis (Ex 4 Appendix l) showed that the sites where the frog had been recorded were, on Dr Robertson's interpretation, all streams of a higher order than the stream on the subject site. I accept Dr McLean's view that stream order needs to be considered in light of other attributes of the stream, and that information on relevant attributes is not directly available from Lewis and Rohweder. Dr Robertson's conclusion suggests (no more) that caution should be applied, but occurrence on the subject site is less likely than assumed by Dr McLean. However, I consider there is still a possibility that the species might be present on the subject site. I find that Mr Wellington's report is not sufficient to render Dr McLean's suggestion that there is suitable habitat for the frog in the stream on the subject site inherently implausible; but that Dr McLean's evidence and the paper by B D Lewis and D A Rohweder, which suggest that increased sedimentation may have facilitated decline in the species occurrence, is supportable.
During the discussion, the question of stream order was raised a number of times. The Strahler system (Arthur N Strahler, "Hypsometric (Area-Altitude) Analysis of Erosional Topography" (1952) 63 Geological Society of America Bulletin 1117) has been widely adopted internationally and is specified as the appropriate method for application within the BAM (OEH 2017 BAM Appendix 3 - in Ex 1 Tab 3 folios 200-201). Appendix Q to the Joint Expert Report of the Ecologists is a paper published by Mark Taylor and Robert Stokes, "Up the creek: what is wrong with the definition of a river in New South Wales?" (2005) 22 Environmental and Planning Law Journal 193 which pointed to the differences between Australian watercourses and those overseas, and the need for a more nuanced approach when the Strahler scheme is used in Australia.
One of the points of difference between with Dr McLean and that adopted by the Applicants was that Dr McLean considered Mr Wellington's statement that M. iteratus would only be found in higher order streams than those on the subject site was incorrect. Rather than stressing stream order, Dr McLean considered it was more important consider the features of the particular habitat, particularly the bank full width of the stream under consideration. Contra to Dr Robertson and Mr Wellington, he suggested that the stream on the subject site and immediately downstream is at least 3 m and in places 4 m wide, and suitable habitat for M. iteratus.
Mr Harker suggested that consistent with the BAM, the presence of the frog should be assumed, or alternatively, he invited me to adopt a precautionary approach consistent with that taken by Pepper J in Friends of Tumblebee Incorporated v ATB Morton Pty Limited (No 2) (2016) 215 LGERA 157; [2016] NSWLEC 16 (Tumblebee).
Tumblebee was a Class 4 judicial review, rather than a merits appeal, in which the applicant argued, successfully, that a Species Impact Statement (SIS) was required, but one had not been produced and thus had not been considered by the original consent authority (Cessnock City Council). The species for which an SIS was required was one of Australia's rarest bird species, the Regent Honeyeater (Anthochaera phyrigia), listed as a Critically Endangered Species by the NSW Scientific Committee in 2010.
Although Tumblebee involved a bird, assigned to a higher category of threat than the Giant Barred Frog, there are some similarities in circumstances in that the Regent Honeyeater had not been shown conclusively to occur at the subject site although it had been recorded nearby, the habitat of the subject site was appropriate for the species, and the circumstances of the site were such that if it did occur on the site, it would be threatened (by competition from the increase in the population of the native bird species the Noisy Miner). A difference was that what was in issue in Tumblebee was the need for an SIS; in the present matter, even though the Applicants argued that a BDAR was not required, they had included in evidence a BDAR recognised by the parties as being in the appropriate form. Mr Harker (Tcpt, 4 December 2020, p 200(1-20)) withdrew the First Respondent's original contention that there was an absence of a BDAR and accepted that the BDAR produced by Dr Robertson (Ex D Tab 4) was in the correct form, but continued to argue that the information in the BDAR was inadequate.
The application of the precautionary principle was carefully analysed by Preston CJ in Telstra Corporation Ltd v Hornsby Shire Council (2006) 67 NSWLR 256; [2006] NSWLEC 133 (Telstra).
The precautionary principle is to be invoked when two conditions are met - there is a threat of serious or irreversible environmental damage and there is a lack of scientific certainty as to the damage (Telstra at [128]). The lack of scientific certainty extends not only to the effects of the threatening process, but to the occurrence of 'something' to which the threat would apply (NHVSS). The uncertainty in the present case extended, for all four candidate SAII species, to their occurrence on the site.
If the two conditions are met, the consent authority must assume that the threat is no longer uncertain but certain. The burden of proof for demonstrating that the threat does not exist or is negligible falls on the proponent (Telstra at [150]-[155]). The precautionary principle permits preventive measures being taken without the reality or seriousness of the threats being fully known (Telstra at [156]).
The precautionary principle cannot be used to avoid all risks. It cannot be applied on the basis of a hypothetical scenario based on conjecture without scientific basis (Telstra at [157]-[160]). In implementing conditions informed by the application of the precautionary principle, it may be appropriate apply an adaptive management approach (Telstra at [161]-[165] - for an example of such an application, see NHVSS at [183]-[189]).
Application of the principle requires proportionality (Telstra at [166]-[178]). Importantly, the outcome of applying the precautionary principle does not necessarily require that consent should be refused (Telstra at [179]-[181]).
The test applied to assessment of all four SAII candidate species is whether there will be a risk of extinction as a result of serious and irreversible impacts. In the BC Act and BC Regulation, there is no timeline placed on extinction. Different threats may have different consequences - arrival of myrtle rust or chytrid fungus at the site could cause very rapid extinction at the local scale, and cumulatively cause total extinction across the entire range of the species over a short period. Indeed, myrtle rust may, in little over a decade, have already caused extinction of a small number of the most susceptible species. Other threats may act cumulatively and incrementally - for example, sedimentation could adversely affect both the Giant Barred Frog, and more generally the biota of the stream - and similar impacts experienced in streams throughout eastern New South Wales could result in extinction of not just the frog but other species, particularly invertebrates whose conservation status has not yet been assessed.
The prevalence of both chytrid fungus and myrtle rust which can be transmitted on clothing, boots, equipment and vehicles, and additionally in the case of myrtle rust on plant material introduced into gardens or used in bush regeneration, and airborne spores, would require that conditions on any development approvals in the area should require strict adherence to the protocols in NSW Department of Planning, Industry and Environment, "Saving our species hygiene guidelines - protocols to protect priority biodiversity areas in NSW from Phytophthora cinnamoni, myrtle rust, amphibian chytrid fungi and invasive plants '(April 2020) - or any future revision of these protocols.
[27]
Conclusion on SAII species
None of the four candidate SAII species discussed by the experts have been shown definitively to have been present historically on the subject site, nor have they been detected in recent surveys, despite there having been possibly suitable habitat available for each of them. For both the frog and the two species of Myrtaceae, a serious pathogen is present in the region (chytrid fungus in the case of Mixophyces, myrtle rust for the two plant species). This may mean that recovery is unlikely. Clause 6.7(2) of the BC Regulation requires an impact be regarded as serious and irreversible if it is likely to contribute significantly to the risk of a threatened species becoming extinct because "the impacted species is unlikely to respond to measures to improve its habitat and vegetation integrity and therefore its members are not replaceable".
Both Rhodamnia and Rhodomyrtus have been reassigned to the critically endangered species category as a result of their susceptibility to myrtle rust. If myrtle rust were to be present at the site, the survival of the species would be unlikely. Quarantine measures to reduce the likelihood of arrival of myrtle rust would be essential if consent were to be granted, but exclusion could not be guaranteed. If the species were present, and were lost from some other impact (such as clearing), then re-establishment would be unlikely because of the regional prevalence of the pathogen. The advice given by the Department of Planning, Industry and Environment in "Biodiversity Assessment Method Assessor Update 28" in December 2019 is compatible with the conclusion that any surviving populations of the two species should be regarded as SAII. The Giant Barred Frog, because of its susceptibility to chytrid, is in the same situation.
Section 7.16(2) of the BC Act requires a consent authority to refuse consent if it is of the opinion that there are likely to be serious and irreversible impacts on biodiversity.
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.
The consent authority is required to reach a positive opinion under s 7.16 that the species are present, or, applying the precautionary principle can be assumed to be present, and that the proposed development is unlikely to have serious and irreversible impacts on biodiversity values. Insufficient data (and hence uncertainty as to both the presence of the species and the consequences of impact) would not permit a consent authority to refuse to grant consent under s 7.16.
The two Myrtaceae species were, until very recently, widespread and would recently have been expected to occur at the site as part of the group of common and widespread rainforest species present in many stands of Lowland Rainforest EEC. While Mr Binetruy's record keeping leaves much to be desired, I consider it likely that he did observe one or both of the species. The fact that more recent surveys have failed to record either of them may, as Dr McLean suggests, reflect inadequate survey locations or intensity, or that the individuals have succumbed to myrtle rust.
In regard to Rhodamnia rubescens and Rhodomyrtus psidiodes, I conclude that the proposed development is likely to have serious and irreversible impacts on biodiversity values and therefore pursuant to s 7.16(2), consent cannot be granted.
The position for Isogolossa is different. Although the species has a restricted distribution in northeast NSW, there is no record of a population near the subject site. If it did occur on the site, it would be of considerable importance. Isoglossa would not have been on the predicted list for the site, if it were not for Dr Meers' record, for which there is no specimen, but only a not very clear photograph which cannot be conclusively assigned to a species. Even applying the precautionary principle, I do not consider that the presence of Isoglossa can be assumed. Insufficient information does not provide a basis to refuse consent under s 7.16(2).
The Giant Barred Frog has been recorded within 5 km of the subject site, and its occurrence in or near the stream in the Lowland Rainforest EEC is plausible, although no survey has been conducted at the most suitable time of year for detection.
Despite the insufficiency of data, I accept Mr Harker's argument that application of the precautionary principle requires an assumption that the Giant Barred Frog is present on the site.
If the frog is present, is there a threat that will cause a serious and irreversible threat? The literature supports the view that water pollution (in the form of sedimentation) is a threat to aquatic life, including the frog, in the stream. There is a proposal to require regular desilting, but this is a concept and there is insufficient information to assess the adequacy and effectiveness of the proposed desilting. Application of the precautionary principle leads me to conclude that sedimentation is likely to be a serious and irreversible impact.
Accordingly, I conclude that in respect to the Giant Barred Frog pursuant to s 7.16(2), consent cannot be granted.
The subject site did, in 2016 prior to the construction of the present access track (including the culvert), support Lowland Rainforest EEC, which although containing 'weedy' species had the potential, with appropriate management, to recover.
[28]
Impacts on Lowland Rainforest EEC
Section 7.2(1)(a) of the BC Act states that a development or activity is likely to significantly affect threatened species or ecological communities, or their habitats, when assessed by the test in s 7.3. The test is referred to as the 5-part test and is the successor to the 8 and 7-part tests which applied at various times under the TSCA.
The relevant parts of the test are s 7.3(1)(b) and (1)(c):
7.3 Test for determining whether proposed development or activity likely to significantly affect threatened species or ecological communities, or their habitats
(1) The following is to be taken into account for the purposes of determining whether a proposed development or activity is likely to significantly affect threatened species or ecological communities, or their habitats -
…
(b) in the case of an endangered ecological community or critically endangered ecological community, whether the proposed development or activity -
(i) is likely to have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction, or
(ii) is likely to substantially and adversely modify the composition of the ecological community such that its local occurrence is likely to be placed at risk of extinction,
(c) in relation to the habitat of a threatened species or ecological community -
(i) the extent to which habitat is likely to be removed or modified as a result of the proposed development or activity, and
(ii) whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed development or activity, and
(iii) the importance of the habitat to be removed, modified, fragmented or isolated to the long-term survival of the species or ecological community in the locality…
Section 7.3(1)(b)(i) refers to the local occurrence, and not to the regional distribution of an EEC.
The assessment is in most cases prospective - what will or might happen. In this case, because the unauthorised works occurred in 2016, what must be assessed is both the 2016 works, and those which are part of the current proposal. Given the lack of data from immediately prior to the 2016 works, the task is made more difficult, but what can be said with certainty is that the ecological development of the Lowland Rainforest EEC on the site was set back by the 2016 clearing, so that the development did have significant impact on the composition of the EEC, in that absent these works, the rainforest on the site would likely be more species rich than its current composition.
A BDAR was required (s 7.7(2)). Section 7.13(2) requires me to take into consideration the findings of the BDAR.
(2) The consent authority, when determining in accordance with the Environmental Planning and Assessment Act 1979 any such application, is to take into consideration under that Act the likely impact of the proposed development on biodiversity values as assessed in the biodiversity development assessment report that relates to the application. The consent authority may (but is not required to) further consider under that Act the likely impact of the proposed development on biodiversity values.
The BDAR was produced before the experts had amended their views on the nature of the drainage works required; hence, the ecologists had not assessed the impacts of the works on the rainforest (including the stream). Section 7.13(2) allows a consent authority to consider likely impacts of the proposal on biodiversity values beyond those raised by the BDAR. Although there is uncertainty as to what is proposed, the effects will be greater than predicted by Dr Robertson.
I conclude that, applying the 5-part test, the proposal (assessed from 2016) is like to significantly modify the habitat of the stream (which would affect the Giant Barred Frog). The impacts of the drainage works on the rainforest on the slope cannot be predicted in the absence of final details of the engineering works and the distribution of individual trees on the slope.
[29]
Engineering
Issues relating to the construction of the access track and drainage were raised from an engineering perspective by the Second Respondent. Both respondents raised issues relating to previous unauthorised works on the access track.
Two joint reports of engineering experts were prepared. The first of these became Ex F, for which the experts were Mr Lucena and Mr Cavanagh (on matters related to drainage) for the Applicants and Mr Hoban for the Second Respondent. The second of the expert reports was prepared by Mr Lucena and Mr Hoban but with Mr Giles as the drainage expert for the Applicants (Ex 8). Mr Lucena, Mr Giles and Mr Hoban gave concurrent evidence and were cross-examined. Also relevant to the discussion between the engineers were aspects of the bushfire report prepared for the Applicants by Mr Thornton (Ex G). Mr Thornton was not required to give evidence
The Applicants were critical of the role played by Mr Hoban, suggesting in written submissions (par 6) that "he made no attempt to actually contribute his expertise to anything constructive" while in oral submissions said:
"…The definition of engineer, according to the dictionary, is a person who uses maths and science to solve physical problems; presumably Mr Hoban has that expertise, but he did not exhibit it at all in these proceedings…"
(Tcpt, 4 December 2020, p 186(31-34))
Mr To, not surprisingly, defended his witness:
"…Mr Astill, at the commencement of his address, mounted a spirited attack upon the second respondent's engineer, Mr Hoban, and the thrust of the attack was to question, in effect, Mr Hoban's genuineness in discharging his expert obligations. My simple submission is you would not accept that criticism, it was certainly not put to Mr Hoban in any form similar to submission; it is unfair. What you would recognise, through the lengthy history of this application, even in the relatively shorter time that the second respondent has been involved, and Mr Hoban has been involved, he has engaged directly with the designs produced by and on behalf of the applicant, provided his considered opinions on them, and as you know the applicant has successively taken those criticisms on board in order to improve its proposed design, leading to the last version, I think we are up to 11 or 12 in light of the whole development, but certainly three or four versions since my client has been involved. So you should not, and would not, accept the criticism that is advanced against Mr Hoban."
(Tcpt, 4 December 2020, p 213(8-22))
The process of joint conferences, presentations of concurrent evidence, and making submissions arising from the evidence may properly involve robust criticism; but the criticisms should, as far as possible, have specific basis and not be generalised assertions. The detailed curricula vitae of all the engineers involved in the matter are presented in the reports: all have considerable relevant experience and appropriate technical qualifications.
The Second Respondent was joined to the proceedings as a full party, and thus was entitled to raise such issues as it considered necessary, given its contentions, and to engage expert witnesses. Expert witnesses are, as experts, able to present opinions, and their primary obligation is to assist the Court, rather than being an advocate for their clients. Experts are required to declare that they understand and have followed the relevant Uniform Civil Procedure Rules 2005 (Pt 31 Div 2, Expert Witness Code of Conduct Sch 7); all the expert witnesses made the necessary declarations.
Nevertheless, it is apparent from the reports on the oral evidence, and from what was said by Mr Astill in submissions, that the relationship between Mr Hoban and Mr Lucena was at times not a smooth one. This appears largely to be a result of a fundamentally different approach between Mr Hoban and the Applicants' witnesses as to the amount of detail to be provided in a development application compared with that required at the construction certificate stage:
"WITNESS LUCENA: I guess the only thing I'd like to add is the extent of the design and the extent of the drawings is now much more robust than would be usually provided for a development application. Instead of road drawings it's now at almost the construction stage. I think that's - in a normal development application we would not go to this level of detail. I think at this level of detail we have excellent opportunity to review exactly what's proposed, but it is somewhat beyond what we would normally provide under these circumstances."
(Tcpt, 3 December 2020, p 61(13-20))
There must be sufficient information provided at the development application stage for the consent authority to be certain of what is proposed and what the likely impact will be. Absence of sufficient information about what is proposed may mean that the consent authority would be unable to be comfortable that there was sufficient certainty as to the outcome if the consent were granted and acted upon.
The amount of information required at the development application stage will depend on the context - what is included in the proposal, what are the important attributes of the site, what are the predicted impacts and what are the likely consequences. In some circumstances, there may be sufficient information on all aspects of the proposal such that the consent authority can easily achieve the necessary confidence as to the outcome. In this matter, as Mr To pointed out (at [411] above), the plans had undergone numerous rounds of amendments prior to his client becoming joined and Mr Hoban was engaged as an expert. They were to undergo several more amendments before the filing of Ex 8, and even at the end of the hearing, there was still uncertainty.
Frequently, consent may be granted subject to conditions which may require extra plans prior to release of the construction certificate, but while this provides some necessary flexibility, it does not obviate the need for the approval to provide sufficient certainty as to the eventual outcome.
The first of the joint reports of the engineers (Ex F) was filed on 8 September 2020. An individual expert report prepared by Mr Hoban was filed by the Second Respondent on 15 September 2020 (Ex 2R5). Mr Hoban reports (Ex 2R5 par 4) that he prepared the report following a teleconference with Mr Lucena on 14 September 2020, followed by further email and telephone contact. Mr Hoban intended that the report be a supplementary joint report and a draft report was issued to Mr Lucena who, according to Mr Hoban, declined to clarify a number of matters or participate in a joint supplementary report.
Mr Astill, on the first day of the hearing (15 September 2020) considered that to respond to Mr Hoban would require preparation of new plans, discussion between the engineers and following that the ecologists would then need to discuss the new plans and any agreements reached by the engineers:
"…The other thing that has become apparent to me, and it may become apparent to Mr To, is that in my discussions with the engineer, there is no prospect of any further agreements being reached between Mr Lucina and Mr Hoban.
The fundamental disagreement is a matter of documentation, as I understand it, that is Mr Hoban says that he would need to see plans of things that are at the moment merely described, to be able to assess someone, this what he says in his most recent report. Mr Lucina says he can prepare those things, and that they will be adequate, but that is the debate between them. As things stand, we could put them in the witness box and spend a lot of time cross-examining them about what is, or what might be, or what isn't sufficient information, but in light of the fact that we are not going to finish by tomorrow anyway, in my submission that would be an unsatisfactory way to proceed.
A better way to proceed would be to have Mr Lucina actually design and draw full engineering drawings, or as close to full engineering drawings as can be done, bearing in mind this is a DA, but still, so that they can then be circulated and considered by Mr Hoban. If they are still in disagreement, then we can have the debate, but if they are not, then that would deal with the issue, rather than having a rather barren issue about whether there is or isn't sufficient information.
The thing about those plans will be, of course, that they will need to be considered by others, particularly, I would think, the ecologists, and so, whilst theoretically we might deal with the ecologists, in reality, I can see heads nodding when I said they need to be considered by the ecologists, and I can see two heads shaking when I said we could proceed with the ecologists, anyway, so I think we are all on the same page there. I don't want to be pejorative, and I don't want to point fingers, and what I am about to say I want to be interpreted as neutrally as possible. It has arisen because we have two respondents, and I don't criticise anyone for that, we have respondents, but it has made it rather difficult for my client to deal with.
There are two lots of contentions, and in some ways we are a little bit pinched, I'm okay with that, but more specifically, it is really because the joint engineering report, when this first became apparent, was served on the parties about three working days before this hearing, and we simply haven't had enough time to deal with the issue that Mr Hoban raises. In saying that, I don't say whether he is right, wrong or otherwise, but we simply haven't answered it, and to proceed without answering it, as I said at the beginning of this address, would really just take a lot of time, and lead perhaps nowhere."
(Tcpt, 15 September 2020, pp 28(17)-29(8))
The parties agreed that an adjournment was required, necessitating the setting of new days for continuing the hearing.
New plans were prepared which were the subject of a teleconference on 26 October 2020, followed by subsequent email and telephone contact. As a result, the second engineers' joint report was filed on 6 November 2020.
At the resumption of the hearing on 3 December 2020, the joint report was tendered as Ex 8 (noting that Attachment D contains versions of the plans with additional annotations, in red, from Mr Hoban). I subsequently granted leave for the Applicants to rely on the amended plans being the engineering drawings dated 30 October 2020 Rev B* in Attachment C to Ex 8 (Tcpt, 3 December 2020, pp 112(20)-113(24)).
In Table 1 in Ex 8, the experts reported that a number of matters had been resolved, but disagreement remained over many. The experts were cross-examined on the matters over which there was still disagreement.
[30]
Safety of the track
A number of the matters about which differences remained between Mr Hoban and Mr Lucena related to the safety of the access track under bushfire conditions.
The requirements for protection from bushfire and access and egress from the site during fires are established by the NSW Rural Fire Service (RFS) in the document Planning for Bush Fire Protection (PBFP) of which the November 2019 edition was Ex 2 Tab 2, and the December 2006 edition was Ex 2 Tab 3.
Subsection 4.14(1) of the EPA Act states:
4.14 Consultation and development consent - certain bush fire prone land (cf previous s 79BA)
(1) Development consent cannot be granted for the carrying out of development for any purpose (other than a subdivision of land that could lawfully be used for residential or rural residential purposes or development for a special fire protection purpose) on bush fire prone land (being land for the time being recorded as bush fire prone land on a relevant map certified under section 10.3(2)) unless the consent authority -
(a) is satisfied that the development conforms to the specifications and requirements of the version (as prescribed by the regulations) of the document entitled Planning for Bush Fire Protection prepared by the NSW Rural Fire Service in co-operation with the Department (or, if another document is prescribed by the regulations for the purposes of this paragraph, that document) that are relevant to the development (the relevant specifications and requirements), or
(b) has been provided with a certificate by a person who is recognised by the NSW Rural Fire Service as a qualified consultant in bush fire risk assessment stating that the development conforms to the relevant specifications and requirements.
Clause 272 of the Environmental Planning and Assessment Regulation 2000 specifies:
272 Planning for Bush Fire Protection
For the purposes of section 4.14(1)(a) of the Act, the version of the document entitled Planning for Bush Fire Protection with ISBN 978 0 646 99126 9 and dated November 2019 is prescribed.
but this is subject to the savings provision in cl 273B:
273B Transitional provision - Planning for Bush Fire Protection
An amendment made to clause 272 or 273 by the Environmental Planning and Assessment Amendment (Planning for Bush Fire Protection) Regulation 2020 does not apply to a development application made (but not determined) before 1 March 2020.
As the development application before the Court was made before 1 March 2020, the edition of PBFP which applies is the 2006 edition.
Mr Thornton in Ex G applied PBFP 2006.
The RFS may issue a bush fire safety authority under the provisions of s 100B of the Rural Fires Act 1997:
100B Bush fire safety authorities
(1) The Commissioner may issue a bush fire safety authority for -
(a) a subdivision of bush fire prone land that could lawfully be used for residential or rural residential purposes, or
(b) development of bush fire prone land for a special fire protection purpose.
(2) A bush fire safety authority authorises development for a purpose referred to in subsection (1) to the extent that it complies with standards regarding setbacks, provision of water supply and other matters considered by the Commissioner to be necessary to protect persons, property or the environment from danger that may arise from a bush fire.
(3) A person must obtain such a bush fire safety authority before developing bush fire prone land for a purpose referred to in subsection (1).
(4) Application for a bush fire safety authority is to be made to the Commissioner in accordance with the regulations.
…
The Council referred the proposed development to RFS and engaged in exchange of correspondence over a period of time (Ex 1 Tab 19). The most recent letter from the RFS was dated 3 January 2019 (Ex 1 Tab 19 folios 653-656). This provided requirements for Asset Protection Zones or the proposed dwelling house - design and construction of the dwelling house, landscaping, and for the supply of water and utilities. These would be incorporated in conditions of consent, and on my understanding are not controversial.
The letter also discussed access:
"Access
The intent of measures for property access is to provide safe access to/from the public road system for fire fighters providing property protection during a bush fire and for occupants faced with evaluation. To achieve this, the following conditions shall apply:
5. The single property access road shall be made to comply with the requirements of section 4.1.3 Access (2) Property Access Roads of 'Planning for Bush Fire Protection 2006', except for the following:
• The access road is able to exceed 200m in length without an alternative access road being provided.
• A reversing bay may be provided in lieu of a looped road, around the dwelling, or a turning circle. Where a reversing bay is provided it shall be not less than 6 metres wide and 8 metres deep with an inner minimum turning radius of 6 metres and outer minimum radius of 12 metres, and
The culvert crossing, located between chainage 180.00 and 200.00 is permitted to be 3.5m wide (the overall trafficable width) as a short constriction to the 4m wide property access road required width."
(Ex 1 Tab 19 folios 655-656)
The included conditions applied the requirements of section 4.1.3 Access (2) (PBFP 2006 pp 22-23 reproduced in Ex 2 Tab 3 folios 171-172) reproduced below:
This section of PBFP 2006 deals specifically with residential and rural residential subdivisions; the application is not for a subdivision but for an infill development for which the planning controls are provided in section 4.3. However, in section 4.3.1, it is stated that:
"Ideally, APZs, access and service supply standards for infill developments should be provided in accordance with the acceptable solution as applied to residential subdivision (see section 4.1). However, in most cases, infill development proposals will be constrained by existing situations - pre-existing subdivision patterns and existing built form surrounding the subject site. Consequently, a proposal must be considered on its merits and in accordance with the intent and performance criteria for infill development (section 4.3.5)."
Importantly, RFS, in its letter to Council, provided a number of exemptions from the requirements specified in PBFP 2006. The general preference of RFS is that the sites of dwellings be as close as possible to public through roads. The relevant public through road is Old Byron Bay Road. Where a dwelling is more than 200 m from a public through road, an acceptable solution is provision of at least one alternative property access. The RFS specifically does not require this in the present case. The trafficable width of the access track is specified in section 4.1.3 Access (2) to be 4 m, but an exception is made for the culvert, where the trafficable width may be 3.5 m. Section 4.1.3 Access (2) also specifies a requirement for passing bays, where the road width is to be 6 m, minimum inner radius of curves, the road width of curves is to be 6 m and a maximum grade for a sealed road to be 15°. The vertical clearance is to be at least 4 m, this may require regular maintenance pruning. I note that no specification for clear sightlines is provided in PBFP 2006.
Mr Hoban was questioned by Mr Astill about the reasons for his concerns about the road in terms of safety during bushfires. He agreed that between the plans in Ex F and those in Ex 8, there had been, in his words, 'some minor changes to the road grade' but that it was still steep and unsafe. The scenario was described by Mr Astill as:
"…whereby a fire truck is coming down the hill and a vehicle is leaving and they don't see each other and someone has to reverse…"
(Tcpt, 3 December 2020, p 70(44-45))
and
"… So I put to you that the scenario whereby the occupants of a single dwelling house happen to be on the same section of road at precisely the same time as a fire truck is entering is extremely remote."
(Tcpt, 3 December 2020, p 71(4-6))
Mr Hoban considered that the scenario was one which was required to be assessed under PBFP 2006. He indicated that his opinion was based on PBFP 2006 but also had regard to Australian Standards and Ausroads (these latter two documents were not in evidence). Mr Astill was of the view that Mr Hoban's scenario was extremely remote. The cross-examination continued:
"WITNESS HOBAN: Look, we're talking about emergency situations here and as part of general civil engineering practice you plan to create safety with regard to risks for people, so flood, which are remote, bushfire, which are remote. I'm not talking about the probability of it; I'm talking about what's - I'm reading out of the standards, and it's a scenario that you can envisage, and notwithstanding the concerns before about conversations, it's explicitly what was expressed to me by the RFS in my conversations with them as well.
ASTILL: I'm not interested in what the RFS thinks because we've got a letter from them saying it's adequate. Interestingly, you're saying it isn't adequate.
WITNESS HOBAN: Yeah. Look, I did note my concerns that the RFS is not saying it's adequate. They merely state the concessions that are provided by the RFS, and it is my opinion that we've got a long, steep driveway with significant blind corners. In an emergency situation if you had a fire truck attending a property and the vehicle sitting to exit, there are very hazardous situations that are presented and compounded by the length and steepness of the road in accordance, and I can articulate and give more detail of that scenario if you wish, but I think it's fairly obvious that if you had an encounter along this driveway, you have a serious issue on your hands, and the passing bays - in my opinion, the passing bay doesn't ameliorate that.
ASTILL: I understand what your opinion is and I'm seeking to explore this, and certainly I articulate the scenario which you do, the fire truck entering the property during a time of emergency would have a siren and flashing lights, wouldn't it?
WITNESS HOBAN: You'd expect so.
ASTILL: So any occupants seeking to leave the premises would probably hear the siren and possibly even see the flashing lights around or certainly hear the siren around a blind corner. The distance is not sort of--
WITNESS HOBAN: It's hard to say.
ASTILL: The purpose of sirens is so that people can hear them, isn't it, and they're loud?
WITNESS HOBAN: Certainly, but we're dealing with a - if you're thinking about a fire situation, there's a lot going on, there's a lot of noise as well, so I can't comment on the acoustics of that.
ASTILL: I'm just exploring this idea of a blind corner.
WITNESS HOBAN: Yeah.
ASTILL: Again, we're not trying to design for remote circumstances even though they can be envisaged, are we? That's not what engineering is about, is it?
WITNESS HOBAN: Sorry, I disagree with that. I read the whole plan for bushfire protection is about that purpose.
ASTILL: So it's not about protecting against remote risks. Otherwise the standards would require a loop rail around the back of the house, two exits. It doesn't do that, does it?
WITNESS HOBAN: The standards do actually in acceptable outcomes favour should have two property accesses. In this case, and there's a letter from the RFS, they've granted a relaxation so that you may only have a single access, but I think that relaxation only compounds the matters, that the single access you have should be fire safe."
(Tcpt, 3 December 2020, pp 72(7)-73(18))
Mr Lucena was asked to comment and said:
"…My understanding of both the residents who are leaving the property and also, more importantly, drivers of Rural Fire Service vehicles, none of them are reckless. We're not going to see a Rural Fire Service vehicle arriving at a property at a speed and in a dangerous way that will be in any way inappropriate for the situation that confronts them.
My understanding will be that they will enter that driveway and drive down the driveway in a sensible, slow and secure fashion for two reasons. The first one is, of course, there may be a vehicle coming the other way that they will have to avoid, and the second one is that when they're arriving they will be assessing the circumstances that they're faced with trying to determine where the fire is and all the issues that they need to deal with to undertake their emergency work, and I don't see that occurring in a way that that truck will be travelling at a speed that cannot be controlled on that road. The road is going to be - have an adequate width, it's going to be of concrete steel, it will be very, very stable and have - the ability to be able to manoeuvre and stop/start a vehicle on that road is going to be at the highest level, and so my view, I disagree with Mr Hogan in that I think that the road presents an unacceptable danger. I think the road has been designed to manage the circumstances that road is placed in and provides a safe surface and a safe hazard pathway for both departing vehicles and arriving emergency vehicles."
(Tcpt, 3 December 2020, pp 73(34)-74(4))
and further in response to Mr To:
"… Emergency vehicles are not - don't have reckless drivers. They have an understanding that the conditions they're presented with have to be treated with due care and diligence. A 200-metre stretch of road with a grade that's within the planning for bushfire protection guidelines would be a relatively normal consequence for them to be presented with, and I don't consider that this particular length of road, this 200 metre stretch of road presents an overly dangerous transit pathway for them to be able to get access to this property."
(Tcpt, 3 December 2020, p 78(20-27))
Later, Mr To asked:
"…Of course, we are designing for a situation where there's a need for a response to a bushfire. Do you understand that?
WITNESS LUCENA: Yes.
TO: Do you understand that the circumstances that pertained at that time are not the same circumstances that one would necessarily see such as depicted in these photographs, don't you?
WITNESS LUCENA: Yes.
TO: Because in a bushfire situation you could readily expect that visibility of it would be affected by smoke?
WITNESS LUCENA: Yes.
TO: Fire?
WITNESS LUCENA: Possibly.
TO: And the persons particularly leaving the property may be doing so in circumstances of significant stress?
WITNESS LUCENA: It is - we're starting to enter the realms of unusual and a rare occurrence, but it's certainly possible, I can agree with that.
TO: These are the sorts of situations that are sought to be planned for by requirements such as PBP?
WITNESS LUCENA: I agree, and I - in my view, we've met every single criteria that planning for bushfire protection has placed in front of us.
TO: In terms of the opportunities to create slots and the like that you've described, whatever opportunities for visibility might be achieved, you can't say that they will be effective in conditions that might pertain in a bushfire, can you?
WITNESS LUCENA: Well, on that premise, a road that is affected visually by smoke and fire would also be under those circumstances. Even if it was a perfectly flat straight road, visibility would be an issue.
TO: Is the answer to my question "yes"?
WITNESS LUCENA: The answer to the - yes, the answer is "yes", and also I believe that the planning for bushfire protection criteria have taken that into account, which is why there are criteria.
TO: Where is there in the planning for bushfire protection any mention of cutting slots into vegetation to provide for sight lines?
WITNESS LUCENA: There are - my reading of the planning for bushfire protection, there is actually no criteria for sight lines. Even in this criteria where they say they require passing bays every 200 metres, they do not define the requirement for sight lines between passing bays."
(Tcpt, 3 December 2020, pp 84(43)-85(47))
Of particular concern to Mr Hoban was the road between chainage 130-170 (chainage being measured from the entrance from Old Byron Bay Road), with a passenger vehicle leaving the property heading towards Old Byron Bay Road, and a fire truck entering from the public road. The scenario was explained by Mr Lucena as:
"WITNESS LUCENA: So we have two vehicles on the road, one leaving and one entering, one at chainage 165 and one at 130, and at that point they can see each other. There's room for both of them to stop. The passenger vehicle leaving is going to be able to stop easily because they're travelling up a steep slope. The truck will have adequate room to stop travelling down the slope because they've got adequate visibility. At that point there's a passing bay at chainage 200 to 220. That is only 40 metres away from where those vehicles have met, and at that 40 metres the road is very clear, fairly open, it has barricades on one side, it has a bank of vegetation on the other side. It's going to be very easy to reverse a passenger vehicle down the hill, across the culvert into the passing bay. It's a 40-metre travel. It's not far. I don't think that's an unsafe circumstance. I think that's entirely identified within the planning for bushfire protection requirements. That's why they consider the 200 metre distance between passing bays a realistic separation.
TO: I suggest to you that a driver seeking to exit the property under conditions of some stress, perhaps in haste, will not see a reversing manoeuvre back towards potential sources of fire to be a safe situation.
WITNESS LUCENA: I think that the circumstances being presented in planning for bushfire protection, if they felt that that was a scenario which needed to be considered, they would make every road a two-way road, and they certainly haven't specified that as a necessary criterion.
TO: They do so by requiring that roads achieve the intent of providing safe means of access and egress in that fashion, don't they, not more proscriptively?
WITNESS LUCENA: Well, they have been very proscriptive about what they consider to be answers to that intent question, and those answers are a 4-metre wide road with passing bays 6-metres wide every 200 metres."
(Tcpt, 3 December 2020, pp 86(30)-87(10))
The question of the relevant measurement of grade remains one where the parties resolutely agree to differ. I note, however, that Mr Hoban agreed that the RFS limits on grade were not exceeded and that RFS had not raised any concerns (although at the time of their letter to Council they had not seen the version of the plans in Ex 8). Resolving the question of visibility is constrained by the absence of information about sightlines for different vehicles - no information was provided about the eye height of the driver of a fire truck - and by the absence of survey data on the positions of trees relative to the edge of the road.
I can accept Mr Lucena's assumption that it is likely that the driver of a fire truck will have considerable experience of a range of both fire and road conditions. However, it is much more difficult to imagine how conditions on an extremely severe fire day will be experienced by, and responded to, by an average citizen.
"ASTILL: What I'm suggesting to you is that the people who would be fleeing the fire are the people who live at the subject premises and they use the driveway virtually every day of their life to drive in and out, daytime, night-time, rain, hail or shine, so they would be very familiar with the layout of their own driveway. That's right, isn't it?
WITNESS HOBAN: For residents that are there, that's the case. I guess my concern relates to you've got residents, you may also have guests, but you're also dealing with a particularly stressful situation and we're dealing with a driveway that's at the absolute limits of what's envisaged by relevant guidelines? So it's in that context that I think I'm concerned about the safety."
(Tcpt, 3 December 2020, pp 111(50)-112(10))
I will return to the issue of sightlines when considering the evidence of the arborists.
I note that PBFP 2006 does not contain specific provisions for sightlines and their maintenance. Nevertheless, I agree with Mr Hoban that provision would need to be made for vegetation management adjacent to the road, so as to ensure the best possible vision for drivers in emergency situations.
The RFS had not raised any concerns about grades or curves, and neither had the First Respondent. In view of this, I do not find that there would be sufficient reason to refuse consent on the basis of bushfire issues.
Mr Hoban raised a number of issues about the engineering of batters in the specification of barriers which would be required in certain locations. If approval were to be granted, I consider that these could be addressed by conditions.
The interactions between the engineers and the ecologists largely occurred in the course of the hearing. The engineering design evolved, which is appropriate, but unfortunately the ecologists' concerns about the possible impacts on the rainforest and the stream only emerged during cross-examination.
At the end of the hearing, I was left in a position of not being able to assess the impacts of the drainage design on the rainforest and stream, because the drainage design was still not finalised. I am not able to conclude that the impacts are likely to be only minor and could be addressed by conditions.
[31]
Drainage works
The major difference between the engineers, one that also involves consideration of ecological issues, relates to the management of drainage from the road to the creek and the rectification of the culvert.
Concerns about the culvert had been raised from the first assessment by Council officers when they proposed approval but included within the proposed conditions a requirement for a CRP. Mr Hoban raised a number of concerns, including whether the culvert construction was adequate to support heavy vehicles, including fire trucks. Mr Astill questioned Mr Lucena about this:
"WITNESS LUCENA: I've had a really close look at what's happening in the - what Mr Hogan identified is undermining of the culvert. There are two constructions that occur at the base of the culvert. There are deep strip footings which occur in four positionings which actually support the culvert itself, and there is a surface slope which creates the face of the drainage pathway of the culvert and these are separate entities. The culvert construction was put in first with deep footings, and then after that was done the surface between the culvert legs was concreted over to allow a maintenance-free horizontal surface through the culvert itself. It would appear on the downstream side that horizontal surface has some undermining and scouring and that can be easily rectified by replacing the voids, packing the voids with some stones and mortaring those stones in place so that that scouring doesn't progress. The culverts themselves, I disagree with Mr Hogan's comment that the culverts are in some way inadequate. I think the culvert structures, the pre-cast concrete structures in the road that they support are perfectly adequate, they've been founded correctly. There's no evidence that there's any disturbance, distortion or damage occurring to those elements and there's - in my professional view, and this is my expertise, those culverts are perfectly competent to support the road, including the road traffic over the top.
ASTILL: Thank you.
COMMISSIONER: Can I just ask Mr Lucena a clarification of one point there. You talk about the stones being mortared in place. I'm not aware of modern technologies for mortars and cements, but will that require, at least temporarily, a blocking of the flow so it's dry while you put the mortar in place?
WITNESS LUCENA: At this point it won't involve that. At the moment, given the dry conditions, those rocks are not sitting in a wet creek base, they're perfectly dry, and that operation can be undertaken just in dry weather conditions without interfering with the water surface."
(Tcpt, 3 December 2020, p 70(6-37))
The culvert was not subject to much discussion by the ecologists, nor was there any mention of possible alternatives. A ford crossing, with very steep drops down to the actual crossing from either direction, might not be feasible for fire trucks, and construction of the actual crossing across the stream might have adverse ecological consequences. There may be other options, for example, some form of bridge, possibly with a grill surface, so as to avoid the tunnel effect of a culvert. Evaluation of different forms of crossing given the absence of information about the ecology of the stream would not be possible.
The expert primarily addressing drainage for the Applicants was Mr Giles and he was extensively cross-examined. The drainage engineering in Ex F was largely covered by Mr Cavanagh - but he was not called to give oral evidence. This is no criticism of his work, simply that as a result of the matters raised by Mr Hoban, amendments were made to the plans, which were accepted into the amended application, resulting in a different drainage design.
In response to Mr Hoban's earlier concerns, new features had been introduced.
"ASTILL: I'll come back to that if I can. So that's the first contention. The second is 14C - this is also on the same page - the site survey has apparent errors and you say it fails to pick up the full extent of the drainage lines, but at 28 and 29, which is down on page 6, you agree that the drainage design now does adequately deal with drainage catchment and flows. Have I understood your evidence correctly?
WITNESS HOBAN: The point I'm making is that the drainage design that was addressed by Mr Giles in terms of looking at drainage catchments and estimating the hydrology I am satisfied with. My point in raising that matter was there's, clearly, run-off discharge downstream of, approximately, chainage 80 down to the waterway, and that area is not picked up on the survey. So if you look at the survey that's provided, there are significant gaps.
ASTILL: Notwithstanding the gaps in the survey, you are still satisfied that the drains in those areas is adequately dealt with; is that right?
WITNESS HOBAN: No, I'm not. I've raised concerns about drainage particularly downstream of the, approximately, chainage 80, and have also raised concerns about how the overall stormwater drainage discharges throughout the stream of the culvert and I haven't looked for more satisfaction of that.
ASTILL: So when you say in 28 and 29, the word just simply says "yes", on page 6 as I said, I'm not clear, what are you satisfied has been resolved, then?
WITNESS HOBAN: I'm satisfied that Mr Giles' calculation of flows are accurate. I'm satisfied that Mr Giles' representation of catchments generating those flows is accurate.
ASTILL: And that the structure proposed is adequate?
WITNESS HOBAN: I'm satisfied that the major culvert crossing has adequate conveyance capacity. I've raised concerns, and they're quite explicit, that I'm concerned about how drainage is discharged to the waterway and its impacts. I'm not given how Mr Giles has calculated flows, but I have significant concerns with how those flows are then managed.
ASTILL: Just to explain what you mean by "managed" in that sentence?
WITNESS HOBAN: I've got concerns with how stormwater is discharged at, approximately, chainage 80 and its potential to cause scouring and erosion down the embankment, whether ..(not transcribable).. I've also got concerns about how the stormwater from both sides of the road is then conveyed and discharged to the creek, and looking at the upstream of the culvert, both in terms of environmental impact resulting from pollution, sediment organic matter being deposited into the creek at that location, and also with regard to the instream works that are proposed to harden the creek and make it more resilient to those impacts in that - at that location.
ASTILL: I ask Mr Giles to describe or respond to the concern expressed about, firstly, the discharge around the drainage culvert?
WITNESS GILES: Yes. I realise that the design that we prepared addresses the concerns that were previously raised by Mr Hoban in that there was a concern that the existing pipe concentrated flow and that, therefore, as that went down the slope, that concentration of flow would result in scour down the slope and ultimately hit the waterway. In response to that issue we have placed a level spreader for which the idea is it's a level surface that allows the water coming out at drain 60 to spread over a width of 6 metres and to then progress down the face of the slope to the waterway. It is my belief that the quantum of the flow, which is about point 1 of a cubic for the 100-year flood will be sufficiently - spread over a sufficiently wide area as a result of that level spreader, that it can progress down the slope without causing any further problems that would have been there in the natural situation anyway. I would also add we have designed the road drainage such that we're diverting run-off from the road itself away from that diversion area, so that the only - well, so that there is no change in terms of the construction of the road in terms of the frequency of flow or the magnitude of run-off. Any additional run-off due to the road itself is diverted further down the road away from that diverter."
(Tcpt, 3 December 2020, pp 66(37)-68(6))
The works proposed involve the discharge of water and any entrained sediment into the stream from the catchment (with the exception of catchment 5) at a single point just north of the culvert. Even if total sediment input is reduced, what remains is concentrated at the one point. There has been no examination of the consequences of these changes in terms of availability of water to the rainforest on the slopes and impacts on the stream.
The level spreaders would be concrete structures (Ex 8 par 32) "to maintain their horizontal crest". Mr Giles suggested that "their location could be varied on site to minimise the disruption to vegetation". There has been no detailed investigation involving the engineers and ecologists to determine possible locations for the level spreaders which would provide for their intended hydrological performance while restricting the location to positions where disturbance to vegetation would be minimised.
Mr Hoban suggested that given the steepness and unevenness of the terrain "the flows leaving the level spreader would re-concentrate into rivulets" (Ex 8 par 19). He indicated (Tcpt, 3 December 2020, p 102(41-50)):
In particular, it is clear from industry standards that you shouldn't have level spreaders on slopes exceeding 1 in 10, and in that location we have a grade of about 13% initially, but then the land steepens to being very close to a 50% slope, and this is shown in figure 2 of the second JR, and so, in my opinion, whilst it's been demonstrated by Mr Giles that the peak flows are not increased in that location, we're taking flows from a relatively wide strip of catchment ..(not transcribable).. the narrow 6-metre area into an area where the land is not - neither level nor has it ..(not transcribable).. concentrate, and based on my inspection of the slopes in that location, there is active sheet erosion along that 50% slope down to the water plain, and I think that's problematic.
Mr Hoban considered impacts could be ameliorated by a series of contour bunds. Mr Giles "would agree to the addition of a requirement to include contour bunds downstream of both level spreaders" (Ex 8 par 32).
The effect of the works would be accumulation of sediment upstream of the culvert. The sealing of the road surface would reduce sediment input from the road compared with the current situation, but sediment would still accumulate.
Mr To put to Dr Robertson:
"TO: You would agree that it's poor practice to use an existing waterway as a sediment basin?
WITNESS ROBERTSON: Well, I suppose - well, if you put it in those terms, I would agree that it's not good to use it as a sediment basin, but I also think that in the current circumstances, we've got a stretch of unlaid road, eroding and, you know, subject to sort of rainfall, that you are actually proposing to - the proposition in my understanding is to address that by concreting the surface of the road by having a rock lined channel, by slowing the flow down, and there will be some small amount of sediment down at the basin level. I think the ecologists, though, have also discussed and agreed that there could be - Dr McLean might be able to help me with the word that he used, but there are - "
(Tcpt, 3 December 2020, p 167(1-13))
The additional structures that Dr Robertson was referring to were identified as:
"WITNESS MCLEAN: Check dams.
WITNESS ROBERTSON: Check dams could be inserted as an addition to this midway along that slope, and that would, I think, would be a superior approach than to leave it to be emptied right at the entry point to the culvert."
(Tcpt, 3 December 2020, p 167(15-19))
The engineers had earlier proposed construction of contour bunds. Dr Robertson was asked about these:
"TO: Now, you've understood that in the engineering report there's a discussion about the insertion of additional contour bunds near the level spreaders adjacent to around chainages 70 and 90. You understand that, don't you?
WITNESS ROBERTSON: Yes, but could you help me where that is? Is that on the western side of the creek?
TO: It is on the western side of the creek and it's--
WITNESS ROBERTSON: Just down slope of that proposed level spreader, yeah.
TO: Yes, indeed.
WITNESS ROBERTSON: Okay.
TO: You have no information about what those contour bunds might look like or where they are or how many there are?
WITNESS ROBERTSON: I don't - I didn't go into specific detail about that, no, and I think that's - my understanding is that it was in a relatively clear portion of the site, you know, in the area of that level spreader, and the number of trees that could be impacted were considered based on the construction of the road, the channel and the level spreading device, not the bunds.
TO: Yes, that's what I'm seeking to confirm, that when you were coming to the agreement, you weren't giving consideration to what might be impacted by bunds.
WITNESS ROBERTSON: Yes.
TO: And if you recognise that the area where those bunds are generally proposed is one that has an increasing steepness, and I think Mr Hoban helpfully identified that it gets steeper as it goes down and has a grade of 50% at one point.
WITNESS ROBERTSON: I'm aware that around about that point the slope does increase in steepness, yes.
TO: But you haven't thought about impacts from that point of view. I take it you have also not thought about the potential impact from whatever check dams might need to be added in the way that you discussed at paragraph 27?
WITNESS ROBERTSON: I have thought about the check dams and thought that they should be of a relatively small scale, but I believe that they can be done in a way that doesn't impinge upon the biodiversity values area of the proposed rainforest.
TO: You haven't suggested where they might be, have you?
WITNESS ROBERTSON: No, but that - there are some areas that appear suitable for that because they are relatively open areas that are away from the existing native vegetation. I would suggest in those areas.
TO: Dr McLean, have you given any thought to the possible impacts from, firstly, the contour bunds and, secondly, check dams?
WITNESS MCLEAN: We didn't for the contour bunds because they weren't on the plan, and amended check dams are more of a strategic comment. Being not engineers we can't readily design them ourselves. It's more - in my experience I've seen them applied properly elsewhere and there's something that, yeah, the engineers should consider.
TO: Where they might be, though, does that have the potential to impact on--
WITNESS MCLEAN: It would depend on--
TO: ..(not transcribable).. of the EEC?
WITNESS MCLEAN: Yeah, it would depend on the existing channelisation, so it's the drainage structures would need to be enlarged or not, see if those check dams would limit flow and whether or not they affect capacity, so, again, engineering questions for that.
TO: But at the present time you're not able to, neither you nor Dr Robertson, I take it, both of you are not really able to express much of a view on the impacts on those two things?
WITNESS MCLEAN: No, I don't with the available information, no."
(Tcpt, 3 December 2020, pp 170(23)-172(1))
Desilting upstream of the culvert would be an ongoing commitment. Mr Giles was asked how often it would be required:
"Mr Giles, you were asked about the need to desilt some of the structures and you said that would need to be done periodically. Do you recall those questions?
WITNESS GILES: Yes.
ASTILL: Do you have an estimate you can tell the Commissioner about how often that desilting would be required? Is it annual, biannual, monthly, what sort of timeframe would you expect?
WITNESS GILES: Given that the design covers the road, covers the drain and exposed areas are being revegetated to reduce sediment loads, my estimate of that would be of the order of annually. Although if you made provision to do it six-monthly initially just to see how the system performed in reality, my expectation is you would be doing it annually.
ASTILL: Are you familiar with other circumstances where that requirement is imposed and observed?
WITNESS GILES: There would be times where it's recommended in certain instances. This one is a particularly - I hesitate to use the word "tricky", but it's unusual in that we're talking of a driveway rather than a road that experiences significant amounts of traffic and, therefore, significant amounts that come off. We're talking about a driveway that is going to have infrequent traffic on it. There will be deposition of sediment from the atmosphere, but overall we're talking of a generally low amount of sediment. It's one where - there was an earlier question asked by Mr To regarding calculations. The primary reason I didn't proceed with calculations is that the amount of information we have about the amount of sediment deposition on that type of road, particularly in that type of environment is very limited and you can't really do a proper quantitative assessment. However, qualitatively you can cover the road and we're only talking a 4 to 6-metre wide area where you look at the dust sediments on the road washing off. My qualitative expectation is that the amount of sediment will be low and that, generally speaking, an annual sort of maintenance will be sufficient."
(Tcpt, 3 December 2020, pp 107(19)-108(4))
Mr Hoban raised a concern in Ex F par 55a that the works proposed might reduce natural sheet flow and could result in drying of soils with, in particular, the potential for impacts on rainforest vegetation and this needed to be considered by the ecologists.
Mr Harker asked the ecologists for their view on the issue:
HARKER: In terms of the run-off to the east of the culvert, most of that will be channelled to the top of the culvert as well, but some of them will be, in terms of catchment 5, from recollection, which was a small catchment in the north-western corner of the site, some of that will be directed a bit further upstream. Do you accept that there's changes to the natural hydrology on the site caused by that?
WITNESS ROBERTSON: Yes.
HARKER: Have you assessed the impact of those changes in terms of the impact on the rainforest?
WITNESS ROBERTSON: Yes, I've had regard to that, and I suppose I haven't had a great deal of time to do it because the revised plans that diverted the water or proposed diverting the water in this way were requested at the time of the inspection, and, you know, I think we've had to have regard to it since then, and I suppose the point that I would make is that when you look at the east of the creek, near where the house is built, and if you imagine the line of the existing road and, of course, the existing drain that will go along the northern side of it, you're going to divert water from a series of little catchments that go-between almost like a ridge and the road, and if you join them all together, it forms roughly a sort of triangle. That area I've had a look at and it's relatively well vegetated, and the area on the owner's, you know, the proponent's property, is not razed by cattle. I believe that when the works are completed it will be stabilise and relatively consistently and thoroughly vegetated by grasses and whatever else is planted in those areas, but I think that that - again, I can't do a show screen for this one to show what I'm talking about, but there's sort of a triangle of land that would involve some diversion of flows from that area, but I see it as a small proportion of those catchments and I think that it's not the major supply of water that sustains the existing rainforests downstream.
HARKER: Which part of the site were you referring to then? Were you referring to the east of the--
WITNESS ROBERTSON: Yes.
HARKER: In terms of the west, all of the run-off from the hills to the north is diverted away from the hillside to the south-west and instead it's diverted directly to the culvert. So would you agree that's a significant change in the hydrology, isn't it?
WITNESS ROBERTSON: No. Look, I believe it's a change to the hydrology. I believe that there will be other sources of water and I think that - I don't believe that there will be a significant impact on the - are you talking about on the rainforest that remains on the site, that's going to be subject to the VMP? In my view, it wouldn't be significantly deprived of water supply.
HARKER: Mr Hoban indicated in his evidence that he was concerned that the rainforest could dry out because of the diversion of water.
WITNESS ROBERTSON: I don't share that view.
ASTILL: I object because that's not what he said at all.
HARKER: It's in his report. I took him to it. He said there's a risk. Exhibit F, para 55A. I'll reframe the question having regard to the - I'm happy to reframe the question having regard to that paragraph and then Mr Astill can re-assess whether he wants to object to it or not, if that's suitable.
COMMISSIONER: Yes, go ahead.
HARKER: So Mr Hoban states that installing the formal drainage in the roadway all the way down to the creek would have consequential issues and he lists through them. The first one is this will have an adverse impact on the natural hydrology of the site by reducing the natural sheet flow of water and the likely result in an overall drying of the soils with potential impacts on the rainforest vegetation, especially in the section between chainage 0 and 190, and in evidence I also put to him changes to the east of the culvert as well, and he agreed that that would occur there too, and then he goes on to say that depending on the significance of this it would need to be considered by the ecologists.
WITNESS ROBERTSON: Well, I suppose the rainforest in its current form gets supplied with water by rainfall directly on to it. There's a number of different sources of water. So simply rain falling directly onto the rainforest itself, soaking into the soil directly where the rainforest is growing is one source of water. There is water that is in the soil, the soil moisture, et cetera, and water in amongst the boulders and things like that in association with the stream that some of the rainforest trees and shrubs can draw water from, and then there's, I think what we're talking about, is a sort of overland flows of water down the slope which at the moment are probably already intercepted to a reasonable degree, and there has probably already been sort of some changes, which I think that some of that flow goes under pipes, under the - the unlaid road on the eastern side of the creek. When you look at the proportion of the catchment that's going to, I suppose, intercepted by the northern side of the road to the east of the creek, right, it's not, in my view, a massive area of the catchment, as in the upper catchment, and there are other sources of water, and there will still be some run-off from the hillside above the existing rainforest into the rainforest, even though there's areas below the road and that there are other parts of the rainforest that are unaffected by these changes, I think, full stop. I don't foresee a desiccated rainforest that suddenly starts shrivelling up and losing species. I believe that it will continue.
HARKER: You say it's not a significant catchment, and Mr Giles' report dated October 2020 states that in terms of the area east of the creek that the catchment excluding the road is 12,955 metres squared. How is that not significant?
WITNESS ROBERTSON: Yes, well, that figure doesn't say what other areas are of relevance, and I'm not sure what that - what mapped area that pertains to. It includes the areas above it and below the road, does it not?
HARKER: It includes - I can't share my screen unfortunately. It's the catchments in the area including the road and to the north, and so we're still talking about the area east of the culvert.
WITNESS ROBERTSON: Well, that's 1.3 hectares that we're talking about, thereabouts.
HARKER: We're talking about on the right-hand side of the screen.
WITNESS ROBERTSON: Yes.
HARKER: Catchment 3, and you can't quite see.
WITNESS ROBERTSON: I can see this is handy because this is the triangle that I was speaking about, and there are one, two, three - four sort of - they're really not catchments as such. He's called them catchments, but they're fragments of catchments. He's measured them and some of those measurements or those areas seem to go into catchments heading the other way. As it does it appears - it's testing the limits of others, catchments around catchment 4, but in any case, if you assume that those four catchments are 12,955 square metres, where you have - there's no real measurements to the left or to the - whatever it is, the south of that road on the steep slope going down into the rainforest. So where there's that box that said "Under road culvert to be relocated to chainage 325", et cetera, et cetera, there's always of that area there of the hillside for which drainage won't be impeded or changed, and that is the slope that is directly above the rain forest, so, as I said before, rain falls directly on the rainforest. There's sort of moisture and various types of flows beneath the ground surface and then there's service run-off, and from what I can see there, there's a similar area of surface run-off that is going to remain similar or greater, so I don't - I suppose my opinion is that it's not going to be significant for the rainforest.
HARKER: But you haven't inquired specifically, have you, before today in terms of the importance of run-off to sustaining the rainforest in that area to the west of the catchments that we're talking about relative to the other sources of rainfall that you're raising, have you?
WITNESS ROBERTSON: Well, no, because this whole question just came up today in this form, and relating to the small parts of the catchment, and so that's why I'm trying to provide an answer to the Court that would assist. So, you know, the concerns that we had at the time was how to dissipate and spread the water when we spoke about in the ecologists' and other discussions, so it wasn't - there was no mention in terms of the ecological significance of diversion of water from the catchments, and I don't believe that it is likely to be significant.
HARKER: Dr McLean, do you have a response to that?
WITNESS MCLEAN: Well, we have no data to demonstrate if it's significant or not. Like, there's no consideration of sinking piezometers or anything like that to understand the volume of water that's going down there. Having walked over that area, the soils are these volcanic drive soils or basalt, they're quite loose and friable, so it would be quite possible to have quite a lot of infiltration into them. The bedrock isn't that far down and observing on the screen there was an area between the bedrock and the soil where there was lots of water coming out of at one point on Mrs Cramp's property, and so I think you've got to be really cautious here not to affect this area and dry it out which then over time with climate change and other effects like that, for example, a severe drought as we saw over the last summer, making the vegetation more flammable in terms of being able to burn and essentially then being replaced by eucalypt forest instead.
WITNESS ROBERTSON: I think, firstly, the piezometer is not going to answer questions about surface flow.
WITNESS MCLEAN: There's also subsurface flow from--
WITNESS ROBERTSON: Yes, but we're being asked questions about surface flows. Subsurface flows can, presumably, continue and the other thing I think is relevant in this consideration is that if the rainforest is monitored for its health and condition, and that's proposed to be the case, if it were found that the rainforest was drying out, and I strenuously state that I don't think it will, there is, I would have thought, a relatively practical solution to address this, and that is that you can reverse some of these flows and direct them back down the hill, and it's not absent the unchangeable situation. It's something that could be remedied in the worst case.
(Tcpt, 3 December 2020, pp 162(7)-165(35))
(In order to consider various aspects of the proposed drainage works, and to aid communication between themselves, the engineers recognised various numbered sub-catchments within the total catchment of the stream above the culvert.)
The separation of the different sources of water movement through the site arose during the cross-examination of the ecologists. The main concern of the engineers had been to address surface flows in terms of potential erosion and discharge to the stream until Mr Hoban raised an inquiry about implications of water available to the rainforest vegetation on the slope from diverting surface flows. The ecologists were asked to respond.
What is proposed will not alter the rain falling onto the rainforest - the amount falling will vary between seasons in between years, and may be subject to longer term trends possibly related to climate change. These changes will not be unique to the site but will affect all vegetation across a much wider area.
Prior to the cross-examination of the ecologists, it does not appear that ecological consequences to hydrology as result of the drainage management have been given much thought, and the observations made by the witnesses were very much first thoughts. Given the size of the catchment and the likely rainfall, I tend to agree with Dr Robertson that a major desiccating impact is unlikely, but it is not beyond the bounds of possibility. Dr Robertson suggested:
"… Subsurface flows can, presumably, continue and the other thing I think is relevant in this consideration is that if the rainforest is monitored for its health and condition, and that's proposed to be the case, if it were found that the rainforest was drying out, and I strenuously state that I don't think it will, there is, I would have thought, a relatively practical solution to address this, and that is that you can reverse some of these flows and direct them back down the hill, and it's not absent the unchangeable situation. It's something that could be remedied in the worst case."
(Tcpt, 3 December 2020, p 165(29-35))
The health and condition of the rainforest will be monitored. I am not sure what measures of health and condition (or even if health and condition can be separated) would provide the best early warning, or for how long monitoring by the appropriate experts would continue.
Dr Robertson suggested that if the worst-case scenario eventuated, it could be remedied. This might be the case, but removing structures or reversing flows might itself have adverse consequences.
Nothing in detail was discussed about subsurface flow, although there was mention of possible springs. The importance of springs to the maintenance of the stream ecosystem is unknown. Dr Robertson suggested subsurface flows would continue but while this may be the case it is currently speculation.
The ecologists and arborists considered the revised engineering plans presented in Ex 8 and provided a supplementary joint report as Ex 7.
[32]
The ecologists and arborists
The ecology and arboricultural experts agreed (Ex 7 par 10) that the amended engineering plans did not have marked on them trees and that "this makes it impossible to accurately measure impacts to trees from the amended plans".
I concur with the arborists that the absence of data on the location and identity of trees makes it impossible to predict either the number of trees which might be affected by the proposal, or the number of trees which may need regular maintenance pruning to preserve sightlines. The agreement of the ecologists (Ex 7) that the number of future tree impacts will be minimal is difficult to reconcile with the opinion of the arborists.
They agreed (par 11) the potential impacts to trees could result from impacts occurring within Structural Root Zones (SRZ) and/or Tree Protection Zones (TPZ) as a result of both road construction and drainage works.
The plans are not completely devoid of indication of the position of trees, but only a few are shown.
Notwithstanding the agreement that most trees did not appear on plans, the experts were apparently able to conclude that the number of trees to be impacted was small (fewer than 10) and the trees were "relatively young and small" (Ex 7 par 12).
The arborists (Mr Rankine and Mr Nowell) were questioned about this conclusion. Mr Astill sought to clarify where these trees were. Mr Rankine (Tcpt, 4 December 2020, p 117(41-50)) said they were on the edge of the road and had been planted by the Applicants. Mr Astill asked whether the number of trees mentioned was accurate or an estimate. Mr Rankine responded (Tcpt, 4 December 2020, p 178(1-2)) "there were no accurate surveys done of the trees, so it's a mystery to both Alex and myself." (Alex is Mr Nowell, the Second Respondent's arborist).
Mr Nowell later said (Tcpt, 4 December 2020, p 178(26-29)) "look, there could possibly be a lot more trees impacted that are reasonably small and young but they're the initial ones and this is why I go back to paragraphs 10 and 11, just stating there's not enough detail".
Mr Astill returned to the issue:
"ASTILL: Mr Nowell, you previously, I think you said, seven trees, and now there is an estimate of up to ten; does that mean that ten is a worst case scenario?
WITNESS NOWELL: No, goodness no. So I have personally found seven trees there which I believe will need to be removed due to going forward, if it were to go forward. They're the ones that would need removal, and it was when we discussing that it came it about that it was less than ten, I found ten. There could be a lot more, pending drainage works, and the impacts of the new development of the road, there could be a lot more.
ASTILL: Before you start, it was agreed that the maximum number of trees that could possibly be impacted is small trees; that was an agreement between all four of you, wasn't it?
WITNESS NOWELL: That was during our meeting, our verbal telephone conversation, we had a joint telephone conversation, and they were the immediate ones that I was aware of that I had highlighted in my previous joint report.
ASTILL: And it was put in writing in this report, and your signature appears at the bottom of it, so you had a chance to look at the written record of the agreement, read it and sign it, didn't you?
WITNESS NOWELL: Yes.
ASTILL: You are now saying you don't agree with that?
WITNESS NOWELL: I think this is why I am trying to clarify this paragraph, is that I'm relating it back to the previous joint report. Now, I guess this could be misconstrued, as opposed to if you read the previous paragraphs, both 10 and 11, there simply isn't enough detail on the plans. The plans show a total of seven trees, there are more than seven trees on the site. What I have tried to demonstrate in that paragraph 12 is based on, when we were discussing it, these were the trees that I highlighted that would need immediate action, and that was a total of seven. Now seven is less than ten."
(Tcpt, 4 December 2020, p 179(13-48))
Mr Harker expanded the questioning to more than works on the road:
"HARKER: Mr Rankine and Mr Nowell, just back on paragraph 10 through to 12, and particularly the agreement on 12, in coming to that agreement, Mr Rankine, you obviously couldn't have regard to things that were not on the plans.
WITNESS RANKINE: No.
ASTILL: I object to that question, Commissioner, it's vague in the extreme. What does he mean?
HARKER: He's answer it, no. Since the supplementary engineering joint report, you will have noticed that one suggestion downstream of the level spreaders, catchments 5 and 6, there is an agreement that contour bunds could be provided; do you recall that?
WITNESS RANKINE: I can recall that discussion, yes.
HARKER: And that's in an area that contains vegetation and trees?
WITNESS RANKINE: I don't know that definitely without seeing exactly where those bunds are.
HARKER: In this joint report, that it is to say you one, exhibit 7, there is a recommendation by the ecologists at paragraph 27 that check dams be added to the drain that drains the eastern leg of the road, that is east of the culvert; do you understand that?
WITNESS RANKINE: I had that discussion, yes.
HARKER: You don't know where those check dams would be?
WITNESS RANKINE: I don't think anyone knows where they were, I thought it was a discussion point.
HARKER: And so you were in agreement about what possibly could be impacted, less than ten trees. It doesn't cover any effect from the check dams?
WITNESS RANKINE: As we have not been shown where they are, it is a little hard to answer that question, isn't it?
HARKER: Yes, and similarly, for the same reason, when contour bunds haven't been shown in location or number, your agreement in paragraph 12 should be read as not to include those sorts of things either?
WITNESS RANKINE: Obviously, they haven't been designed."
(Tcpt, 4 December 2020, pp 180(38)-181(33))
Mr Rankine, as an arborist, was also asked about possible effects on trees following changes in hydrology.
"HARKER: Mr Rankine, you understood from the evidence yesterday that there had been no quantitative assessment of any change in the wetting or drying in areas where water would be diverted?
WITNESS RANKINE: Yes.
HARKER: And so you are not able to express a view, are you, whether trees could be affected by having water diverted away from them by the proposed drainage system?
WITNESS RANKINE: As there is no detail, no I can't.
HARKER: And so your agreement in paragraph 12 is qualified again in that respect?
WITNESS RANKINE: There's a lot of supposition here.
HARKER: Is the answer to my question yes?
WITNESS RANKINE: Without further detail, yes."
(Tcpt, 4 December 2020, p 182(5-24))
It is clear from the evidence that neither qualitative nor quantitative assessment of impacts from the proposed works on trees is currently possible.
The experts (ecologists and arborists) agreed (Ex 7 par 14) that any trees lost should be replaced by compensatory planting at the ratio of 10 new trees for each lost. The planted trees should be local endemic rainforest species. (Mr Nowell provided a list of recommended species in pars 20-23).
There are no quantitative data on how many trees will be lost, and hence no estimate of how many replacement trees (at the 10:1 ratio) will be planted, but the number lost would be more than 10.
Nevertheless, Dr Robertson, with whom Mr Rankine concurred, considered:
"17. The total number of trees that could be conceivably be impacted by implementing the amended engineering plans is very small and the ecological impacts would not be significant. In any case, they minor impacts may be addressed by compensatory planting as agreed above."
(Ex 7 par 17)
'Very small' is not defined, but any number multiplied by 10 means a relatively large requirement for trees to be planted. Without knowing the actual number and identity of the trees lost, I do not consider that an assumption that 'the ecological impact is small' has a sound basis. Regardless of the number, Dr Robertson and Mr Rankine agreed that the impact will be addressed by the compensatory planting. If approval were to be granted, it would be necessary that there was full accounting for every tree lost, even down to very small saplings and seedlings; this is likely to require a botanist or arborist to be present during any work.
Mr Nowell (Ex 7 par 21) took a forward-looking approach and indicated that mature tree height should be considered, as a number of the suggested replacements species eventually become large and might impact on views, and this needed to be taken into account in deciding where they should be planted.
The ecological experts agreed:
"24. The ecology experts agree that the amended engineering plans that provide for water draining downslope to the road east of the creek by directing it along a rock-lined drain on the northern edge of the road is appropriate.
25. The ecologists note that only minimal further tree impacts are possible and that vegetation is likely to regrow along disturbed edges of the road following resurfacing, such that erodible soil surfaces are likely to be minimal in future.
26. The experts agree that if approved, the final engineering plans should be designed to ensure:
• No significant water pollution should occur from the roadway or any associated works and environmental harm should also not occur from the roadway or any associated drainage works. Environmental harm in this situation consists of erosion, sediment deposition and loss of vegetation.
• Level spreaders should be designed to a specification that prevents erosion and vegetation loss at the end of the spreaders.
27. The ecologists also recommend that if approved, the drain shown within the northern perimeter of the road to the east of the creek should have small "check dams" or equivalent added to slow the velocity of the water and collect sediment before it is permitted to enter the creek."
(Ex 7 pars 24-27)
The agreement of the ecologists in Ex 7 par 26 expresses an aspiration. The ecologists agreed that final engineering plans need to be designed to achieve the objects they specified. There was no evidence from the engineers as to whether this was possible.
The agreement between the ecologists, given that there was no certainty of the location of the level spreaders, contour bunds and check dams and so no certainty as to the potential impacts on the vegetation and stream, was surprising.
Mr To asked Dr Robertson:
"TO: The suggestion that you and Mr McLean came to about the possibility of check dams, you don't know if they are feasible to implement on the slopes involved, do you? You're not engineers?
WITNESS MCLEAN: Well, I'm not an engineer. I've just seen them used elsewhere. I'd need the engineers to advise if they were viable."
(Tcpt, 3 December 2020, p 168(27-32))
Despite these agreements, Dr McLean was still of the view:
"29. The stormwater treatments aggregate water and may result in scouring at the outlets due to the current level spreaders having limited dissipation potential. This may increase sediment loading in the creek."
(Ex 7 par 29)
The arborists were asked for their opinion on how roadside vegetation would affect visibility for drivers on the access track, in relation to Mr Lucena's observations in Ex 8.
"53. … I further suggest that the available sight distances would be improved by the maintenance of the roadside plantings. The vegetation is in good condition and is growing healthily. The driveway visibility only requires that a light line is available through the roadside vegetation in the height from 1m to 2m above ground level. This area is sparsely covered by the current growth. Selective trimming of low branches of existing trees and maintaining ground cover to a maximum height of 1m will preserve good sight conditions. This can be achieved without impacting on, and may improve, the vigour and health of the existing plantings."
(Ex 8 p 20 par 53)
I understood that this comment related particularly to the line of Lilly Pilly trees (Syzygium) planted next to the road.
(Ex E, Fig 6 - Photo taken by Mr Grech)
Mr Nowell considered that Mr Lucena was referring more generally to vegetation on or close to the road - but in regard to the Lilly Pilly hedge, Mr Nowell commented:
"WITNESS NOWELL: I was not looking at it from the point of view of a hedge. I guess, hedging plants, I made a note that I didn't believe that a hedge is in keeping with clause 9 of council's LEP 1987, which is to protect and enhance the areas of particular scenic value to the local government area of Ballina. I didn't think a formal linear planting is in keeping with that, but that's my personal view."
(Tcpt, 4 December 2020, p 183(13-18))
He had earlier commented upon the Lilly Pillys in Ex 4 at par 195, where he ventured the opinion that they were possibly a cultivar 'Cascade' and expressed concern about their potential vulnerability to myrtle rust. He also felt they were a formal style of landscape planting and that "Possible scattered plantings of different native vegetation other than hedging plants could be utilised to break the formal linear planting scheme".
Mr Rankine considered that arboricultural treatment of roadside trees to improve visibility would be possible:
"WITNESS RANKINE: Commissioner, we are consulting arborists to Roma Street Parkland, we create a lot of new sites through Parkland so they hide the buildings, the residential buildings, and enhance the view of the lake by selecting the right sort of lower plantings, and then canopy lifting, things like poincianas with their excellent views, they're called vegetation windows, and I am sure we could achieve that and enhance the look of the area, and increase the sight lines down the road, so the fire truck can be seen on its way up or down."
(Tcpt, 4 December 2020, p 183(20-27))
If this proposal were adopted, and the application approved, there would need to be a condition requiring such work, which could be either a part of the VMP or a stand alone plan. Management of the roadsides for visibility would require a continuing commitment by the Applicants (or their successors in title). The VMP (Ex D Tab 4) expects that some management activities will be required in perpetuity, but proposes (Ex D Tab 4 par 32) that an assessment against performance conditions be conducted after five years, which would determine what ongoing action would be required.
The Whites had carried out planting of predominantly native species adjacent to the road, but the provenance of the material used was not disclosed in the earlier proceedings in the Local Court, Mr White had tendered an affidavit - which was included in the Council's bundle (Ex 1 Tab 36 folio 1245 et seq). Included within the affidavit was a letter from the Whites (folios 1275-1277) referring to planting of rainforest species "to demonstrate ongoing regeneration of the rainforest". Apparently attached to the affidavit were receipts documenting purchases of plants; these were not included within Ex 1, but details of the plantings may therefore be available. The letter was dated March 2018 and stated that the Whites would "Continue to plant along side the road to minimize view to neighbouring properties" (folio 1277).
The arborists in their joint report (Ex 4 par 167) agreed that two clumps of bamboo included in the roadside planting should be removed "before they mature".
I acknowledge that the Whites' plantings were well-intentioned and made for environmental reasons.
[33]
Vegetation Management Plan (VMP)
Dr McLean had been critical of the proposed VMP, considering that it was not in a suitable form to provide to a bush regenerator. Dr McLean's comments had been made in relation to a June 2020 draft version of the VMP. Dr Robertson had revised the VMP in the light of Dr McLean's comments and the version of the VMP before the Court (dated 25 August 2020, included in Ex D Tab 3) addressed a number of the earlier criticisms.
Dr Robertson indicated that:
"137. In my experience with VMP's I note that the precise details required in a VMP can readily be stipulated in a condition of consent. I believe that the revised VMP has addressed concerns raised and note that any remaining concerns could be addressed as a condition of consent.
…
144. From experience, I would expect that the landholder and bush regeneration contractor would inspect the site before engagement to discuss what works are required and where. The VMP is not intended to be a contract specification document that outlines what individual weeds are and where. It has been designed to give the land holder some flexibility in terms of what works are done to manage weeds and to replant native plant species. Notwithstanding that, the VMP will provide substantial information for contractors."
(Ex 4 pars 137 and 144)
The difference of opinion between the ecologists is similar to that between Mr Hoban and Mr Lucena regarding the level of detail required for plans at the development application stage and the construction certificate stage. It is one where is no absolute rule, but the consent authority if granting approval subject to conditions needs to have certainty as to the outcome. The August 2020 version of the VMP would, if applied, provide greater certainty about the work to be carried out than did the June 2020 version, but given the further changes in the work proposed, if the proposal were approved, conditions requiring further changes to the VMP would be required.
The First Respondent (submissions at par 105) pointed to the inadequacy of the surveys to detect threatened species, which meant that the 'full ecological values of the site cannot presently be properly understood'. Consequently 'it cannot be determined whether the VMP or the development itself sufficiently minimise impacts on a number of species.'
In addition, Mr Harker raised a number of specific concerns about the VMP, particularly in relation to weed management (submission pars 106.1-106.3). Were approval to be granted it would be necessary to impose conditions to strengthen the VMP.
[34]
Discussion
In this matter, the Applicants seek (inter alia) approval for a new dwelling and upgrades to the access track. Expressed thus, it would seem to be a relatively simple matter, but it is far from it. It has raised strong objections from some local residents (and the evidence suggests that some neighbourly relationships may be hard to repair), divergent views between expert witnesses, and very different interpretations of the relevant law and the evidence from the legal representatives of the parties.
Although the total area of the Lot is relatively small (circa 36 ha - 90 acres), it is said to continue to provide grazing land for cattle.
However, vehicular access to the property is severely constrained. Access is currently only available from Old Byron Bay Road. Any access track from Old Byron Bay Road to the majority of the property - including all the land available for agricultural use - must traverse the stream - and the neck of land in which the stream occurs provides few, if any, options for a new track on a line different from the present.
The problems of accessibility were, if not created by, certainly aggravated when the original Lot 1 was subdivided to create the present Lot 1 and Lot 2 (404 Old Byron Bay Road). The subdivision created a parcel of land of irregular shape, including a long narrow connection running northwards to Midgen Flat Road. There is a s 88B (Conveyancing Act 1919) instrument in favour of Council preventing access to Lot 2 from the public road. Even if the restriction was lifted, I am satisfied from the site inspection that there would be considerable environmental impacts if a track were constructed along the access handle. Accordingly, the only vehicle access available to the property is the existing track.
No previous application had been made for construction of a track, which has implications for the assessment of the current application.
The Applicants carried out work on the access track in late 2016. There is no contention seeking to require restoration of the track to its pre-2016 state.
Much of the proceedings was occupied with discussion of issues associated with the access track, and the track was the focus of the Council's contentions; the Second Respondent's contentions primarily related to planning issues associated with the proposed dwelling (although dwelling and access track are necessarily closely linked) but the Second Respondent strongly supported the Council's contentions on biodiversity issues related to the access track.
Given the zone objectives of supporting agricultural use of the land, access is clearly an important consideration. I note however that the proposed dwelling is situated within rough pastureland, and the fact that the development of the dwelling site did not involve clearance of native vegetation was advanced as one of the merits of the proposal. The exclusion of cattle from the dwelling site and its curtilage (including the area proposed to be occupied by the wastewater treatment facility), would reduce the area within the property available for grazing.
Very little was said during the hearing about the agricultural use of the land (but in a letter dated 12 March 2018, Mrs White wrote that at the time, 40 cattle grazed on the property (Ex 1 Tab 36 folio 1245)). In the Council's bundle (Ex 1 folio 1072) is a letter from Mr Deane supporting the Whites' application. At the time of writing (5 August 2018) he said, "I presently agist cattle on 404 Old Byron Bay Road." He considered that "The use of the gravel track/road across the property is essential for my operation to continue during both dry and wet times" and that "This property has always been an agricultural grazing property and as such an important part of my cattle grazing business and it could threaten my livelihood to lose it and set a bad and dangerous precedent for the future of farming in this area."
Dr Cupper, who lives on Midgen Flat Road, and is a director of ML Cupper Pty Limited, owner of Lot 100 DP 815068, which abuts Lot 2 (the subject site) to the east along a boundary of more than 700 m. He was supportive of the Applicants' proposal, both the proposed dwelling and the access way which he understood to be "essential for regular maintenance and farming on the land" (Ex H Tab 14 folio 90).
The Applicants drew attention to the observations of McLellan CJ in BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 at [117] (BGP Properties) as providing important guidance to consent authorities. I do not disagree that the zoning of the site is fundamental, but the paragraph quoted in the submission needs to be placed in its context:
"Significance of the zonings
115 The context in which the issues in this case must be resolved includes the history of the use of the land and the contribution which it now makes to the existing natural environment. Although zoned industrial, that zoning was imposed at a time when the community's understanding of the significance of some elements of the natural environment was not as mature as it now is. Consideration of matters of inter-generational equity and the conservation of both biological diversity and the ecological integrity of land were not such significant elements of environmental decision-making as they are today.
116 Notwithstanding the fact that the ecological integrity of the site may be threatened if the major road reservation were utilised for its purpose, I am satisfied that this is not a significant matter in this case. The reservation was also imposed at a time when the ecological significance of the area was unlikely to have been given any, or at least any mature, consideration. It would be inappropriate to make a decision in the present case upon the assumption that construction of the proposed road is inevitable.
117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects (Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened.
118 In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts.
119 However, there will be cases where, because of the history of the zoning of a site, which may have been imposed many years ago, and the need to evaluate its prospective development having regard to contemporary standards, it may be difficult to develop the site in an environmentally acceptable manner and also provide a commercially viable project."
(BGP Properties at [115]-[119])
The proviso in [118] applies to all development applications - the consent authority (including the Court standing in the shoes of Council as in the present matter) must be confident that the environmental impacts arising in any particular case have been identified and properly documented; only then can it be determined whether or not the impacts are acceptable. Limits to what is acceptable will vary with the context of each case, but limits may be set in legislation or regulations.
BLEP 1987 long preceded the introduction of the TSCA let alone the BC Act, so that the extent to which the current legislation affects the implementation of the BLEP 1987 will be a matter the consent authority will be required to consider (BGP Properties at [119]).
Agricultural use (other than certain specific exceptions) is allowable throughout the subject site. Development of the proposed dwelling requires development consent, and the access track which will serve the dwelling also requires consent, although it would also facilitate agricultural use.
Mr Astill noted in his submissions (at par 12):
"Apart from the dwelling itself, the Driveway is proposed to give access to the proposed dwelling. However, it would also provide access to the bulk of the land owned by the Applicant. There is no other practical and legal right of vehicular access. Without the proposed Driveway this majority of the land would effectively be landlocked. The point of this is that it is not an unreasonable that a landowner has a legitimate expectation of making a reasonable accessway to their own land, provided this is done in a reasonable manner."
The parties agreed the construction of the access track by the Applicants commenced in late 2016. These works have not been authorised. The parties also agreed that, being aware of Mr Heathcote's letter in Ex 5, a track had been constructed from Old Byron Bay Road almost as far as the stream by Mr Heathcote in 1998, but Mr Heathcote's track had not crossed the stream. However, there had been some earlier work, of unknown age and by unknown persons, in the form of a bund in the stream, which Mr Heathcote had enlarged, but had not built.
The track east of the stream was constructed by the Whites, but the work west of the stream was said by Mr White to have involved the clearing of regrowth along Mr Heathcote's track.
The parties, including the Applicants (submissions pars 27-28) agreed that, following Jonah and Ralph Lauren, the works carried out in 2016 were to be ignored. The reference condition against which the impact of the current proposed works was to be assessed was the condition of the site immediately prior to the 2016 works.
The parties fundamentally disagreed as to the state of the track between Old Byron Bay Road and the stream in 2016. For Mr Astill, the answer was clear-cut (submissions par 34) "prior to the 2016 works the access track had no Lowland Rainforest EEC on it." To support this view, he referred to the affidavit of Mr White from 2019 (for a different matter in a different jurisdiction) but included in Council's bundle (Ex 1 Tab 36 folio 1245 et seq). In particular, he drew attention to the letter from Mr Parker (in Annexure C to the affidavit at folio 1268). I discussed this letter earlier (at [304]-[309]) and found it singularly uninformative.
There is no doubt that the 2016 works involved 'new' work - in the form of the culvert across the stream and the track from the stream to the east. Mr Astill did not address the state of the stream or of the line of track prior to late 2016.
The assessment of the proposal is required to ignore the pre-2016 works, but has to consider the cumulative impacts on the environment of the 2016 works and the works proposed in the current proposal.
Dr Robertson, in the joint statement of the ecologists and arborists (Ex 4) takes the position that for assessment under the BC Act:
"2. I agree that in theory a BDAR should carefully consider options for avoidance of impacts by potentially modifying the size, design and/or location of a project. On the assumption that a BDAR is required, the project that is the subject of these proceedings is not a normal BDAR project in that the major part of the project with ecological impacts has already been partly constructed.
3. Within the Biodiversity Conservation Act 2016, a BDAR is to be prepared for proposed developments that:
• Entail impacts upon land mapped by the Biodiversity Values Map
• Entail significant impacts to listed threatened flora and fauna; and/or
• Entail clearing of native vegetation above a certain area versus lot threshold.
4. I note that the clearing took place before the commencement of the BC Act and any requirement for preparation of a BDAR.
5. The Biodiversity Assessment Method (BAM) developed for the BC Act is also designed for proposed developments rather than retrospective developments because a core part of that method involves mapping and measuring the condition of vegetation and species habitat within areas proposed to be cleared.
6. The project comprises upgrade (resurfacing and providing erosion controls) of a pre-existing track that has been already re-cleared without approval, and for a dwelling site that is proposed for construction within a gently sloping, cleared paddock that I believe has no significant ecological constraints. The major ecological impacts (rainforest clearing) have already taken place when the track was first constructed circa 1999. The track was re-cleared in 2016 by the proponents together with installation of a culvert.
7. Therefore, I say, key parts of the BAM and BDAR process cannot be implemented retrospectively:
1. It is not possible to retrospectively avoid impacts that have already occurred;
2. It is not possible to map vegetation and species habitats prior to track re-clearing and installation of the culvert as that has already occurred.
8. In my individual Statement of Evidence (SoE), I have examined old aerial photography and Lidar imagery to gain an insight into the types of vegetation cleared in 2016. There is no other way to do so given that clearing has already taken place."
(Ex 4 pars 2-8)
The BAM and BDAR methodologies were not designed to be applied retrospectively: the BC Act does not contemplate the circumstances that arise in this case, but the consequence of there having been no assessment or approval of the 2016 works is that assessment of the current application is required to commence with the site in its pre-late 2016 state. Dr Robertson (Ex 4 par 7) argued that it is 'not possible to map vegetation and species habitats prior to track re-clearing and installation of the culvert as this has already occurred'. It is not possible to map individual occurrences of species but there is sufficient information to make an assessment on the basis of the vegetation present prior to the 2016 clearing, even if the assessment cannot have the precision normally expected of a BDAR.
Relying on Mr Parker's letter, Mr Astill argues that the track west of the stream was dominated by 'weeds' and the vegetation was not a threatened community and did not support any individually threatened species; at best, it had some 'poor quality regrowth' (submissions par 34). The quality of regrowth is not to be assessed at a single instant of time, but should also take into account its potential for continuing recovery, particularly if an appropriate management regime was in place (see my discussion at [324]-[328] above).
Does the remote sensing imagery studied by Dr Robertson (Ex 4 par 8) advance our understanding beyond the 'weeds' referred to by Mr Parker? Unfortunately, the remote sensing data available do not readily permit identification of individual species, but do allow conclusions to be reached regarding the structure of the vegetation.
The track cleared by Mr Heathcote in 1998 was visible as an opening in the canopy cover until at least 2006, but "sometime thereafter weedy forest regeneration" regrew (Dr Robertson Ex 4 par 9) but some gaps were still visible until 2009 (Ex 4, par 11 and the reproduced Google Earth Pro image) but were not visible on the 2013 and 2016 (prior to the clearing) images (Ex 4 par 12). Dr Robertson concludes (par 11) "it is reasonable to assume that the regeneration present in the location of the road prior to the construction comprised regrowth and thinner vegetation compared to surrounding areas."
Dr Robertson was circumspect in his language and did not directly assign the regrowth to the Lowland Rainforest EEC, but as I discussed above at [334], I consider that the regrowth should be regarded as a stage in the development of the EEC.
The track could still be detected in the LiDAR image analysed by Dr Robertson (individual expert report, Ex D Tab 5 Fig 9 (image dated 2010) and text discussion on p 8). This showed that the woody vegetation on the 1998 track was mostly less than 5 m tall, but there were patches of woody vegetation between 5 to 10 m - six years later in 2016 the woody vegetation would have been taller. The images in Ms Cramp's submission (Ex 5 folios 23-24) taken after the 2016 clearing, show that there had been felling of small trees along the track, and damage to larger trees adjacent to the track.
Neither Dr Robertson's imagery nor the images in Ms Cramp's submission permit identification of species. However, in the report of the arborists in Ex 4, Mr Nowell (the Second Respondent's arborist) documents 12 trees beside the track between chainage 0.0-140 (that is beside the track constructed by Mr Heathcote and cleared of vegetation again in 2016) which "had been detrimentally impacted allegedly by machine strike" (Ex 4 par 177). He provided photos which appear to show that clearing works (in 2016) were not in accordance with Australian Standard 4970-2009 Tree Protection on Development Sites, as structural root zones had been excavated and/or trunks damaged, indicating lack of protective barriers at the time of the clearing (par 180). The damaged trees included both Cupaniopsis anacardioides (Tuckeroo) and Guioa semiglauca, both rainforest trees likely to occur within the EEC.
The 2016 clearing involved both clearing regenerating Lowland Rainforest EEC along the track, and damage to larger trees, which were part of longer established rainforest EEC, adjacent to the track.
To argue, as Dr Robertson does, that what is proposed is ameliorative does not mean that consideration of the impacts of the 2016 clearing is not required.
The Final Determination for the Lowland Rainforest EEC includes an extensive list of species which are regarded as characteristic of the EEC. The EEC has an extensive latitudinal distribution and not all the characteristic species are found throughout the range of the EEC. The Final Determination also includes a list of threatened species known to occur within stands of the EEC. Not all have natural occurrences across the entire geographic range of the EEC, nor does every stand of the EEC contain threatened species. Absence of threatened species in a particular stand of the EEC does not signify the stand is of lesser conservation value than one with threatened species.
Nevertheless, there was considerable discussion about the possible impacts of the proposed development on particular species.
The assessment of impacts on threatened terrestrial species and communities, would, if a proposal were initiated today, be through the BC Act. The BC Act commenced in August 2017, well after the 2016 works. Mr Astill (submissions par 46) points to the "simple fact that it [the BC Act] was not in force at the date of the 2016 works and so no question of thresholds or credits under the BC Act can possibly arise".
If an application for consent for the 2016 works had been made before the work had been carried out, assessment would have been made under provisions of the TSCA, the EPA Act and BLEP 1987, including cl 23 - which applies to land in zone 7(d1) so that any person proposing to 'cut down, top, lop or otherwise destroy a tree' would be required to obtain Council consent. The BLEP 1987 provision continues to apply to the current proposal.
Mr Astill asserts (submissions par 69(a)) that the development proposed "involves no clearing at all". Given uncertainty as to the final form of the engineering works required, this is not necessarily the case for the 'new' works, but the assumption is flawed. The 2016 works are to be treated as if they had not occurred - the current development application is to be considered on the basis that the land on which development is sought is in its pre-late 2016 condition. To do otherwise would be contrary to the principle established in Kouflidis and re-emphasised in Ralph Lauren, as it would mean that the Applicants would benefit from past unauthorised activity. The consent authority must consider that the development application includes a proposal for the clearing that occurred in 2016.
Mr Astill submitted:
"68. As addressed in detail above, at law no BDAR is required and so the contention is legally misconceived and may be rejected out of hand.
69. Further to this the Council's contention is factually confused as it is based on Dr McLean's fatally flawed ignorance of the facts resulting in his approach to assessment of the proposed development being as follows-
(a) it rejects consideration of the actual proposed development, which involves no clearing at all, and instead,
(b) suggests consideration of some hypothetical and theoretical situation whereby assumptions must be made that all of the following are the case-
(i) the access track is not cleared,
(ii) the DA proposes therefore to clear it,
(iii) that a BDAR is now legally required, and
(iv) the access track contains threatened species likely to be significantly affected.
70. In fact, none of these are true. The first three are factually and patently wrong, and the Jonah Principle, properly applied, does not authorise these assumptions."
(Applicants' written submissions pars 68-70)
As the development application is to be assessed on the basis that the 2016 clearing had not occurred, then clearly the proposal included both clearing that had occurred in 2016 and any additional clearing associated with road widening and other work that is proposed does involve clearing. Dr McLean had been in error through being unaware of Mr Heathcote's clearing in 1998, but the 2016 clearing involved clearing of regenerating rainforest which had grown since c2000. Despite Mr Astill's position being that there was no requirement to produce a BDAR, his client had nevertheless commissioned not one but two BDARs. The first was prepared by Mr Parker (Ex 1 Tab 25) and the second by Dr Robertson (Ex D Tab 4). For purposes of the proceedings, it was Dr Robertson's BDAR that was relied upon.
[35]
Was a BDAR required?
Despite the Applicants having included a BDAR in their tendered evidence, was it required? Section 7.7(2) of the BC Act specifies that if a development application is likely to significantly affect threatened species, it is to be accompanied by a BDAR. Assessment of the development application must take into account the 2016 clearing. Threatened species for the purpose of this clause includes threatened ecological communities. Did the 2016 works significantly affect threatened species? For purposes of the BC Act, "significantly affect threatened species" is defined in s 7.3 of the BC Act (the five-part test of significances in s 7.3 is analogous to the seven-part test which previously applied in the EPA Act). The test applies to threatened species, threatened ecological communities and their habitats.
The impacts on biodiversity values to which the BOS applies (BC Act, s 6.3) are those resulting from clearing of native vegetation (s 6.3(a)) and loss of habitat, and impacts of the actions prescribed by the regulations (s 6.3(b)).
The proposal includes the impacts of the clearing in 2016; I have determined that this involved the loss of vegetation (in the form of regenerating Lowland Rainforest EEC) which, in itself, constitutes the habitat of a large number of species.
Clause 6.1 of the BC Regulation prescribes additional actions as impacts that were to be assessed the biodiversity offsets scheme. Two of these are relevant to this matter.
6.1 Additional biodiversity impacts to which scheme applies (sections 6.3 and 6.6(2))
(1) The impacts on biodiversity values of the following actions are prescribed (subject to subclause (2)) as biodiversity impacts to be assessed under the biodiversity offsets scheme -
(a) the impacts of development on the following habitat of threatened species or ecological communities -
…
(iv) non-native vegetation,
Clause 6.1(1)(a)(iv) identifies clearing of non-native vegetation as a prescribed action. If I had accepted Mr Astill's interpretation that the vegetation on the access track in 2016 was just 'weeds' rather than early stages of Lowland Rainforest EEC regeneration, this would not preclude non-native vegetation being habitat for native fauna including threatened species. Mr Parker documented that the flora on the track included Lantana, Cinnamomum and Ligustrum spp., all of which produce fleshy fruit, utilised as food by native frugivorous birds, including potentially a number of threatened species. There were no data provided which allowed assessment of the consequences for frugivores of the 2016 clearing.
More important is cl 6.1(1)(d) which relates to the stream.
(d) the impacts of development on water quality, water bodies and hydrological processes that sustain threatened species and threatened ecological communities (including from subsidence or upsidence resulting from underground mining or other development)
Mr Harker, in submissions (pars 27-31), drew attention to this subclause, stressing that little attention has been given to it.
Section 7.16 of the BC Act provides that:
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.
Section 7.16(1) refers to impacts that remain after measures provided to avoid or minimise impact being applied. In the case of the current proposal, very little attention was given to avoidance. Section 7.16(2) raises a jurisdictional hurdle - consent must be refused if the consent authority is of the opinion that the proposed development is likely to have serious and irreversible impacts on biodiversity values.
Clause 6.7(2) and (3) of the BC Regulation provide criteria for determining whether an impact is to be regarded as serious and irreversible.
The Applicants' drew attention to the fact that the Biodiversity Values Map was amended during the course of the proceedings, following a request, the Biodiversity Values Map was reviewed by the OEH, and revised to exclude the area of the existing access way (Ex 1 Tab 11). However, other areas of the subject land remain on the Biodiversity Values Map, importantly including the riparian zone of the stream both up and downstream of the culvert. The BOS threshold is exceeded, and hence a BDAR is required if the application involves clearing of land on the Biodiversity Values Map or, involves an action prescribed by BC Regulation cl 6.1. Relevantly in the circumstances cl 6.1(1)(d) the development involves action which may impact on water quality and hydrology. As I have concluded that the stream is relevantly a component of the Lowland Rainforest EEC, cl 6.1(1)(d) is engaged. The works proposed by the engineers involve construction of level spreaders, contour banks, and as a last-minute addition raised by the ecologists, check dams. The location of any of these proposed works has not been finally determined, so whether they would necessitate clearing of any vegetation is not known.
Dr Robertson acknowledged when questioned by Mr To that use, in effect, of the stream as a retention basin for sediment was not best practice (see [459] above).
Dr Robertson's BDAR (Ex D Tab 4) was prepared before the full scope of the engineering works became apparent and their specific details remain unknown.
The requirement to produce a BDAR has several consequences for my decision. Firstly, it sets a jurisdictional requirement in s 7.16(2) of the BC Act:
(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.
It is not necessary that impacts be predicted precisely, but whether the impacts are assessed to be likely to be serious and irreversible - likely does not mean more likely than not, rather that there is a real chance or possibility (NHVSS at [84]). The applicant in any appeal seeking consent for development bears the persuasive burden of proof. Australian Protein Recyclers Pty Ltd v Goulburn Mulwaree Shire Council [2006] NSWLEC 641 at [2] per Preston CJ:
"…an applicant for development consent always bears a persuasive burden of proof: the applicant must persuade the consent authority, whether it be the council at first instance or the Court on appeal, that development consent ought to be granted. This persuasive burden includes providing information and arguments that relevant environmental impacts can be satisfactorily addressed."
Given the uncertainty as to what is proposed and what the impacts may be, the Applicants have not persuaded me that they have met the necessary persuasive burden of proof.
Section 7.13 of the BC Act addresses the consequences that arise from there having been a requirement for a BDAR. Firstly, s 7.13(2) requires that the Court must consider the likely impact on biodiversity values of the development as assessed in the BDAR.
(2) The consent authority, when determining in accordance with the Environmental Planning and Assessment Act 1979 any such application, is to take into consideration under that Act the likely impact of the proposed development on biodiversity values as assessed in the biodiversity development assessment report that relates to the application. The consent authority may (but is not required to) further consider under that Act the likely impact of the proposed development on biodiversity values.
Secondly, s 7.13(3) requires that biodiversity credits be retired to offset the residual impacts that cannot be avoided or minimised. The number of credits to be retired as assessed in the BDAR is agreed by Dr Robertson and Dr McLean to be small - this calculation was not on the basis of the proposal as it currently stands, and was affected by Dr Robertson's erroneous belief that the major impacts had already occurred prior to the development application, and these earlier 2016 impacts could not be addressed in the BDAR for an application made several years later (Ex 4 pars 2 and 7). If consent were to be granted, a recalculation of the credits to be retired would be required.
[36]
Avoidance and minimisation
The BC Act requires that in consideration of likely serious and irreversible impacts, mitigation measures are to be applied after avoidance and minimisation have been considered. Consideration of avoidance necessarily requires identification of possible viable alternatives.
It is for the Applicants to suggest possible alternatives and argue the case for why the option advanced in the development application is preferable, and not for the Respondents to initiate such discussion. To justify the proposed development in the light of mitigation measures proposed such as the VMP without having considered alternatives is not to have correctly applied the mitigation hierarchy (Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Ltd (2013) 194 LGERA 347; [2013] NSWLEC 48 at [147]-[158]).
There may be potential for approval subject to conditions. However, the conditions must provide certainty of outcome. As the matter progressed, the changes to the drainage works proposed, although partly responsive to concerns of the ecologists, left a situation in which there was no final understanding of what works might be constructed and what their ecological might be. Setting conditions to achieve a particular outcome, without knowing the starting point or whether the end point is achievable would not provide certainty. The proposal is not for the development of a major subdivision or to construct a large facility, rather it is for a single dwelling. While an adaptive management regime, to be executed over an extended period of time, might be appropriate for a major development, it would not necessarily be a proportionate solution for a small proposal, potentially imposing large ongoing commitments upon the landowner (any approval would run with the title, so the obligation would apply to the Applicants and any successors in title). When conditions are imposed, the consent authority assumes they will be observed, but there are also potential costs on the local authority in monitoring compliance.
[37]
Conclusion
Dr Robertson argued that because the access way had already been constructed prior to the 2016 works the works proposed in the development application will not have an adverse ecological impact. The access way is within the 7(d1) zone under BLEP 1987. Within the zone cutting down or destroying trees and any alteration to the surface levels of land, both of which occurred during the 2016 works to create the access track, require Council approval (BLEP 1987, cl 23) which had not been obtained.
Agriculture can be carried out within the 7(d1) zone without consent, but this is subject to BLEP 1987 cl 9(2) which qualifies the development permissible in the land use table 'except as otherwise provided by this plan' - with the effect that cl 23 prevails and consent for the 2016 works would have been required.
The basis of both Dr Robertson's assessment and the BDAR was incomplete as it did not properly assess the 2016 works, and so the conclusions regarding impacts and the calculations of any biodiversity credits to be retired cannot be accepted as complete. Although the wording of the required tests is expressed prescriptively - likely to have (s 7.3(2), s 7.16(2) of the BC Act), in particular circumstances of this matter. Some of the works assessed had already occurred in 2016. I have concluded that the vegetation on the track in 2016 was regenerating Lowland Rainforest EEC, the qualification 'regenerating' does not serve to remove the area from consideration as being the EEC.
The proposal requires clearing of native vegetation and hence triggers the BOS (BC Act, s 6.3(a)). The proposal also includes works which impact on the stream and hence are a prescribed impact under BC Regulation cl 6.1(1)(d), also providing a trigger for application of the BOS. The proposed works on drainage will have impacts on stream hydrology and sedimentation but remained in a state of evolution and there is insufficient information to make a proper assessment of the consequences.
The requirement to consider alternatives to the proposed development in cl 9(4)(h) of BLEP 1987 has not been met. This need not have been a major additional burden on the Applicants, but it did require more than either not addressing the issue or stating that the proposed option was the best, and asserting that the area around the existing dwelling is not a potential site for a new dwelling.
In light of the conclusions above, I find that consent for the development application cannot be granted because:
BLEP 1987 cl 12(2) does not permit granting of development consent for the proposed dwelling (see [108] above).
The arrangements required by Model Provisions cl 30 have not been made, so that there is no power to approve the development application (see [198] above).
In regard to Rhodamnia rubescens and Rhodomyrtus psidiodes, the proposed development is likely to have serious and irreversible impacts on biodiversity values and therefore, pursuant to s 7.16(2) of the BC Act, consent cannot be granted (see [365] above).
For the Giant Barred Frog (Mixophyses iteratus), sedimentation is likely to have serious and irreversible impacts on biodiversity values (see [399] above). Pursuant to s 7.16(2) of the BC Act, consent cannot be granted (see [400] above).
For the Lowland Rainforest EEC (including the stream), the impacts on the ecosystem are likely to be serious and irreversible impacts. Pursuant to s 7.16(2), consent cannot be granted (see [569] above).
[38]
Orders
The Court orders that:
1. The appeal is dismissed.
2. Development Application DA 2018/381 for the decommissioning of an existing dwelling construction of a new two-storey dwelling and swimming pool and the upgrading of an existing internal access way at Lot 2 DP 1065811, also known as 404 Old Byron Bay Road, Newrybar is determined by refusal.
3. Exhibits may be returned except for A, B, C, D (Tabs 1, 3, 4), 1 (Tabs 14, 36), 4, 5, 6, 8, 2R1.
……………………
P Adam
Acting Commissioner of the Court
[39]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 29 October 2021
370; [1999] NSWCA 399
Commonwealth of Australia v Randwick City Council [2001] NSWLEC 79
Crighton Properties Pty Ltd V Kiama Municipal Council (2006) 146 LGERA 271; [2006] NSWLEC 297
Friends of Tumblebee Incorporated v ATB Morton Pty Limited (No 2) (2016) 215 LGERA 157; [2016] NSWLEC 16
Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99
Kouflidis v Corporation of the City of Salisbury (1982) 29 SASR 321; (1982) 49 LGERA 17
Marshall Rural Pty Ltd v Hawkesbury City Council [2015] NSWLEC 197
Mullaley Gas and Pipeline Accord Inc v Santos NSW (Eastern) Pty Ltd [2021] NSWLEC 110
Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council (2010) 210 LGERA 126; [2010] NSWLEC 48
Newton v Federal Commissioner of Taxation [1958] UKPCHCA 1; (1958) 98 CLR 1
Ralph Lauren Pty Ltd v New South Wales Transitional Coastal Panel; Stewartville Pty Ltd v New South Wales Transitional Coastal Panel; Robert Watson v New South Wales Transitional Coastal Panel (2018) 235 LGERA 345; [2018] NSWLEC 207
Rose Bay Marina Pty Limited v Woollahra Municipal Council [2013] NSWLEC 1046
Statewide Planning Pty Ltd v Blacktown City Council [2019] NSWLEC 1397
Telstra Corporation Ltd v Hornsby Shire Council (2006) 67 NSWLR 256; [2006] NSWLEC 133
Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140
Visionary Investment Group Pty Ltd v Wollongong City Council [2019] NSWLEC 1234
Whittaker v Northern Beaches Council (No 3) (2018) 235 LGERA 5; [2018] NSWLEC 143
Texts Cited: Alexander G Floyd, Australian rainforests in New South Wales (1990, Surrey Beatty & Sons in association with National Parks & Wildlife Service of New South Wales, Chipping Norton NSW)
Arthur N Strahler, "Hypsometric (Area-Altitude) Analysis of Erosional Topography" (1952) 63 Geological Society of America Bulletin 1117
Australian Standard 4970-2009 Tree Protection on Development Sites
Ballina Development Control Plan 2012
Ballina Shire Council On-site Sewage and Wastewater Management Strategy 2017
B D Lewis and D A Rohweder, "Distribution, habitat, and conservation status of the Giant Barred Frog Mixophyes iteratus in the Bungawalbin catchment, northeastern New South Wales" (2005) 11 Pacific Conservation Biology 189
Brian J Preston & Paul Adam, "Describing and listing threatened ecological communities under the Threatened Species Conservation Act 1995 (NSW): Part 1 - The assemblage of species and the particular area" (2004) 21 Environmental and Planning Law Journal 250
Brian J Preston & Paul Adam, "Describing and listing threatened ecological communities under the Threatened Species Conservation Act 1995 (NSW): Part 2 - The role of supplementary descriptors and the listing process" (2004) 21 Environmental and Planning Law Journal 372
H J Frith, Wildlife Conservation (1973, Angus & Robertson, Sydney)
John Kanowski, Carla P Catterall & Wendy Neilan, "Potential value of weedy regrowth for rainforest restoration" (2008) 9(2) Ecological Management & Restoration 88-99
Local Land Services, "North Coast Regional Strategic Weed Management Plan 2017-2022" (Version 2)
Local Land Services, "Weeds of the North Coast of NSW: A guide to identification and control" (3rd ed, 2021)
Macquarie Australian Dictionary (8th ed, 2020)
Mark Taylor and Robert Stokes, "Up the creek: what is wrong with the definition of a river in New South Wales?" (2005) 22 Environmental and Planning Law Journal 193
NSW Department of Planning, Industry and Environment, 'Biodiversity Assessment Method Assessor Update 28' (December 2019)
NSW Department of Planning, Industry and Environment, 'Guidance to assist a Decision-maker to determine a Serious and Irreversible Impact' (2019)
NSW Department of Primary Industries, "Key Fish Habitat Maps"
NSW Department of Planning, Industry and Environment, "Saving our species hygiene guidelines - protocols to protect priority biodiversity areas in NSW from Phytophthora cinnamoni, myrtle rust, amphibian chytrid fungi and invasive plants '(April 2020)
NSW Rural Fire Service, Planning for Bush Fire Protection (2006)
NSW Rural Fire Service, Planning for Bush Fire Protection (2019)
Paul Adam, "Ecological communities - the context for biodiversity conservation or a source of confusion?" (2009) 13 Australasian Journal of Natural Resources Law and Policy 7
Paul Adam, New South Wales Rainforests: The Nomination for the World Heritage List (1987, National Parks and Wildlife Service of New South Wales, Sydney)
Shannon Baunach-Greenfields (ed) 2017 The Big Scrub rainforest: A journey through time. Rous County Council and Big Scrub Landcare, Lismore
Category: Principal judgment
Parties: Jason White (First Applicant)
Joanne White (Second Applicant)
Ballina Shire Council (First Respondent)
Martin Kenny (Second Respondent)
Representation: Counsel:
M Astill (Applicants)
M Harker (Solicitor) (First Respondent)
T To (Second Respondent)
There is an existing wastewater treatment facility that services the existing dwelling, which is not proposed to be decommissioned, and would presumably be available for connection to any new dwelling in its near vicinity.
Redevelopment close to the existing dwelling would mean that the existing access could be used, and that the road access track constructed in 2016 would not be required for access to the dwelling, although it would provide access to the eastern parts of the Lot. I note that the Respondents have not contended that the unauthorised track should be removed, and its retention would address the problem of provision of access to the bulk of the property. However, if a new dwelling were proposed and approved close to the position of the present dwelling, the appropriate management of the 2016 track would be a different matter to be addressed.
The need to consider alternatives does not require that an applicant provide full statements of environmental effects for any alternatives considered - rather the application should contain evidence that other options have been considered and a brief explanation of why the option the subject of the development application had been preferred.
There is no explicit discussion of alternatives considered by the Applicants during the preparation of the proposal included within the development application. The alternatives that arose in the planning experts joint report were not part of the application. I conclude that the requirement in cl 9.4(h) of BLEP 1987 has not been met. I consider that the option of alternative access from Midgen Flat Road, if it were to be formally proposed, is not one that should be entertained.