Winifred West Schools Ltd v Wingecarribee Shire Council

Land and Environment Court (NSW)|2022-03-25

WLEC 1570 Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning (2008) 159 LGERA 361; [2007] NSWLEC 802 Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Ltd (2010) 210 LGERA 126; [2010] NSWLEC 48 Rocla Pty Ltd v The Minister for Planning and Sutherland Shire Council [2007] NSWLEC 55 VAW (Kurri Kurri) Pty Ltd v Scientific Committee (Established under s127 of the Threatened Species Conservation Act 1995) (2003) 58 NSWLR 631; (2003) 128 LGERA 419; [2003] NSWCA 297 Texts Cited: Community Environment Network, Land for Wildlife, accessed 13 December 2023, Harold Cazneaux, The Frensham book: 100 Pictures of an Australian school (1934, Art in Australia Ltd, Sydney) Holly Kerr Forsyth, Remembered Gardens: Eight Women & Their Vision of an Australian Landscape (2006, The Miegunyah Press, Melbourne), Bk 2, 'The Garden - a way of life: Winifred West 1881-1971' at pp 124-47 NSW Department of Planning and Environment, Southern Highlands Shale Woodlands in the Sydney Basin Bioregion - Determination to make a minor amendment to Part 3 of Schedule 1 of the Threatened Species Conservation Act, accessed on 12 December 2023, Planning for Bush Fire Protection 2006 Planning for Bush Fire Protection 2019 Priscilla Kennedy, Portrait of Winifred West (1976, The Fine Arts Press, Sydney) Susan E. Emilsen, Frensham: an historical perspective (1988, Winifred West Schools, Mittagong) Wingecarribee Shire Council, Land For Wildlife, accessed on 13 December 2023, Winifred West, Addresses and Talks by Winifred Mary West, C.B.E. (1973, Memorial Edition, Angus and Robertson Publishers, Cremorne, Sydney) Category: Principal judgment Parties: Winifred West Schools Ltd (Applicant) Wingecarribee Shire Council (Respondent) Representation: Counsel: P Larkin SC (Applicant) R O'Gorman-Hughes (Respondent)

Solicitors: HWL Ebsworth Lawyers (Applicant) Marsdens Law Group (Respondent) File Number(s): 2021/88697 Publication restriction: Nil

Introduction

The Applicant, Winifred West Schools Ltd, has appealed, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), against the deemed refusal by the Respondent, Wingecarribee Shire Council, of development application No DA 20/07747 (DA) for the construction of student accommodation buildings, a multi-purpose hall and associated works at a site with the street address of 51 Range Road, Mittagong.
For convenience in this judgment, I will refer to the Applicant as Frensham (or Frensham School) as was the frequent practice by participants in the hearing, and in submissions by objectors, except where it is necessary to give the formal name.
While the subject site has the street address of 51 Range Road, there is variation in the documentation as to the legal description in terms of Lot Number and Deposited Plan. The DA (which is included in both the Applicant's bundle (Ex O at Tab 1) and the Respondent's bundle (Ex 5 at Tab 7) identifies the land as Lot 1 in DP 1133695, and describes the area as 'Sporting Fields.' The description as 'Sporting Fields' was contested by a number of those who made submissions by way of objection following the exhibition of the DA. These objectors stressed that the land on which the development was proposed to occur was not currently sporting fields but rather contained a variety of vegetation that included, in their view, natural and modified natural vegetation.
The same Lot and Deposited Plan numbers were cited in the Statement of Facts and Contentions, and Statement of Facts and Contentions in Reply and their subsequent amended versions.
Frensham School includes a considerable area of land made up of a number of Lots:

Figure 1 Aerial photo of Lots outlined in red comprising the Frensham School (Ex L)

The proposed development is situated in the northern most (north of the Sporting Fields) of the red bounded areas.

Figure 2 Proposed Holt Bush Accommodation Plan (Ex. B, Tab 10 Folio 273)

After the DA had been submitted, the Respondent negotiated with the Applicant to purchase an area at the northwest corner of the subject site, at the junction of Range Road with Railway Parade and Colo Street to widen the intersection.

Figure 3 Land to be acquired - showing intersection (Ex 7 Tab 6 folio 21)

The acquired land, with an area of 2979m2, became Lot 1 in DP 1277616 while the area on which development was proposed became Lot 100, with an area of 18.60 hectares. In evidence, both oral and written, the subject site was frequently referred to as Lot 1 and not Lot 100.
In the Applicant's version of proposed draft conditions dated 8 April 2022 (and subsequent versions), the subject land is referred to as Lot 100 in DP 1277616.

Figure 4 Part of Survey plan of Lot 100 (Ex. 7)

Frensham School is a well-known and highly regarded girls' school, situated in Mittagong in the Southern Highlands of New South Wales. The School was founded in 1913 by Winifred West - an origin reflected in the formal business name of the Applicant, Winifred West Schools Ltd.
Who was Winifred West? It is important to address this question as the spirit of Miss West was invoked by a number of objectors to support their case that the DA should be refused.
The appellation 'remarkable' is so frequently used today to encompass the attributes of the person being discussed that it has become almost meaningless, but in the case of Miss West it is still apposite.
Her life was reviewed in Kennedy 1976 (Priscilla Kennedy, Portrait of Winifred West (1976, The Fine Arts Press, Sydney)) from which this outline is largely drawn. (Kennedy was a niece of Miss West, who knew her aunt and other members of the family well, and, as well as memories, had access to family papers.)
Miss West was born in England in 1881 in Frensham in Surrey, then a small rural village, the daughter of the head of the local school. In 1900 she went up to Newnham College, Cambridge where she read Mediaeval and Modern Languages (but did not take a degree as, at that time, none were awarded to women). While pursuing her studies she also gained a hockey Blue, and took part in musical activities. With friends she went on country walks, maintaining her interest in natural history. After going down, she taught in Guernsey.
She arrived in Sydney in 1907, where she worked at the Australian Museum as a scientific illustrator, drawing shells of both marine and terrestrial molluscs for a number of Museum publications, and during evenings attended Julian Ashton's Art School. Her work on snails required considerable skill and attention to biological detail. In 1910 she returned to England where she taught at Harrogate Ladies College. She returned to Sydney in 1912 and in 1913 established Frensham School in a large house in Mittagong. In 1914 a hockey field was purchased, reflecting Miss West's views on the importance of sport and physical exercise. As the number of pupils increased a number of other buildings were acquired.
In 1917 a larger area of land, known as the 'Holt', was obtained, running north-south to the east of the then school, known at the time of purchase as 'Murray Park', but renamed after the purchase as the 'Holt'. The word 'holt' has several meanings, including a 'wood or grove', 'copse' and 'wooded hill', usage which can traced to Old English pre the 10th century. (Another meaning of 'holt' in English is the burrow excavated into river banks by the European Otter - the structure of these burrows is not dissimilar to those of platypuses). Kennedy records the purchase of the 'Holt': "The 'Holt', which is an English word for wooded hill or copse, was across the road from the main house and was called 'Murray Park'. Mr Murray gave Winifred the use of the park as early as May 1917. On October 10, the first instalment was paid; and from October 26, Winifred owned what was known from that day on as Frensham Holt. The price was five thousand pounds, with a deposit of half that amount. When Winifred offered a deposit of one hundred pounds, and 650 pounds when the next fees came in, Mr Murray agreed - he must have been almost as great a visionary himself! After the purchase it was discovered that the Upper Holt was included in the property - 250 acres of untouched and unspoilt bushland. The excitement was tremendous. As one Old Girl wrote, 'we explored it from side to side and from end to end fighting our way up the creek through the scrub. Then we rushed full of excitement to Miss West and said - "Just think, it's all ours!" She said - "I don't think of it like that - I suppose there is something missing in me. I have no pride in possession."' She wanted it for the joy and freedom it would give to all who knew it, and for its beauty, always a prime consideration. Countless people have found that its peace has been a great source of renewal; it is a place to be alone, a place in which true values can be realised. It is a priceless possession to all Frensham people and to many others as well. The Holt is still wild bush at the south end, beyond Range Road. Huge boulders and magnificent trees give it a completely different character from the more cultivated part to the north. Here there is space for playing fields, tennis courts, houses, gardens and a swimming pool. There are three weirs, a towing path, overhung by rhododendrons and pines, and a camellia grove. In the early days it was possible to follow the creek to its source. Some years later when canoes and boats were part of the fun of summer days in the Holt the more adventurous spirits would see how far they could canoe up the creek. Some porterage was involved, but not much, particularly in a wet summer. There are platypus in the creek, to be seen very occasionally by the patient watcher, and birds of many kinds abound: bower birds, kingfishers, ibis and diamond sparrows, as well as the more common Australian birds. Bower birds in particular are a delight, except when they are bold enough to steal from the unwary. Anything blue has to be carefully hidden if the owner wants to keep possession of it! Bits of blue glass, blue paper or material, and even a blue toothbrush, have been seen in the bowers from time to time. The Holt is an open-air classroom for nature study, botany, geology and geography; it is a playground for all kinds of games, picnics and barbecues; it also has an open-air theatre, made by Frensham people in a natural ampitheatre. Plays performed in this theatre became one of Frensham's strongest and most loved traditions, particularly the Parents' Day play at the end of the year." (Kennedy (1976) at 47-48)
This land was largely bush or modified bush, although there is not a detailed description of the vegetation at the time. The southern part of the site, the Upper Holt, south of Range Road, has steeper topography and tall forest vegetation, and was less disturbed than the vegetation in the Lower Holt, the northern section of the site close to the main school. Photographs by Harold Cazneaux in 1934 in his The Frensham Book: 100 Pictures of an Australian School (1934, Art in Australia Ltd, Sydney) (some reproduced in Ex C (Vol 2) Tab 22 folios 495-525, and also in Susan E. Emilsen, Frensham: an historical perspective (1988, Winifred West Schools, Mittagong)) show well-developed Pinus radiata trees and the range of activities being carried out in the area, including night gatherings around fires. "Holting" was the name given to management of the area by the girls, including weeding, pruning, removal of some pines, path making etc. (Although 'holting' is a word used frequently by those associated with the school, it has not yet appeared in a dictionary.) Miss West, in her introduction to Cazneaux's book, said: "Perhaps some explanation should be given of holting, one of the most pleasurable and useful of school activities. As one gardens in a garden, so one holts in a holt. Holting may mean mowing, scything, axeing, sawing, clearing, burning-off, digging, planting, carting or raking - and always a fire." (Ex C (Vol 2) Tab 22 folios 501-502)
There are also mentions, but with no details, of cattle grazing having occurred. An open-air theatre was constructed. The first play produced there was in November 1918 (Kennedy (1976)). From prior to 1917 and continuing to the present, the vegetation of the Lower Holt could not be described as untouched natural vegetation. "There was a great deal of clearing and tidying to be done in the Holt at first, and some of the staff formed themselves into a Holt club to do this work. By 1921 the sixth form also belonged to the club, and once a week, instead of playing games, they met with axes, rakes, saws and wheelbarrows to work for an hour 'holting'. Toasting forks and billy-cans were an important part of the equipment; a meal cooked over an open fire tasted twice as good as an ordinary meal indoors; staff and girls talked and sang together as friends. Holting has always been one of Frensham's most enjoyable and useful activities, one that lingers in the memory long after other events have faded." (Kennedy (1976) at 49)
Holting and the use of the Lower Holt for a range of recreational purposes was compatible with Miss West's view of managing the environment. In an interview later in her life she explained that "[a] childhood spent in the English countryside, and convictions concerning the unhealthy aspects of urban life, convinced her of the power of beautiful and natural surroundings as an educational force" (see p 22 and footnote 13 in Emilsen (1988)).
Miss West noted that: "It would be difficult to find a more ideal place for our school - with the hills and gullies, the bush, the garden and the creek - and who has not felt grateful for these last perfect days, the white crisp mornings, the sparkling of the frost in the sunshine, and the beauty of the mists, the blueness of the sky and the wonderful sunsets….Unless we are artists or poets or musicians we cannot express these things in pictures, poems or music; but we must not shut our eyes to their glory - the beauty must be reflected in our lives." (Winifred West, Addresses and Talks by Winifred Mary West, C.B.E. (1973, Memorial Edition, Angus and Robertson Publishers, Cremorne, Sydney) at 6 (June 1st 1917)) (The Addresses reproduced in this book were selected by Priscilla Kennedy)
With "[t]he hills and gullies, the bush, the garden and the creek… the beauty of the mists, the blueness of the sky, and the wonderful sunsets" Emilsen ((1988) at pp 22-23) considered that Miss West was of the view that activities in the bush "were as vital to an education as were books and teachers". Miss West's appreciation of the Holt was expressed in 1933: "A few Sundays ago I went over to the Holt before breakfast. Birds were already busy. It was one of our autumn mornings, clear and peaceful, and made more beautiful by the song of the thrushes, the call of Dr Hinder's peace doves, and the lovely liquid notes of the magpies. I sat down by the creek just above the bridge and watched the bees and small grey butterflies enjoying the sunshine and noticed the myriad-patterned water-weeds and the delicate shapes of the low-growing flowers and leaves on the banks, and listened to the croaking of the frogs. The horizontal rays of the sun made the dewy grass of the eastern bank a shining silver-green, while the grass on the opposite bank showed the vivid green of England. Upstream, the creek disappeared in the shadows of the trees, and below, the red bridge was reflected in the water. A flight of noisy lowries, and away in the distance, the sound of a train emphasised the peacefulness of the Holt. It was all so beautiful that I could not help feeling that here was our inspiration - a motive force stronger than the desire for material rewards or public recognition. 'Be still then, and know that I am God.' Most of you must have had similar experiences in the Holt." (West (1973) at 46 (Address May 1933)) (The reference to 'thrushes' applies to the grey shrikethrush.)
Miss West was also a pioneer garden designer and laid out the formal gardens of the School. Holly Kerr Forsyth in Remembered Gardens: Eight Women & Their Vision of an Australian Landscape (2006, The Miegunyah Press, Melbourne) regarded West as an important female landscape gardener in the national context, and devoted a chapter to her work, almost exclusively illustrated by the gardens at Frensham - 'The garden - a way of life Winifred West 1881-1971' pp 124-47). She also dedicated a chapter to Beatrice Bligh, a former pupil at Frensham, who was greatly influenced by Miss West's approach to garden design.
There can be no doubt that Miss West was deeply knowledgeable about the environment and in particular about plants, and that she believed that respect and care for the environment gave important benefits to humans.
A large number of people made submissions to the Respondent urging that the DA be refused (Exs 7 and 8). Many of those submissions made reference to Miss West and argued that what was proposed would have been an anathema to her.
The hearing commenced at Frensham, in the school hall, and not at the site of the proposed development in the Lower Holt. A large number of objectors were present, six of whom had been chosen to speak to their submissions.
All of the written submissions had been considered by the Respondent when assessing the DA, and I have also read all of the submissions. Moore J has recently explained how objector evidence given on site is to be considered by the Court - "…I heard evidence given informally by seven of the objectors. This evidence was primarily given in the car‑park of the former motel near its driveway entrance from Gatacre Avenue. Evidence given on site in this fashion, to the extent that it is relevant to issues requiring to be determined in the appeal, is given as much weight as would be given had that evidence been heard, under oath or affirmation, in the courtroom. I have considered the objectors' evidence on that basis…" Gatacre LC Pty Ltd v Lane Cove Council [2023] NSWLEC 35 at [71]
Preston CJ discuss the importance of hearing from objectors, while explaining that objectors do not have any rights of veto in Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning (2008) 159 LGERA 361; [2007] NSWLEC 802 at [50]-[54]: "50 … Meaningful community involvement can, of course, be beneficial in the development assessment process. It can provide members of the community with an understanding of what is happening in their area and how the proposed development may impact particularly on their interests; enable members of the community to participate by making submissions to the consent authority; inform the consent authority; and improve planning decisions. 51 Community consultation and public participation should not be viewed as being adversarial. The community and affected persons have no entitlement to be an adversary to the applicant for development consent in a contest as to whether or not development consent should be granted. 52 Community consultation and public participation under the Environmental Planning and Assessment Act are not intended to give the community or affected persons who object to development any entitlement to veto development. The planning scheme established by the Environmental Planning and Assessment Act vests in the relevant consent authority, and on an appeal this Court exercising the functions of the consent authority, the tasks of determining the matters of relevance to the development application; taking those matters into consideration as well as any submissions made in response to the consultation process; according weight to the matters as is considered appropriate; and reaching a merit determination. 53 A mere dissatisfaction with the merit outcome of a determination by a consent authority does not entitle a person who objected to be joined as a party so as to be able to continue arguing its particular submission. 54 The process of community consultation and public participation should also not be seen as an end in itself or as being more important than the ultimate merit outcome of a determination by a consent authority. The process of the community and affected persons being heard and making submissions is important, but there must be a limit to how long and detailed that process should be. Provided there is adequate opportunity for the community and affected persons to put forward issues, that concern them and those issues are addressed by the consent authority, and can be addressed by the Court on appeal, it is not necessary in the interests of justice to join a person who wishes to continue the process of objection on those issues to be a party to proceedings."
The large number of objector submissions in the present matter includes many which are similar or have overlapping content. The purpose of providing opportunity for submissions is not to carry out a referendum but rather it is to seek information and informed analysis. The number of submissions is given far less weight than is given to the information provided. A number of submissions were from (or on behalf of) groups rather than from individuals, and a number of makers of submissions, responded to both the initial notification and to the additional notification following amendment. The contents of the second submissions added additional material to that initially provided.
Objectors are not parties to a case (unless they have successfully sought to be joined, or the matter is a designated development - which is not the case in the present matter - where a person or body who made a submission when the development application was first displayed for public comment and was dissatisfied with the outcome can mount an appeal).
Objectors who present orally in a hearing are lay witnesses, even if they speak to issues involving expert knowledge, not expert witnesses. The submissions made in Court may include a mix of factual material, the fruit of their personal experience of the site and issue, sometimes gained over many years, reference to reports and documents, and opinions held by the author of the submission.
In regard to statements about what Miss West's opinion would have been, I consider that these are speculation, notwithstanding the statements she had made about the natural environment at various times. A number of submissions stated that Miss West particularly valued wombats. She undoubtedly stressed the importance of protecting fauna but those referring to wombats did not cite particular examples of statements where she had referred to wombats, and neither of the parties drew attention to any statements specifically about wombats which Miss West had made.
Wombats are protected fauna in NSW so any impacts on wombats are matters that will require attention.
There are a number of issues raised in submissions which will require attention in this judgment, but there is one of the submissions which I do need to refer to here.
The submission by Ms Miranda Austin is at folios 56-60 in Ex 8 includes the following paragraphs (from folios 58-59): "Historical Overlay - The founder's original intention. 'The art of living is knowing what to select and what to reject, and we must reject all but the best-that only is good enough. We often get faint hearted, and wonder whether, after all, it is so tremendously important to be so insistent on the best and only the best of which we are capable. It would be so much easier if we could lower our standard just a little and make a good second best do - that would pass muster; other people would not know, and we should be 'screened by a safe majority', but in our hearts we should know ourselves to be cowards 'To do anything because others do it and not because the thing is good or honest or kind in its own right is to resign all moral control and captaincy upon yourself and go post haste to the devil with greater number.' … If we, as a school are wrapped up in and bounded by our own interests, if we do not realise our place in the scheme of things, our work will be meaningless. Whether as individuals, or as a school or as a nation, we cannot live to ourselves and for ourselves. Detachment is a crime.' West, W (1992) Winifred Mary West : Addresses & Talks Fine Arts Press : Sydney. June1st 1919 p.12,13 The founder of Frensham, Miss Winifred West, left behind her a body of writing consisting of her intentions for the school, philosophy, musings, and beliefs. Students at the school are and were systematically taught this world view and it was an important part of a Frensham education and to this day is how alumnae can understand each other. This philosophy is not intended as a collection of pretty writings but a fully formed lifestyle which was inculcated into us at the school. From her published works we can easily ascertain that Miss West had purchased the Lower Holt 'to be held in perpetuity for the students of frensham, the animals and the refreshment of people' (paraphrased) This is a repeated theme in her works, and I am aware that other Alumnae have referred to this issue in their own submissions and letters. The constitutions of Winifred West Schools Ltd forbid this land from being used in any way counter to the founder's original intention. The founder specifically refers to this provision being made in her writings, and it can be found in the constitutions of Winifred west schools. On behalf of the students, ex-students - in good faith I believe it would be a desecration of her memory to develop this land which she held so dear." (emphasis in original) (Ex 8, Folio 58-59)
I was not taken by either party to the constitution of the schools, nor to any statement of Miss West's intentions included within the constitution.
As such I can give no weight to the claim regarding breach of the constitution. Nevertheless, the general views of Miss West are well documented and were alluded to by other authors of submissions, a number of whom were alumnae, including from families with several generations of alumnae.
Neither can I assume that Miss West would have been opposed to the proposal, either in whole or part. Both in relation to the Holt and the School gardens the management conducted while Miss West was headmistress included environmental protective measures but the School expanded greatly during the period and this involved construction of both buildings and sports facilities.
Ms Austin and other authors of submissions were also extremely critical of the School's approach to public consultation during the development of the proposal. The form of the public consultation conducted by the School was decided upon by the School. If the result is residual ill feeling and mistrust by the objectors and at the least some alumnae that is a matter for the School - it is not a matter for the Court.

Koala, Wombat and Platypus

A number of submissions raised, as what were considered as serious concerns, the possible impact of the proposed development on three species of mammal, the Koala (Phascolarctos cinereus (Goldfuss, 1817)), the Wombat (Wombatus ursinus (Shaw, 1800)) and the Platypus (Ornithoryhynchus anatinus (Shaw, 1799)). The Koala is now listed as endangered on Sch 1, Pt 1 of the Biodiversity Conservation Act 2016 (BC Act). Neither the Wombat nor the Platypus are listed as threatened species included in Sch 1 of the BC Act. However, both are protected animals in Sch 5 of the BC Act. Schedule 5 Protected animals Note - Some protected animals specified in this Schedule may also be a threatened species or a part of a threatened ecological community. Provisions of this Act relating to the protection of protected animals generally also apply to animals that are a threatened species or a part of a threatened ecological community. Any of the following that are native to Australia or that periodically or occasionally migrate to Australia (including their eggs and young) - amphibians - frogs or other members of the class amphibia. birds - birds of any species. mammals - mammals of any species (including aquatic or amphibious mammals but not including dingoes). reptiles - snakes, lizards, crocodiles, tortoises, turtles or other members of the class reptilia.
Section 2.1(c) creates an offence of harming or attempting to harm a protected animal, for which the maximum penalty is a Tier 4 penalty. 2.1 Harming animals (1) A person who harms or attempts to harm - (a) an animal that is of a threatened species, or (b) an animal that is part of a threatened ecological community, or (c) a protected animal, is guilty of an offence. Maximum penalty (includes additional penalty for each animal) - (a) in the case of an animal that is (or is part of) a threatened species or threatened ecological community (other than a vulnerable species or community) - Tier 1 monetary penalty or imprisonment for 2 years, or both, or (b) in the case of an animal that is (or is part of) a vulnerable species or vulnerable ecological community - Tier 3 monetary penalty, or (c) in any other case - Tier 4 monetary penalty. (2) If the act that harms an animal is the clearing of native vegetation by or on behalf of a landholder on category 1-exempt land under Part 5A of the Local Land Services Act 2013, the person does not commit an offence under this section unless it is established that the person knew that the act would be likely to harm the animal. (The koala is a threatened species so that any penalty incurred would be Tier 3; for wombat and platypus any penalty incurred would be Tier 4.)
However, s 2.8(1) states: 2.8 Acts authorised under other legislation etc (1) It is a defence to a prosecution for an offence under Division 1 if the person charged establishes any of the following in relation to the act that constitutes the offence - (a) Planning approval etc The act was necessary for the carrying out of - (i) development in accordance with a development consent within the meaning of the Environmental Planning and Assessment Act 1979, or (ii) development that is exempt development under that Act, or Note - Section 76(3) of that Act provides that development carried out in a declared area of outstanding biodiversity value or in a wilderness area is not authorised exempt development. (iii) an activity by a determining authority within the meaning of Part 5 of that Act that was carried out after compliance with that Part, or (iv) an activity authorised by an approval granted by a determining authority within the meaning of Part 5 of that Act after compliance with that Part, or (v) an approved transitional Part 3A project under Schedule 6A to that Act, or (vi) State significant infrastructure approved under Part 5.1 of that Act.
If action is undertaken prior to the works which might be approved in a development consent, then a biodiversity conservation licence may be required: 2.11 Licences to do acts that would otherwise constitute offence The Environment Agency Head may grant a licence (a biodiversity conservation licence) to a person that authorises the doing of an act that would otherwise constitute an offence under Division 1 or under any other provision of this Act. 2.12 Applications for licences (1) An application for a biodiversity conservation licence - (a) is to be made to the Environment Agency Head in the form approved by that Agency Head and containing the information required by that Agency Head, and (b) is to be accompanied by the standard application fee prescribed by the regulations. (2) If the Environment Agency Head considers that the cost of determining a particular application for a biodiversity conservation licence exceeds the standard application fee, that Agency Head may require the applicant to pay an additional amount for the determination of the application if the additional amount is calculated in accordance with a methodology published by the Environment Agency Head and does not exceed the additional reasonable costs of determining that application. Note - See section 14.6 with respect to recovery, waiver or refund of fees. (3) The Environment Agency Head may require the applicant for a biodiversity conservation licence to provide such additional information as the Environment Agency Head may require to determine the application.
Conditions might apply to the granting of a licence: 2.14 Conditions of licences (1) A biodiversity conservation licence may be granted unconditionally or subject to such conditions as are specified or referred to in the licence or as are prescribed by the regulations. (2) The conditions that may be imposed on a biodiversity conservation licence include - (a) minimum standards relating to the humane treatment of animals (including minimum standards relating to the accommodation, care, rescue, rehabilitation, release or killing of animals), or (b) the places at which animals are to be kept, or (c) the keeping of records, or (d) conditions on any other matter that the Environment Agency Head considers appropriate in the circumstances. (3) The variation of a biodiversity conservation licence under section 2.13 includes the addition, removal or amendment of a condition of the licence (other than a condition prescribed by the regulations). (4) A person who contravenes a condition of a biodiversity conservation licence is guilty of an offence. Maximum penalty - (a) in the case of a contravention that relates to an animal or plant that is (or is part of) a threatened species or threatened ecological community (other than a vulnerable species or community) - Tier 1 monetary penalty or imprisonment for 2 years, or both, or (b) in the case of a contravention that relates to an animal or plant that is (or is part of) a vulnerable species or vulnerable ecological community - Tier 3 monetary penalty, or (c) in any other case - Tier 4 monetary penalty. (5) A defence to a prosecution for an offence under Division 1 extends to a prosecution for an offence under subsection (4).
In relation to wombats, where, in this matter, capture and temporary removal is proposed, conditions under s 2.11(2) might be applied. The consent authority, including the Court exercising the functions of the consent authority in an appeal, cannot grant a biodiversity conservation licence, which can only be granted by the Environment Agency Head.
Protected animals on the site are not property of the landholder, but of the Crown: 2.18 Protected animals (unless excluded) to be property of the Crown (1) In this section - excluded protected animal means - (a) a protected animal that is, at the time of birth, in the lawful possession of any person other than the Crown, or (b) a protected animal imported into New South Wales, or (c) a protected animal that was, before the commencement of the National Parks and Wildlife Act 1974 on 1 January 1975, lawfully taken or in the lawful possession of any person other than the Crown and that had not been liberated before 1 January 1975, or (d) a protected animal of a class prescribed by the regulations for the purposes of this definition. protected animal includes an animal of (or part of) a threatened species or threatened ecological community. (2) A protected animal (other than an excluded protected animal) is, until lawfully captured or killed, deemed to be the property of the Crown. (3) A protected animal is, when liberated in New South Wales, deemed to be the property of the Crown. (4) A protected animal that is deemed by this section to be the property of the Crown does not cease to be the property of the Crown merely because a person other than the Crown - (a) takes possession of it because it is incapable of fending for itself in its natural habitat, or (b) takes or obtains it under and in accordance with a biodiversity conservation licence that declares that any animal so taken or obtained remains the property of the Crown. (5) The progeny of any protected animal that was born at a time when the protected animal was in the possession of a person in the circumstances referred to in subsection (4) is, at the time of birth, deemed to be in the lawful possession of the Crown instead of that person.
It will be necessary to examine in more detail the possible impacts on all three species.

Trees

The proposed development requires the removal of a relatively large number of trees, both to create the space needed for buildings and to provide for the Asset Protection Zones (APZs) required by the Rural Fire Service (RFS).
The Applicant commissioned an Arboricultural Impact Assessment of the Frensham School Holt Bush Accommodation which is at Tab 11 in Ex D. Pages 19-53 of the report contain a Tree Schedule providing details of trees growing on the site of the proposed development. The report, including the Tree Schedule, was prepared by Mr Ian Hills.
The Tree Schedule became the source of controversy and confusion during both the field inspection and later in Court.
On the site inspection it was apparent that the trees within the proposed development area had numbered metal tags - as seen in the photograph below:

Figure 5 Area of Tree 176 (18 March 2022) - Photographed by Grahame Douglas (Red circle highlighting tag added)

Mr Hills recorded in his report, at Section 3.0 Methodology, on page 5, that tree canopy spread, and trunk diameter (DBH) were determined during the site survey by Land Team Pty Ltd surveyors and confirmed using a standard arboricultural diameter tape. There was no dispute that the location of trees within the proposed development area, and DBH had been correctly recorded by the surveyors.
A great many of the trees were Pinus radiata (radiata pine / Monterey pine) and these have been correctly identified. Pinus radiata has a very restricted natural distribution on the Monterey Peninsula in California and two small islands off the Mexican coast. However, it is one of the most widely grown plantation forest trees in the world.
It was first grown in Australia in the 1850s, possibly from seed imported by miners travelling from the Californian goldfields to Australia. Trees were grown in both the Sydney and Melbourne Botanic Gardens by 1857.
The first plantation of radiata pine in New South Wales was established at Tuncurry on the mid North Coast in 1914.
The pine trees in the Holt are shown in early photographs by which time they were larger than would have been expected for any progeny of the east Australian plantations, but they may have grown from seeds or seedlings imported directly from California, or seeds developed on early established plants in Australia. The trees do not have the growth form normally associated with plantations or the spatial distribution pattern of plantation trees and were possibly planted scattered among the bush and spread through subsequent self-seeding.
Given the possible age of the oldest pine trees on the site, they might be considered for some form of heritage listing. Dr Clements, the Respondent's plant ecology expert, made reference to radiata pines on a former brewery site to the northeast of the Frensham land and thought they might qualify as a heritage item. "WITNESS CLEMENTS: There are pines as I go down to where the old brewery is. There's rows of pines having been planted around the outside of part of the brewery site and there's heritage study that's having been - that's been done on that brewery site itself, so the pines will be of conservation significance in terms of heritage. I don't know. I haven't read the heritage report." (Tcpt, 22 March 2022, p 41(33-38))
Mr Hills on page 3 of his report states that Pinus radiata is classified as an environmental weed species in Wingecarribee Shire, so that removal could occur without there being a need for council consent.
Although the radiata pines appeared to have been correctly recorded, what was at issue between the parties was the identity of other species in the Tree Schedule, and, in a few cases, the recorded canopy dimensions relative to DBH appeared to be inherently unlikely.
The identification of eucalypts within the study area was a particular issue in view of the need to identify possible koala feed trees.
The three ecologists who participated in the preparation of a joint report (Ex 3) were Dr Stephen Phillips, a wildlife ecologist specialising in koala ecology, Dr David Robertson, a plant ecologist and director of Cumberland Ecology, who had been engaged by the Applicant, and Dr AnneMarie Clements who had been engaged by the Respondent. In her evidence Dr Clements referred to herself as a restoration ecologist. While I do not disagree with this description, restoration ecology is a relatively new subdiscipline in ecology and most participants moved into the field from some other branch of ecology and brought skills from earlier education and working experience. Dr Clements' background is based in botany and plant ecology.
At earlier stages in the matter the experts for each party were different: for the Applicant, the first Biodiversity Development Assessment Report (BDAR) was prepared by Ecoplanning, while Eco was engaged by the Respondent to critique the ecological information provided by the Applicant and in submissions from the public.
The ecological and koala issues were discussed at the start of the examination of experts. "WITNESS PHILLIPS: … there was no disagreement between the experts about the fact that koala SEPP 2020 applied to this site because it was over 1 hectare in size and because it was located in the Wingecarribee LGA. The issues that we needed to consider was firstly the matter of whether or not the site contained potential koala habitat and then indeed, if that was the case, did the site also qualify as core koala habitat, and in this context I'm talking specifically about lot 1 because that is the lot to which the development application relates and that is how the SEPP requires us to take those things into account. The matter of potential koala habitat, as has been communicated earlier, is about whether or not the trees in the taller stratum, whether 15% of those trees are tree species listed in schedule 2 of the SEPP, and in this particular instance we're mostly interested in Eucalyptus punctata, the grey gum, and the question of whether there are 15% or whether that tree species constitutes 15% of the taller strata; which is a matter of intense interest to koalas who are always wandering around with pocket calculators doing the sums and saying if it's less than 15% I don't live there. It doesn't make a lot of sense to me and it doesn't make a lot of sense to koalas, but it's nonetheless a metric that we're required to take into account. So, for this site we have agreed that the matter of potential koala habitat is about Eucalyptus punctata. We also know there's some viminalis elsewhere on the site, but outside this narrow metric that the SEPP imposes on us, we also know from the available scientific data that there are other trees that grow on that site that are preferred, preferentially utilised by koalas, and specifically I'm talking about White-topped box, Eucalyptus quadrangulata, and Eucalyptus macarthurii, the Camden Woollybutt, and without wanting necessarily to blind side Dr Clements, in an earlier discussion with David Robertson, Dr Robertson, we were aware that Eucalyptus ovata also occurs on the site. So, there's two issues here, one is the trees that are listed on the SEPP, and there's the other issue which is about the science via ecology and trees that are preferentially utilised by the species, by koalas, and clearly it makes ecological sense, if you were going to do anything about sustainably managing koalas you have to take into account the trees that are known to be preferentially utilised by the species, because it just can't function without those tree species, and that's a critical element of koala population management. As we saw during the site visit, grey gum is very patchily distributed across the site. There was a patch of very nice grey gum on the western side of the Nattai River very early on during the site inspection, and then we didn't see it again until we got on to more elevated land at the north of the site, where I took that opportunity to explain a bit more about home range use by koalas and the importance of tree species like grey gum to them. And so the question which comes back to us is are there enough grey gum on the site to qualify all on its own as potential koala habitat and the reality is that that is not the case, and so if we were to do a systematic assessment counting the number of grey gums at regular intervals across the site, we would come to the conclusion that it doesn't even meet that 15% threshold. Now, some insight into that can be gained from Dr Clements's own data, her own plot data, and in particular I'm referring under point 21 at the top of page 8 in the joint expert report, and the three of those four plots relate specifically to lot 1 and of the 44 trees that are contained within those plots only five are Eucalyptus punctata and so when you do that sum it's 11.4% and that is obviously less than the at least per cent that is prescribed by the SEPP. So, the matter of taking on board the other tree species that are known to be preferentially utilised by koalas, the presence of the listed tree species Eucalyptus punctata, the recognition by all of us, I believe that the site is potential koala habitat very much reflected a precautionary approach. It's being as safe as we can and it makes ecological sense to broaden that description because it assists us with our management objectives. The next issue that it then comes down to, if the site's potential koala habitat then the next question is, is it core koala habitat." (Tcpt, 21 March 2022, pp 36(25)-37(32))
Dr Phillips expressed his view, shared by the other ecologists, that State Environmental Planning Policy (Koala Habitat Protection) 2020 (SEPP 2020) took a narrow approach to categorising particular eucalypts as koala feed trees.
One feed tree regarded by the expert witnesses as a feed tree, but not included on Schedule 2 of the SEPP 2020 is Camden Woollybutt, also known as Paddys River Box, Eucalyptus macarthurii, a species with a restricted distribution in the Southern Highlands, mainly on private land. It is listed as endangered under both the BC Act and the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).
Dr Robertson added: "WITNESS ROBERTSON: Certainly. Yeah. I have heard what Dr Phillips has said and I agree with that as a summary, and I also have discussed some of the data with him during the course of preparation of the joint expert report. The only thing that I would add would be that if you look at the tree schedule that's attached to appendix D in the koala report, you can see that there's only a relatively small number of grey gums and to a lesser extent swamp gums within that what we call the subject land, or the area of lot 1, and so I must echo what Dr Phillips said about paragraph 22 and the table attached to that and the percentage of 11% for Eucalyptus punctata on site, and I believe that the number's lower than that when you consider the overall numbers of trees that have been identified and presented in schedule D or attachment D of the joint expert report." (Tcpt, 21 March 2022, pp 37(44)-38(5))
Dr Clements was questioned about her assessment of the identification of the trees on the subject site. "WITNESS CLEMENTS: Right. The schedule of the SEPP 2020 lists two koala feed tree, punctata, and that was recorded by Cumberland Ecology in plot 4, west of the Nattai. It's also recorded in Cumberland Ecology plot 6, north of the subject land on lot 1. It was recorded in plot 3, west of the Nattai by our group, and also at spots D, E and F, east of the subject land. The locations for these are shown in the joint report, I've shown them for our spots and that's on figure 3 of the joint report and my appendices I've just put down as AC appendices. I think they got subdivided into little groups. Okay, so now viminalis, that's recorded incidentally by Ecoplanning, by Cumberland Ecology and ourselves in appendix B of the BDAR and it's also recorded by us at spots C and G, east of the subject land. Also, spot C is where that oval goes across between the two ovals. So, I record the number of canopy species greater than, you know, I record species greater than 2 metres in every one of our subquadrats so I can get a count of the per cent of actual canopy trees, and in our discussions with Steve Phillips, he pointed to a whole pile of trees that are preferred koala trees, and that's in paragraph 21 of our joint report - no, at paragraph 20 of the joint report, and he emailed me that the data confirms that punctata is a preferred koala tree in the area. The data on viminalis is it's also a preferred tree, quadrangulata, macarthurii, but elata wasn't. In paragraph 20 we looked at the eucalypt taxonomy of the trees that were coming up as preferred koala trees and the preferred koala trees appear all to be in the a subgenus Symphyomyrtus of the Myrtaceae. So, of the trees that we're calling, we have amplifolia which is in the Symphyomyrtus, quadrangulata, macarthurii, viminalis and punctata all falling within that group. Using the data, I have recorded within the floristic quadrats, I get 35% in plot 1, preferred koala tree of the subgenus Symphyomyrtus, and I also get 36% of the trees recorded in plot 3. So, yes, it's not unlikely that lot 1 supports at least 15% of preferred koala trees. It doesn't strictly support things that appear in schedule 2 of the SEPP 2020, which is an out of date SEPP but brought in because of the date of lodgements. Yes, we do know that the site has trees that are eaten by koalas and it's a preference eating of those trees. O'GORMAN-HUGHES: The figure was put by Dr Phillips, supported by Dr Robertson, that about 11.4% of the trees were ..(not transcribable).. of the subject site. WITNESS CLEMENTS: You're only looking at four quadrats where tree counts have been done, and in plot 3 I got five Eucalyptus punctata in a 20 x 20-metre plot. In the other sites, where I have an amplifolia dominance, I don't get any trees in that. So if you just add up five out of all the trees that I've recorded in four 20 x 20-metre plots, it's a bit ridiculous in terms of sampling. Whether we've adequately sampled to be able to make any fine decisions. You know, it's just not enough sampling to make that sort of decision of 11%. O'GORMAN-HUGHES: The relevant test of course for the Court to consider in clause 8 of the 2020 koala SEPP is it must be satisfied as to whether or not the land is potentially koala habitat, relevantly being defined as areas of valued (sic) vegetation where trees of the types listed in schedule 2 constitute at least 15% of the total number of trees in the upper/lower strata of the tree component. What do you say about whether or not the Court could be satisfied as to whether or not the land, being lot 1, meets that definition? WITNESS CLEMENTS: If I had to do it, I'd have to work out that the eastern part and the northern part of the site appear to be areas where you would have more than 15% of the koalas, if I had accurate tree data, which I do not have. But just based on records of spots and stuff like that, I'd say, yes, the eastern bit of it is definitely making potential koala habitat, but does the entire site make potential koala habitat, well I need a bit more data. The only reliable tree data I have is done by the surveyor that says gum. Now the rest isn't giving me a lot of confidence about the accuracy of the tree identifications. Like I don't understand how Cumberland Ecology did a re-identification when I go through the table and re-identified is only 102 of the 500-odd trees, I'm a bit confused about that." (Tcpt, 21 March 2022, pp 38(9)-39(23))
In the Joint Report of the Ecology Experts, Schedule D sets out the reidentification of species listed in the Tree Schedule of the Arboricultural Report.
Mr O'Gorman-Hughes, counsel for the Respondent, questioned Drs Phillips and Robertson about Schedule D. "O'GORMAN-HUGHES: Dr Phillips, schedule D that's attached to the joint report sets out re-identified species, did you - how many of those species did you personally re-identify? WITNESS PHILLIPS: I have been reliant on the information provided by Dr Robertson and the discussions between Dr Clements and Dr Robertson. I did take the opportunity during the site view to independently I guess test or examine the extent to which that understanding matched my observations in the field, and I was actually quite comfortable that they did, and, as you might recall during the site view, it took me quite a while to get to a location where I could actually talk about grey gum because in that traverse of that landscape that we all went on, including the lower lying areas, I had been looking for two things, I was looking to clarify the presence of Eucalyptus amplifolia on the site, which is a non-koala feed tree, even though it is a Symphyomyrtus, but I was looking for grey gum so I could introduce the participants to the dynamics of grey gum and how it works in koala society, and so I'm very confident it was not present throughout the majority of the lower lying areas of the site, and indeed on those sort alluvial soils, and that's not its nature, it occurs on more elevated metasediments uplifted sites, and that quite naturally. O'GORMAN-HUGHES: Dr Robertson, perhaps I should have addressed the question to you. With regard to annexure D to the joint koala report, you've indicated that certain species have been re-identified and is it in her evidence that you've only re-identified 102 of over 500 species. Firstly, how many of those re-identifications did you carry out personally yourself? WITNESS ROBERTSON: I conducted a re-examination of the data that was provided by the arborist report in November last year, and I did it personally. I went to the site and I walked around the site and I looked for as many trees as I could with the numbered tags within the subject area that were covered by the data that's listed in appendix D, and I realised that there were errors in identification and that some of those errors could be corrected in a relatively straightforward way, and I give examples by which I say Acacia decurrens was a wattle that was commonly misidentified, or Acacia mearnsii, the black wattle, was misidentified as Acacia decurrens. So, within the spreadsheet that we see before the Court, many of those trees were just simply changed over. O'GORMAN-HUGHES: Dr Robertson, if you would answer the question asked, which was a number of trees that you personally re-identification in that table, did you have any idea? WITNESS ROBERTSON: I couldn't give you a firm number, but I'm trying to explain - I'm coming to that answer if I may. If you look at things like Pinus radiata, there's a very large number of trees within the 515 trees that appear in that data that are Pinus radiata. They're correctly identified and they don't need to be changed. Some eucalypts were actually incorrectly identified and our focus during the second round of work, and that's the identifications or re-identifications presented in this data, was done by my senior botanist Bryan Furchert, under instructions. He went back to the site and he looked particularly at trees that were identified as koala feed trees, that was the aim of this exercise. So, the work, that was done in November by me to correct the data and to check the data involved my checking in the field plus it involved looking at whole sets of species that were simply rebadged and renamed, and also reassuring myself that things like the radiata pine had simply been identified correctly to begin with. The work done by Bryan Furchert went out and looked at things like the grey gums and looked to see whether they were properly numbered, and located, and identified, and there were several other trees that were in the schedule and, I'll just give you an example, there were Eucalyptus tereticornis that were mentioned on site, they were misidentified largely as Eucalyptus amplifolia - sorry, Eucalyptus amplifolia was misidentified as Eucalyptus tereticornis and Eucalyptus tereticornis is a preferred koala feed tree, Eucalyptus amplifolia is not. There was also I think Eucalyptus viminalis that was identified within this data, and we've checked the site to see whether Eucalyptus viminalis occurs in this data set, and it doesn't. The species that it was changed to is Eucalyptus Elata which is the river peppermint and that again is not a koala feed tree. So, as well as the actual database - to a species that are in the back of the spreadsheet, I've provided two extra figures that show the locations of some trees in two figures at the back of - at the very end of appendix D. The first one of those figures shows koala habitat trees within the subject land, which is the area where development is to take place, and it shows trees to be cleared within the subject land and trees to be retained, and the second thing shows the koala feed trees to be removed based on the updated data. So, I have check a high proportion of the trees in this database and I can't tell the Court how many. The more accurate estimate of the checking of potential koala feed tree is as shown in appendix D and that was done by Bryan Furchert under my instructions. (Tcpt, 21 March 2022, pp 39(24)-41(1))
Dr Robertson had prepared a Biodiversity development assessment report (BDAR) for the proposed development. Pursuant to s 6.12 of the BC Act, a BDAR is: 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. Note - A biodiversity development assessment report is also used for the assessment of impacts on threatened species and threatened ecological communities, and their habitats, and other impacts under Part 7 (Biodiversity assessment and approvals under Planning Act) even though the impacts may not relate to actions to which the biodiversity offsets scheme applies.
Dr Robertson is an accredited person able to apply the Biodiversity Assessment Method (BAM). Section 6.7 of the BC Act requires the Minister to establish a BAM. 6.7 Minister may establish biodiversity assessment method (1) The Minister is to establish a biodiversity assessment method in connection with the biodiversity offsets scheme. (2) The biodiversity assessment method is also established for the purpose of assessing the impact of actions on threatened species and threatened ecological communities, and their habitats, and the impact on biodiversity values of other actions prescribed by the regulations (whether or not the biodiversity offsets scheme applies to the impact of those actions on biodiversity values). Note - See Part 7 of this Act and Division 6 of Part 5A of the Local Land Services Act 2013. (3) When establishing the biodiversity assessment method, the Minister is to - (a) have regard to the purpose of this Act, and (b) adopt a standard that, in the opinion of the Minister, will result in no net loss of biodiversity in New South Wales. This subsection does not affect the validity of a biodiversity assessment method established by the Minister. (4) The biodiversity assessment method is to be established by order of the Minister published on the NSW legislation website. (5) The biodiversity assessment method may be amended or replaced by further order of the Minister published on the NSW legislation website. (6) The Environment Agency Head is to make the biodiversity assessment method available on a government website maintained by the Agency Head. …
The BAM provides a set of rules and may specify other provisions within the BC Act: 6.8 Matters to be dealt with by the biodiversity assessment method (1) The biodiversity assessment method is to set out rules and guidelines with respect to the matters for which biodiversity assessment reports may be prepared under this Act. Note - Section 6.4 enables regulations to be made with respect to offset rules (including circumstances in which the ordinary rules for determining the number and class of biodiversity credits required as biodiversity offsets may be varied). (2) The biodiversity assessment method may include provision for - (a) the adoption of datasets, maps and other information published from time to time by a specified person or body (or otherwise approved in a particular case), and (b) the submission of expert reports, and (c) the use of specified computer programs and databases for the carrying out of assessments under the method, and (d) the assessment of the biodiversity values of land by reference to features of surrounding land. (3) The biodiversity assessment method is to exclude the assessment of the impacts of any clearing of native vegetation and loss of habitat on category 1-exempt land (within the meaning of Part 5A of the Local Land Services Act 2013), other than any impacts prescribed by the regulations under section 6.3. (Section 6.8 BC Act)
Persons accredited to apply the BAM do so under the provisions of s 6.10 of the BC Act. 6.10 Scheme for accreditation of persons who apply method (1) The Environment Agency Head is to prepare a draft scheme, in accordance with this section, for the accreditation by the Agency Head of persons for the purposes of the application of the biodiversity assessment method. (2) The Minister may, by order published on the NSW legislation website, adopt the scheme with or without any modifications the Minister considers appropriate. (3) The Minister may, from time to time by similar order, amend or replace the scheme. Note - Part 9 requires public consultation in relation to the preparation of the scheme. (4) A scheme for the accreditation of persons under this section may (without limitation) include the following - (a) the qualifications or experience required for persons to be accredited to apply the biodiversity assessment method, (b) the accreditation of Public Service employees or other persons, (c) the procedure for applying for accreditation, (d) the grant of accreditation and the conditions on which it is granted, (e) the period for which accreditation remains in force, (f) the renewal, variation, suspension or cancellation of accreditation, (g) the payment of fees for applications for the grant or renewal of accreditation (including periodic fees while an accreditation remains in force), (h) the provision of information by accredited persons to the Environment Agency Head and other persons in relation to biodiversity assessment reports prepared by the accredited persons, (i) the integrity of biodiversity assessment reports prepared by accredited persons (including the audit of those reports and the establishment of protocols on the engagement of accredited persons to ensure the independent exercise of their functions), (j) the information that an accredited person is required to obtain from a person requesting a biodiversity assessment report. (5) The Minister may, from time to time, arrange for a review of the scheme. (6) The regulations may make provision for or with respect to the contents of a scheme, giving effect to the scheme and reviewing the scheme.
Dr Robertson is an accredited person for purposes of applying the BAM. However, in a matter where several issues arise, a number of experts may be involved. In this case Dr Robertson utilised the expertise of Dr Furchert and Dr Wolf, both employees of Cumberland Ecology. Nevertheless, the preparation of the BDAR (involving the incorporation of several sources of information) must be conducted by the accredited person who also takes responsibility for the total content and the conclusions drawn in the BDAR.
Mr O'Gorman-Hughes sought to find out what proportion of the approximately 500 trees on the subject site had been checked for identification. "O'GORMAN-HUGHES: Thank you. The expression high proportion is somewhat subjective. It may be 5%, 10%, it may be 95%. Can you narrow it down, firstly now many that you have personally checked, and I'm happy for you to give the Court a range, but it needs to be a range that you're comfortable is accurate? What percentage of 500 trees on the site have you personally checked to be the correct species? WITNESS ROBERTSON: I have personally looked at something in the order of 80 to 100 trees, scattered across the site from the set of 500 trees, and I don't include within, but I suppose they are - there's additional trees that include the pines where, you know, the pines are not really at issue but they're abundant across parts of the site. So, I have checked 80 to 100 trees I would say and I spent a good day looking specifically at that detail. O'GORMAN-HUGHES: Your colleague, you said Mr Furchert, how many of the over 500 trees on the site has he personally checked? WITNESS ROBERTSON: It's indicated in the fourth column from the right-hand side in the table, and so it's a smaller proportion but it's focussed on the potential koala feed trees. O'GORMAN-HUGHES: ..(not transcribable).. proportion are you able to indicate - you're not able to indicate off the top of your head ..(not transcribable)..? WITNESS ROBERTSON: I have a printout beside me and I'd have to do a count, but it is actually shown, you know, where the species have been checked and then - I suppose it's that column that's of relevance, so, a high proportion haven't been checked but they haven't needed to be checked because it's really the species that needed to be checked were those eucalypts and not Pinus radiata. O'GORMAN-HUGHES: Would it be less than 20? WITNESS ROBERTSON: I'd have to check. I'd have to do a count, I couldn't answer that. I would say it'd be more than 20. O'GORMAN-HUGHES: So what do you say to the proposition that in order to accurately assess; whether or not the site which has over 500 trees ..(not transcribable).. 15% of trees identified in schedule 2 of the 2020 koala SEPP that you need to check - trees? WITNESS ROBERTSON: Look, I agree that you need to check a very high proportion of the trees in there to get a good set of data, but I'm also saying that I have done so, and if you list the trees that are of relevance and they're covered in the schedule, I have checked the acacias and made adjustments to the ..(not transcribable).. changing a lot of them. I have checked the pines which are very dominant in parts of the site and just reaffirmed that there's no need to change those names. So those, just including the pines and the acacias, gets you over sort of half of that list. I have checked the peppermints, but I haven't checked all of the peppermints because, as you've heard Dr Phillips say, Eucalyptus Radiata is not a preferred koala feed tree, that was confounded with another peppermint, Eucalyptus piperita, and we haven't gone round and systematically changed all of the peppermints, but regardless of the identification of those species they are not koala feed trees. Right, so they're just included in the numbers of eucalypts that are not koala feed trees. So, acacias, pines, peppermint gums, we're confident about the identification of all of those, and then we've gone back and looked particularly at the abundance and distribution of Eucalyptus punctata which is most certainly a preferred koala feed tree and we've got very good data for that. And so we've estimated, I think there's something in the order of 34 Eucalyptus punctata within that set of trees that numbers I think it's in the order of 515 trees. Expressed in those terms, and it's a data set that I am prepared to stand by and I'm confident with, you're looking at six or 7% of the trees are koala feed trees. So, on the basis of the SEPP's definition where this arbitrary number of 15% is used, it doesn't stack up to be potential koala feed/koala habitat. I agree with both Dr Clements and Dr Phillips and I believe in taking a, like a precautionary approach and to note that there are preferred koala feed trees on the site, so for that reason I believe that it is potential koala habitat." (Tcpt, 21 March 2022, pp 41(3)-42(22))
The data on dimensions of trees and identification of sources of data were also discussed. "O'GORMAN-HUGHES: In relation to an issue that was raised at the outset of the proceedings by the Commissioner, could I ask you to look at, for example, tree number 103, which is the first tree in. WITNESS ROBERTSON: Yes, I've got it, I can look at that. O'GORMAN-HUGHES: It says that that tree has a diameter at breast height of .2 of a metre and refers to a spread radius of 10 metres. Firstly, is the 10 metres the diameter or the radius? WITNESS ROBERTSON: The 10 metres, it's my understanding from the arborist's use of this data, that' it's actually a radius, it's not a diameter, so you need to double that to come up with an estimate of the width or diameter of the tree. O'GORMAN-HUGHES: This tree with the diameter at breast height of .2 of a metre would not have a diameter of 20 metres or anything like that diameter? WITNESS ROBERTSON: No, and I - once I heard the Commissioner express that concern about that data, I was concerned myself because radius is not really a data set that I have had to regard or make use of, it's not something that's used in any way in the BDAR but I was concerned about the reliability of the data, and so, during the time that I've had available since I've checked every single tree that I could find that has a spread or radius of 10 metres in that data set, and what I've notices is that trees 103 and 104 have respectively diameters of breast heights of only .2 and .3 metres and yet they're shown as having a 10-metres spread. I also noted that in that data set those trees are shown as being 2 metres wide. So, there's clearly something wrong and what I suggest to the Court is that there's a typographical error, that should be like a 1-metre spread, or 1-metre radius. To check that I went further, I looked at all of the remaining trees that have a spread or radius being said to be 10 metres, and I can take the Court to those examples and I can tell you that there's something in the order of ten such trees and the average diameter at breast height is .78 metres, which tells me that, you know, that's the sensible - girth at chest height, and if you looked at a 20-metre spread for trees that have on average almost 80 centimetres, you know, diameter at breast height, that's a feasible thing. I have also looked at examples of trees where the diameter at breast height was .2 metres where the spread or radius was given, so other trees with .2, there are seven of those trees and the average spread or radius of all of those trees that are shown as having a .2 diameter at breast height is 4 metres, which is a much more sensible and, you know, appropriate radius. As I've said, I don't use these figures for ecological work, but I believe that there's two outliers that are associated with acacias and that those two acacias are Acacia mearnsii, they're trees 103 and 104, their diameters at breast height .2, .3 should have something like a spread or a radius on that basis of about 1 or 2 metres, not ten. So, sometimes when you enter data in spreadsheets you can add an extra zero, I'm not sure how it happened, this data comes directly from the arborist, but I can say that on average for 11 other trees for which a 10-metre spread was given, the average diameter was .78. If the Court wishes, I have all of this data that I've put onto a spreadsheet and I can also take the Court to some examples for that. O'GORMAN-HUGHES: You've accepted that there's "clearly something wrong" with the spreadsheet, then you say that the data from the spreadsheet came from the arborist? WITNESS ROBERTSON: Originally the data came from the arborist and there are several columns of data from the arborist which-- O'GORMAN-HUGHES: Do you know where the arborist collected the data themselves or whether they got it from someone else, like a surveyor? WITNESS ROBERTSON: I understand that the original locations of trees, and the maps locations of the trees were done by the surveyor, as was the tagging and numbering. The surveyors also provided estimates of the spread of the trees and I've got that and I think that that same data by the surveyors is provided behind tab 5 for the Court, and if you look at the trees, I think it was 103, 104, in the surveyor's data, the spread or radius is much lower than is cited by the arborist, which the spread cited for those wattles was 6 and 5 metres in the radius for the surveyor's data; but I haven't presented the surveyor's data in this table. O'GORMAN-HUGHES: ..(not transcribable).. LARKIN: Dr Clements, we can hear you. WITNESS CLEMENTS: I'm sorry. O'GORMAN-HUGHES: I can take ..(not transcribable).. where the dimensions of the trees are clearly wrong and a large number of the eucalypt species have been misidentified, how could we have any confidence that there would be a reliable estimate of the number of trees contained in schedule 2 of the koala SEPP on site based on the fact that you've only checked 80 to 100 trees in that schedule? WITNESS ROBERTSON: That's with respect not what I said. The trees that I have checked in the file to look at their identification were trees that I had particular interest in and they were like the eucalypts at the time. There's I think from memory something like 160 pines or more within this area that were noted but not checked, because there was no need to do so. There was also a whole array of things like acacias that were simply corrected on the spreadsheet without having to check each and every one and that was done because, firstly, I had other information coming from my own quadrat samples that I used for the BDAR and relied upon and had good confidence in. Secondly, just simply by doing a search and replace you could swap Acacia decurrens with Acacia mearnsii. So, some of those things - no acacias are eaten by koalas, so it's not of relevance, so, acacias, pines, and then there is a series of other woody weeds, the things like ligustrum are privets which are also prevalent in the area to be developed, they're not eaten by koalas either, and I haven't checked each and every one of those, I haven't - can't tell you whether the privets are large-leaf privets or small-leaf privets, but regardless neither of those species is eaten by koalas and they don't need to be checked. When you add up the species that have simply been accepted as identified correctly or broadly correctly in the spreadsheet, when you add up the numbers of trees that I have personally checked, when you add up the number of trees that have been subsequently checked in searching to correct and really be precise about the numbers of koala feed trees, the Eucalyptus punctata on site, I say to the Court that it is a good number that can be relied upon. (Tcpt, 21 March 2022, pp 42(31)-44(39))
It is clear that Dr Robertson's focus was on koala feed trees. It is clearly important to identify possible impacts on koalas, but koalas and eucalypts are only one component of the biodiversity of the site and other components may also need to be assessed.
Dr Clements was then asked: "O'GORMAN-HUGHES: Dr Clements, has anything that Dr Robertson said in his evidence today affected your opinion about whether you could be satisfied that there could be greater than 15% of the trees being those listed in schedule 2 if you had accurate tree data? WITNESS CLEMENTS: Well, I don't have accurate tree data. Allow me to just go through appendix D and correct some of the misinformation presented. When I look at appendix D, refer to Eucalyptus tereticornis, there was a total of 54 tereticornis that had been identified in the arborist report. The six proposed to be removed and 24 to be retained, this is under an old scenario. So, of those 54 amplifolia was 43, Eucalyptus ovata, ovata is a species that flows in wet, low lying areas, and we've got elata, we have five of those for the tereticornis collections. For the viminalis collections, I have a total of 4 viminalis identified and all four were assessed to be incorrect. I've recorded viminalis on this site and I've recorded it on lot 1, no problems whatsoever. Of the punctata, this preferred koala tree, there are 24 errors in the arborist's assessment report, this is on page 32/33 of the joint report for koalas. Of the 35 - punctatas and the 24 errors, 16 went to elata, 11 stayed as punctata, six go to amplifolia and two to ovata. So, I have no certainty about any of those identifications. In my original statement of evidence I looked at the data recorded by Ecoplanning which I was able to confirm and I go through it as if they were surveyed by the surveyor as a gum tree, that's fine, the surveyor accurately surveys the pines, acacias - wattles, deciduous trees and gum trees, so gum is his, you know, pretty close to terrific. He accurately, or appears to accurately measure the DBHs and it's his DBH records which are used by the arborist. The arborist states in the arborist report on page 5 he did his inspection on 6 to 8 November 2019, the heights were visually estimated, and I'm not sure whether that was done by the surveyor or by the arborist. The canopy spread and the tree diameter were determined by the surveyor on site. The numbers we see in appendix D we need to cross-tick those against the surveyor's sheet. So, that just is a relatively easy exercise. The DBHs the surveyor is measuring range between 0.2 and 1.4, so that means I have a consequent tree protection zone of 12 times the breast height diameter, standard arborist exercise, which means the radius of the tree protection zone varied from 2.4 metres to 1.68 metres, and to have a significant impact on a tree protection zone, it's a loss of 10% of the tree protection zone. So, I don't have any of that information in the proposal of how much of tree protection zones of gum trees are being lost, because gum is the only thing that I'm able to rely on." (Tcpt, 21 March 2022, pp 44(41)-45(29)
The Tree Schedule as amended by Cumberland Ecology is certainly an improvement on the original, but it is still not clear that all the eucalypts have been checked or that other native trees were all correctly identified: "WITNESS ROBERTSON: … I have checked the peppermints, but I haven't checked all of the peppermints because, as you've heard Dr Phillips say, Eucalyptus Radiata is not a preferred koala feed tree, that was confounded with another peppermint, Eucalyptus piperita, and we haven't gone round and systematically changed all of the peppermints…" (Tcpt, 21 March 2022, p 42(2-6)
Dr Robertson's approach establishes a binary division into non-koala feed trees and koala feed trees, but this does not account for other possible ecological values of particular species.
It was unfortunate that the assessment of trees on the subject site commenced (before either Dr Robertson or Dr Clements were involved) with such a flawed data set, so that considerable time and effort (and, consequently, expense) had to be put into attempting to rectify the situation. In that context it was fortunate that the surveyors had accurately determined the position of each tree so that the trees could be located for identification.
The tagging of trees did, however, lead to further confusion and unnecessary waste of time and effort.
The trees in the subject site are not the only trees within the whole of the Holt that are tagged. For other reasons, trees elsewhere were tagged and numbered, but the numbering does not form part of a series with those on the subject site. On the site inspection, Dr Clements took the Court and the parties to what she referred to as site, or point, M. Around that location there were trees carrying numbered metal tags that she was unable to relate to anything in the Tree Schedule. "WITNESS ROBERTSON: Could I just ask though, I'm trying to follow this, where is - some of the sites you mentioned I think there was site M, where is M on figure 4 in your attachment, Dr Clements? LARKIN: It's on figure 3 and it's to the south of the-- WITNESS CLEMENTS: Figure M is south of the swimming pool complex. WITNESS ROBERTSON: Figures M and L, you took the Court to L the other day. WITNESS CLEMENTS: Yes. WITNESS ROBERTSON: That was - and we explained that wasn't part of the current surveyor's data to the Court, and that's off lot 1-- WITNESS CLEMENTS: It has three numbers on it. WITNESS ROBERTSON: But it's not part of the-- WITNESS CLEMENTS: First, that's fine, it seems to have a different set of tree numbers and I can't do a cross-check on that. I can do a verification of species from that because I had easy identification. I can do a cross-check from location N. N is just near the bridge. LARKIN: Could I perhaps raise at least a question if not an objection? Part of what Dr Clements said just then didn't come through clearly to me, so perhaps I'd just ask her to repeat for the moment what she said about the tab at location L. I am sorry, I just didn't catch it. WITNESS CLEMENTS: When I try and compare the breast height diameters against the tree numbers, because everything has a tree number on it that's over 20 centimetres diameter, not all but most of the trees over 20 centimetres diameter have a tree number on them, there appears to be a different set of tree numbers that don't relate to the tree numbers in that surveyor's plan which was attached. I do have those numbers, but they're completely different in DBHs. So, for the spots in front of the swimming pool and on Holt Farm, the tree numbers given don't match the tree numbers in the surveyor's plan numbers that came with the original DA lodgement." (Tcpt, 21 March 2022, pp 46(27)-47(15))
Dr Robertson pointed out during the site inspection that the numbers on the tags at location M were unrelated to the numbered series on the trees further north in the Holt within the subject site. However, the trees at location M reappeared on the following day: "LARKIN: I said, might I move to the subject of spot M and L because it was the matter that was briefly-- COMMISSIONER: Yes. LARKIN: Dr Clements, yesterday as I understood you, you claimed that the information, and correct me if I have misunderstood, you say that in some information about spot L but it's inaccurate, is that right? WITNESS CLEMENTS: No. LARKIN: Well, we had a conversation during the site inspection and there was discussion of it yesterday. Can I suggest to you that that took place near spot L on your figure? WITNESS CLEMENTS: That's correct. We went to spot L on the tour. LARKIN: And what was the complaint that you made during the site inspection? WITNESS CLEMENTS: I don't think I was complaining I just showed the Court that this was readily identifiable trees where we could collect good fruits, good buds, and we could look at juvenile growth and it was a mown area and it was asked of the bushfire experts, was this what an OPI or an RPA or whatever they're called would look like. LARKIN: I see, so there wasn't any discussion concerning misidentification of species or the like at spot L, is that right? WITNESS CLEMENTS: No, it just gave us an ability to be able to identify trees easily at L and M and similarly we did the same exercise at N and then we were fortunate that we have surveyor's data from N and would could confirm the DBHs on L. LARKIN: I'm sorry I missed that last bit, what did you say about the DBHs on L? WITNESS CLEMENTS: We can confirm the breast height diameters at N against the surveyor's records for N so, for example, they gave us a DBH of 20 for the wattle which was at-- LARKIN: This is at spot N? WITNESS CLEMENTS: N for Nellie. Yes. LARKIN: Yes, okay, I don't need to hear from you about spot N. Am I correct in understanding that there was no discussion about DBHs at spot L or M? WITNESS CLEMENTS: We recorded the DBHs but we couldn't match M and L against the surveyor's. The surveyor's record for the same tree numbers was wildly different, so when we're getting a DBH with the tape of 70, the surveyor for the same tree number is getting a DBH of 90, and so 646 we got 15 on the two trunks and they got a DBH of 100 in centimetres but we know that not quite right. LARKIN: Just stopping you there for the moment. Were the tags on the trees at spot L and M you know were placed there as a result of a different survey at a different time by a different surveyor for a different development application? WITNESS CLEMENTS: I don't know. I know nothing about that, only that they had a metal tag in the tree with a number written on it, I didn't know which surveyor had done what but I know for M and L the tree numbers don't match nor do the surveyor's description, so I'm getting tree numbers which have 640 written on them and go to the surveyor's description. I know it's a gum tree and it's described as a pine with a DBH of 150. I know that the surveyor's record and what we're measuring at M and L aren't matching each other. O'GORMAN-HUGHES: Dr Clements, you have been told several times now that the numbers at spot M and L have nothing to do with the numbers as spot N or any other numbers on lot 1; that's right isn't it? WITNESS CLEMENTS: Yes, that's confirmed. We confirmed that from looking at the data in the surveyor's table, which is in the original lodgement in appendix B. LARKIN: And you have observed, if I might suggest to you, that the surveyor's data that you have looked at is a completely dataset and bears no relation to the trees at locations M and L; that's correct isn't it? WITNESS CLEMENTS: That's what I've just said. Yes. LARKIN: So may I take it from that, that there is nothing of assistance to the Court that one would take about observations of ..(not transcribable).. at locations M and L? WITNESS CLEMENTS: The only thing of assistance is the fact that we can identify those trees readily at M and L. LARKIN: And when you say "identify" you mean identify their species? WITNESS CLEMENTS: Their species." (Tcpt, 22 March 2022, pp 17(14)-19(3))
It was unfortunate that Dr Clements had made an apparent assumption that there was only a single set of numbered tags on trees in the Holt and had not pursued inquiries of the Respondent, who had engaged her services, and who could have asked questions of the Applicant, or directly discussed the issue with the Applicant's ground staff herself.
That numbered labels have been affixed to trees at the number of localities in the Holt and that different sequences of numbers had been applied to different in different areas is something that those working on the site in the future should be aware of, but other than for the trees on the proposed development site, the numbering of trees elsewhere in the Holt is, in the present context, irrelevant.
There were other matters raised by Dr Clements, and on which she was questioned, which were, at best, peripheral to her professional expertise. "LARKIN: Now, Dr Clements, you gave some short evidence about Lot 1 being closed to the public. I want to suggest to you that it's certainly not closed to either the school community at Frensham, firstly, do you agree with that? WITNESS CLEMENTS: Yes, the girls get access to the Lower Holt when they're "holting", which is the correct word, and they go down there to holt, which means they are allowed to walk around it periodically but it's not like - it's not like Mansfield Park. Mansfield Reserve, where the council took a regular tour to come look at the koala or any of the frequently visited sites, it has a very limited access onto the Lower Holt. The girls are allowed to walk around it and they do occasionally holting in the Lower Holt. LARKIN: Well, can I also just ask you about some other activities and see if you are aware of those. Do you know what IGSA is? WITNESS CLEMENTS: No. LARKIN: The Independent Girls Schools Association? WITNESS CLEMENTS: Yes, I think I do because my daughter went to one of those. LARKIN: Yes, I want to suggest to you there are 31 schools that are a member of that association, do you know that? WITNESS CLEMENTS: No, I don't. LARKIN: Do you know that whatever the precise number is, it's a large number? WITNESS CLEMENTS: Yes. LARKIN: Do you know that IGSA conducts sporting activities on the Lower Holt frequently many weekends of the year? WITNESS CLEMENTS: No, I don't. LARKIN: On virtually the bush pitch for team sports, do you know that? O'GORMAN-HUGHES: She just answered and said, "No." WITNESS CLEMENTS: No, and I've never had to take to take my daughter down to Frensham to do any sport down there. LARKIN: Might I just inquire as to which school your daughter went to? WITNESS CLEMENTS: She went to Redlands then she went to Queenwood. O'GORMAN-HUGHES: Commissioner, are you able to hear me talk? COMMISSIONER: Distortedly. O'GORMAN-HUGHES: All right, I had objected to the question as not being relevant to the issues at hand. LARKIN: I'll make it relevant. O'GORMAN-HUGHES: It's not particularly harmful but it's important that you can hear me if I do object in future. Are you saying that neither Mr Larkin nor you, Commissioner, could hear me say "I object"? COMMISSIONER: I didn't hear you, Mr O'Gorman Hughes, I'm sorry. I heard something but I couldn't work out what it was. LARKIN: It sounded like a folder or something, a distortion noise I'm sorry. COMMISSIONER: Yes, maybe if we break now and, Mr O'Gorman Hughes, if you switch your system off and then start it again it might be improved when we come back at 12.00. O'GORMAN-HUGHES: Okay, thank you, Commissioner. SHORT ADJOURNMENT COMMISSIONER: I have this morning received the sheet of corrections to exhibits 2 and 3 and they will be incorporated in exhibits 2 and 3, as far as I'm aware as of this moment, that's the only thing that we have received this morning. O'GORMAN-HUGHES: Thank you, Commissioner, there is one matter that we have I think just attempted to communicate with the applicant's solicitor about and, that is, providing the ecologists a copy of this morning's supplementary joint hydrology report because it refers to additional works in the riparian zone so if we're - I think Mr Larkin nodding - if we've got agreement to send that report to the ecologists they could comment on that. LARKIN: I think it's important for them to see it, I agree with my friend, perhaps if he could send ..(not transcribable).. I know that there is also ..(not transcribable).. COMMISSIONER: You are breaking up, Mr Larkin. LARKIN: I'm sorry, Commissioner. COMMISSIONER: That's better. LARKIN: I know that there is ..(not transcribable).. O'GORMAN-HUGHES: Commissioner, I can't hear Mr Larkin, are you able to hear him without difficulty? COMMISSIONER: Not without difficulty. LARKIN: Someone else other than-- COMMISSIONER: There's someone else on the line somewhere. Please mute if you're not directly talking to us. LARKIN: Where is that conversation coming from? COMMISSIONER: Can we identify that? LARKIN: Is it in the background of Dr Clements's room? WITNESS CLEMENTS: It's possible it's in the background of my office but I can - have I disappeared off your screen - if you could move outside because you can be heard thank you. I'm sorry about that, that's what the joy of open plan offices are. LARKIN: In relation to what Mr O'Gorman Hughes said, I agree that the report should go to these witnesses and I suggest they look at it over lunchtime. I understand there is a further hydrological report yet to come and I don't have any information as to when that will be forthcoming. COMMISSIONER: All right thank you. LARKIN: Yes. Should I return to where I was before the break, Commissioner? COMMISSIONER: Yes. LARKIN: Dr Clements, you mentioned the activity of holting by the girls and that is a program on your understanding that involves tree planting, weeding, a variety of environmental activities and that's carried out approximately weekly during term, is that right? WITNESS CLEMENTS: I was only told about it by one of the local residents who does bush regen and the girls go down and do some of that activity and you can see evidence of their activity works. I think it was our plot 3 we were picking up plantings they'd done and when we were walking around with the Court we saw some bush regen work where there was good stands of berseria without ligustrum in the area. LARKIN: Going back to other activities, are you aware that the girls have access to the Lower Holt every time any day, that is, when it's not closed because of recent trees falls and the like, are you aware of that? WITNESS CLEMENTS: I know from talking to Sara Kayne(?) that there are two girls that go running around the oval when they're training. No, I do not know of regular visitation to the Holt except for girls who are boarding who just want to get away from everything but, no, nothing other than that. LARKIN: Do you know that the girls run cross country running events through the Lower Holt including along the fire trail or the trail every week this term? WITNESS CLEMENTS: Know nothing about that. LARKIN: And in past years? WITNESS CLEMENTS: Know nothing about that. LARKIN: Do you know that IGSA has a cross country event that involves the attendance of approximately several thousand, two to three thousand girls, and spectators and that they run through the Lower Holt? WITNESS CLEMENTS: Having been a mother that's taking their daughter to cross country running I know my daughter would've taken absolutely no interest in the presence of a koala and most of those running girls would take absolutely no interest, their exercise is running rather and, you know, with a time limit on them, they're not sitting there pondering the world. LARKIN: Yes, but what about the spectators, Dr Clements, that might be waiting for their daughter in a race that's yet to start? WITNESS CLEMENTS: As being one of those mothers I can tell you I have no interest in looking at the environment because I'm making sure I've got the drinks and the oranges ready for the run. No, my focus is on the girls. LARKIN: Dr Clements, it is obviously isn't it, that if you make the assumption that there is a high level of usage by the school and by the IGSA community, that the site is likely to have been very well observed when it comes to koalas; don't you agree? WITNESS CLEMENTS: I doubt that. It's not like when the council takes people out to Mansfield Park and we know there's koalas there and there's all these interested people who are interested in spotting a koala, you know, it's not like the Southern Highlands community group who spend their time hunting for koalas in trees, different set of people. LARKIN: Don't you think that the girls that go holting could be most interested in seeing a koala if there was one there? WITNESS CLEMENTS: I think they're boarders, they're probably bored sodless(as said) and, no, I don't think they would take the least interest in spotting koalas. I think they're probably more interested in gossiping about their social events. LARKIN: Dr Phillips, what do you say about the likely level of observation within schools of koalas? WITNESS PHILLIPS: My experience is probably different to Dr Clements', koalas are a big event in people's lives, no matter what they're doing, and certainly my experience with schools and school students is that, if a koala appears in a school ground in a tree or wanders across the playground or wanders across the oval, everything stops, whether it's a sporting activity. Koalas are big events in people's lives. I would expect them to be reported and I would expect that information to come back up the line and particularly given, in going back to some of the objector's evidence. There's an active sort of wildlife care program going on, on that site, particularly with wombats and echidnas as we were told and if those people had have seen koalas on the sites we would know about it and the reality is they haven't. WITNESS CLEMENTS: Having been the person who receives those records I can tell you, they have told me that they have not had access to the Lower Holt and they have not been observing down in that area, both of them. LARKIN: By "they" you have in mind the objectors to the development? WITNESS CLEMENTS: Or the people who have been sending me koala records and the ones that I have found from Facebook. If the girls were sending spotting photos they would've had records out on Facebook but I don't think the school probably encourages them to be posting things up on Facebook and I think they keep within a community. I've got no records of any Facebook records from any Frensham girls for anything that I have found. LARKIN: Dr Clements, you don't mean to suggest that the only reliable observers of koalas are the objectors that you happen to have been speaking with, do you? WITNESS CLEMENTS: Not all of those people who we found records for were objectors. No, these were the Facebook records and I don't know of any records that I've been getting out of the school. The school has quite long records and we have found none of those school records that go back a long time available to us. LARKIN: Dr Clements, it's obvious isn't it, that if there was a resident population of koalas on the Lower Holt that involved breeding females or persistence over a number of generations that they would have been observed? Correct? WITNESS CLEMENTS: Look, there's a 2014 record in the Lower Holt of a koala that came out of a Facebook record that was sent off to council and been mapped on figure 1. I know nothing-- LARKIN: Beside the roadway adjacent to the buildings, well removed from the area of the development, that's-- WITNESS CLEMENTS: It's the-- LARKIN: May I finish the question; that is the record you are referring to. Correct? WITNESS CLEMENTS: Yes, where they've been able to observe and that's done by the local community, not by the school. LARKIN: Also it's true to say that the residents who have backyards to the east of the Lower Holt can look straight into the trees insofar as the trees adjoin their own properties. Correct? WITNESS CLEMENTS: No idea. LARKIN: Is that a serious answer? Did you walk along-- WITNESS CLEMENTS: I've no idea. There's builders building new subdivisions down there maybe they do but, you know, I'm not finding their records on Facebook or anywhere else. LARKIN: But that rather suggests that there aren't any records to be found, doesn't it? WITNESS CLEMENTS: Yes, that's not a logical conclusion. All I know is what I've been told that the Lower Holt is not accessible for people to be spotting koalas. If it's a small community is spotting koalas possibly it comes up in the school newspaper that comes out on Fridays, which the same people who have been sending me koala records receive, that's how I knew how much flooding had been occurring on the school site because we've seen a copy of the school newspaper for that week. LARKIN: Incidentally, the 2014 observation that you gave evidence of a moment ago, it was actually made by a staff member of the school wasn't it or do you not know? WITNESS CLEMENTS: I know nothing about that." (Tcpt, 22 March 2022, pp 28(14)-33(48))
Whether records of observations made within the Holt are retained, and if so where, are matters that could be relevant to assessment of the Holt's ecological values and their management, but while Dr Clements has experience of her daughter at other private schools, she is not, in a formal sense, an expert on behaviour of teenage girls and their interest in the natural environment, nor, clearly, is she an expert on Frensham School.
The nature of activities and their frequency and intensity within the Holt is nevertheless of relevance to assessment of possible disturbance pressures on the vegetation and habitats within the Holt.
Following the questions about the use of the Holt having been raised during the hearing, Mr Patrick Duck, the Business Manager of Frensham School, prepared an affidavit which became Ex K. Mr Duck has worked for the school for 20 years and is familiar with the activities that occur within Lot 100. Mr Duck lives in Holt Cottage, which is situated within Lot 100.

Figure 6 Annexure A to Ex K - Holt Cottage circled

Exhibit K includes a description of the use of the Lower Holt for a range of activities including various sports, the Community Service Programme and the Jamieson Programme: "Use of the Lower Holt 5. The area on which the development is proposed is known generally among the School community as the "Lower holt". A cleared area of land, used as a sports field by the School and others, in close proximity to the Lower Holt is known as the "Bush Pitch". An aerial photograph of the Land on which is indicated the Lower Holt and the Bush Pitch to which I refer is annexed hereto and marked with the letter "B".

Figure 7 Annexure B to Ex K 6. I have observed the various activities referred to below on numerous occasions over the last 20 years. 7. The School runs various programmes for students including the Community Service Programme and the Jamieson Programme. As part of these programmes on a weekly basis during term time and after school on Thursdays, all students in Year 9 participate in an activity known as "Holting" on the Lower Holt supervised by staff. Holting activities include weeding, planting, clearing the banks of the Nattai River of debris and rubbish (the girls also use the area in their own time and make the construction of "cubbies" made out of sticks. I note that during the on-site view on Friday 18 March 2022, I saw one such "cubby" near the eastern end of the Land.) This year, there are 66 students enrolled in Year 9 and they are generally supervised by 3 staff members. 8. In addition, once a year, during the School's "Jamieson Week", students from all year groups participate in tree planting and cleaning up the Nattai River. This involves clearing weeds, rubbish and debris from the banks of the River. If the development application is approved, this tree planting would be carried out in accordance with any vegetation management plan or other conditions of consent, or alternatively would not take place on the Land. 9. Three days per week during Term 1, training sessions for cross-country are held on the existing track on the Land which goes through the Lower Holt. This activity involves up to 30 students from all year groups of the School. The training sessions commence at 6.00am. 10. Once a year, the School hosts an annual event being the Independent Girls' Schools Association (IGSA) Cross Country. IGSA is comprised of 32 schools. During this event, visiting school's officials and spectators are free to observe the event through the Lower Holt. Spectators arrive from as early as 6.30am (3 hours prior to the start of the race), and many stay for up to 6 hours. I estimate at least 200 spectators go to the Lower Holt to watch the race during this event. 11. During my 20 years of employment at the School I have not seen, nor had reported to me, any sighting of a koala on the Lower Holt, although one reporting sighting was made to me near the Lower Holt. This report of a koala sighting was made in 2014 by Grace Duddy, a member of Frensham staff and was of a koala near the south west corner of the Land on a tree between Hartfield Boarding House and Kennedy Boarding House. Grace Duddy was employed by the School as a boarding house staff member from October 2014 to May 2015. Use of the Bush Pitch 12. On Saturday each week during the School term, the Bush Pitch is used for the interschool sporting competition of IGSA. There are very few girls schools which have sufficient sporting facilities to be able to host IGSA fixtures. Otherwise than during COVID-19, sports that take place on Bush Pitch every weekend for all but the last week of each Term. Sports include: (a) Term 1 - Softball; (b) Term 2 - Athletics, Cross Country, Football; (c) Term 3 - Athletics, Hockey; (d) Term 4 - Touch Football. 13. During the week during the School term, the Bush Pitch is used for sports training for football, touch football, softball, athletics, cross-country and hockey (depending upon the School term). 14. The School does not have alternative fields to play the sports for which the Bush Pitch is used, as it is usually the case that during times of use of the Bush Pitch, the School's other fields are also in use." (Ex K pars 5-14 and Annexure B)

The issue of occurrence of koalas was discussed in more detail by the ecologists and in a number of the submissions from members of the public.
Mr Duck referred, in par 15, to observations of water levels in the Nattai River in the first two weeks of March 2022. He considered that the water level in the river had been high, but it had not overtopped the Red Bridge. These observations are interesting but do not add to the understanding provided by the expert hydrologists.
During the site inspection it was observed that a number of trees within Lot 100 had recently been blown over by storm activity. The trees appeared to have relatively small and shallow root plates.
In Annexure C to Ex K Mr Duck mapped the distribution of the windblown trees.
Regardless of which trees are removed, and what may be planted if the proposal goes ahead, there will continue to be mortality of trees (and other plants) from a variety of causes, including windthrow. The change in structure of the vegetation as a result of the removal of currently existing trees and the creation of the APZ may alter wind patterns at the very local scale, which might increase the threat to some trees.
The Vegetation Management Plan (VMP) (Ex B Tab 9 folio 97) states in the context of the revegetation plan: "Plants that have died due to drought or pest and disease damage should be replaced as required. Plants that are observed have died should be replaced by the bushland maintenance team with planting of the same form."
If the proposal is approved, the VMP should be modified to take into consideration natural mortality of currently existing and retained plants, and whether death of plants in that category should similarly require replanting.
One activity which has occurred in the Holt is not mentioned by Mr Duck, although it is raised in a number of submissions from the public, and that is the use of the Lower Holt for the rehabilitation of native wildlife by Tania Clancy. Ms Clancy was one of the six objectors who spoke at the commencement of the hearing on the field inspection day, and additional written material she provided appears in Ex 12. "Since 2016 I have been teaching students in the Lower Holt at Frensham in support of the Duke of Edinburgh program. Frensham gave me permission to rehabilitate 10 grazing marsupials, 12 arboreal marsupials, two monotremes and a number of avian orphans including water birds and parrots. These orphans were local and their species were already living within the Lower Holt. The pupils were part of that rehabilitation process, learning about native animals and their needs. I chose to rehabilitate animals in the Lower Holt because of its rich ecosystem and biodiversity. Please refer to photos at the end of this document to see education programs in practice. Geoff Marsh was informed of every animal that was rehabilitate into the forest and also of the progress with the students each week. At no time did Frensham's executives consult with me or any onsight (sic) conservationists about the Holt Project and the Bush Hut Accommodation, yet they continued to lead me to believe that I could trust in Frensham's "environmental responsibility" to quote their advertising. I would never have released any animals there if I had even the vaguest hint that this was Frensham's plan all along." (Ex 12 folio 150 pars 2-3)

Figure 8 Platypus in the Nattai River (Ex 12 folio 162)

The relevant planning instruments and legislation

Frensham is located within Wingecarribee Shire Council LGA so the relevant Local Environmental Plan is Wingecarribee Local Environmental Plan 2010 (WLEP). The subject site is zoned R2 Low Density Residential for which the Land Use Table provides: Zone R2 Low Density Residential 1 Objectives of zone • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. 2 Permitted without consent Environmental protection works; Home-based child care; Home occupations 3 Permitted with consent Bed and breakfast accommodation; Centre-based child care facilities; Community facilities; Dual occupancies; Dwelling houses; Environmental facilities; Exhibition homes; Exhibition villages; Group homes; Health consulting rooms; Home businesses; Home industries; Oyster aquaculture; Places of public worship; Pond-based aquaculture; Recreation areas; Recreation facilities (indoor); Recreation facilities (outdoor); Respite day care centres; Roads; Seniors housing; Serviced apartments; Signage; Tank-based aquaculture 4 Prohibited Any development not specified in item 2 or 3
The list of developments permitted with consent does not include "educational facilities". "Recreation areas" and "recreation facilities (outdoor)" are permitted with consent, but the DA does not include 'new' development in those categories - they are activities which have been conducted for many years on the site, as documented, for example, in Ex K.
The Applicant relies upon what was State Environmental Planning Policy (Educational Establishments and Childcare Facilities) 2017 (Education SEPP), subsequently incorporated into State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP) as Ch 3.
In the Education SEPP, which applied when the DA was lodged, cl 8(1) states: 8 Relationship to other environmental planning instruments (1) Subject to subclause (2), if there is an inconsistency between this Policy and another environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency.
Clause 33 includes land in Zone R2 as a prescribed zone: 33 Definition of "prescribed zone" In this Part - prescribed zone means any of the following land use zones - (a) Zone RU2 Rural Landscape, (b) Zone RU4 Primary Production Small Lots, (c) Zone RU5 Village, (d) Zone RU6 Transition, (e) Zone R1 General Residential, (f) Zone R2 Low Density Residential, (g) Zone R3 Medium Density Residential, (h) Zone R4 High Density Residential, (i) Zone R5 Large Lot Residential, (j) Zone B1 Neighbourhood Centre, (k) Zone B2 Local Centre, (l) Zone B3 Commercial Core, (m) Zone B4 Mixed Use, (n) Zone B5 Business Development, (o) Zone B6 Enterprise Corridor, (p) Zone B7 Business Park, (q) Zone B8 Metropolitan Centre, (r) Zone SP1 Special Activities, (s) Zone SP2 Infrastructure, (t) Zone E4 Environmental Living.
Clause 34 states: 34 Development for the purpose of student accommodation In this Part, development for the purpose of a school does not include development for the purpose of residential accommodation for students that is associated with a school, regardless of whether, or the extent to which, the school is involved in, or exercises control over, the activities and life of the students living in the accommodation. Note - Clause 35 provides for development for the purpose of student accommodation as a separate category of development.
The DA includes provision for residential accommodation and associated development.
Clause 35 provides for schools to be developed with consent, and subcl (11) permits development of residential accommodation with consent. 35 Schools - development permitted with consent (1) Development for the purpose of a school may be carried out by any person with development consent on land in a prescribed zone. (2) Development for a purpose specified in clause 39(1) or 40(2)(e) may be carried out by any person with development consent on land within the boundaries of an existing school. (3) Development for the purpose of a school may be carried out by any person with development consent on land that is not in a prescribed zone if it is carried out on land within the boundaries of an existing school. (4) Subclause (3) does not require development consent to carry out development on land if that development could, but for this Policy, be carried out on that land without development consent. (5) A school (including any part of its site and any of its facilities) may be used, with development consent, for the physical, social, cultural or intellectual development or welfare of the community, whether or not it is a commercial use of the establishment. (6) Before determining a development application for development of a kind referred to in subclause (1), (3) or (5), the consent authority must take into consideration - (a) the design quality of the development when evaluated in accordance with the design quality principles set out in Schedule 4, and (b) whether the development enables the use of school facilities (including recreational facilities) to be shared with the community. (7) Subject to subclause (8), the requirement in subclause (6)(a) applies to the exclusion of any provision in another environmental planning instrument that requires, or that relates to a requirement for, excellence (or like standard) in design as a prerequisite to the granting of development consent for development of that kind. (8) A provision in another environmental planning instrument that requires a competitive design process to be held as a prerequisite to the granting of development consent does not apply to development to which subclause (6)(a) applies that has a capital investment value of less than $50 million. (9) A provision of a development control plan that specifies a requirement, standard or control in relation to development of a kind referred to in subclause (1), (2), (3) or (5) is of no effect, regardless of when the development control plan was made. (10) Development for the purpose of a centre-based child care facility may be carried out by any person with development consent on land within the boundaries of an existing school. (11) Development for the purpose of residential accommodation for students that is associated with a school may be carried out by any person with development consent on land within the boundaries of an existing school.
Frensham has been established for more than 100 years, so is clearly an existing school, and the Lower Holt has been used for variety of purposes associated with the operation of the school throughout that time.
Mr Larkin, senior counsel for the Applicant, in his opening, summarised the position: "In overview though, it is important that we appreciate that the legal position in this case is that the education SEPP is the paramount source of subordinate legislation, it's the paramount planning instrument and to the extent that there is any inconsistency between the education SEPP and the LEP, even more so the DCP, or the education SEPP and the koala SEPP, or indeed any other SEPP, then the education SEPP by dint of its terms explicitly trumps them." (Tcpt, 21 March 2022, p 26(36-42))
Mr O'Gorman-Hughes said, in relation to the Education SEPP: "Clause 8 provides, "If there is an inconsistency between this policy and another environmental planning instrument where there may be ..(not transcribable).. commencement of this policy, this policy prevails to the extent of the inconsistency", and then there's some specific references with specific clauses that the instrument overrides which are not relevant. So, the ..(not transcribable).., Commissioner, will be that the provisions of the other instruments dealing with things such as flooding or fire protection are not inconsistent with the SEPP because they merely constrain the parts of the site on which the development can be carried out, they don't say that they are inconsistent for the purpose of that clause, but we will deal with that in more detail in submissions." (Tcpt, 21 March 2022, p 15(28-38))

The vegetation of the subject site

The subject site, in the Northern (Lower) Holt, has been part of Frensham School land since 1917. At the time of purchase the land in the Northern Holt was not, as suggested by Kennedy 1980 in a typewritten manuscript (Frensham 1913-1980, A Short History - Ex C Tab 23), "untouched and unspoiled bushland".
The possible impact of the proposed development on the site's vegetation was a major issue raised in a number of the submissions made by objectors and was discussed by the parties' experts.
A relevant matter to consider is what was the vegetation like in 1917, and what was it like in the early 21st century.
I have discussed above how holting developed as an important use of the area by staff and students.
Science teaching was an important part of the School, and that would have included biology, and what would now be called ecology. The NSW high school curriculum was in advance of that in the rest of Australia and indeed much of the English-speaking world through the early adoption of ecology as a key component of the biology syllabus, largely due to the work on curriculum development by Professor Eric Ashby, professor of Botany at the University of Sydney in the late 1930s and 1940s.
The Holt was used as an 'open air classroom' (see [16] above) and it is very likely that the School made use of the site as a source of teaching material for the laboratories, but this is not discussed in the several histories of the School, and if records exist they were not referred to during the hearing.
To determine what the vegetation was like it will be necessary to turn to less direct evidence. In this regard an important source is the photographs taken by Harold Cazneaux in the early 1930s for 'The Frensham Book. 100 Pictures by Cazneaux of an Australian School.' A number of the photographs are reproduced in Ex C, Tab 22. When I refer to particular images they will be numbered as they are in Ex C (as Images 1-22) and not by their numbering in Cazneaux 1934.
The photographs in Cazneaux, which are in black and white, were not intended as aids for a scientific investigation of vegetation, but nevertheless they do provide considerable information.
The images show that in the early 1930s relatively large Radiata Pine trees were a major feature of the site and the largest of these must have been well established prior to 1917, but the population of pine trees had been supplemented by considerable seedling establishment and sapling growth. Whether the largest trees had been planted in the site, or had been self-sown from nearby populations, is unknown. The younger trees are most likely to have been self-sown. The understorey and ground layers were much more open than the present vegetation. This would have partly been due to grazing (Image 20 shows horses present) and partly due to holting which included 'axing, sawing, clearing' (Winifred West in her introduction to the Frensham Book - Folio 502 in Ex C Tab 22.) Whether cutting and clearing was conducted as part of a management plan is not mentioned.
The Nattai River in the 1930s had extensive patches of water lilies, and Black Swans (Images 1 and 6) were present and although difficult to judge on monochrome images the water appears to have been much clearer than that observed on the site inspection. The river was also used for swimming and boating (Images 9 and 22).
Dr Robertson in the BDAR (Ex B, Tab 10) includes a number of aerial images of the site as Fig 4 - these are reproduced below:

Figure 9 Historical aerial images of the study area (Figure 4 from Ex B Tab 10) - The red line superimposed on each image is the boundary of the proposed development.

The images were taken in 1963, 1972, 1982 and 1994, at different times of the year, although the season would not have affected the appearance of the canopy. Particular individual trees, by their location and canopy shape, can be traced on all four images.
The 1963 image shows a reasonably dense canopy in the Northern Holt, not dissimilar to the current canopy distribution, as shown in Fig 1 above.
The 1972 image shows a reduced canopy cover and parts of this site and the reduction was increased in the 1982 image, and maintained in the 1994 image. The clearing is not associated with any construction. The reasons for the clearing were not identified by Dr Robertson or by the Applicant.
Some time after 1994, revegetation occurred, although further images were not supplied so that I do not know the timing.
The BDAR includes images of the vegetation from the ground, and show that in places the understorey is now dominated by introduced species.

Figure 10 PCT 1107 (Moderate) within the site. The creeper in the understorey is the exotic Lonicera japonica (Honeysuckle) (Ex B Vol 1 folio 163)

Figure 11 PCT 1107 (Pine) within the subject land (Ex B Vol 1 folio 164) (PCT - Plant Community Type 1107 River Peppermint-Narrow leaved Peppermint)

The understorey of these areas is very different from anything depicted in the Cazneaux photographs.
Under the Biosecurity Act 2015 weeds fall into the concept of pest as defined in s 15: 15 Pests (1) A pest means a plant or animal (other than a human) that has an adverse effect on, or is suspected of having an adverse effect on, the environment, the economy or the community because it has the potential to - (a) out-compete other organisms for resources, including food, water, nutrients, habitat and sunlight, or (b) prey or feed on other organisms, or (c) transmit disease to other organisms, or (d) cause harm to other organisms through its toxicity, or (e) otherwise reduce the productivity of agricultural systems or the value of agricultural products, or (f) damage infrastructure, or (g) reduce the amenity or aesthetic value of premises, or (h) harm or reduce biodiversity, or (i) do any other thing, or have any other effect, prescribed by the regulations. (2) A pest includes any thing declared by the regulations to be a pest for the purposes of this Act.
Under the Biosecurity Act 2015 , weeds are required to be controlled by all persons under a General Biosecurity Duty: 22 Biosecurity duty - dealings with biosecurity matter and carriers Any person who deals with biosecurity matter or a carrier and who knows, or ought reasonably to know, the biosecurity risk posed or likely to be posed by the biosecurity matter, carrier or dealing has a biosecurity duty to ensure that, so far as is reasonably practicable, the biosecurity risk is prevented, eliminated or minimised. 21 Duty to prevent, eliminate or minimise biosecurity risk A duty imposed on a person to prevent, eliminate or minimise a biosecurity risk so far as is reasonably practicable is a duty - (a) to prevent or eliminate a biosecurity risk so far as is reasonably practicable, and (b) if it is not reasonably practicable to prevent or eliminate the biosecurity risk, to minimise the biosecurity risk so far as is reasonably practicable.
The School and those responsible for managing the land are required to perform the General Biosecurity Duty, and would have had a similar obligation under the predecessor legislation.
The extent and diversity of weeds on the land suggests that weed control measures had not been practised for sometime or that measures applied were ineffectual or inappropriate.
Weed management is proposed in the VMP (Ex B, Tab 9, section 6). A large number of weed species have been recorded from the site, a number of which are priority species under the Biosecurity Act (Table 2 of VMP in Ex B Tab 9 p 16). Figure 12 Priority weed species recorded within the Lower Holt (Table 2 from Ex B Vol 1 folio 89)
The measures proposed in the VMP will need to continue beyond the actual construction phase, as the general duty will continue to apply.
Whether 'holting' involved deliberately planting of species not native (but not known weeds) to the site is not known. However, one species that almost certainly has been planted is tallowwood Eucalyptus microcorys of which two individuals occur on the site (Ex D, Tab 11 Koala Management Guidelines at folio 341).
Tallowwood is an important timber tree in northern NSW, often at the edge of rainforest. Outside of its natural distribution it has been widely planted as a specimen tree south of its natural range. Natural dispersal to the subject site from the southern limit of its natural range is implausible. Conceivably it could have colonised the subject site from a nearby planted tree (if there are any) but this is unlikely. However, tallowwood is a preferred koala feed tree and thus as a precautionary measure it is proposed that the two trees be retained.
However, if tallowwood was planted on the site, have the populations of other eucalypts present on the site been augmented by specimens brought in from localities external to the site? In the absence of any records retained by Frensham, this cannot be answered. Details of past management of the Holt may exist, but any such records were not identified by either party.
South of the Lot 100, extending to Range Road, there has been development of sporting fields and other facilities including the swimming pool. These developments were approved and developed at various times in the past.
The sports fields provide little habitat for many species, although a number of species of birds in the subject site may make limited use of the sports fields. The proposed development in itself is unlikely to affect movement of any such species to the sports fields.
South of Range Road the Upper Holt supports tall forest vegetation. Although there is a suggestion amongst the objector submissions that the Upper Holt be considered as an alternative site for the proposed development the likely environmental impacts, let alone the distance from the rest of the School, renders the suggestion inappropriate.

Fire history

The RFS General Terms of Approval require that the proposed development if constructed would be surrounded by an APZ. If the development consent is granted, then the RFS requirements would be written into the conditions of consent. Protection of life and property from fire is an important issue and the RFS requirements would be mandatory. However, what is known of the fire history of the Holt?
There was very little evidence provided on past fires.
Winifred West, in her foreword to Cazneaux 1934 when discussing holting, writes that there "was always a fire. One hour's work earns a meal out-of-doors..." and among the images in Ex C Tab 22 several show smoke associated with cooking fires (for example Images 15 and 17). However, I have not seen any reports of campfires escaping. Miss West mentions, separately from the campfires, 'burning off' as an activity associated with holting, without any explanation of what she meant by burning off. The term today might suggest hazard reduction burning, but this seems unlikely in the early 1930s and I have not seen any reference to hazard reduction burns being applied to the Holt at that or any time.
The only reference to historic wildfire in evidence was in Kennedy's brief history (Ex C Tab 23) at folio 546. (A slightly longer account of the same fire appears in Kennedy 1976 pp 125-127). This refers to the fire which occurred in January 1939. This was in the school summer vacation, but more than 300 members of the Student Christian Movement were in residence for a 10-day conference. (One of the issues which had arisen in the present matter was a concern that the proposed accommodation might be used during vacation, when the resident staff would be absent and any visitors could be exposed to danger from fire or flood without assistance in evacuation. The School advised that only pupils and staff would use the accommodation and then only during term time - and this could be addressed in conditions).
Early January 1939 was extremely hot in southeast Australia. Serious wildfires occurred in Victoria from late 1938, culminating in the Black Friday bushfires of 13 January 1939. On 14 January there were major fires around Canberra, and at Mittagong on the same day. On 15 January Sydney was ringed by bushfires.
On 14 January, "By midday Mittagong was surrounded by raging bush- fires. A gale-force westerly wind carried the fire through the tree- tops, so that fires were burning as much of a mile ahead of the main front and fire- fighters had no chance of controlling it at all". (Kennedy 1976 p 125)
Much of the gardens on the school campus burned, as did a number of the school buildings, although the attendees at the conference saved others. The whole event was over quickly. Kennedy, who was present during the fire, reports: "When we were at last able to return to the house we were staggered to find out only about 40-5 minutes had elapsed. It was a lifetime of violence, but so violent end of such nightmare proportions that we did not really have time to be frightened." (Kennedy 1976)
Although the gardens burnt there is no mention of any a fire occurring in the northern Holt.
The fire came from the west driven by very strong winds, and spread was by ember attack. Despite there being more developed areas than were present in 1939 there is still the potential for ember attack from fire in the large areas of forest and woodland to the north and west of Mittagong driven by strong winds under conditions of high temperature and low humidity.

Does the Southern Highland Shale Woodlands in the Sydney Basin Bioregion - an Endangered Ecological Community listed in Pt 2 of Sch 2 to the BC Act - occur on the site?

A matter which had been of considerable concern to a number of objectors and to both of the parties was that an Endangered Ecological Community (EEC), the Southern Highlands Shale Woodlands in the Sydney Basin Bioregion had previously being recognised as occurring on or near the site. The community had originally been listed as endangered under the Threatened Species Conservation Act 1995 (TSC Act). Items listed under the schedules of the TSC Act were transferred to the BC Act when that Act came into force. The original listing of the EEC was in 2001 and was subsequently amended in 2011. The 2011 amendment changed, in a minor way, the specification of the distribution of the community in relation to the Interim Biogeographic Regionalisation of Australia (IBRA) regions in which the community occurred. The 2011 amended listing involved no change to the definition and characterisation of the community.
During the hearing I raised a question as to what was the community which occurred on or near the subject site which had previously been regarded as endangered. "COMMISSIONER … Now, because it as I read it, because of the soils report you've accepted that is on the wrong soil so it's not the endangered ecological community. The question that springs to my mind is if it's not that community, in a sense, what community is it? And even though it's not listed is it in fact something that's rarer than what was originally the endangered ecological community?" (Tcpt, 23 March 2022, p 56(7-12))
The Threatened Species Scientific Committee in the Final Determination [1] described the community as follows: "1. Southern Highlands Shale Woodlands in the Sydney Basin Bioregion is the name given to the ecological community characterised by the species assemblage listed in 2 below. It occurs on clay soils on Wianamatta Shale in the Southern Highlands. All sites are within the Sydney Basin Bioregion. Bioregions are defined in Thackway and Cresswell (1995). 2. Southern Highlands Shale Woodlands includes vegetation ranging from open-forest to woodland and scrub though it was predominantly woodland. Remnants may now be of variable structure due to clearing and disturbance. Typical trees include Eucalyptus radiata, Eucalyptus macarthurii, Eucalyptus pauciflora, Eucalyptus globoidea, Eucalyptus cypellocarpa, Eucalyptus quadrangulata, Eucalyptus amplifolia, Eucalyptus ovata. Other trees include Eucalyptus smithii, Eucalyptus obliqua, Eucalyptus fastigata, Eucalyptus viminalis, Eucalyptus elata, Eucalyptus punctata, Eucalyptus tereticornis, Eucalyptus mannifera and Eucalyptus cinerea. The understorey is variable with small trees including Acacia melanoxylon, Acacia binervata and Pittosporum undulatum, shrubs such as Indigofera australis, Leucopogon juniperinus, Olearia microphylla and Bursaria spinosa. Ground species may include Hardenbergia violacea, Lomandra longifolia, Pteridium esculentum, Themeda australis, Dichelachne crinita and Microlaena stipoides. … 3. The total species list of the flora and fauna of the community is considerably larger than that given in 2 (above), with many species present in only one or two sites or in very small quantity. The community includes invertebrates, many of which are poorly known, as well as vertebrates. In any particular site not all of the assemblage listed above may be present. At any one time, seeds of some species may only be present in the soil seed bank with no above-ground individuals present. Invertebrate species may be restricted to soils or canopy trees and shrubs. The species composition of the site will be influenced by the size of the site and by its recent disturbance history. The number of species and the above-ground composition of species will change with time since fire, and may also change in response to changes in fire frequency."
For purposes of recognition in the field, stress is placed on vascular plants.
Paragraph 3 of the Determination, a paragraph which appears in many final determinations for ecological communities under the TSC Act and now under the BC Act, recognises that the highest level of biological organisation in NSW and Commonwealth legislation is at the community or ecosystem level and ecological communities comprise a large number of species, not restricted to vascular plants, whose presence and abundance may vary within and between sites and over time, and that within individual species there is genetic variation between individuals.
Dr Robertson and Dr Clements responded to my question: "WITNESS ROBERTSON: Commissioner, I can answer that if that suits? COMMISSIONER: Have a first go, yes. WITNESS ROBERTSON: I suppose I jumped in because when I first started work on the site I noted that a lot of the trees were very similar if not the same array of trees that are in the listing; and so I assumed, and as it turns out incorrectly, that the Southern Highlands Shale Woodland was in the area to be developed. I noted though that there was variation in the vegetation types, and so I commissioned Greg Chapman to do some further work, and he found unambiguously that really on the area of the proposed development on the eastern side of the Nattai River, there were no clay soils of Wianamatta shale, none whatsoever. Whether you look at the final determination or the information that's covered in the Commonwealth listing, they both make it very clear without any reservation or qualification that it occurs on clay soils on Wianamatta shale. They don't say it's frequently occurs, or maybe it may occur, or it's just absolute and one of the key characteristics for the Commonwealth is also that it's on the clay soils. My opinion is that these communities are very closely related, albeit on a different soil type, and the communities would have had a reasonable degree of grassy understorey cover and they were on at least moderately fertile soil, so it's in the - amongst the forest and woodland types that are heavily sought after and used for agriculture so I think at a very early stage in European settlement history of this land it would have been cleared and used for agriculture. So I think it's still relatively - it's not a common community, it's been over cleared in the past; and the plant community types that we have ascribed to the vegetation mapping on the subject site are the same plant community types or PCTs that you could ascribe to the endangered community, and that's a reflection of the floristic similarities. So, I suppose, it's a closely related community on a similarly fertile soil but not on clays; that's my interpretation. WITNESS CLEMENTS: No, I don't agree with you. Having surveyed Southern Highland Shale Woodland in Bowral it's a really different community. You know when you're on Southern Highland Shale Woodland, you're on a slippery clay, the vegetation just feels different from that. As soon as I walked on the site and it had been previously mapped as Southern Highland Shale Woodland I remember saying to the representative from Frensham this has been miss-mapped. There is a vegetation chart that clearly gets itself identified off with the alluvial soils, and there's a vegetation type that is occurring on more sandstone derived soils. As we move further up the hill and I've only got remnants on people's gardens, it becomes dominance of punctata up on the shale - on the soils with more shale. It's clearly a weathered sandstone soil, it's in a valley, it's got alluvium, and it would've been used for grazing. It wasn't intense agricultural use ever on that land. It's got the feeling of grazing paddocks. WITNESS ROBERTSON: Can I just - beg your pardon Commissioner. What I was saying, I didn't mean that it had been ploughed and used for cropping; but I did mean that it had been probably fairly extensively cleared at some stage, and it's grown back; because there's a relative shortage of tree highs, and big old trees on the site. WITNESS CLEMENTS: Yep. WITNESS ROBERTSON: But when you read paragraph 2 of the final determination it says, "Typical trees include eucalyptus radiata, eucalyptus macarthurii, eucalyptus pauciflora, eucalyptus scorparia, eucalyptus cephalocarpa, eucalyptus quadrangulata, eucalyptus amplifolia, and eucalyptus ovata". Now, almost all of those trees occur in or around the area, and so I suppose that's what I was driving at, and then it says, "Other species that can occur include, amongst others", and I won't read you the whole list but it says, "Eucalyptus smithii", which is actually on the lower holt-- WITNESS CLEMENTS: Yep, on the site. WITNESS ROBERTSON: Eucalyptus elata, eucalyptus punctata, and then there are others that it's a broad different variance of this community. There is a number of different PCTs that can occur; but there's a fairly reasonable overlap of species and there's certainly a grassy element to the ground stratum. WITNESS CLEMENTS: Yes, I agree with you, it's a grassy element; it's a typical frost hollow. That we would see in the Southern Highlands. Especially as soon as you see macarthurii, you go, frost hollow; elata, elata is what I saw in extensive stands on my Wombeyan Caves study. That's my published document on Wombeyan caves. Elata was in those deep sided valleys and where it was wet, and the tall white trees. We've got magnificent tall white trees on this site, which is the elata, and I wouldn't be the least bit surprised, given the height of these trees, that the site wasn't historically logged back in the maybe 1850s, 1830s. COMMISSIONER: So, it's conservation status in terms of legislation has never been properly assessed, in a sense. WITNESS CLEMENTS: You're right there. WITNESS ROBERTSON: Yes." (Tcpt, 23 March 2022, pp 56(14)-57(50))
The tree species composition of the vegetation on the site, as noted by Dr Robertson, was similar to that in the determination for the Southern Highlands Shale Woodland.
Variability within ecological communities was recognised by the Court of Appeal in VAW (Kurri Kurri) Pty Ltd v Scientific Committee (Established under s127 of the Threatened Species Conservation Act 1995) (2003) 58 NSWLR 631; (2003) 128 LGERA 419; [2003] NSWCA 297 (VAW) as meaning that some vagueness in the description of ecological communities was inevitable but this did not affect the validity of the final determinations (Hodgson JA at [234] in VAW). Vagueness is perhaps misleading, rather the final determinations are worded in such a way as to permit a range of variation.
Spigelman CJ said at [5] "The Threatened Species Conservation Act 1995 ("the Act") confers power on the Scientific Committee to determine whether an ecological community should be listed in Schedule 1 pursuant to s17, as set out by Beazley JA. Section 25 of the Act provides for the amendment of that Schedule on publication of a final determination. The powers reposed in the Scientific Committee with respect to listing are wide. The scope, purpose and subject matter of the legislative scheme is concerned with matters - often defined in general terms - in which questions of degree and judgment are necessarily involved. In order to carry into effect the legislative objects of the Threatened Species Conservation Act, the wording of final determinations must be sufficiently flexible as to enable the protection of communities through periods of seasonal and climactic variation."
The powers conferred on the Threatened Species Scientific Committee in the TSC Act remain the same under the BC Act.
In [7]-[9] his Honour expanded on the degree of certainty which was required in determinations (Preliminary or Final) to enable them to be correctly interpreted by a 'citizen' (a member of the broader public). While the determinations must necessarily involve technical language they are not just aimed at experts and consultants. "7 The terminology directly relevant to the present case is the definition of an ecological community as "an assemblage of species in a particular area". The use of the word "assemblage" does not suggest that either the nomination of species or identification of an area requires a high degree of specificity: c/f Genkem Pty Ltd v Environment Protection Authority (1994) 35 NSWLR 33 at 44. To satisfy the requirement of certainty to an appropriate standard, the terms of the Scientific Committee's final determination must enable a citizen to decide whether a specific location falls within it. This does not necessitate the enumeration of the minimum number of species that must be found together to constitute the community, nor the provision of maps indicating where the community may be found. 8 In my opinion, the Kurri Sand Swamp Woodland ("KSSW") final determination satisfies the requirement of reasonable certainty of expression. As to the "particular area" to which it applies, the community must be found on certain specified soils in the Sydney Basin Bioregion. It was noted that the community had been known to occur in the Kurri-Kurri - Cessnock area in the Cessnock local government area, but may occur elsewhere in that general area, but not in the specific local government area. The restriction to the Kurri-Kurri - Cessnock area is, in my opinion, sufficient. The assemblage of species listed must be found within this area and on the type of soils identified, in order to constitute the KSSW. As to the specificity of the assemblage, I would adopt the reasons of Beazley JA and add the following. Two rare and defining canopy species were described as "generally" present in the KSSW, and typical species were listed for all strata below the canopy - the shrubby, the lower and the ground. This is reasonably capable of ascertainment in a particular case. 9 The intricacy of all ecological communities means that some indeterminateness is bound to arise from the form of expression used to describe them. However, in my opinion, on the facts of the present appeal, this is not such as to invalidate the final determination in this case."
Beazley JA (as she then was) in VAW opined: "167 …It would be surprising if a determination could be challenged by a mere comparison of lists of species…" "194…However, an ecological community is different in nature to a population or species. What is relevant in an ecological community is the particular assemblage of species. It is not relevant therefore that a proportion of the species said to form part of the assemblage are "commonly found and provide no definitional role"." "198 It is important to recognise that the identification of an ecological community involves a different process than e.g. the identification of a species. As earlier explained, that is a complex, detailed scientific process and goes beyond a mere listing of species in an area. One approach to identifying an assemblage is to ascertain the diagnostic species. The Committee chose, however, to list species that were characteristic of the assemblage. There was no evidence to suggest that that methodology was wrong or inappropriate or impermissible."
Hodgson JA in VAW addressed the question of uncertainty in listings and subsequent application of Final Determinations for ecological communities: "231 Next, I turn to what have been called the "uncertainty" issue and the "definition" issue. There is, as submitted for the appellant, a measure of uncertainty and lack of definition in the ecological community determined to be an endangered ecological community in this case. 232 However, this question must be addressed having regard to the approach taken by the legislature in the Act, and in particular to the definition of "ecological community" as "an assemblage of species occupying a particular area". Although this definition refers to a particular area, plainly the terms of the definition are such that the area in question will generally be impossible of definition by precise boundaries: the very nature of "occupation" of an area by an "assemblage" of species (of plants and/or animals) in the wild is such that such an area cannot possibly be given precise boundaries. 233 Furthermore, what is contemplated is plainly a number of species, and specification of the species will not in most cases identify with precision either the extent of the assemblage or the area occupied. When one looks at any particular location, plainly one will not find all species at that particular location. It will often be the case that the species in question include many species which are commonplace. Thus there are questions inevitably raised as to whether a group of species at or near a particular location, some or all of which may be commonplace, do or do not form part of the assemblage of species, which assemblage of species includes but is not exhausted by the species at or near this particular area. There will often be cases where there are areas of transition between one ecological community, broadly considered, and another ecological community, where species which are part of each ecological community occur. Precise determination of whether those species in the transitional area are to be regarded as part of one ecological community or of the other, or of neither, will be incapable of precise and definite determination. 234 It is plain therefore that a certain amount of vagueness and uncertainty in the determination of boundaries of ecological communities is an inevitable result of the formulations chosen by the legislature. It must follow, in my opinion, that a certain amount of vagueness and imprecision will not necessarily cause a determination that a named ecological community is an endangered ecological community to be regarded as void or invalid because of uncertainty or lack of definition." and at [238]: "238 I accept that these provisions raise difficulties for people considering what to do about plants or animals of particular species in areas that may or may not be occupied by an endangered ecological community. However, these difficulties are necessarily involved in the way the legislation has been framed…"
The Court considered how Final Determinations for EECs had been interpreted in Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Ltd (2010) 210 LGERA 126; [2010] NSWLEC 48 (NHVSS) in relation to the White Box Yellow Box Blakely's Red Gum Grassy Woodland (Box Gum Woodland Endangered Ecological Community), although the reasoning is applicable to a range of EECs. In NHVSS, the second respondent (Stoneco) had been the applicant for development consent to establish a limestone quarry. The Court concluded that the wording of the Final Determination allowed for inclusion of the range of variation of Box Gum woodland on the site within the listed EEC.
Talbot J in Rocla Pty Ltd v The Minister for Planning and Sutherland Shire Council [2007] NSWLEC 55 at [80] was of the view: "that since the main purpose of the Threatened Species Conservation Act 1995 is to protect biodiversity it would be against its spirit to discount the importance of this vegetation on the basis of uncertainty about the correct characterization of the location in which it occurs." (This was in relation to the Final Determination for the Swamp Oak Forest EEC.)
A broad approach to interpretation of final determinations was taken in Gunlake Quarries Pty Limited v Minister for Planning [2022] NSWLEC 1570 at [88] where the use of words like 'characteristic' in Final Determinations permitted exceptions from a strict literal interpretation.
In NSW, the objectives of the Environment Protection Authority have, since 1991, been specified in s 6 of the Protection of the Environment Administration Act 1991: 6 Objectives of the Authority (1) The objectives of the Authority are - (a) to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development… (2) For the purposes of subsection (1) (a), ecologically sustainable development requires the effective integration of social, economic and environmental considerations in decision-making processes. Ecologically sustainable development can be achieved through the implementation of the following principles and programs - … (c) conservation of biological diversity and ecological integrity - namely, that conservation of biological diversity and ecological integrity should be a fundamental consideration,
Given this long established recognition of the need to protect variation within biodiversity, why have both parties agreed that the Southern Highland Shale Woodlands EEC in the Sydney Basin bioregion does not occur at the site?
The 'problem' lies within par 4 of the Final Determination: "4. Southern Highlands Shale Woodlands is found on clay soils derived from Wianamatta Shale on the Southern Highlands, south of Colo Vale, extending from west of Mittagong, eastwards to the Illawarra Escarpment, south to Bundanoon and south-west to Canyonleigh. Elevation ranges from about 600 m to about 800 m. Rainfall ranges from 1400 mm in the east to 900 mm per annum in the west. Southern Highlands Shale Woodlands for parts of this area are described in Fisher, Ryan & Lembit (1995) and Benson & Howell (1994)"
The description of the environment restricts occurrence to clay soils derived from the Wianamatta Shale, and unlike many Final Determinations for EECs there is no flexibility that would have been provided by terms such as "characteristic", "generally" or "usually" etc.
Both ecologists were in agreement that the relevant vegetation on or near the site, despite its floristic match to the species composition included in the EEC Final Determination, did not occur on clay soils derived from Wianamatta Shale Dr Clements referred to it as occurring on a weathered sandstone soil (Tcpt, 23 March 2022, p 57(6)). The soil investigations by Chapman (Ex E and supplementary report at Tab 17 and Ex C) were not commissioned by the Applicant until relatively late in the history of the matter, and the findings were not known until after the objectors had made their submissions. The consequence is that there had not been a conservation assessment of the woodland vegetation on the sandy soil.
Alteration to the schedules of the BC Act is not a function of the Court, the Council, the Minister for the Environment or the Department of the Environment. Modification of the existing determinations or the making of determinations about new matters can be made only by the Scientific Committee.
The processes through which the Scientific Committee can make or modify determinations were explained in some considerable detail in VAW, particularly in the judgment of Beazley JA. The Scientific Committee can make a nomination under its own volition, or it can receive nominations from other sources including members of the public, or from the Minister. It is also required to consider any listings made under the Commonwealth EPBC Act for species or ecological communities which occur in NSW.
As far as I am aware, no person or body has made a nomination for the listing of the sandstone version of the Southern Highlands Shale Woodlands, and it would not be appropriate for the Court to do so. However, the vegetation concerned is not within the actual footprint of the buildings proposed in school development proposal, but it is native vegetation and any impacts upon it would need to be assessed.
The production of the BDAR was required by the BC Act and the BAM was the methodology which was mandated. Although the schedules of the BC Act include species and ecological communities, the BAM requires that vegetation within investigated sites be allocated to PCTs.
In the BDAR (Ex B Tab 9 folio 169) Dr Robertson found it "problematic to determine the relevant PCT. Furthermore, many of the PCT considered further have a very low classification confidence and therefore the description may be of low quality… this makes selection of a PCT problematic. However, as BAM requires the allocation of native vegetation to a PCT a best fit PCT has been selected for the vegetation."
This is not to criticise Dr Robinson who is required to use the BAM as specified. This is an example of the sort of procrustean approach which was criticised in NHVSS at [67] when the applicant's ecologist sought to use the BioMetric tool (which was then a work in progress) so that the community at the site was forced into the closest entity within BioMetric, although the Court decided that the vegetation on the site was a local variant of the Box Gum Woodland and not a separate community.

Land for Wildlife

A concern for many of the objectors was that the School and the Respondent had been parties to a Land for Wildlife agreement, which applied to the proposed development site, and to summarise the range of views expressed, that the School had abrogated its commitments under the agreement.
Despite the issue having been raised, virtually no information about the agreement was provided by either of the parties. I raised the issue during Mr Larkin's submissions: "COMMISSIONER: Could I just ask a question about what land for wildlife was and-- LARKIN: Yes, and in fact there is something in the bundle about that. COMMISSIONER: Yes, and I note for the moment just looking at the respondent's bundle of submissions, exhibit 8, that on fol 189 which is part of the information provided by the school LARKIN: I just missed the reference, Commissioner, exhibit 8? COMMISSIONER: Exhibit 8 fol 189, which is part of the information provided for the meetings by the school, in the bottom paragraph of 189 it says, "At the time that the school chose to become a land for wildlife site," so that it appears that there is a formal land for wildlife designation and that the school actually entered into it. I don't know whether it is still in it. Have you got fol 189? LARKIN: Yes, I have got fol 189, so my understanding is that the land for wildlife designation is a voluntary designation that the school has entered into and that it, as a matter of private law, creates particular obligations that the school has assumed and I may need to make some more inquiries about the specifics of those but, what I would say is that, what you have in the BMP and in the other management plans proposed including the positive amelioration of weeds and the like, is a substantial improvement, operating as a matter of public law as distinct from private law, in perpetuity and there is a big difference. You can be released from private obligations. I'm sorry, let me just preface these submissions by saying also that my understanding was that there was a suggestion at one time that the land had wildlife corridor status or other corridor status under the LEP and I think I was at cross purposes when I addressed the question about a "wildlife corridor". There is no designated, from a perspective of planning, corridor for wildlife. There is something called land for wildlife which is a voluntary arrangement, not supported by public law or by planning law, that we are involved in. The submissions that I have made this morning and that upon which we rely is that there is a substantial public benefit for obligations, which arise as a matter of public law, enforceable by the world, in perpetuity and that that is a substantial improvement on the current position and that is really the gist of the submission that we make. To the extent I should say that I mistook the question about land for wildlife with the question about a formal designated corridor under the planning instruments. I apologise for that. I was addressing a different subject at that time. COMMISSIONER: But from some references in Dr Robertson's material there does appear to be, at a council level, a sort of non statutory wildlife corridor network to which they are working but that's not incorporated into the LEP. LARKIN: That's right and my understanding or my submissions is that what is now proposed is both state of art best practice as to its content, is enforceable as conditions of consent in perpetuity, which run with the land and those features mean that what is now proposed is one which would find favour with the Court." (Tcpt, 11 April 2022, pp 26(14)-27(17))
As I understand it, the Land for Wildlife program is, as Mr Larkin indicated, a voluntary agreement between Council and landholders. Wingecarribee Shire Council has been an active proponent of the program since 2009. The program has the support of the State and Federal governments. The program encourages and assists landholders to include nature conservation with other land management objectives. The program is free for the landholders. "LFW encourages and assists landholders to include nature conservation along with other land management objectives. The program is free for landholders to join and is not legally binding. Registration in the scheme will not change the legal status of a property. The Community Environment Network(CEN) facilitates and supports Land For Wildlife in New South Wales in partnership with interested local organisations. CEN holds a licence from Land for Wildlife to co-ordinate the program and use the Trademark in NSW. The licence requires CEN to adhere to a number of protocols to ensure the standards of LFW are consistent across Australia. CEN provides statewide coordination and the framework for Land for Wildlife. This includes: • Provision of signs, newsletters and information about wildlife and management for conservation • Program support • Maintenance of records and data. Regional delivery of Land for Wildlife may be carried out by non-government organisations, community groups, Catchment Management Authorities or local councils who form a partnership with CEN. Regional coordination includes: • Site assessments • Advice on suggested management strategies and actions for the property • Support and encouragement for landholders to carry out nature conservation on their land. Regional organizations co-ordinating Land for Wildlife receive CEN support in the form of training, advice and information and support for funding applications and registration of all properties assessed." (Community Environment Network, Land for Wildlife, accessed 13 December 2023, )
The Community Environment Network provides coordination and advice about the program. Wingecarribee Shire Council funds the programme through the Environmental Levy. "Land For Wildlife is a free, voluntary program which aims to encourage private landholders to provide habitats for wildlife on their property, even though the property may be managed primarily for other purposes. Wingecarribee shire Council has been delivering the Land for Wildlife (LFW) program locally for over 14 years. We now have over 200 members. The minimum size of the habitat to be protected is 0.5 hectare (just over 1 acre). The program aims to promote continuity of habitat across landscapes, community participation in nature conservation, and to contribute to the ecologically sustainable long-term viability of agricultural systems. Our plants and animals cannot be conserved adequately by the public reserve system alone. The Southern Highlands is a critical pinch point within the Great Eastern Ranges and we need to retain corridors and connect bushland remnants. We encourage and support landholders within Wingecarribee to take steps towards conserving the natural features on their properties. What do Land for Wildlife members receive? • A free property visit and report from an expert ecologist • Plant species lists for your property • A suite of mapping products • Eligibility for $2,000/year Conservation Partners Grant funding for bush regeneration, weeding, fencing, pest animal control, and erosion control • A sign for your front fence • E-newsletter • Invitations to local environmental workshops • Plant giveaways • Opportunities to connect with like-minded people" (Wingecarribee Shire Council, Land For Wildlife, accessed on 13 December 2023, )
Neither party identified the exact area covered by the agreement, nor what management activities were to be undertaken.
Mr Larkin (Tcpt, 11 April 2022, p 26(481)) referred to "a voluntary arrangement, not supported by public law or by planning law, that we are involved in". The use of the present tense indicates that at the time he was speaking the Applicant was still part of the agreement. The Respondent did not proffer any opinion as to whether the agreement was still extant.
Mr Larkin's view was that "a voluntary, unenforceable, agreement would be replaced by state-of-the-art best practice as to its content, its enforceability as conditions of consent in perpetuity which run with the land".
The proposed management regime is provided for in the BMP (Ex B at Tab 11) but whether it includes the management regime that had been part of the Land for Wildlife agreement with Council cannot be determined in the absence of reading the agreement. The agreement itself was not included in any documentation tendered by either party. The Court could not impose a condition of consent requiring a Land for Wildlife agreement, given that such agreements are voluntary. However, if the parties had a current Land for Wildlife agreement, the Court could endorse it.

The koala

During the hearing, the conservation status of the koala changed from vulnerable to endangered under both the Commonwealth EPBC Act and the BC Act. I requested that the parties make submissions on the effect of the change in status.
The parties agreed that the change of status was a matter which the Court could take into account as a public interest consideration under s 4.15(1)(e) of the EPA Act.
The change of status does not require amendment to the BDAR which remains current under s 6.15 of the BC Act (Respondent's supplementary submission dated 17 June 2022 at par 2(a); Applicant's Submission in Reply at par 11).
Although it was not raised during the hearing, I mention for completeness that the koala was classified as threatened under the US Endangered Species Act, 16 USC s 1531 et seq. on 9 May 2000. The Endangered Species Act has no application in Australia. However, it is pertinent to note that the Commonwealth and those State governments in whose territory koalas naturally occur made submissions opposing the listing. The submissions acknowledged that they were threats to koalas but claimed there were appropriate management policies in place that would prevent further decline and reverse the trend. That was more than 20 years ago, so that the recent changes to the formal conservation status of the koala may suggest that the optimism for improvement was misplaced. There has been very considerable effort employed for over two decades on koala conservation, and more parliamentary inquiries and ministerial statements about the koala than for any other single species. Despite this, there is still uncertainty as to the most appropriate methods to achieve the long-term conservation of the species.
I have earlier discussed some of the evidence relating to koalas to illustrate the unfortunate state of the data regarding identification of trees within the site.
Koala habitat protection has been a concern of the NSW planning system since 1995 when State Environmental Planning Policy No 44 - Koala Habitat Protection (SEPP 44) was introduced, and it was replaced by State Environmental Planning Policy (Koala Habitat Protection) 2019 (SEPP 2019). In November 2020, SEPP 2020 repealed and replaced SEPP 2019. SEPP 2020 largely reinstated SEPP 44. In March 2021 State Environmental Planning Policy (Koala Habitat Protection) 2021 (SEPP 2021) was introduced. It applies to all zones within Sydney Metropolitan councils and the Central Coast and to zones RU1, RU2 and RU3 in LGAs to which SEPP 2021 does not apply. SEPP 2020 continues to apply to those LGAs not included in SEPP 2021. In the consolidated State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP), SEPP 2020 forms Ch 3, and SEPP 2021 forms Ch 4.
It is agreed that the SEPP applicable to the current matter is SEPP 2020 that applies to Wingcarribee Shire Council by virtue of inclusion of the Shire within Sch 1. The aims of SEPP 2020 are: 3 Aims of Policy This Policy aims to encourage the proper conservation and management of areas of natural vegetation that provide habitat for koalas to ensure a permanent free-living population over their present range and reverse the current trend of koala population decline - (a) by requiring the preparation of plans of management before development consent can be granted in relation to areas of core koala habitat, and (b) by encouraging the identification of areas of core koala habitat, and (c) by encouraging the inclusion of areas of core koala habitat in environment protection zones.
Critical concepts for the application of SEPP 2020 include: 4 Definitions In this Policy - core koala habitat means an area of land with a resident population of koalas, evidenced by attributes such as breeding females, being females with young, and recent sightings of and historical records of a population. ... potential koala habitat means areas of native vegetation where trees of the types listed in Schedule 2 constitute at least 15% of the total number of trees in the upper or lower strata of the tree component.
The development controls for koala habitats applied to land: (a) that is land to which this Policy applies, and (b) that is land in relation to which a development application has been made, and (c) that, whether or not the development application applies to the whole, or only part, of the land - (i) has an area of more than 1 hectare, or (ii) has, together with adjoining land in the same ownership, an area of more than 1 hectare. (cl 7)
The requirements of cl 7(a), (b) and (c)(i) are met.
The consent authority may only grant consent if it is satisfied of certain facts: 8 Step 1 - Is the land potential koala habitat? (1) Before a council may grant consent to a development application for consent to carry out development on land to which this Part applies, the council must be satisfied as to whether or not the land is a potential koala habitat. (2) The council may be satisfied as to whether or not land is a potential koala habitat only on information obtained by it, or by the applicant, from a person who is qualified and experienced in tree identification. (3) If the council is satisfied - (a) that the land is not a potential koala habitat, it is not prevented, because of this Policy, from granting consent to the development application, or (b) that the land is a potential koala habitat, it must comply with clause 9.
It is questionable whether the list of trees prepared by the arborist in the form as it was at the commencement of the hearing would have passed the hurdle - the Respondent's closing submissions of 11 April 2022 at par 9.
The consent authority must then address Step 2: 9 Step 2 - Is the land core koala habitat? (1) Before a council may grant consent to a development application for consent to carry out development on land to which this Part applies that it is satisfied is a potential koala habitat, it must satisfy itself as to whether or not the land is a core koala habitat. (2) The council may be satisfied as to whether or not land is a core koala habitat only on information obtained by it, or by the applicant, from a person with appropriate qualifications and experience in biological science and fauna survey and management. (3) If the council is satisfied - (a) that the land is not a core koala habitat, it is not prevented, because of this Policy, from granting consent to the development application, or (b) that the land is a core koala habitat, it must comply with clause 10.
Core koala habitat means an area with a resident population of koalas, and recent sightings or historical records of a population. (For purposes of addressing the current situation of a site, how historical an historical record can be to be applicable is not specified).
To qualify as potential koala habitat, the site must contain at least 15% of the total number of trees in the upper and lower strata from the list of species in Sch 2. The species list in Sch 2 is short and applies statewide.
Although SEPP 2021 is not applicable, it is worthy of mention that Sch 2 in SEPP 2021 is very much longer than that in SEPP 2020, and there are separate lists for different geographical areas of the State. It is unlikely in the extreme that there has been such a large change in koala food choice in a short period of time, rather the change reflects the view of ecologists including Dr Phillips who referred to the narrow metric that SEPP 2020 imposes upon us and identified other species of eucalyptus that were food trees. However, feed trees only make up part of the composition of most stands of bush. When koalas move within and between patches of bush, does the identity of the tree affect whether or not koalas will use particular trees: "COMMISSIONER: …What I would like to ask is we've been talking about preferential utilisation by koalas which is what's the term that's used in paragraph 22 of the joint report by Dr - now, does utilisation solely refer to feeding when koalas are moving between areas which don't necessary have feed tree, do they still have preferential utilisation of trees they encounter on their way? WITNESS PHILLIPS: If that question is directed to me, Commissioner, the answer to that is no. They'll effectively utilise anything that is located in the habitat matrix between their preferred koala food trees, so if for example two grey gums are located 50 metres apart and in that space there are peppermints and acacias, and indeed even banana trees [or] Camphor laurels, then there's a probability that the animal will be seen in those as it makes its way between its preferentially utilised tree species." (Tcpt, 21 March 2022, p 48(2-15))
Dr Clements had raised the possibility of there being potential for koala to cross the highway and railway north of the subject site using underpasses, so that there could be a corridor which would permit movement to Mount Alexandra and to Nattai National Park.
Dr Phillips said: "WITNESS PHILLIPS: Koalas will certainly use underpasses so long as they're directed to them and that's typically undertaken by the use of exclusion fencing which sort of corrals them and sends them to the underpass, but the underpasses have to realise certain dimensions which is a function of the distance of the under road or under rail traverse. Dr Clements, I think it's appendix H of Dr Clements's is particularly informative in this context because in that appendix she illustrates both the road bridge, the perspective from the road bridge to the rail bridge which is on page 88 of the .pdf. The under rail bridge looking south, under the road bridge - I'll wait until you perhaps have those images in appendix H. COMMISSIONER: Yes. WITNESS PHILLIPS: To me, and I have a fair bit of experience in getting koalas to use underpasses and concepts of retrofitting and what they need to move through those underpasses, all of those underpasses which potentially provide connectivity to those two locations, are both unusable by koalas, you can see that because of the extent of water that's lying there, koalas like a year-round dry access. When their conditions are suitable for them they will certainly use them, but those three images in particular tell me quite immediately that the potential utility by koalas of those under road and under rail structures is not going to happen. COMMISSIONER: The alternative of trying to cross the road and railway, utilise presumably suburban gardens on either side, is that feasible, if very risky? WITNESS PHILLIPS: Yeah, look with - it's a very interesting and relevant point, the thing that's noticeable about koala records in that area that we're referring to now is the complete absence of vehicle strike and indeed dead koalas coming either from the carers' records or anything in BioNet, so that in itself is quite telling because it's telling you that there's not a lot of movement across that area, and even indeed if there were attempts to move across that area, then you would expect to see that reflected in vehicle strike. In my individual report I specifically identified an area to the northeast of the site where there is that history of vehicle strike up towards the village of Alpine, and you can see what happens when you've got regular use of animals going backwards and forwards across the road. Having said that, I would qualify my earlier statement about the potential utility of the under rail and under road structures, they could be made useable by koalas, they would require extensive retrofitting and elevated ledges linking them to the banks, but that is - I think its location P on again in appendix F, figure 3 of Dr Clements's report, those locations are a long way from the site in this instance and the capacity, while there might be an overriding need to retrofit them and make them function for connectivity purposes, that's the reserve of the Australian Rail Track Corporation and it's the reserve of Roads and Maritime Services, and as urgent as it may be, it requires far more engagement than what we might achieve through these proceedings and the issues we've got to consider. WITNESS CLEMENTS: Can I assist at spot P? If one looks at figure 1 in my appendix, you will see there is a koala record in 2009 at spot P and if one goes to the photos we provided for spot P-- LARKIN: It's at spot K, isn't it? WITNESS CLEMENTS: No, it's spot P. Spot P is in my sampling figures and that is on figure 3 and the accompanying koala record is on figure 1. COMMISSIONER: Figure 1, koala records near Frensham. WITNESS CLEMENTS: Yes, near Frensham, and you will see at spot P there's a 2019 koala record in that Eucalyptus macarthurii, there's only one eucalypt there and it's macarthurii. That is the 2019 record which coincides with spot P and now if we go to the photo record for spot P-- LARKIN: You've dropped out, Dr Clements, could you say that again please? WITNESS CLEMENTS: And now go to the photo record for spot P in the back, you can see the tree being photographed from the roadside looking across. There's a close-up of the fruit on the same page, the buds on the next page, and then what the tree is growing in if you climb underneath this bridge, and you can see it's growing in soil and it's got an access to a koala, and a koala can readily climb that tree and collect its leaves or just sit in the tree and it's been photographed sitting in the tree in 2019. WITNESS PHILLIPS: With respect, Dr Clements, the koala sitting in the tree is entirely consistent in that date with what the records are telling us anyway about the occasional or transient use of the area, and indeed the koala sitting in the tree on either side of a potential underpass structure does not of itself indicate that the animal has used that structure and-- WITNESS CLEMENTS: In my-- WITNESS PHILLIPS: --we've done - excuse me - we've done a lot of radio tracking work looking at how animals utilise these structures and koalas in particular and we have many, many records of the animals approaching, particularly water filled underpasses and structures, sitting there for a while and then turning back because they won't go through it. WITNESS CLEMENTS: Yes, but this was an exceptionally wet summer when these photographs were taken. We have photographs from the time when these koalas were there and other times when the underpass itself is completely dry. The underpass is not always up to the summer levels of the floods of last year - of the summer. WITNESS PHILLIPS: No, and I certainly acknowledge that. The point that I tried to make earlier too was that in order for these structures to be optimised for koala utility they need to offer dry year-round access independently of what's covering the bottom of them and for these reasons we sort of retrofit even dry underpasses these days with koala ledges so that koalas have got actually quite good memories about how they use the landscape-- WITNESS CLEMENTS: Yes. WITNESS PHILLIPS: --and so if we can offer them continual year-round dry access, they will start to make use of that, but if they get to it and find that it's flooded and they can't get through, then they're thwarted and they return and go back the way they came. So, the data in terms of how they utilise these structures, and there's issues of their actual size and their dimensions also become quite relevant. WITNESS CLEMENTS: Yes, we could manage to climb to the base of those trees without having to walk through water in January this year, so, yes, so maybe we are having to talk about koala corridors and making the connection better from the Lower Holt to the Nattai National Park and I think that needs to be a priority, because we do have the record of the koala sitting in the macarthurii at spot P, and, yeah, in 2019. WITNESS PHILLIPS: No, and I agree, I think we've all three of us have discussed this issue of connectivity and how important it is for these animals to utilise the landscape and I would be the first to support a revamping and a revisiting of those structures so that they offered year-round utility to koala and indeed other wildlife, but at the moment the potential utility, particularly for koalas is quite limited." (Tcpt, 21 March 2022, pp 48(28)-51(1))
I asked Dr Phillips: "COMMISSIONER: … Looking at schedule 2 there may be species of eucalyptus with wide distributions, eucalyptus macarthurii has been mentioned on a number of occasions, that has a very limited distribution that's virtually restricted to Wingecarribee, I've seen it from the other part of the Wingecarribee swamp near Robertson down across to Penfold State Forest, so very limited distribution. In the bigger picture of the State it's probably not important but, is it know that it's eaten by koalas? WITNESS PHILLIPS: The data at this particular point, Commissioner, we would say that as far as we know on a current taxonomy on eucalyptus, macarthurii is very strongly allied with the woollybutts as a generic group of eucalypts and also with the..(not transcribable).. Now we know from data from the south east forests and the southern tablelands and indeed from Campbelltown that woollybutt, the other species of woolybutt, longifiolia is preferentially utilised by koalas and so because of that taxonomic affinity there is an assumption on my part that it will be a preferentially utilised tree species by koalas. LARKIN: Yes, it certainly would be appropriate to make that assumption on a cautionary basis. COMMISSIONER: The other question I would ask you, Dr Phillips, in relation to 15% that's based on number of individual trees, the trees are all of different sizes, is any consideration taken into the fact that you might have a few big trees which contribute a large part of the cover of that species even though it's only a couple of trees and they are lot smaller? WITNESS PHILLIPS: Commissioner, the 15% rule has always been problematical for the purposes of the SEPP and there was no underlying data to support that decision when the original concept of a 15% rule was sort of promulgated I guess and so there's no DBH thresholds. There's none of that really underlying important data that you would think supports such a critical decision and, as I said yesterday, koalas have told us time and time again that that 15% rule just doesn't apply when it comes to the preferentially utilised tree species that they require to survive and for each of the comprehensive koala plans of management that we've worked on or indeed the site specific ones. We collect site based information and there's been sufficient flexibility given to us by the Department of Planning to nominate and identify the preferred koala food trees in each of the areas that we've worked in and sometimes some of the species that come up are not species that are on schedule 2 but there's sufficient flexibility in the SEPP and they've allowed those additional trees species to taken into account when we've been drafting plans of management." (Tcpt, 22 March 2022, p 13(1-43))
Despite the wording of SEPP 2020, Dr Phillips considered that the Department of Planning allows flexibility in interpretation of the SEPP. This may be so, and it is appropriate that the Department has been willing to accept suggestions from somebody with considerable knowledge and experience of koalas. However, my attention was not drawn to any document in which the Department has indicated its openness to vary the SEPP, and there may be examples where at other sites there may have been koala feed trees not in Sch 2 where the applicant had strictly adhered to the SEPP wording, so that opportunities for positive conservation outcomes were lost.
Dr Phillips also identified that there are no underlying data to support the 15% canopy rule, it would appear to me that the 15% rule, although widely used in assessments is an arbitrary assumption rather than arising from analysis of data.
Mr O'Gorman-Hughes in his submission of 11 April 2022 suggested that there were no reliable data to determine the habitat value of the site for koalas. This may well be so, but the three experts have agreed that, taking a precautionary approach, there is potential koala habitat on the site. "[COMMISSIONER]: And in any case, all three of you have agreed that there is potential koala habitat on the site? WITNESS PHILLIPS: Yes, we have, Commissioner, I believe." (Tcpt, 22 March 2022, p 13(45-48)) "[COMMISSIONER]: Bu[t] given the agreement between the three of you, that it is potential koala habitat, it would appear that and indeed as Dr Phillips said, there is no real basis for 15% anyway but these are interesting questions to have a debate about but they don't change the conclusion that you have all reached. I take it that it is potential koala habitat. WITNESS ROBERTSON: That's right, Commissioner. WITNESS CLEMENTS: Yes, that's correct." (Tcpt, 22 March 2022, p 16(30-38))
There is no need for me to determine whether the data allow achievement of the required 15% canopy, given the agreement between the parties that the site is potential koala habitat.
What is the evidence of koalas occurring on the site? (In the excerpts below, references to Lot 1 should be read as Lot 100). "WITNESS PHILLIPS: Core koala habitat is defined in and it's a really good principle as an area occupied by a resident koala population and typically a resident koala population will have breeding females in it because that's what it's all about, so it's an important conservation biology principle that embedded in the definition. One of the key concepts of core koala habitat and the presence of resident populations is that they comprised of individual koalas who live in matrix of overlapping home range areas to which they exhibit very strong fidelity and that's particularly the case with the females and particularly lactating females who require access to high nutrient good value food trees in order to raise their joeys. So what happens when you're in an area of core koala habitat is that, because of this persistent use and revisiting of food trees, because of the home range fidelity, you very heavy faecal pellet scatter by koalas in particular obviously. We know from various studies that individual koalas will produce between 90 and 240 scats per day and so when you've got a resident population area that you're working through tends to have very high faecal pellet scatter, as we call it, and that gave rise to the spot assessment technique because it's reliant on that logical phenomena and the high faecal pellet scatter to identify areas occupied by resident koala populations. During the site view, Commissioner, if you recall I pointed out to a particular individually punctata when we got to one and I made mention of the fact that this is an unusual tree amongst the preferred food trees, it's bark goes very velvety when it's wet, and when you've got repeated use of that particular tree species by koalas you get these sort of railway lines going up and down the tree that reflect the regular and repeated use by koalas. So while that is not a quantitative variable it's very much an observational variable that many people fall back on when they're looking for evidence of occupancy by koalas and particularly trying to identify core koala habitat and most notably on lot 1 that evidence, that observational evidence certainly wasn't there on the grey gums. There are various other ways that have been developed to identify core koala habitat. One of those is records analysis and to do that we fell back originally on the IUCN criteria of measuring change in record abundance, if you like, over three consecutive koala generations. Now we know a koala generation is about six years and so to identify an area of core koala habitat we're looking for evidence of one or more records for each of the three constituent koala generations and that's been a standard tool that we've now applied in locations such as Campbelltown and in Lismore, both of which have comprehensive koala plans of management which have been approved using that approach. There are other methods. Koala detection dogs are now widely used, when they're accredited they're well trained, they're a very effective survey technique for covering large areas of ground very quickly. We also have techniques informed by the spot assessment technique where we sample at regular intervals across the landscape and we measure koala activity and we spline that to identify the areas occupied by resident populations, so the techniques are good for locating core koala habitat. It is a vitally important part of koala conservation in being able to locate these populations on the ground and one of the interesting aspects of this particular proposal and I guess some discussion is whether or not the site core koala habitat to which the development application relates. And so we've had the records analysis and building on what Dr Clements said earlier, I called in all the BioNet records for the LGA, I had a look at those, and they alluded to an area of generation of assistance to the south west of lot 1 and specifically in the Mount Gibraltar area. Then because of the concern and the importance of gathering community records in, as well as the BioNet records, because there's always this sort of chasm, if you like, between the time it takes for reports to get into Government databases and records that are maintained by the carers and other members of the community. So facilitated by Dr Clements I was able to look at council's records that were not into BioNet dataset and more recently looked at the records collected by Gaye White(?) and I related those records back to the photographic reference that Dr Clements has referred to and it's available on Facebook and what those records tend to say, when they're considered as a collective, they reinforce the earlier conclusion about whether the most proximal area of core koala habitat is and that is in the Mount Gibraltar area and what it also tells us is that there's this pattern of east-west dispersal from that site and that explains a lot of the more recent records in 2019 and 2021 because these are animals dispersing from that breeding population located in the Mount Gibraltar area. So I'm very confident in fact, and particular given the two dog surveys that have gone over that site, they detected one old partial scat at the south of the site and when that was assessed using the spot assessment technique it also returned a low use rather than a significant area of major activity, which was consistent with what the records are telling us, so I think we've got a pretty good picture of what's going on south of the highway there. We know where the nearest area of core koala habitat is located and it's not on lot 1 and we can also explain this east west pattern of dispersal that's occurring from the Mount Gibraltar area as indeed the most likely and most feasible explanation for this." (Tcpt, 22 March 2022, pp 19(15)-20(50))
The site of the one partial scat detected by the dogs is shown in the image below.

Figure 13 Species polygon (Koala) - Koala Scat marked with a yellow star (inside pink circle)

The location is not within the proposed development area, but is to the south on the opposite side of the Nattai River. "LARKIN: Just to clarify some things, the old scats that you mentioned that the dogs did collect, are you able to tell us precisely where that was in? WITNESS PHILLIPS: Dr Robertson might answer that question better than I. My recollection is that it was recorded from beneath a eucalyptus quadrangulata at the southern end of lot 1, not within the area that is proposed to be developed. The other thing I would say that SAT practitioners or people who use this scat assessment technique I have a very important rule that I continually reiterate to them and, that is, when in doubt knock it out, so if you're not really confident that it's koala scat disregard it because if koalas are in the area you will find more And so to find a partial scat, that's a credit to the dogs and their capacity to identify a partial old scat on the site, but it may well have been missed by a SAT practitioner but either way the site has returned a low activity level by koalas which is just consistent with low use or transient use, so unless I've misunderstood what I've read and my communications with Dr Robertson, that's my understanding of where the scat was located." (Tcpt, 22 March 2022, p 21(17-34)) "WITNESS ROBERTSON: … When it became more important to clarify whether the site was truly core habitat for the purposes of the SEPP Cumberland Ecology undertook, with the instructions of Dr Phillips, two further detailed dog surveys right around the site. I was there for those surveys and we've also done SAT work where we discovered one faecal pellet in the south western corner. I also pointed out that we've tended to still adopt a precautionary approach and I've already said that I believe its potential koala habitat because of the presence of grey gums and that the biodiversity development assessment report that Cumberland has now put before the Court provides for offsetting on the basis that it is koala habitat on a precautionary basis. I think there are 63 species credits that will be purchased and retired as a result of that and I think that's an appropriate step, taking a precautionary approach, but I accept what Dr Phillips said and I've seen no evidence that there's been persistent use of the site by koalas." (Tcpt, 22 March 2022, p 22(18-33))
Dr Clements endorsed the precautionary approach: "WITNESS CLEMENTS: Yes, I can hear you. LARKIN: And ask you on page 10 of your report you say that there appears not to be sufficient evidence of whether koalas breed on lot 1, can I ask you is there sufficient evidence as to whether there is a resident population of koalas on lot 1 and why? WITNESS CLEMENTS: I would support a more precautionary principle. Look, the koala records were done, there was a dog survey done on 11 August and 3 November 2021. The first one on 11 August we've had no idea where the dogs have gone because they didn't have their tracking collars on. On 3 November the tracking collars were on them and unfortunately by 3 November there was rain falling and there was an old scat found. I don't know how long scats live in, you know, reside in the environment that can be found, so that's the dog survey. And then when the SAT survey, that's the spot assessment technique, which was developed by Phillips and Callahan, was done that was done on 24 November and unfortunately there'd been massive rainfalls before 24 November the rain had hit. So how do we know whether we have a sufficient number of scats found underneath trees or not to feel comfortable either way but it's obvious that koalas are travelling through the site. There aren't many records on the Lower Holt because it's a locked up site and the community haven't been going through looking for koala records there, koala sightings, because they don't have access to the site. They find koalas in telegraph poles near the site, so koalas are travelling there, that's all I can glean from the evidence that the koalas are travelling through. Whether they're breeding on that site, no idea, but from a precautionary principle I would accept the fact that it's possible koala habitat, its breeding habitat, but if we're going to have successful breeding we need to keep these koala habitats conserved and enhances rather than clearing them for a property development." (Tcpt, 22 March 2022, p 23(6-36))
An incidental outcome of protecting koalas is preserving the ecosystem associated with scats. "WITNESS PHILLIPS: No, I don't, Mr Larkin. Just to pick up on some of the commentary from Dr Clements, one of the things that makes the spot assessment technique as successful as it is and indeed one of the things that lends koala scats to do good survey work, particularly by koala detection dogs, is their longevity in the landscape. Now they're a very interesting and it's very difficult, I'll probably have some difficulties, this is going to make me sound like I have a bit of a fetish but when koala scats, and again I'm talking about an animal who deposits between 90 and 240 a day. When they're freshly deposited they're very tacky and the outside of the scats is called a patina and koala scats have this fascinating relationship with something called a koala scat moth and this moth is reliant on koala scats for its own survival and so when the koala scats are fresh the moth comes along, drills a little hole and lays its egg inside and then the waxy patina hardens over and almost encases the pellet which then protects it from things like fire even and indeed water and heavy rainfall and after a period of time the eggs hatch. The larvae eats out part of the vegetation which are inside the scat, burrows its way to the surface and flies off, so it's a very complex ecological relationship but it goes to that issue of the scats have to be able to persist in the landscape for a long time in order for that ecological relationships to exist and we've done a lot of work investing questions about scat decay and how long that takes, what happens to them in rain, and there's no doubt some of the freshly deposited ones will breakdown and/or wash away. But again, in areas of core koala habitat, that faecal pellet scatter will continue to drop because the animals are living in their trees and still defecating but in 24 hours the pellets have hardened up and they're pretty endurable then to affect them by moisture and/or fire and they're a key part of that moth's life cycle, so it's one of the attributes of the survey techniques that make them very conducive to testing populations or samples." (Tcpt, 22 March 2022, pp 26(42)-27(21))
Dr Phillips addressed the question of whether weather conditions might affect scat surveys: WITNESS PHILLIPS: No, I wouldn't, Mr Larkin, to provide a bit more qualification to that, we know from studying the pattern of scat distribution beneath trees used by koalas that the majority of scats will occur within the first metre or so from the base of those trees and they are very well protected close to the base by the canopy of the trees themselves and so the long term existence of pellets is not going to be affected by a rainfall event." (Tcpt, 22 March 2022, p 28(7-12))
Dr Phillips identified the potential value of the subject site as a corridor even if used infrequently. "WITNESS PHILLIPS: The records would indicate that that's not the case, Commissioner. The roadkill records are happening well to the northeast of Fresham around the village of Alpine, which I think is about 12 kilometres away, and there's certainly evidence of movement there. The westward movement of animals from Mount Gibraltar would also be they'd also face the barrier of the highway going around the back of Mount Gibraltar just west. That would explain why the majority or movement, in my view, is occurring from west to east rather than from west to west, if that makes sense, east to west. Yes, I hope that answers your question. [COMMISSIONER]: And is the sort of movement across the landscape certainly by males, does that have long term genetic importance even if it's a very infrequent event? WITNESS PHILLIPS: Yes, it does. We actually published a paper in 2017 in Conservation Genetics about the movement of koala genes across the landscape and we were tracking the sort of dispersal distances of genes and we found that on average the dispersal distance is about 7 to 8 kilometres but it goes up to as much as 16 kilometres from the maternal home range area. I have personally radio tracked particularly dispersing males and it's important to realise that both sexes will disperse from their maternal home range but I've tracked animals up to nearly 60 kilometres away from their maternal home range over the course of a period of several months. So these young koalas when they disperse from their maternal home range they're metabolically and physiologically equipped for dispersal, they're in good physical condition, they're motivated to travel and get as far as away from their ancestral gene pool, if you like, as you can, so they can appear quite long distances and what they're looking for are other resident populations that they can attach themselves to. The females are taken in much more readily than males are. A large proportion of males ultimately will not breed during the course of their life but, yeah, they're capable of some very long distance movements. [COMMISSIONER]: So there is a connectivity value even if it's infrequent? WITNESS PHILLIPS: Yes, of course there is." (Tcpt, 22 March 2022, p 34(8-44)) "LARKIN: Dr Phillips, could I ask you the same question, namely, what do you think the effects of the development, both positive and negative, might be but bearing also in mind to the extent that you have influenced the koala management procedures that are proposed, what ..(not transcribable).. you've taken, including for management of other core koala habitat. Do you understand the question? WITNESS PHILLIPS: I think so, Mr Larkin, and there is probably a good opportunity for me to I guess to answer your question by going to that context, that when we're required to draft comprehensive koala plans of management and indeed site specific koala plans of management, it's all about optimising the conservation outcomes for koalas and, in particular, we're required to development sets of provisions that relate specifically to areas that have been identified as core koala habitat and that's an important consideration because we're all in agreement here that the site should be managed and it's potential koala habitat and there's a whole bunch of reasons why it's important that the fabric of that habitat be maintained for koalas. And when it comes to issues of core koala habitat we put in working provisions that will say things like the retention of preferred koala food trees must be maximised and so in this instance we're talking about the preferred koala food tree eucalyptus punctata. In answer to the question, has its retention on the site been maximised, and as Dr Robertson said, my understanding is, that only one of those trees would potentially lost, so my answer to that question is, yes, the retention of preferred koala food trees has been maximised. The other question would be, is there going to be the introduction of threatening processes which may threaten the viability of an area of core koala habitat, and that would include increasing vehicular access and access by motor vehicles that would introduce the concept of keeping domestic dogs, for example, and we continually advocate that domestic dogs must be prohibited from areas of core koala habitat and that vehicle passage and access must be minimised and vehicle speeds must be controlled, so in this context I can tick both of those boxes. Is there going to be an escalation in a threatening process, such as domestic dogs and vehicle strike to any koalas on the site? and the answer to that is, no. The other question we make seek to answer is, does the site remain permeable to koalas, and so are there barriers going to be put in place like fences and the like, and we would draft restrictions which say, if you are going to put fences in place lift them up off the ground so that koalas can have their passage unimpeded. In this instance we don't have fences going in, so the barrier effect of any intensive development is minimised and not given any effect. So in a general sense, while we're dealing with the management of an area of potential koala habitat, the provisions that are in place in the koala management guidelines actually reflect best practice if it was an area of core koala habitat. So the reasons that have been put in place and proposed by the guidelines serve the koala well, they serve the long term management of that site well. Dr Robertson alluded to the issue of the fences around the school itself, now while they're not directly associated with this proposal I did have a look at that when we were down there during the site view and I came away with some ideas about how we could increase the permeability of the whole school site for koalas, and I'll be sort of pursuing that line and advocating that if the school is inclined to do something that would be fantastic. So in the short answer, to answer your question succinctly which I realise I probably haven't done, I see a lot of positive outcomes for koalas if that site is ultimately to be developed. I don't see any significant habitat loss. I see their youth (sic) that will be continued and indeed I would encourage them to come into that area and colonise it because that will considerably enhance any environmental benefits for the students who are there, so I'm very comfortable with that and the guidelines that have been proposed will meet the best practice that we could put in place for core koala habitat let alone potential koala habitat." (Tcpt, 22 March 2022, pp 36(7)-37(22))
During the site inspection, there was considerable noise from dogs in properties to the east. I asked Dr Phillips whether this would affect any koalas if they were to be present: [COMMISSIONER]: In relation to dogs clearly the site shouldn't have dogs wandering around in it, that's not going to happen, so they won't be attacked but when you were demonstrating the features of eucalypts and tata bark which was close to the boundary of urban development, on a number of those properties there were clearly dogs who were barking at us. Is that something which would limit the use of the site by koalas? WITNESS PHILLIPS: In my opinion, and based on my experience, the answer to that is, no. We've got plenty of evidence from locations like Port Macquarie, Lismore, where we have high density koala populations living in that urban matrix with lots of people who have dogs, and so dogs do represent a threat, domestic dogs certainly represent a threat to koalas, but does their presence proximally have an adverse impact on animals occupying habitat, no, it doesn't. We have published about diversity behaviour in koalas and it takes big episodic noise events like music festivals and the like to really drive them out of their home ranges. I would've been quite comfortable that in the context of that punctata and those trees that I showed you during the site view that koalas could be using those quite readily if that was the case but the presence of a dog and the noise of a dog nearby would not be adversely affecting their use of those trees." (Tcpt, 22 March 2022, p 37(24-45))
Mr O'Gorman-Hughes also examined Dr Phillips, including in the following exchange: "O'GORMAN-HUGHES: Dr Phillips, you indicated in your response before that one of the reasons that you indicated on the basis of your opinion that you didn't see any significant habitat loss. I assume that that's based on your review of the development application and what trees are proposed for removal? WITNESS PHILLIPS: Yes, that's correct and particularly the preferred koala food trees. O'GORMAN-HUGHES: And in the evidence that we have a site plan drawing 501 revision F which sets out the trees to be retained, so your opinion is based on the trees that the application states will be retained? WITNESS PHILLIPS: My opinion is based on particularly work by Dr Robertson which related to the locations of preferred koala food trees and what was to be retained of those and what would potentially be removed. O'GORMAN-HUGHES: But the question was also based on the trees that the application says will be retained? WITNESS PHILLIPS: Yes, I mean obviously maximising tree retention on the site will help the passage of koalas if koalas were using the site as they move between their preferred koala food trees. What those trees are doesn't necessarily matter to them as long as they can get from one preferred koala food tree to another and just to add to that, Mr O'Gorman Hughes, we do a lot of connectivity analysis for the landscape scale for koalas and we have determined from various locations now that the gap crossing threshold for koalas, and that's the distance beyond which they will not travel between trees, is about 200 metres. And so knowing that knowledge and putting into place on a site where trees are to be removed one of the questions I always have is, will any vegetation removal on a site result in that gap crossing threshold being created which will minimise and impeded the movement across those sites by koalas and in this instance the answer is, no. O'GORMAN-HUGHES: In your evidence before you indicated, firstly, that as Dr Robertson said only one of those koala feed trees would be lost, and you indicated that a relevant issue was whether the site was permeable to koalas and you didn't see any significant habitat loss, so really what I want to put to you is that, if there were significant habitat loss, that would be of concern to you? WITNESS PHILLIPS: It would be certainly, more so, if the site was core koala habitat I would be strongly advocated that that impact would be significant. Clearly it's less so when we're dealing with potential koala habitat because there's capacity to offset so, yes, there is a difference in the response depending on whether the site is occupied or not." (Tcpt, 22 March 2022, pp 38(26)-39(23))
Dr Phillips indicated that there was a gap threshold between trees which koalas would not cross of about 200m. There had been discussion about potential corridors to the north and east. These areas are outside Frensham land, and the DA does not include any proposal for a corridor. If at some time there are moves to establish such a corridor, then when underpasses and major transport infrastructure cross the corridor, this gap threshold would be a serious constraint on feasibility of the corridor being effective.

Hydrology and water quality

In his opening, Mr Larkin drew attention to the benefits of removing pine trees from the site on water quality in the Nattai River. "…Nevertheless, you will have seen that the great bulk of the area with which we're concerned contains a large number of pine trees, you will have seen that it is proposed that the large number of them will be removed. So we anticipate ecological benefits, benefits for example to water quality in the Nattai River, because you will know, and the ecologists will say, that the pine trees produce a range of biological and chemical effects on water quality that are undesirable for Australian conditions and for microorganisms and macroorganisms that may reside or take advantage of the water. The removal of the reeds and their replacement with a managed but much more natural in terms of species selection understorey in the vicinity of the development, coupled with a sequence of engineering works that will ensure nil beneficial effect, means in our submission that as a matter of merit the proposal is appropriate for approval." (Tcpt, 21 March 2022, p 27(24-36))
It is well known that the dropping of foliage from introduced tree species into creeks and rivers can be responsible for changes in water quality and biology of waterways. Most attention in southeast Australia has focused on willow (Salix). Willows are deciduous and leaf fall is concentrated in a short autumn, a difference from the original eucalyptus species which are evergreen, and shed only small numbers of leaves into the waterway continuously throughout the year. Eucalypt leaves have very different structure and chemistry from those of willows. Radiata pine is evergreen so that the pattern of leaf drop would be more similar to eucalypts than to willow but the chemistry is different from eucalypts. Given that the input of pine needles has been occurring at the site for well over 100 years the impact on water chemistry is likely to have occurred throughout this time. There will have been impact on the biota, but there were no comprehensive surveys performed at the beginning of the 20th century, so there are no baseline data. Neither do we know whether the removal of pine trees will result in the restoration of the pre-pine condition of the water body.
Neutral or beneficial effect (NorBE) is a requirement of State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011 (which, following the consolidation of SEPPs is in the BC SEPP). The site is within the Sydney drinking water catchment. The objectives of the SEPP are: 6.58 Objectives of Part The objectives of this Part are - (a) to provide for healthy water catchments that will deliver high quality water to the Sydney area while also permitting compatible development, and (b) to provide for development in the Sydney Drinking Water Catchment to have a neutral or beneficial effect on water quality.
The requirement for NorBE on water quality is specified in s 6.61: 6.61 Requirement of neutral or beneficial effect on water quality (1) Development consent must not be granted to development relating to any part of the Sydney Drinking Water Catchment unless the consent authority is satisfied the carrying out of the development would have a neutral or beneficial effect on water quality. Note - See the Act, section 3.26(2). (2) For the purposes of determining whether the carrying out of the development would have a neutral or beneficial effect on water quality, the consent authority must, if the development is development to which the NorBE Tool applies, undertake an assessment using the NorBE Tool. (3) The NorBE Tool applies to development requiring development consent under the Act, Part 4, other than State significant development. 6.62 Neutral or beneficial effect on water quality - extension or expansion of existing development (1) This section applies if - (a) development consent was granted to continuing development (the existing development consent), and (b) a development application is made for development consent to development to extend or expand the continuing development (the additional development), and (c) the development application is made before the authority conferred by the existing development consent expires or is exhausted. (2) For section 6.61(1), the carrying out of the additional development will have a neutral or beneficial effect on water quality if it will have the same or a lesser adverse impact on water quality than the adverse impact the continuing development would have if it were extended or expanded under similar conditions to the existing development consent. Note - See the Act, section 3.26(2A). (3) This section extends to an existing development consent that will be surrendered if development consent is granted to the additional development. (4) In this section, a reference to an existing development consent includes a reference to a project that was approved under the Act, Part 3A before its repeal, or granted after its repeal under the Act, Schedule 6A or the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017, Schedule 2. (5) In this section - continuing development means development for which development consent was limited to the carrying out of the development for a particular time, in a particular area or at a particular intensity, but which was likely to be the subject of future applications for development consent for its extension or expansion. Example - Development for the purposes of mining could be continuing development. 6.59 Definitions In this Part - NorBE Guideline means the document titled Neutral or Beneficial Effect on Water Quality Assessment Guideline 2022 published by Water NSW on the date on which State Environmental Planning Policy Amendment (Water Catchments) 2022 commences. NorBE Tool means the tool titled Neutral or Beneficial Effect on Water Quality Assessment Tool set out in Appendix 1 to the NorBE Guideline. … 6.63 Requirement of consistency with NorBE Guideline Development consent must not be granted to development on land in the Sydney Drinking Water Catchment unless the consent authority is satisfied the development is consistent with the NorBE Guideline. 6.64 Concurrence of Regulatory Authority (1) Development consent must not be granted to development on land in the Sydney Drinking Water Catchment unless the consent authority has obtained the concurrence of the Regulatory Authority. (2) For the Act, section 3.18(3), the Regulatory Authority must consider the following matters in deciding whether to grant concurrence - (a) the NorBE Guideline, (b) whether the development will have a neutral or beneficial effect on water quality. (3) The consent authority must, within 10 days after determining a development application that required the concurrence of the Regulatory Authority, give a copy of the determination of the development application to the Regulatory Authority. (4) This section does not apply if the consent authority is satisfied the development has no potential impact on water quality.
The Applicant's experts on hydrology and water quality were Mr Andrew Bewsher (Hydrology and Flood risk) and Mr Anthony Weber (Water quality and Hydrology) and the Respondent's expert was Mr Grant Harlow (Senior Engineer and Project Manager).
The issues that the experts were questioned about related, in part, to the proposed bioretention swales and their location, and the location of the discharge of drainage into the Nattai River.
Mr Larkin commenced by questioning Mr Weber (this section of the transcript confuses Mr Harlow and Mr Weber in places). Although the plans that had been developed, through a number of iterations between the experts, depicted particular layouts of the swales it appears that there was the potential for variation in the design while still achieving the same outcome. Mr Larkin asked Mr Weber: "LARKIN: Now let me ask you one final question, in that adjustable location that you're adjusting the location of swales, can I take it that we can anticipate is that as part of the consent, should there be one, there should be a condition which would require prior to construction a detailed design to the same quality water parameters that were modelled and that if it is necessary ..(not transcribable).. to the locations of swales or the other works ..(not transcribable).. WITNESS [WEBER]: Yes, that is correct. The way I've designed the system there is obviously reliance on two bases a very larger model of approximately 550 square metres which is the large red zone you can see, there's a smaller one that's approximately 75 square metres which you can see in the turning bay down towards the bottom of the drawing, and then there are three in the bioretentsion systems, we call them bioswales, those total I think 150 metres in length. There's total area and I'd need to look back at what's it's got in report to confirm that the total area but they can be moved as long as the total area of those swales is maintained such that they can be moved to avoid trees, they can be moved to avoid services and so on, and we typically need to do that with systems of this nature. LARKIN: Now, Bewsher, is there anything that you would like to add to any of those subjects that you have just heard Mr Weber give? WITNESS BEWSHER: No, only to say that I've also been involved with the design of outlet systems on the banks of the river and it needs to be undertaken with care but having walked those riverbanks on two occasions I don't foresee any problem in the design of those and I note too that the use of reno mattresses, that is, if you can imagine a mattress made out of a wire basket filled with small rocks, silt and earthen material collects around the rocks, so the vegetation grows in the reno mattress. It's not like place rock in that sense so, in my view, that's a very appropriate treatment to use in this location." (Tcpt, 22 March 2022, pp 74(25)-75(6))
The location of the swales could be moved to avoid trees which could therefore be retained, but the important parameter which would need to be met was the total area of the swales.
Mr O'Gorman-Hughes asked Mr Weber: "O'GORMAN-HUGHES: Mr Weber, there are amongst other things a couple of changes from the earlier plan SW02 that was the subject of the application in December. We've got bioretention swales, bioretention basin and a different location for the outlet to the creek. Do you agree with those three things? WITNESS WEBER: Yes, I do, Mr O'Gorman Hughes. O'GORMAN-HUGHES: And what was the reason behind suggesting those bioretention swales? WITNESS WEBER: That mostly came down to a requirement of the inner and outer protection zones in the bushfire requirement and the changes to the understorey vegetation requirements such that I didn't believe that we could call the site fully forested and it lies somewhere between what we call a forested and a rural residential type of land use in terms of ..(not transcribable).. I undertook simulations of it both as a rural property and as a fully forested property and, with agreement from Mr Harlow and Mr Bewsher, modelled it as halfway between in effect to try and represent that. As such, because you're going - and this is the challenge of trying to achieve neutral beneficial effect, if you're going from what we could consider a forested site to anything other than forested site you need to have sufficient treatment in order to get back to that neutral beneficial effect and the requirement of that in the ..(not transcribable).. standard or the New South Wales ..(not transcribable).. standard is to demonstrate that you're 10% below what's currently happening in order to deal with any uncertainties. As such, because we were no longer treating the site as fully forested we couldn't just deal with the cabins, we had to deal with overland flow that may occur from the IPZ and APZ areas and that's why the additional treatments were required. O'GORMAN-HUGHES: So that your opinion that the old stormwater plan that did not have the bioswale didn't comply with the NorBE requirements taken into account? WITNESS WEBER: I think it would be fair to say that it was inconsistent with the bushfire requirements that came out at about the same time as we published the first ..(not transcribable).. work. O'GORMAN-HUGHES: But your plan doesn't show trees to be removed but the question I suppose is the old plan SW02 achieved, having regard to the bushfire requirements, the required NorBE result? WITNESS WEBER: The required NorBE result that we demonstrated back in December was looking at the overall catchment that was draining through the site and that Mr Harlow raised issues with that, that we should only be focusing on the area of change. At the time my consideration was that it was the overall catchment we needed to consider and whether we could achieve a natural effect on that simply by the addition of the cabins and on further discussions, as part of the joint expert process, I agreed with Mr Harlow that given the bushfire requirements that our assumption that it would stay ..(not transcribable).. we needed to change it. So in answer to your question, Mr O'Gorman Hughes, yes, I believe that we did demonstrate that neutral beneficial effect could be achieved when we were previously very close, that we demonstrated that in December, however further discussions suggest that we needed to do more after the bushfire material became apparent. O'GORMAN-HUGHES: So the Commissioner may be asked to make a decision of whether to go with the old SW02 plan or the new one that you have in front of you and you indicated that the old was inconsistent with the bushfire requirement, just so that the Commissioner knows which path to go down, do you say that the old SW02 plan wouldn't achieve the requisite NorBE requirement because of taking into the account the requirements of the RFS? WITNESS WEBER: If the requirements of the RFS are to met with the vegetation to be changed I believe that the neutral beneficial effect test wouldn't have been met with the previous - I'm sorry - the neutral beneficial effect test would not have been achieved without additional treatment. O'GORMAN-HUGHES: So in other words, the old plan wouldn't have met the NorBE requirements if you complied with the RFS conditions? WITNESS WEBER: Yes, based on the assumptions that we had made at that time. O'GORMAN-HUGHES: And that remains your position now doesn't it? WITNESS WEBER: Yes, that's why we've made these changes. O'GORMAN-HUGHES: And so it's not just based on your assumptions at the time but your evidence now in Court today is that the old SW02 plan, fortunately was granted in December, wouldn't meet the NorBE requirements if the site was to comply with the Rural Fire Service conditions? WITNESS WEBER: If the site was modify it in accordance with the APZ, so the ..(not transcribable).. and the other protection zoned as I received from the bushfire consultants then the level of treatment that would be there is likely to be sufficient to achieve the neutral beneficial effect test. The reason that that's the case is likely about the assumptions of what may come off the site. We have to make assumptions at the time around what is the existing condition of the site and what will be the post development condition. I took a conservative approach to assume that the site as existing is forested, fully forested, it could be argued with what we heard in evidence earlier today that the amount of disturbance that occurs on site is more significant than a forested site, so therefore what exists at the moment and what may be developed, you know, there is some uncertainty around that and so clearly stating that what we have before wouldn't a neutral beneficial effect test is highly dependent on what is the existing site condition, what is the future site condition. We tried to simulate that as much as possible. O'GORMAN-HUGHES: I just want to get an unambiguous answer and I think you tried to answer it but in your answer you said if the site were modified in accordance with the APZ as recommended, not a bushfire consultant, so not really - I'm going to ask a very specific question, please listen to the question that I ask very careful and then give me a yes or a no if you can. So it's your position that the old SW02 plan for which leave was granted in December would not have met the NorBE requirements if it were modified in accordance with the Rural Fire Service general terms of approval? WITNESS WEBER: Look, I'm uncertain as to whether the Rural Fire Service conditions are consistent with what came out of the bushfire consulting reports, if they were consistent then I agree that the neutral beneficial effect test as proposed in the one in December would not have been achieved if the bushfire consultant reports are consistent with those I've received. O'GORMAN-HUGHES: So it is more accurate to say you don't know if the old plan could have satisfied the NorBE requirements if the RFS general terms of approval had been imposed, is that what you're saying? WITNESS WEBER: That's correct. Yes. O'GORMAN-HUGHES: And in terms of this new plan that you have in front of you on the screen are you saying that you are satisfied that it would meet NorBE assessed if the RFS conditions are imposed? WITNESS WEBER: Yes, I believe that what we've proposed here would easily achieve the neutral benefit effect test and the additional 10% required under the New South Wales ..(not transcribable).. standard. O'GORMAN-HUGHES: I did ask you if it would meet the test if the RFS conditions were imposed, have you seen the RFS conditions?" (Tcpt, 22 March 2022, pp 75(23)-78(6))
The vegetated bioretention swales are designed to reduce nutrients in water which will eventually be discharged into the river. The bioretention basin controls the rate of water discharge. The changes proposed in the design and location are to reduce the risks of erosion, and for habitat protection. The changes were instituted to address the need to ensure that, overall, the discharge would satisfy the NorBE requirement of the SEPP.
The original modelling by the experts had been conducted on the basis that the runoff which would be treated was from a fully forested site. This did not take into account the requirement of the RFS General Terms of Approval (GTA) for management of the APZ. Mr Weber was of the view that these requirements meant that the site lies somewhere between fully forested and rural residential, and with the agreement of Mr Harlow and Mr Bewsher, he had modelled the site on the basis of this intermediate condition.
Mr Weber considered that with the earlier design he could not be satisfied that the NorBE requirement could be met. The changes that needed to be made to the earlier SWO2 plan were required, in Mr Weber's view, to take into account the nature of the vegetation that would result from the establishment of the APZ. The RFS, when determining the APZ requirements, were focused on the assessment process required by Planning for Bush Fire Protection, and they were not required to consider the consequences of their proposals for other environmental impacts such as on hydrology or biodiversity conservation. However, the consent authority is required to take a broader view.
Mr Harlow had concerns about the discharge outlet. "O'GORMAN-HUGHES: I just have a question for Mr Harlow in relation to this revised set of hydrology plans that you have in front of you, Mr Harlow, you made some comments in the joint supplementary joint hydrology report that's part of exhibit 4, about some plans that were attached to that report, were the comments, firstly, that you made in that report that those apply equally to these plans? WITNESS HARLOW: Yes, they do. O'GORMAN-HUGHES: I am going to ask you about a specific comment that you made in that report, if I can ask you to go to page 3? WITNESS HARLOW: Yes. O'GORMAN-HUGHES: In your comments in the second column about halfway down the page you say, "The revised plans indicate that the ..(not transcribable).. will be located at the top of the bank now with no setback from the river. The setback was approximately 15 metres in the previous plan versions. I understand this application is required by a revised design using different pipe grades available to construct the outlet pipe." Can you just explain why the pipe can't finish ..(not transcribable).. metres back from ..(not transcribable).. WITNESS HARLOW: Yes, this is an issue that I picked up in the joint reporting and in the details previous, in that, to achieve - the basin currently or as designed acts a multipurpose basin in that we have a water quality bioretention component underlying an onsite detention component. The onsite detention component requires that the top of the basin be at a certain level so that water can flow into it and be detained and the bioretention basin requires certain depths of various zones shown in the section of the basin which indicate a filter media of 600 millimetres transition layer and drainage layer underneath those. So we have an outlet pipe from the basin that was positioned at the bottom of the filter media and then the outlet pipe needs to travel at a minimum grade in what we say, and we use the term, so the pipe can daylight; that is, come out to the surface so it can discharge. In the previous versions my calculations were that it wasn't daylighting and that in order to do so it needed to travel further towards the creek and come out at a lower relative level. It has been adjusted now so that it does daylight and that level is right at the edge of the nominated creek bank. O'GORMAN-HUGHES: In order to address your concern about a potential adverse impact of the proposed development on the stability of the waterway's bed and banks, what would need to happen? WITNESS HARLOW: Well, there's two things that you would typically do, you would - well, I shouldn't limit it two things. Ideally you would like to have an opportunity to release the flow a little distance or some sufficient distance away from the bed and banks, so it could outlet onto a ..(not transcribable).. protection works and dissipate before it goes into any sort area where there might be increased scour, so in the location it's at it doesn't have that opportunity because the minimum falls don't allow it to do so. So what we typically do is locate the outlet pipe so that it faces the direction of flow of the river, rather than perpendicular, and you would also put in protection works, such as the reno mattress or rock boulders, sized and designed so that they aren't going to be washed away and they're bedded in sufficiently, so that the water flowing out of this onsite detention and bioretention basin in storm times when the water flows are highest was not going to erode and scour the beds and the banks. O'GORMAN-HUGHES: So you have indicated that it needs to have a minimum gradient, at the moment it's only achieved that minimum gradient if the pipe goes all the way to the edge of the bank, I asked you for the ways of avoiding that and you have indicated that or what I want to know is one of the issues perhaps that the bioretention basin is located too low, if it were at a higher level that might mean you could have the necessary drainage in the pipe to take the outlet further away from the bank? WITNESS HARLOW: Yes, if everything was picked up and moved further up the slope, including what is discharging to the basin, then the gradient of the pipe would be maintained in the release further away from the creek bank and you'd be able to release that flow such that it is probably, even incorporate something known as a level spreader, some distance down slope of the outlet, so it basically undoes the concentration of storm flow of stormwater that is currently happening as the result of the development. O'GORMAN-HUGHES: And in your answer you say if everything could be picked up and moved further away up the slope, can you just explained whether it's sufficient just to move the bioretention basin further up the slope and, if not, why not? WITNESS HARLOW: No, you cannot, you would not be able to do that in this case because the buildings and ..(not transcribable).. of the inner protection zone area, the drain to that basin, are all contributing to that basin sizing. If you were to move it approve the basins or if you were to move the basin upslope of the buildings and more of that APZ area then it's not going to have the sources of the pollutant being able to discharge properly into it. O'GORMAN-HUGHES: So in order to address the concern you have about having the pipe discharging at the bank and potentially adversely acting on the stability of the ..(not transcribable).. you would need to move not only the bioretention further up the hill but also the development, being cabins, which feed the bioretention basin? WITNESS HARLOW: Yes, if you are saying to move the outlet further up the hill away from direct connection to the river, yes, that would need to happen under the current design. O'GORMAN-HUGHES: And finally, you say on page 3 of the report in your comments in the second column in the second last paragraph, "I maintain the view that it represents a potential adverse impact of the proposed development on the stability of the waterway's bed an banks," can you just explain how ..(not transcribable).. WITNESS HARLOW: I'm sorry you've got a terrible echo there or some noise in the background. O'GORMAN-HUGHES: I will just repeat it, Mr Harlow, on page 3 of your supplementary joint water quality report you say in your comments in the second column that, "The location and angle of the discharge outlet represents a potential adverse impact of the proposed development on the stability of the waterway's bed and banks," can you just explain whether that is your view in relation to water quality? WITNESS HARLOW: Okay, so yes, as I alluded to before, as soon as you introduce a concentrated flow at the creek itself it is overall the onsite detention calculations demonstrate that the overall discharge from the site is maintained at a certain flow rate but that flow rate is concentrated at one particular outlet point where the headwall and discharge in relation to what we have here. If you can imagine that the runoff at the moment from the site it is sheeting along the ground and across a very large area, so when you invariably put in a basin with an outlet like this there is always potential for adverse impacts on the stability of the waterway's bed and banks. And a way to mitigate that risk is to pull back the outlet rotation away from directly to the creek bed and ..(not transcribable).. and allow the water to release in an un-concentrated manner to that point of discharge. And also, in the construction of a pipeline and a headwall and ..(not transcribable).. apron there needs to be damage done to the vegetation and soil structure of the creek and, you know, that's always a risk that it can't properly done such that there won't be that scour and erosion issue occurring. O'GORMAN-HUGHES: And the scour and erosion that you predict will occur or might occur something that might affect water quality? WITNESS HARLOW: Directly in the river, yes, it would. O'GORMAN-HUGHES: You say that the scour erosion is likely to occur with this design? WITNESS HARLOW: There is a fair possibility. I'm not sure I would say "likely" but there is a possibility." (Tcpt, 22 March 2022, pp 78(18)-81(10))
Mr Weber was asked by Mr O'Gorman-Hughes for his response: "WITNESS WEBER: I note the existing erosion and sediment deposition in the river already that is occurring. I think that with careful design as noted by Mr Harlow with regards to the reno mattresses and it was proposed that we can mitigate the ongoing erosion. I do agree that there will be disturbance in order to construct that, I don't see how that can be avoided in terms of disturbance, but again using erosion and sediment controls which we have to as part of the draft conditions of consent we would be required to protect the construction of the outlet regardless during that period. O'GORMAN-HUGHES: And you accept what he says that the disturbance could be avoided, for example, if you move the bioretention basin back so that it was higher up the hill, but that would also require moving other elements of the development up the hill? WITNESS WEBER: I think you could avoid it if you shallowed the basin but I note that then compromises the ability to achieve the water quality outcomes from that basin and would require compensatory treatments elsewhere in order to mitigate the loss that you might achieve by doing so, so that was the balance I was trying to achieve with the proposed treatment site. O'GORMAN-HUGHES: A different design that had the bioretention basin further up the hill would achieve a gradient that would permit the outlet pipe to be away from the bank and not cause the potential damage to the bank. Do you agree with that proposition? WITNESS WEBER: I don't agree that moving it upstream - moving it up slope would avoid that problem because then you wouldn't be able to get sufficient overland flow into the basin itself and the basin wouldn't be functioning properly, so while you may avoid that - while moving it may avoid the outlet position exactly where it is, moving it up slope still requires the need to outlet a pipe somewhere, whether that can be contained within the gradient of the site I think it's very flat in that area and I don't know whether that you would actually be able to achieve ..(not transcribable).. up slope significantly. O'GORMAN-HUGHES: But you haven't looked at that so you don't know whether it would? WITNESS WEBER: I haven't looked at it exactly, no, Mr O'Gorman Hughes. [COMMISSIONER]: Could I just ask, is there any possibility, at the moment you have got the pipe with the outlet going perpendicular, if you moved the inlet to it further south in the biorentention basin so it went off at an angle, would that be a possibility or are the gradients incorrect, inappropriate? WITNESS WEBER: Commissioner, you could move that pipe to wherever it needs to be moved in to avoid trees and the like and to get a different alignment. The position is as best we can indicate it to say this is where you could achieve an outlet but you could certainly move it anywhere along the length of that basin. I think though I would note that the outlet position I don't think would change on the river and certainly the location of the pipework comes through can be moved such that you could angle it in a different way. COMMISSIONER: Mr Harlow? WITNESS HARLOW: Yes, Commissioner? COMMISSIONER: What would be your view of moving the inlet for the pipe to a different position on the outside of the retention basin? WITNESS HARLOW: So primarily what I would be looking at would be - it's hard to tell because the basin is located roughly parallel to the contours, as such I suppose the basin levels in my understanding are meant to be parallel, so that the outlet level from the basin would remain at the same relative level. So what you're seeking to do is find an outlet through at a similar RL at a distance further back from the creek and I think the only answer that may be - I don't see it happening further to the south. I don't. It's hard to tell I haven't examined the southern route, there's a lot of trees there, I haven't really looked at that carefully. What may be a solution to the south, if you move the outlet to the very northern end you might have travel the pipe further at the same gradient to get the release point daylighting, which I think might be possible, it's hard to tell on the engineering plans with all this, it looks like the outline of a track with like a little finger pointing towards the very northwest and in that location there I would think there would be enough - that would be the right sort of RL to release the pipe to allow some sort of bunding down slope and it to function more like a level spreader but the consequence of that I'm not sure of. I don't know about trees in those areas. All the trees on the engineering plans I understand are not an indication of which trees are to be removed and which trees are to be retained. Yes, so it is difficult to exactly understand that but, yes, potentially there is a solution there." (Tcpt, 22 March 2022, pp 81(15)-82(45))
I raised an issue relating to potential use of the swales and bioretention basins by mosquitoes: COMMISSIONER: The other matter I would want to raise is something that did come up on Friday, I drew attention to the fact that one of the objectors, not one of the ones that we heard for but whose submission is in the file, folio 55 of exhibit 8, drew attention to what she thought was a thriving population of mosquitoes and certainly we did encounter a number of mosquitoes, and she was there submitting, was concerned that this would mean that there would be a need for intensive mosquito control and I don't know whether that's true but it is something that perhaps could be addressing if it was but of course the other component of having mosquitoes is the potential for other viruses affecting humans now. At that location I very much doubt that you would get Japanese encephalitis and there's no piggery nearby but there are a number of other notifiable diseases including things like Murray Valley encephalitis which potentially could occur, and as I say they are notifiable, and they have serious long term effects on any humans who acquire those viruses, so it's an issue that whether there is a need to manage mosquitoes at the site that might need to be addressed and, in particular, somebody was concerned about the bioretention basins being great places for mosquitoes to breed. I don't know whether that is true or not and whether the management can be changed but I think that, as I said, it appeared as an issue on Friday. I raised it with the parties, Mr Larkin wasn't there, and I don't whether he has heard of that but it is potentially something that would require serious consideration in conditions if there were any approval. WITNESS WEBER: May I address that, Commissioner? COMMISSIONER: Yes. WITNESS WEBER: The basin itself will be largely dry most of the time, it will only have water in it during a rainfall event, and I've done considerable work around mosquito habitat, if you like, in constructed systems. The only time that you actually get mosquito habitat is where there is ..(not transcribable).. water for a period of approximately greater than 24 hours because of the lifecycle of that mosquito; that doesn't occur in these basin unless you get lots and lots of rainfall events and usually there's enough movement through the system such that mosquito breeding can't occur, so that's we design these systems as dry basins, they dry out, and there's no water left in them for long periods of time." (Tcpt, 22 March 2022, pp 82(47)-83(35))
Mr Bewsher was asked for his comments: "WITNESS BEWSHER: Commissioner, can you hear me? I do have some comments actually. In relation to the first matter that we've moved on from that being the outlet of the pipe adjacent to the creek, I have looked at that in some detail. The real issue with the outlet is the height above the water lever in the creek and the outlet, as it's shown on these latest set of plans, is just above the five year flood level. Now in geomorphological terms the erosion and scour that is most efficient in terms of the water flows that are most efficient in the erosion and scour issues in a creek typically occur in the more frequent storms around the two year event, so the outlet is sufficiently high, in my opinion, that it can be located in the location it is without being affected by the scouring flows that come from the river; that's the first point. The second point is that the quantum of flows which are being released from the basin in the pipe is very small. If you've walked down the curve of a street and you will see 100 ml, a 4 inch plastic pipe that discharges into the back of the kerb from every house in the street, typically that is limited to about 30 or 35 litres a second. The flow coming out of this system is equivalent to about three of those pipes, so it's relatively small and the design of the reno mattress we've talked about can include some level spreading and it normally does which is consistent with Mr Harlow has said about the benefits of spreading the flow out laterally, so I don't have a problem with the location of the outlet in terms of scour and erosion for those two reasons. O'GORMAN-HUGHES: Mr Bewsher, ..(not transcribable).. the height of the outlet being at the one in five flood level and that scouring usually occurs in a two year level, is there any reason why, in response to what Mr Harlow had said in the report, about a concern of bank stability, you didn't ..(not transcribable).. WITNESS BEWSHER: Sir, I think it's a detail, this sort of - a pipe outlet into the side of a creek like this is a very common occurrence in this creek system-- O'GORMAN-HUGHES: Why hasn't this problem been stated in the joint report? LARKIN: I object to that, he should be allowed to complete the evidence. O'GORMAN-HUGHES: He should answer the question he is asked. Why wasn't it in the joint report? LARKIN: We need to understand what he was about to say before we can judge whether or not he has answered the question. WITNESS BEWSHER: Thank you, in my experience construction of pipe outlets like this in sensitive creek environments like the Nattii River can be addressed routinely and there are guidelines to do that and it's not necessary, in my view, it was sufficient just to say that. I mean you only have to walk up and down this river now to see larger outlets that have been constructed into the creek without problem. The council has built its swimming pool over the entirety of the Nattii River, so I really don't see this as an issue, that the normal practice would be it would be resolved by means of conditions, so that's why I didn't go into the detail as I didn't think we'd ever get to this stage. O'GORMAN-HUGHES: Mr Harlow, do you have a response to the issue he's saying that he didn't include it in the report? WITNESS HARLOW: Can you repeat that, Mr O'Gorman Hughes? O'GORMAN-HUGHES: Do you have anything to say in response to Mr Bewsher's oral evidence? WITNESS HARLOW: No, only that it is an engineered outlet to a creek and that it can be constructed with the best engineering consideration but there is always that risk that it's not going to function and it's not going to be constructed correctly and you're going to disturb structures that there will be erosion around it. There may be I should say, I'll correct that, there may be erosion around the outlet, that's my comment there. COMMISSIONER: Mr Bewsher, in relation to habitat? WITNESS BEWSHER: No comment, Commissioner." (Tcpt, 22 March 2022, pp 83(39)-85(9))
I note Mr Bewsher's view that the issues raised would normally be dealt with in conditions of consent. That may be the case, but during the hearing the plans were fluid, and the parties' experts with still in discussion, but Mr Larkin clarified that the three plans which had changed since the joint report were plan DA 05/01- Rev G, engineering drawing SW02 amendment T8, and engineering drawing SWO 3T7 (Tcpt, 23 March 2022, p 4(43-48)). The amended plans became Ex 7.
The ecology experts were then recalled so that they could be questioned on the proposed drainage works and the interaction with ecology.
Dr Robertson and Dr Phillips were of the view that there were implications for koalas in what had been proposed but agreed that there would be little effect.
Dr Clements was asked about her views on the design of the retention basins and discharge, which she did in relation to the soil reports of Greg Chapman (Ex E and Ex C at Tab 17) and the map which appeared in the Terrestrial Biodiversity report (Ex 2 Appendix E). She was concerned about the water table in the area proposed for the retention basin: "WITNESS CLEMENTS: Yes, and those wet conditions are photographed on 1 October, and the rainfall, in the preceding months there, was 26.8 mls. So it was a dry period at the time when Greg Chapman did his soils survey; and what I'm saying, when one looks at the bore logs, one is finding standing water in the bore holes, and the proposal is to put stormwater detention swales across a flood plain soil where there is standing water at depth; and in the photograph by Greg Chapman one can see saturated soils in his photograph. So, the proposal is to detain water in areas where the soils are already saturated on a flood plain. I'm not a soil scientist, but it strikes me as not the most sensible thing to do. The next issue is the pipe. There is guidelines from the platypus conservancy about the size and locations of pipes. The pipes have to be big enough so that when a platypus goes up said pipe it can turn around and go back down the pipe, and the amount of water in the pipe has to be low enough so the platypus doesn't drown because platypus come up for air. They're not an aquatic creature, they don't spend their lives under water. I have issues with digging the pipes across an area where there's no platypus, there photographs in Tanya Clancy's report of platypus in that river on the lower holt, taken by Frensham Girls. So, if one is going to put a path in, one better know where the platypus entry holes are to their burrows. The burrows can be anything from the San Diego Zoo style information says about 3.5 metres to about 10 metres. From my experience from having - digging up areas with platypus I would suspect more like 20 metres back from the banks. They're not straight, so one needs to find them, they tend to be below the water level where the platypus enters into its burrow. So, you need to have a very good idea where they're going. It's not damaging the roots of a tree, but you've got to consider it in locating any pipework, or any swales, or any detention basins. It's where are the platypus holes, and where are the wombat holes. Apparently the wombats also have some burrows in soils on this flood plain. So, yes, I do have concerns in terms of the soils of ..(not transcribable).. potential ..(not transcribable).. swales are being proposed, and also the fact yesterday I heard evidence about there wouldn't be mosquitos because the bases would be dry. Well, that's not quite what I'm seeing in the information that was presented by Greg Chapman. The soils are not dry. The engineers may be able to make the bases dry, and we may not have mosquitos but just looking at the amount of standing water when we walked around, and I've been on the site three times and each time there's been standing water, and Greg Chapman found standing water even when they had been no rain that I think the mosquito risk has not disappeared. You can't just spray it with insecticide because you're next to a creek where there's a lot of dependant animals on the presence of insects and other food sources. So, bring people into some area where there's potential for standing water and mosquitos is a bit dangerous, and also, I have real issues with making one's way across an area full of burrows which are flood plain soils." (Tcpt, 23 March 2022, pp 12(11)-13(3))
I did not interpret Mr Weber's evidence as a statement that there would not be mosquitoes because the site would be dry, rather that it would be dry for extended periods during which time there would not be habitat for mosquitoes. Whether during wet periods there would be mosquitoes would depend on the season and the length of the period of high-water level.
Mr O'Gorman-Hughes asked Dr Clements whether she agreed that the location of the swales could be determined at the construction certificate stage: "O'GORMAN-HUGHES: I'll repeat the question. Dr Robertson in his evidence indicated that he was content the condition that provided that the site could be re-examined and after the trees have been removed and the best areas identified for the swales to be repositioned in a way which have limited impacts on trees. The question I have for you Dr Clements, is a response to that, do you have any concern about the location of these bioswales being determined at construction certificate stage, after the Court has granted consent, and if so what are those concerns? WITNESS CLEMENTS: My main concern is the removal of the trees. If one removes trees from a landscape the next thing we see is a rise in the water table. I can give you an example of the Sandgate Cemetery where trees were removed and then the only bodies that could be put in the ground were ones on the highest lands because the water table rose. O'GORMAN-HUGHES: The only bodies that could be placed in the cemetery were what? WITNESS CLEMENTS: In this particular cemetery, after these trees had been removed, was the Catholics who held the highest land. Sandgate Cemetery had this site problem that it had a water table underneath it and removing trees meant the water table rose into the depths of the burials. So, if you start removing trees off the landscape on a flood plain, like this one, one runs the risk of the water table rising higher and as clearly illustrated by Greg Chapman in his bore logs, there is a water table underneath it, and from his figure 12 one can see the soil saturated. So I don't think that we can just go oh it'll all be fine lets remove the trees and find where we're going to have the minimum impact when we want to put in the bioswales. You're putting bioswales on to a flood plain. O'GORMAN-HUGHES: Are there any other issues that you might have in relation to a certifier that is putting in the location of these new locations of these bioswales at construction certificate stage? WITNESS CLEMENTS: I think that's an incredibly onerous task to put on a certifier. I think if you're going to put it on, if anyone is going to have to determine where they're going to have to be, it's going to have to be a soil scientist and maybe a Geotech as well; and then there would need to be an engineer to make sure that they will operate. Because I have grave doubts that they will operate, and that was just based on my experience at the Sandgate Cemetery where the water table was and the trees were removed and also from Greg Chapman's soil survey. So, it's more than what a certifier can be expected." (Tcpt, 23 March 2022, pp 16(9)-17(1))
There ensued lengthy cross-examination of Dr Clements by Mr Larkin, firstly about the Sandgate cemetery and then about alluvial soils, neither discussion advancing understanding of the issues very far.
Despite the length of the questioning I think that Dr Clements was endeavouring to present a simple proposition that the tree species which are not specialist wetland species might tolerate, to varying degrees, waterlogging conditions and this is likely to result in a limited depth of growth of the root system and reduction in overall growth. While I agree with Mr Larkin that geological formations may have been laid down under alluvial conditions but are currently in different landscape contexts, the issue on the site does not relate to alluvial deposits post lithogenesis. Dr Clements was indicating that from an ecologist perspective the floodplain soils were alluvial. The wind throw which had recently occurred documented by Mr Duck in Ex K and was observed on the site inspection demonstrated the shallow root plates of those trees that had succumbed.
Dr Clements was concerned about the high-water tables in the floodplain area: "LARKIN: Now, please answer my question, is your evidence that in your understanding, in the circumstances you have described, there is nothing you can do in order to permit these bioretention swales to function, other than in a ..(not transcribable).. where they themselves are waterlogged? Is that it, is that your evidence? WITNESS CLEMENTS: You've got the chance of making turkeys' nests and raising your bioretention swales above the water table, but, or you could seal it, you could have sealed ponds so the groundwater doesn't move into the ponds-- LARKIN: It's not correct to say there's nothing you can do about it? WITNESS CLEMENTS: You can do all sorts of things on floodplains, you know, cotton growers do it all the time, they make turkeys' nest ponds, golf clubs do it too, where they raise up dams above the natural soil level. LARKIN: Dr Clements, you're not a hydrologic engineer or hydrologist, are you? WITNESS CLEMENTS: No, no. I just have to build these things as a restoration ecologist, and I can tell you, if want to dig into an area with a high water table, we'll tend to have an exposed water table. LARKIN: Dr Robertson, have you had experience in bioretention swales of the sorts that we're dealing with here? WITNESS ROBERTSON: Look, I've had experience with them, but it's not in my area. I sort of defer to, you know, the engineers to come up with a design for it. The only thing that I would offer would be that I have had discussions with Mr Weber and Mr Bewsher specifically about this problem, because I wondered, you know, given that this is a very wet year, and the soils are waterlogged down in the lower part of the site, how can these things function, and particularly - " (Tcpt, 23 March 2022, pp 38(45)-39(28))
Dr Robertson had indicated that he had had concerns about the water logging in wet years. He had characterized the Nattai River as having "significantly impaired biodiversity" based on the application of AUSRIVAS by which he meant that "16-45% of the macroinvertebrate biodiversity had been lost".
AUSRIVAS is a tool for assessing the 'health of waterways" from diversity of macroinvertebrates. Dr Robertson's AUSRIVAS assessment appears in the BDAR (Ex B, Tab 10 Appendix A) It requires data at a higher taxonomic level than species, so that while there may be a relationship between the richness at family level it is not a direct measure of biodiversity for which at the organism level is conventionally assessed by species number. However, AUSRIVAS has proved to be a useful tool for assessing waterway health within and between sites and over time.
Dr Robertson thought that the AUSRIVAS results were low, but there are no earlier data than those he had reported, so comparison is not possible. I asked: "[COMMISSIONER]: From that question, if I could just ask a quick question of Dr Robertson. When you're saying that the AUSRIVAS results are low, is it an implicit assumption that you know it should be higher, or could it be that the river has always been low, and it hasn't changed, or are you assuming that it must have been better at some time in the past? WITNESS ROBERTSON: That's a good question. I think the AUSRIVAS works by reference to, you know, good quality data, so it compares the biodiversity based on families of macroinvertebrates that you would expect to find in a good-quality stream, so a so-called reference condition stream, and compares it to that, and looks at the differences, and so you know, the best sites that were sampled on this stream had a significantly impaired or category B rating, and the worst site was full, but they were compared with data that's known from reference sites that are comparable in the state, and I think many of the sand bedded streams do tend to have, ones that are naturally sand bedded tend to have lower macroinvertebrate diversity than those that have rocky riffles and things like that there. But even so, the reference sites are indicating that it's low in diversity, and from my experience, that doesn't surprise me at all, because you know, you've got exotic vegetation overhanging the banks of the stream, a history of site disturbance, and obvious disturbance in the catchment which was commented on by the soils expert, as well gelling with my own observations, so it's not surprising, and I'm not saying that it's a steam that is not worth taking care of, but I am saying that it is a stream that will benefit from better care and you know, hence management of weeds and so forth in the catchment would be of benefit." (Tcpt, 23 March 2022, p 49(19-45))
From the early photographs and descriptions of the Nattai River in the northern Holt it is not clear that there has been a visible major change in river health and condition, although it is possible that the major change in river conditions occurred, unrecorded, in the late 19th century. Since Frensham was established there has been an expansion of 'urban' Mittagong so that there will have been input into the river during the construction of these suburbs and continued urban runoff. Decline in river water quality will only have partly been due to Frensham itself.
There was further discussion between the ecologists regarding platypus. It is known that platypus have been present in the Nattai River since the early days of Frensham, and they are still present. There do not appear to be data on population size, but it is known that males, at least, are territorial, and they fiercely defend their territory against any intruding males. (This is a contrast with koalas, which have definable home ranges, but which are not territorial.) "LARKIN: I will try and go slowly. I understand Dr Clements to have posited that in addition to the impacts that she says that the stream may experience in the vicinity of the outlet there are broader impacts on platypus as a result of the development including in other locations; so I wondered if you would give us your perspective on impact on platypus more generally than just in the location of the outlet pipe? WITNESS ROBERTSON: Yes, certainly. Look, as I said before, the development has been pushed to be outside the 50 metre line so that it's by and large a high proportion of the development is 50 metres from the creek. The creek, I keep calling the Nattai River is a creek, but it's a relatively small stream in this area. Normally 20 or 30 metres would suffice to protect that if you were protecting the riparian vegetation, so I say that being able to respect a lot of the 50 metre area gives the stream a good degree of protection. I have also noted, and I've said it before in these proceedings, that if you can reach NORBE, N-O-R-B-E, then in my view you're having a neutral or beneficial effect on the water quality of the stream in that area. Platypus feed on aquatic invertebrates, they feed underwater, they often detect animals moving around the substrate in water bodies, and they burrow and shelter in banks. From my way of looking at it really there is not - the development is not going to impinge upon that type of habitat. If you look at the Platypus Conservancy guidelines it talks about degraded waters with exotic vegetation in the habitat, those sorts of things are factors that impact on platypus and I previously mentioned to the Court things like foxes as being a threat to them. I think that the major conceivable way that this development could have an impact on platypus would be through the outlet pipe and where that's been put and in a really worst case scenario it would be put over the top of a platypus burrow but having had a look at the bank for there, I don't see it as being a very likely site for platypus. But that could be checked as part of a pre-clearance survey, it could be thoroughly inspected and checked because the bank is very accessible there. So, aside from that, the river habitat will remain and I've said it will be that it's suffered from some degradation as per the discussion before lunch about AUSRIVAS. I don't think that there's going to be another significant effect on platypus, from another part of the development. LARKIN: Thank you, Commissioner, those are all the questions that I have for the ecologists. COMMISSIONER: Just in relation to platypus burrows, how long do they continue to use a particular burrow, and how often to they make a new one? Do you know Dr Robertson? WITNESS ROBERTSON: That's not something I'm familiar with. I don't know but being an animal that lives in association with flowing streams, they would have to make new burrows from time to time. I think it would be associated with big floods would necessitate new burrows in some circumstances, and also new territories by young animals establishing new territories of their own, so that would require new burrows to be formed. But I don't know the frequency. WITNESS CLEMENTS: Can I assist you on this? From when we had to look at platypus burrows before we dug out all tailings for three years. We found the same platypus using multiple burrows, and it wasn't a unique item; it's you would see the platypus go in one burrow, and we were thinking oh dear does it loop around and come back out. And we found it didn't. They were using different burrows, and the same animal would be using different burrows. LARKIN: I see you nod, Dr Robertson, I take it that's consistent with your understanding? WITNESS ROBERTSON: Yes, it would be, and I think where you have animals that burrow and they have a constant good quality habitat they're not likely to want to change burrows, so they would have a reasonable degree of fidelity to those burrows. Yes, I agree, and yep I agree with Dr Clements. WITNESS CLEMENTS: One of the things we also found that was really interesting about platypus burrows is they seem to have doors within the burrows. So as the river level comes up they can close the door. LARKIN: Tempted Commissioner, though I am, I am not going to; but at another time when this case is well, well, over, this is a subject matter that I've had occasion to look at quite closely in another context. I will say no more, but it's an interesting subject." (Tcpt, 23 March 2022, pp 52(50)-54(22))
Mr O'Gorman-Hughes returned to an issue regarding terrestrial vegetation: "O'GORMAN-HUGHES: Commissioner I do have just a question for Dr Robertson, Dr Robertson I understand you didn't measure all of the trees on the site, but you had updated some of the trees in that ..(not transcribable).. Joint Koala Report. WITNESS ROBERTSON: Yes. O'GORMAN-HUGHES: The dimensions, are you able to provide an estimate of the range of heights of the canopy trees on the site in the riparian area? WITNESS ROBERTSON: That's a really good question, I can't provide an accurate range, but I can tell the Court broadly what I believe it to be. And I think that it's in the order of something like 25 to 30 metres for some of the taller trees. Some of them really are quite high and in parts of the riparian area; but I haven't measured it, it's not something I've turned my attention to, for this matter. O'GORMAN-HUGHES: In terms of the middle layer of vegetation were you able to give a range of the height of those trees? WITNESS ROBERTSON: No, same qualification. But in the riparian corridor where you have things like privet and some acacias and some melaleucas, I'd probably give a range of about one and a half to 3 metres, in that sort of if you're talking about the understorey shrubs there are some occasional medium size trees that are between 3 metres high and the height of the canopy trees that I explained before. O'GORMAN-HUGHES: Dr Clements, do you agree with in terms of the canopy trees that they're generally the range of 25 to 30 metres for some of the taller trees? WITNESS CLEMENTS: I actually recorded them and they're in table 2 of the five plots. We record the maximum height within 10 metre by 10 metre quadrant, but anything over 2 metres in height. The maximum canopy height for the radiata were 35 metres, for piperita about 30 metres, already at 25 and 24 elata 30 metres. Elata is a river peppermint by the way. O'GORMAN-HUGHES: In terms of the middle layer of vegetation, things like the privet and the acacias, melaleucas, do you agree - do you know or do you agree with the estimate that they were somewhere between one and a half and 3 metres, in height? WITNESS CLEMENTS: No. Acacia melanoxylon we were going up to 8 metres of melanoxylon in the ..(not transcribable).. acacia mearnsii up to 10 metres. This area was about 2 metres on the records ..(not transcribable)..-- O'GORMAN-HUGHES: They were what, I'm sorry? WITNESS CLEMENTS: The acacia mearnsii. O'GORMAN-HUGHES: Mearnsii, yes. WITNESS CLEMENTS: Up to 10 metres. The bursaria spinosa I was getting records of about 2 metres, but I observed on the site about 3 metres, there were individuals. There's persoonia linearis, we got 2 metres, and that's probably a planting. The ligustrums, the ligustrum lucidum, I got individuals of up to 3 metres; and ligustrum sinense up to 5 metres. So, you know, up to about 5 metres is the max height for the ligustrums we'll see." (Tcpt, 23 March 2022, pp 54(36)-55(43))
The ecologists were required to address an additional matter regarding wombats. "[COMMISSIONER]: Let me just ask one question for clarification, because there appear to be considerable divergence of view amongst these objectors. Exactly what is proposed to happen if the site is developed in relation to the existing wombats? Or does somebody else need to address that? WITNESS ROBERTSON: No, I can. They're intended to stay there, and where there are buildings built and where there are some burrows that are excavated at the moment, they will - those particular burrows will need to go. But the intent is to maintain the population of wombats on the current site. My understanding is for educational purposes to maintain the interests of the students in animals like that. COMMISSIONER: But if there's a wombat in the burrow that goes, what happens to that wombat in the interim? WITNESS ROBERTSON: Wombats often use a number of burrows and you'll see that we've actually mapped out a lot of the burrows and looked at them; there's quite a large number of burrows on the site. So, I suppose, we anticipate that animals move from one site will relocate and they will have to potentially re-burrow at some stage, but there are other burrows for shelter for them and so the intent would be to maintain on them on the site. LARKIN: I think - sorry Dr Robertson, I thought you'd finished. I was going to say-- WITNESS ROBERTSON: No, I had. LARKIN: I wonder if the Commissioner isn't asking there's some construction management plans about how to manage that without killing, directly killing, animals. That's something that you have given evidence of, could you just explain that? WITNESS ROBERTSON: In the quarter management plan or the biodiversity management plan the intent is to fence off the areas that are proposed for development, and to put build into them one way gates so that the animals, when they leave at night, and move out of there, will not be able to return to those particular burrows, and then construction will continue or occur once the animals have vacated. [COMMISSIONER]: Thank you. O'GORMAN-HUGHES: Dr Clements, do you have a response? WITNESS CLEMENTS: Well, if you're taking the centre out of the donut the only thing left is a narrow track that's going to be usurped, that adjoins residential on the higher sections of the land. If one looks at the figure that I presented from Greg Chapman's map line of flood prone land of the flood plain, versus the sandstone lands, it's friable sandstone, they love to dig in it and their having a natural home there. The development is partly over the flood plain, and partly over these sandstone soils, you take the centre out, where does the wombat go? It's continuous burrow is not going to be there. The intent in the BMP is to fill the burrows in, and that's going to be filled in possibly with the nice soft soil that they like to dig in. I don't find anything in the BMP where there's going to be encouragement for the wombats to re-burrow under the buildings. It just seems like there's a massive loss of their habitat in existing bushland patch. WITNESS ROBERTSON: There are a large number of burrows that are well outside the building footprint; they extend from the upper most parts of the site in the east, on the sandstone, right down to the banks of the creek in some cases; and they include areas in two different soil types. When these animals were reintroduced to the site originally as animals that were cared for they presumably dug burrows and they can do it again. I mean, they're known for the ability to dig, and you know, that might - if you really want to encourage them underneath buildings for that reason because they can challenge the foundations but I think that there is are broad areas of the site that would still be able to be occupied by the wombats which do eat grasses and which you wouldn't find much in the way of grasses beneath the dense canopies of pines at the moment that are being removed. So, I believe that they will be able to continue in the future. WITNESS CLEMENTS: I don't know where the pines are? We're still recording grass species. I don't think that's quite a sequitur. So, the wombats currently have an ancestral burrows, according to the residents, that they've been there forever and then there's more wombats introduced and that during the droughts they were hand feeding the wombats because there was a shortage of food. So if there's a shortage of food in a drought and the percentage of area being lost for this proposed development is whatever it's going to be, and the grass is going to be mown, what's going to provide sufficient food for that population of wombat that now occupies the site? WITNESS ROBERTSON: I for my PhD I reintroduced kangaroos to a site at Gellibrand Hill in grassy woodland and there was regular slashing and burning of that particular site, and that was in similar dominated grasslands that amongst the grassy woodland-- WITNESS CLEMENTS: But I think we are-- WITNESS ROBERTSON: Can I finish? WITNESS CLEMENTS: Yes. Reducing the habitat. WITNESS ROBERTSON: Can I finish. Yeah, but what I've seen with some of the native grasses is certainly if they're allowed to grow long and lank, and they're not burnt, and they're not slashed, then the grasses become full of the tussocks become full of long dead leaves and dead colms of grass stalks. If they're burnt or cut down they tend to provide, even shorter grasses, provide a greater degree of digestible food. Over the years people have actually commented on areas that have been regularly burnt and regularly slashed and they refer to things called marsupial lawns, and the marsupial lawns are kept in a very low state by grazing by macropods, and by wombats, and they get greater nutrition from the shorter faster growing grasses than they do from the long lank ones. But in relation to the drought conditions 2017 to 2019 was the worst drought in recorded history since Europeans colonised Australia. So, a drought of that magnitude will effect grasses across the entire site, and that will be a problem for a lot of different animals if we get droughts of that magnitude in the future, and there will be a problem with food regardless of whether this development takes place or not. WITNESS CLEMENTS: My concern is the reduction in habitat size, given the number of wombats on this site. It almost seems like they could do with more space. WITNESS ROBERTSON: But there's no evidence of overgrazing. When you walk along these areas of grassy forests and you get off the track, and if you go off the track to the east for example, you're in knee deep grasses. There's no evidence that-- WITNESS CLEMENTS: But they're hand fed-- WITNESS ROBERTSON: --there's a shortage of food. WITNESS CLEMENTS: But there appear to be hand fed, so unless someone wants to continue to hand feed them, and-- WITNESS ROBERTSON: They're not - those wombats are not handfed at the moment in a way that would make them survive. The girls take an interest in them, they're not completely handfed, they're free ranging wombats that go out each night and they graze on the grasses. WITNESS CLEMENTS: I don't know if one needs to ask the person who does the caring of the wombats, and she's told me that she was handfeeding them. She's been handfeeding them for a long time. I don't know. I'm not there. I'm not there, I don't watch them. [COMMISSIONER]: There is a submission from Ms Clancy in the bundle of submissions and she gave evidence before us, so we have that that you expressed. Thank you. Yes, which experts are we going to go on to now?" (Tcpt, 23 March 2022, pp 58(14)-61(2))
During the site inspection wombat burrows were observed in the area where development would occur, and in the APZ.
Ms Clancy in her submission referred to injured wombats (not originating on the site) which had been rehabilitated follow transfer to the Holt, an exercise in which Frensham students had participated. Ms Clancy also referred to at least one rehabilitated echidna having been released into the area. Little was said about echidna ecology, or about the wallabies recorded from the site.
There had been some passing remarks about how management of the APZ would impact on fauna. This is an important issue - management of the ground layer of the APZ would change its structure and possibly its composition, reducing the biomass and possibly also nutrient composition.
The implication from Ms Clancy's submission is that the populations of some fauna species within the site had been augmented above the background level, so despite Dr Robertson's assertion I am not currently confident that the food resources available would be adequate.
The process of managing wombats during the construction phase is described by Dr Robertson in the BDAR (Ex 2 Tab 11 pp 313-314):
In order to carry out the management of wombats (or other fauna that fall within the ambit of the BC Act) a biodiversity conservation licence (BCL) may be required. It would be granted by the Environment Agency Head (s 2.11, s 2.12 BC Act). The consent authority, or, in the present matter, the Court standing in the shoes of the consent authority, cannot grant a biodiversity conservation licence (BCL), which can only be done by the Environment Agency Head. A BCL may include conditions. If a licence is required but the Environment Agency Head declined to issue a licence then even if development consent had been granted those aspects of the consent for which a licence is required could not be carried out.
On the previous day the experts had discussed availability of resources for grazing mammals: "LARKIN: Can I ask you about a few specific aspects of these matters, Dr Clements made reference to wombats and other grazing marsupials being on the site, I have in mind her paragraph 92 of the joint report. If we could specifically those two subject matters and the first wombats, second the other grazing marsupials? WITNESS ROBERTSON: Look, yes, wombats basically graze on grasses and grass like plants to a large extent. We all know that they're burrowing animals. They have been considered in the BDAR. They've been considered in the VMP and provision has been made to maintain continuing presence of wombats on the subject site and I expect that they would continue to be there. I also observed that under the pines at the moment in a lot of the Lower Holt, where you get build ups of pine needles and a lot of exotic plants in and around the pines, those areas will be cleared. There would be a future development that will promote more native vegetation and within the asset protection policy there will be a greater degree of grass cover I foreshadow in the future and I think, given that wombats will still be able to burrow and have shelter, they've have I think at least the same amount of grass, probably more then they have now. With regard to other grazing marsupials the BDAR lists a couple of macropods that have been found on site. The eastern grey kangaroo has been found by three different groups, including Cumberland Ecology. The swamp wallaby has been found through the use of photography on the site. The eastern grey kangaroos are grass loving animals, they graze very specifically on grasses, they need that to survive, and like the wombats, as long they've got areas to go back and shelter during the day provision of extra grassy habitats will benefit them. The swamp wallabies or black wallabies are more of a browsing animal. They browse on, you know, some grasses but also the tips of shrubs and, you know, herbs and things like that forms. They will still find habitat in that site, they won't benefit to the same degree as eastern grey kangaroos and wombats from the clearing of the APZ but I would expect that they will persist and that they will remain on the site. [COMMISSIONER]: When you say "grasses", the areas that are currently mown have a fair representation of exotic grasses, how are you going to or how do you think native grasses can be promoted rather than the state of the exotic ones? WITNESS ROBERTSON: Commissioner, I think that there will continue to be a mixture of grasses and at the moment you've got a number of native grasses, you know, the austrostipa, themeda, rutisperma, I think there are cymbogopons and poas, but there's also mixtures of grasses, that influence of orchard grasses and anthoxanthum, that's one of the common ones. I've worked on grassy woodland down in Melbourne for my PhD when we had kangaroos and reintroduced them. Unless you completely - attempt to completely remove and then restore the native grass cover I think you're going to have a mixture of native and exotic species. I think things like anthoxanthum and odoratum are things that a likely to persist but I don't see that as a major issue for the ecology of the site. LARKIN: Dr Clements, what to you have to say, if anything, in response to that? WITNESS CLEMENTS: When I go to the biodiversity management plan and look up wombat the only thing we're talking about is finding wombat burrows and then collapsing the wombat burrows. There is nothing in the biodiversity management plan about how the wombats are going to be homed during all these activities on site and how they're going to be reintroduced to the site. You can't just have large excavators wandering around the site with wombats in their burrows without potentially putting them at risk. As well as that, in the evidence put in by Tania Clancy even the pine trees have roles with beneath the pine tree bark is the homes of the micro bats. She's been picking up little micro bats underneath the bark. The long grass is the homes for birds that live on grass seed. Once you're mowing that grass down into nothingness there is no feeding of grasses available for food sources for these fauna species and there's no habitat to hide in for these fauna species. We're reducing things like dense stands of privets without replacing them with dense stands of native shrub layers, these will all have to be carefully controlled because we're in an APZ, so that habitat is lost. So I do not see the merit in the application in terms of the grazing animals, their burrows are going to be collapsed on. We've got roads going through that need ..(not transcribable).. we have ..(not transcribable).. across the landscape and there's a world underneath the brown surface of burrows, burrows not only of wombats but of platypus. LARKIN: It was put by Dr Robertson that if the development had been designed to be concentrated in the area of the greatest pine density and to avoid the 50 metre riparian zone, what would you say in response to that in particular? WITNESS CLEMENTS: In my original evidence on figure 4B we mapped out the pines from the new map aerials-- LARKIN: I'm sorry which figure 4B? WITNESS CLEMENTS: 4B of my SOE. LARKIN: Of exhibit 1, your statement of evidence? WITNESS CLEMENTS: Mm. O'GORMAN-HUGHES: Commissioner, that document is numbered and-- WITNESS CLEMENTS: It's page 39. O'GORMAN-HUGHES: 39. LARKIN: ..(not transcribable).. WITNESS CLEMENTS: You can see on that figure that the pines for removal have been circled in little white circles. When we looked at the new map aerial photo and found the other pines that ..(not transcribable).. canopy and ..(not transcribable).. and you can see that it is possible to move this whole site, this whole development, further to south east and closer to the oval and possibly onto the oval and so - and maintain a lot of the native trees. I don't know what the implications are for the APZ, and that's the bushfire expert's question. LARKIN: Yes? WITNESS CLEMENTS: So there is a lot of native canopy in the areas that are being proposed to be removed and that's a lot of native loss in terms of trees but also in terms of the understorey and the understory I mean by the acacias and bursarias and other shrub species which perform major habitat but one of the other major concerns to me is the loss of the ground layer because the ground layer needs to be mown to a certain height. How do you feed the number of animals on that site if it's mown down, and the grasses, things like that ..(not transcribable).. things like mircolaena are clumping grasses. They're not spreading grasses, so once you start mowing them down you've got a higher risk of sediment movement. It's a site that has three layers of cover. Okay, they're not always native but there is a commitment by a lot of the old girls to bush regen. LARKIN: In the comment that you made it is possible to move it further, the development further to the south east and closer to the oval, can you just expand on what you ..(not transcribable).. WITNESS CLEMENTS: From figure 4B you can see the density of pines in that area, so there's potential to be moving further backwards and staying further away from the riparian. LARKIN: And in the context of what is proposed, how do you say that is relevant to Dr Robertson's comment that the development has been designed to be concentrated in the greatest pine density? WITNESS CLEMENTS: Well, not completely agree with Dr Robertson. The pines are clearly identified in figure 4B. Yes, they have put a lot of the cabins and buildings in the areas of pines but there are areas where there are not pines where these buildings are going as well including things like swales and bioretention basin and bioretention basins that can't have anything planted in them because they contradict some APZ requirement. O'GORMAN-HUGHES: Mr Larkin commenced by asking a question of Dr Robertson which was to summarise his comments in relation to biodiversity generally to the consequence of what is proposed but what do you wish to say in relation to that? WITNESS CLEMENTS: It's a conflict. For a long time you've managed awesome animals within the Lower Holt and then all of a sudden you're going to put children in the same area as what all these animals have been homed in. There's resident animals and then there's orphaned animals have been reintroduced to the Lower Holt so you've got a high density of these native fauna that get handfed when there's a drought on, they have care. There's people who are out there looking after the animals. Now those looked after animals are now going to have their homes displaced for the sake of a small number of cabins and a building and that small number of cabins and building have sewer, fire hydrants, APZs, they have a whole pile of infrastructure required to support these cabins which are not consistent with providing habitat for fauna. (Tcpt, 22 March 2022, pp 52(1)-55(16))
An additional mammal which was discussed was Hydromys chrysogaster, widely referred to as the water rat, although there is now a trend to call it rakali (a First Nations name), a move to improve the image of the species by reducing the stigma of association with Rattus rattus, the introduced black rat, which is present in large numbers in the Holt.
Rakali is not listened as threatened in NSW, but it is rarely seen despite being thought to be widespread. "WITNESS PHILLIPS: Thanks for the opportunity Commissioner. I've done a lot of work on that species, and I'm very interested in its ecology. I would probably say that it's beyond my expertise. I haven't taken it into account in terms of the other ecological matters, and it would be I guess unprofessional of me to make comment without having reviewed all the information about it in that particular catchment and in the Nattai River. [COMMISSIONER]: Dr Robertson? WITNESS ROBERTSON: I'm familiar with the species from when I lived in Wagga and worked as a lecturer in aquatic biology and ecology and I'm familiar with its ecology along the river system; but I suppose I'm not an expert in that species either, so I similarly think to Dr Phillips, but I would say that it's important for the Court to realise that this species is very much like the platypus in that it's really tied very strongly to the stream; and to the stream ecology, and it derives its food from within the streams. It's an aquatic animal with webbed feet, you know, and it lives in and frequents the rivers and riverbanks, and so the whole development has been designed to be pulled back predominantly to the 50 metre mark so it respects and avoids to a large extent the clearing of that habitat. We've also heard from the hydrologists that if the design of these bioretention basins et cetera are actually accepted and built the condition of NOBE will be achieved, so neutral or beneficial effect on the water condition. So, I think again, that's positive because this animal lives on, amongst other things, fresh water mussels and things like that. They're buried in the sediment of the streams. We actually did set camera traps along the river specifically to look to see if we could pick up these animals, because I'd actually photographed them before along the river, and along river systems using the cameras, and I haven't picked them up; but I don't assume that they're not there from that camera trapping; but what the camera work did show very clearly was that there are foxes that are really abundant on this site. That also showed up when we did the koala dog surveys because the dogs picked up a lot of fox scats. So I think that the habitat of the animal is being respected by this development, and it's keeping out of the habitat of it. I see the river condition as we determined by the AUSRIVAS study that's attached to the back of the BDAR showed that the water quality as a habitat for fresh water macroinvertebrates is not high. It's sort of moderate to sort of poor and when we saw the site inspection it was really evident that the floods had brought down from the upper catchment, a lot of sand. It's a naturally sand bedded stream but the sand that is moving through the catchment at the moment and through those big - it's filling up some of the big pools that would otherwise provide a sort of refuge habitat and good quality habitat for both platypus and for the rakali. So, I think we need to make sure that the banks of the river are still stable here; can't do much about what's happening in the upper catchment, but I think one of the things that could be done to benefit these species would be to have an active control of foxes in this area, because of the sheer numbers of them, and I'm sure that they would prey on these animals." (Tcpt, 23 March 2022, pp 8(33)-9(29))
Ms Clancy in her submission mentioned that rakali had been seen on the site and Dr Robertson states that he had previously photographed rakali along the river, although during his survey in the preparation of the BDAR he had not located it.

Bushfire

The parties' expert witnesses for fire issues were Mr Lewis Short for the Applicant, and Dr Grahame Douglas for the Respondent. Both are highly experienced practitioners in the field of bushfire management planning.
In his opening, Mr Larkin said of the approach of the bushfire experts: "LARKIN: …Mr O'Gorman-Hughes made a reference to a statement to the effect that the bushfire experts had agreed to "set aside" Planning for Bushfire Protection 2006, and it is true to say that they use that expression, but that should not be understood as inviting the Court to do other than apply the law as set out in the transition provision, which keeps Planning for Bushfire Protection 2006 in force…" (Tcpt, 21 March 2022, pp 26(47)-27(2))
Section 4.14 of the EPA Act applies. 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. (1A) If the consent authority is satisfied that the development does not conform to the relevant specifications and requirements, the consent authority may, despite subsection (1), grant consent to the carrying out of the development but only if it has consulted with the Commissioner of the NSW Rural Fire Service concerning measures to be taken with respect to the development to protect persons, property and the environment from danger that may arise from a bush fire. (1B) This section does not apply to State significant development. (1C) The regulations may exclude development from the application of this section subject to compliance with any requirements of the regulations. The regulations may (without limiting the requirements that may be made) - (a) require the issue of a certificate by the Commissioner of the NSW Rural Fire Service or other qualified person in relation to the bush fire risk of the land concerned, and (b) authorise the payment of a fee for the issue of any such certificate. (2) In this section - special fire protection purpose has the same meaning as it has in section 100B of the Rural Fires Act 1997.
Special fire protection purpose includes a number of types of development: 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. (5) Development to which subsection (1) applies - (a) does not include the carrying out of internal alterations to any building, and (a1) does not include the carrying out of any development excluded from the operation of this section by the regulations, and (b) is not complying development for the purposes of the Environmental Planning and Assessment Act 1979, despite any environmental planning instrument. (6) In this section - special fire protection purpose means the purpose of the following - (a) a school, (b) a child care centre, (c) a hospital (including a hospital for the mentally ill or mentally disordered), (d) a hotel, motel or other tourist accommodation, (e) a building wholly or principally used as a home or other establishment for mentally incapacitated persons, (f) seniors housing within the meaning of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004, (g) a group home within the meaning of State Environmental Planning Policy No 9 - Group Homes, (h) a retirement village, (i) any other purpose prescribed by the regulations.
Clause 272 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg 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.
However, the transitional provision in cl 273 of the EPA Reg 2000 applies: 273 Development excluded from application of requirements relating to bush fire prone land (1) Development comprising the erection, on land in an urban release area, of a building that is, or is ancillary to, a dual occupancy, dwelling house or secondary dwelling is excluded from the application of section 4.14 of the Act if - (a) the consent authority has been provided with a bush fire safety authority for the subdivision of the land that - (i) was in force on the date on which the development application for the development was duly lodged, and (ii) was issued no more than 5 years before that date, and (b) the consent authority is satisfied that the proposed development complies with standards (concerning setbacks, asset protection zones, provision of water supply or other matters) specified in the bush fire safety authority that are relevant to that development, and (c) the consent authority has been provided with a copy of a plan of subdivision that - (i) shows bush fire attack levels for the land, and (ii) contains a notation from the NSW Rural Fire Service showing that the plan was considered when the application for the bush fire safety authority was determined under the Rural Fires Act 1997, and (iii) accompanies a certificate (a post-subdivision bush fire attack level certificate) to the effect that, when the certificate was issued, the bush fire attack level of the part of the land on which the development is proposed to be carried out corresponded to the bush fire attack level shown on the plan and that part of the land was not in bush fire attack level-40 (BAL-40) or the flame zone (BAL-FZ). (2) The post-subdivision bush fire attack level certificate must - (a) specify the address and formal particulars of title of the land to which it relates, and (b) specify the date on which it was issued, and (c) contain identifying particulars of the bush fire safety authority, and (d) if the subdivision to which the bush fire safety authority relates required development consent - contain identifying particulars of that development consent (such as the name of the applicable consent authority or certifier, the date on which the consent was granted or issued and any registered number of the consent). (3) A post-subdivision bush fire attack level certificate may only be issued by the NSW Rural Fire Service or a recognised consultant. (4) If an application for a post-subdivision bush fire attack level certificate is made to the NSW Rural Fire Service, it must be accompanied by the fee determined by the NSW Rural Fire Service. (5) The maximum fee that the NSW Rural Fire Service may charge for the application is as follows - (a) if the application relates to a single lot or proposed lot - $500, or (b) if the application relates to 2 to 10 lots or proposed lots - $500, plus $300 for each lot or proposed lot exceeding 1 lot, or (c) if the application relates to 11 or more lots or proposed lots - $3,200, plus $150 for each lot or proposed lot exceeding 10 lots. (6) A recognised consultant must, within 7 days after issuing a post-subdivision bush fire attack level certificate, forward it to the Commissioner of the NSW Rural Fire Service. (7) The methodology for determining bush fire attack levels, for the purposes of this clause, is the methodology specified in Planning for Bush Fire Protection ISBN 978 0 646 99126 9 dated November 2019. (8) In this clause - AS 3959:2018 means the Australian Standard AS 3959:2018, Construction of buildings in bushfire-prone areas. bush fire attack level has the same meaning as in AS 3959:2018. bush fire attack level-40 (BAL-40) and flame zone (BAL-FZ) have the same meanings as in Appendix G to AS 3959:2018. Note - More information about bush fire attack levels, including the flame zone, can be found in Table A1.7 of Planning for Bush Fire Protection ISBN 978 0 646 99126 9 dated November 2019. bush fire safety authority has the same meaning as in Division 8 of Part 4 of the Rural Fires Act 1997. dual occupancy, dwelling house and secondary dwelling have the same meanings as in the Standard Instrument. recognised consultant means a person recognised by the NSW Rural Fire Service as a qualified consultant in bush fire risk assessment. urban release area means land that is shown as being within an urban release area on the series of maps marked "Bush Fire Planning - Urban Release Area Map" (approved by the Planning Secretary, by notice published in the Gazette, and held in the head office of the Department), as amended by the maps (or specified sheets of maps) that are - (a) approved by the Planning Secretary, by notice published in the Gazette, and (b) marked as specified in that notice, and (c) held in the head office of the Department.
While the Applicant is not required to apply the Planning for Bush Fire Protection 2006 (PBFB 2006), the parties' experts adopted a pragmatic approach. They have specified that access to the subject site should be capable of supporting a 23-tonne fire truck. This is the requirement in Planning for Bush Fire Protection 2019 but not 2006. However, it is clearly sensible to specify the heavier truck if that is the vehicle that will require access to the site in the event of fire. The experts also employed other aspects of the 2019 specification for an APZ, on the basis that the changes followed considerable research and the changes are more appropriate to apply than what was specified in 2006.
Mr Short identified the main differences between the experts as: "WITNESS SHORT: Of course. The main differences, the bushfire emergency management and evacuation was prepared that has a series of triggers that reflects the requirements of the RFS Bush Fire Safety Authority. The closure of the site is in disagreement between myself and Dr Douglas, as Dr Douglas expect enclosure at severe, I'm confident with the triggers within the Bush Fire Emergency Management Plan that we can have a more nuanced approach to emergency management and closure of the site. There's disagreement on the extent of landscape scale bush fire risks to the site, I say the site is relatively isolated and not subject to large landscape scale fires which makes it available for performance based approaches in line with PBP whereas Dr Douglas would say that the short fire run methodology is not appropriate for the site. There's disagreement between the experts on the extent of the asset protection zone particularly to the west, the difference is that fundamental view between Dr Douglas and myself of where the short fire run is available to the site or not, my view is that it is available to the site and can provide a safe outcome in terms of provision of asset protection zones and there's disagreement on the access arrangements from the site with Dr Douglas having concern about fire truck access around the perimeter of the site if we called it the fire trial around the broader site and ..(not transcribable).. vehicles to get involved. We thought if may be vehicles can use it, if the fire would be burning in the area." (Tcpt, 7 April 2022, p 5(21-42))
The original bushfire assessment which was conducted for the Applicant is included in the DA in Ex D Tab 12 was not produced by Mr Short, but by a different consultant.
Mr O'Gorman-Hughes asked about the APZ to the west of the site: O'GORMAN HUGHES: Mr Short and Dr Douglas I want to take you to the paragraph that I've highlighted on the screen which is the third paragraph at page 19 which relevantly said "The minimum required asset protection zones were determined from table A2.6 of the Planning for Bush Fire Protection and bush fire modelling consistent with the … bush fire protection to be 33 metres to the west". You can both see that paragraph? WITNESS DOUGLAS: Yep. O'GORMAN HUGHES: I want to ask you in particular about the asset protection zone that's of most interest, I mean there's questions which is the 33 metre asset protection zone to the west. Do you both accept that the vegetation around the perimeter of the site is not rainforest? LARKIN: Mr O'Gorman Hughes, you dropped out. O'GORMAN HUGHES: Apologies. Dr Douglas, firstly, you accept that the vegetation around the perimeter of the site including to the west is not rainforest don't you? WITNESS DOUGLAS: I do, I do. O'GORMAN HUGHES: You also agree with that don't you Mr Short? WITNESS SHORT: Yes. O'GORMAN HUGHES: In this document here, we have an assertion in that report that the minimum requirement of the protection zone is the 33 metres west? WITNESS DOUGLAS: That's right. WITNESS SHORT: Yes. O'GORMAN HUGHES: It's said amongst other things, first that it's determined from table A2.6 the Planning for Bush Fire Protection, do you accept that the 33 metres he was not taken from table A2.6 of the Planning for Bush Fire Protection, Dr Douglas? Dr Douglas can you hear me? ACTING COMMISSIONER: You're on mute. WITNESS DOUGLAS: Sorry too many pieces of paper floating around, I self muted. Yes, I agree it not consistent with table A2.6 in Planning for Bush Fire Protection 2006. Now, you're muted Mr O'Gorman Hughes. O'GORMAN HUGHES: Can you hear me Dr Douglas? WITNESS DOUGLAS: I can. O'GORMAN HUGHES: You agree do you that if it had been calculated in accordance with table A2.6 of Planning for Bush Fire Protection 2006, the asset protection zone going to the west would have been 70 metres? WITNESS DOUGLAS: That's correct. If it had have been classified in accordance with the actual vegetation and using the deem to satisfy provision, the acceptable solution it would have been 70 metres. O'GORMAN HUGHES: Table A2.6 is the acceptable solution isn't it? WITNESS DOUGLAS: It is the acceptable solution. O'GORMAN HUGHES: Mr Short you also agree that if it had been determined in accordance with table A2.6 it would have been 70 metres rather than 33 metres to the west? WITNESS SHORT: Yes, just to reiterate on Dr Douglas as the acceptable solution it would be 70 metres. O'GORMAN HUGHES: We have then the alternative approach which has been determined in accordance with Bush Fire design modelling, consistent with appendix 2 of the Planning for Bush Fire Protection to be 33 metres, now I'll pause for a moment, are you getting a flashing? WITNESS DOUGLAS: We are we're getting a flashing screen at the moment. O'GORMAN HUGHES: I'll stop sharing for a moment so that we don't trigger an Olympic fit. The second issue is whether it has been determined in accordance with design modelling at appendix 2 of the Planning for Bush Fire Protection? WITNESS DOUGLAS: That's right. WITNESS SHORT: Yes. O'GORMAN HUGHES: Dr Douglas do you say it has been that 33 metre set back has been determined off the design model consistent with the appendix 2 of the Planning for Bush Fire Protection? WITNESS DOUGLAS: No, not, yeah, so it appears that the previous report has relied on a concession which existed in Planning for Bush Fire Protection 2006 which identified the riparian areas which are no greater than 20 metres in width, can be assessed against the rain forest table, it doesn't mean they're rain forests, it just that they can be assessed against the rain forest table and in this case the distance is much greater than that and what the previous bush fire consultant has done is in effect used the rain forest fuel loads outside of that concession and then justified the 33 metres using that as a basis and I think if you go to the next page of, no, that's it's sorry my apologies that's the correct one LARKIN: Where does that come from? WITNESS DOUGLAS: That's in the Bush Fire Assessment Report, that's the first appendix after page 20, so it's not labelled as 21 it's actually page 2 of 2, so but it's actually the page straight after the annexures page. You're starting to flash out just to let you know, but anyway, so you can see there that the fuel loads have been imported into that are 8 tonnes and 10 tonnes respectively, that 8 tonnes and 10 tonnes comes from the table and I'll give you the correct table number A2.1, with respect is the classification of vegetation formations on page 54 of the Planning for Bush Fire Protection 2006 and that's really the basis of using that model. O'GORMAN HUGHES: This figure of vegetation information, surface fuel load 9, I'll try and highlight it, I'm not sure I can just highlight it on the screen. WITNESS DOUGLAS: Yes. O'GORMAN HUGHES: Is it the case that that is the fuel load for rain forests? WITNESS DOUGLAS: It is, it's the fuel load given in the Planning for Bush Fire Protection 2006 as being the rain forest fuel load. O'GORMAN HUGHES: If the fuel load had been used for forests which I think both of you agree is the correct fuel load for this calculation carried out, would that have been a different figure? WITNESS DOUGLAS: It would have been. O'GORMAN HUGHES: Are you able to identify what that figure would have been WITNESS DOUGLAS: Yeah, in appendix G of the joint report I've set out what those numbers would have been, I've used the Planning for Bush Fire Protection 2006 forest category, I've included the fuel load that would have been used which is 25 and 25 … therefore the surface fuel as it's described there and 30 tonnes per hectare for the overall fuel loading that is described there and the outputs are in the right hand column. The second row though deals with Planning for Bush Fire Protection 2019, but the answer to your question is the top row is the output that would have been if you'd have used forest as the means of calculating. O'GORMAN HUGHES: In the annexure to the joint report to which you refer, you identified fuel load 25 and 30 tonnes per hectare as opposed to the eight and the ten in this document and is it your position that the consequence of this document does not contain an accurate methodology for determining the asset protection zone by a performance based method because of the input, the type of vegetation is wrong? WITNESS DOUGLAS: That's correct. It's an attempt to use a performance solution but with wrong inputs. O'GORMAN HUGHES: Mr Short, do you agree with that? WITNESS SHORT: Yes. O'GORMAN HUGHES: If we return to page 19 of that report, you'll see that amongst other things this requires the asset protection zone for work to be … metres and WITNESS DOUGLAS: You dropped out. O'GORMAN HUGHES: Are you aware that in July 2020 the RFS issued a Bush Fire Safety Authority LARKIN: You dropped out again Mr O'Gorman Hughes. O'GORMAN HUGHES: Thank you. Both of you're aware that in July 2020 the Rural Fire Service issued a Bush Fire Safety Authority? WITNESS DOUGLAS: Yes. WITNESS SHORT: Yes. O'GORMAN HUGHES: In relation to that, that they adopted an asset protection zone of 33 metres to the west? WITNESS DOUGLAS: They did. O'GORMAN HUGHES: Do you agree with that Mr Short? WITNESS SHORT: Yes. O'GORMAN HUGHES: You agree that that Bush Fire Safety Authority determined that 33 metre figure not from anything a bush fire, Planning for Bush Fire Protection, but based on the Bush Fire Assessment Report? WITNESS DOUGLAS: That's correct. WITNESS SHORT: Yes. O'GORMAN HUGHES: You agree that the Bush Fire Assessment Report was originally submitted was flawed for the reasons that you identified? WITNESS DOUGLAS: In my view it was flawed. O'GORMAN HUGHES: Mr Short, do you agree with that? WITNESS SHORT: I think Mr O'Gorman Hughes I might add if it assists the Court O'GORMAN HUGHES: Just answer the question, do you agree that the original Bush Fire Assessment was flawed for the reasons that you've given? WITNESS SHORT: Yes. O'GORMAN HUGHES: The Bush Fire Safety Authority that adopted the applicant's flawed Bush Fire Assessment Report without properly checking that figure was also flawed for the same reason, Dr Douglas? WITNESS DOUGLAS: That's correct. O'GORMAN HUGHES: Mr Short? WITNESS SHORT: Yes, yes and no. O'GORMAN HUGHES: Give us the answer as to why you say yes and no? WITNESS SHORT: Yes, at a very base level rain forest was not the correct vegetation to use, no, because in lower risk situations the Rural Fire Service with agreement actually can reduce the overall vegetation from forest to rain forest and they have done many times through applications that we've been involved with to reflect the lower risk of the site but without being a party to those discussions it's difficult to tell. What I do absolutely though Mr O'Gorman Hughes is that the Rural Fire Service parallel assess all applications before them and where they don't agree with the asset protection zones and when they do not agree with the assessment, they reject it or request it with additional information, so the fact that the Rural Fire Service have issued a Bush Fire Safety Authority with a lesser asset protection zone, to me demonstrates that they are comfortable with the approach that was provided in the original bush fire report. O'GORMAN HUGHES: Your evidence has been that you accept that the 33 metre figure hasn't been calculated in accordance with table A2.6, contrary to what the report says and that the design methodology is flawed because it assumes a fuel load consistent with rain forest which this is not, you accepted that the bush fire assessment was flawed and you accepted that the Bush Fire Safety Authority which took the 33 metre figure from that report LARKIN: But he didn't accept the last in fairness and if you're going to put it to him, put it to him in individual propositions. O'GORMAN HUGHES: In relation to the Bush Fire Safety Authority, you accept the proposition they took the 33 metres from the full report so what I'm suggesting to you is that the Bush Fire Safety Authority was issued without checking the assumptions on which the report, a flawed report was based? WITNESS SHORT: I'm not in a position to comment on that Mr O'Gorman Hughes, as I said, the RFS parallel assess everything and where they are not comfortable with it, they reject it or seek additional information the fact that they've accepted it to me implicitly apply, says to me that they accepted the approach that was provided." (Tcpt, 7 April 2022, pp 6(35)-11(34))
Dr Douglas was asked to respond. In doing so he made statements about the level of training of the RFS officers responsible for the release of the s100B Bush Fire Safety Authority which accepted the 33 metre APZ proposed by the Applicant's original consultant. Mr Larkin objected to inclusion of this attack, and I upheld his objection. Dr Douglas subsequently apologised. "WITNESS DOUGLAS: The issue I was getting at is that both Mr Short and myself understand intimately the way the Rural Fire Service officers work, we've both been involved in that process, we've both worked with those people and I'll leave that part of it as it is. But the process that Mr Short alluded to was in fact the problem that I see that's occurred is that it's a largely arbitrary decision making process and here we are before the Court having to deal with a merit matter and all I'm putting is that the proposition is that there's a serious merit issue and I'm sure we'll get to the issues that Mr Short and I disagree about in terms of the appropriate methodology but in my view in agreeing first of all, that we put the general terms of approval, the Bush Fire Safety Authority to one side and that we should use Planning for Bush Fire Protection 2019, it means that we need to review that Bush Fire Safety Authority in terms of updating it as the minimum to the requirements in the 2019 document." (Tcpt, 7 April 2022, pp 14(48)-15(10))
Mr Short was asked to explain how he thought the RFS had included within the GTAs a western APZ of 33 metres: "WITNESS SHORT: Yes, thank you Commissioner and if I to assist us to understand the position if we could have a look at the final page of the bush fire hazard assessment that we were working our way through and we just need to be clear about language in terms of how the assessment has been ..(not transcribable).. at the final page is a performance based assessment for the west which describes remnant vegetation, now, it does have the lesser fuel loads that we've been talking about is eight and 10 tonnes per hectare, but nowhere through this bush fire hazard assessment does it actually refer to rain forest vegetation as the vegetation type affecting the application. What I think the Rural Fire Service has done is they've applied remnant vegetation which is to find in Planning for Bush Fire Protection, which is just beyond the limits of the 50 metre run which is articulated and I think it's entirely plausible and a reasonable position that remnant vegetation/rain forest vegetation, has been used in terms of the fuel loads to determine the approach, but there's a couple of different ways that you could come at this problem, you know this is one of the ways which has been chosen and accepted by the RFS but I do think as remnant vegetation it's an entirely appropriate and plausible position that the RFS has taken. O'GORMAN HUGHES: Mr Short, you're familiar with the Planning for Bush Fire Protection 2006? WITNESS SHORT: Yes. O'GORMAN HUGHES: Commissioner I take you to that document which is in the Council bundle volume 2, exhibit 7. Do you have that in front of you, if I could ask you to go to tab 37. WITNESS SHORT: Yes. O'GORMAN HUGHES: The second last document Commissioner. ACTING COMMISSIONER: Yes, Planning for Bush Fire Protection 2006. Yes. O'GORMAN HUGHES: I'd ask you to go to page 510 of that bundle and while the Commissioner is doing that, Mr Short, I'm referring you to page 54 of Planning for Bush Fire Protection 2006? WITNESS SHORT: Yes. O'GORMAN HUGHES: Commissioner I'll just wait, you have that in front of you I see, Mr Short do you have that in front of you? WITNESS SHORT: I do. O'GORMAN HUGHES: You have ..(not transcribable).. fuel loads. WITNESS SHORT: Yes. O'GORMAN HUGHES: On that page? Do you see that you have rain forest fuel load which is a 10 tonnes per hectare? WITNESS SHORT: Yes. O'GORMAN HUGHES: You have wet sclerophyll forests and they are with a ..(not transcribable).. sub formation that's 25 to 30 tonnes per hectare? WITNESS SHORT: Yes. O'GORMAN HUGHES: Categorised them as rain forest is, well the fuel load that's been used in the bushfire assessment lodged with the application is 8 to 10, which is the fuel load for rain forests. WITNESS SHORT: Sorry, could you say that again Mr O'Gorman Hughes? O'GORMAN HUGHES: The reports that deal with the applications stated that the fuel load was 8 to 10 tonnes per hectare? WITNESS SHORT: Yes, correct. O'GORMAN HUGHES: That's the fuel load for a rain forest? WITNESS SHORT: Also remnant vegetation. O'GORMAN HUGHES: On that table that we see there it just says "Rain forest closed forest"? WITNESS SHORT: Correct. O'GORMAN HUGHES: Based on the label that's a fuel load for rain forest isn't it? WITNESS SHORT: It is, if I could take you to page 52. The bottom column there it talks about remnant vegetation "Remnant vegetation is a parcel of vegetation of a size of less than one hectare or a shape that provides a potential fire run directly towards the buildings as not exceeding 50 metres, these remnants are considered the low hazard and APZ said that setbacks and building construction standards for these will be the same as for rain forest". So Planning for Bush Fire Protection while not explicitly stating it within the table that you originally referred to, treats remnant vegetation and rain forest as the same and it is entirely plausible that the short distance of the vegetation between the managed area to the west and the asset protection zone attached to the application would be considered remnant vegetation by the RFS, thus making it an entirely appropriate consideration and approach. O'GORMAN HUGHES: That's the paragraph of the document that you rely on to say that the categorisation should be rain forest? WITNESS SHORT: No, no, I'm saying as the bush fire hazard assessment categorises it as remnant vegetation there is no reference to rain forest in the bush fire hazard assessment. O'GORMAN HUGHES: Where does it say then that the fuel load of 8 to 10 tonnes per hectare should be used for remnant vegetation? WITNESS SHORT: So that final sentence "These remnants are considered a low hazard and setbacks and building construction standards for these will be the same as for rain forest" which is on page 52 at the top up of the second column. O'GORMAN HUGHES: You rely on the fact that it's remnant vegetation being a parcel of vegetation with a size of less than 1 hectare or a shape that provides potential fire run directly towards the ..(not transcribable).. in 50 metres? WITNESS SHORT: Yep. But that's an entirely plausible approach for the consideration and determination of the APZ. O'GORMAN HUGHES: Dr Douglas, can you just respond to that suggestion which is triggered to justify WITNESS SHORT: Sorry, if I could just add one more piece Mr O'Gorman Hughes, in the joint statement at annexure D is a map from the Vegetation Management Plan that shows the hazard protection zones, the buildings, the ..(not transcribable).. area, remnant vegetation and the managed areas and it's very difficult to see in the reproduction, but the transects that I've shown there so transect T4 is 60 metres, T5 is 48 metres I think it is, T6 is 61 metres, T7 is 65 metres, T8 is 60 metres and that's probably being conservative. While it's not absolutely compliant with the 50 metres identified in Planning for Bush Fire Protection 2006, it certainly is a reasonable supposition in lower risk environments that the vegetation is treated as a remnant for assessment purposes." (Tcpt, 7 April 2022, pp 21(5)-23(37))
Dr Douglas was asked to respond: "O'GORMAN HUGHES: Dr Douglas, do you accept Mr Short's proposition that the although not rain forest it should be treated as such because it's a remnant vegetation as set out on page 52 of Planning for Bush Fire Protection 2006? WITNESS DOUGLAS: No, I don't, for two reasons. First of all, it is more than a hectare in size and the material left after the clearing of the APZ, there's still in excess of 1 hectare of land that's still affected. Secondly, the 50 metres, the transients that Mr Short refers to are not within the definition of that provides a potential fire run directly towards the buildings as not exceeding 50 metres. There are many lengths within the property that could exceed 50 metres not just the transects that he's identified, even accepting the 48. I also refer to two other elements in the areas that's he's referring to. The last sentence of his paragraph says "The effective slope is to be determined over the length of the remnant" so that's fine, we understand what the slope is, but the paragraph next is crucially important in considering this proposition, particularly since we're talking about a riparian area and the words are "Although small remnants, coastal wetlands and riparian areas vary significantly in structure and composition, these areas have been generally assessed as being bush fire hazards with the exception of saline wetlands that are assessed as being non hazard. Riparian areas are those areas of vegetation which are no greater than 20 metres in width and are found on either bank of a river, creek or stream identified on a bush fire problem map and are treated the same as rain forest". So the second paragraph, the next paragraph is also got to be taken into consideration clearly, it doesn't meet that, I would argue it doesn't meet the first half or the first half of the paragraph because the land is more than a hectare and I would contend that if you use it from the point of view of a remnant, of a riparian area it doesn't meet that. If we're going to be trying to do things on a proper basis then I think we need to look at what is the actual evidence and just to actually say in a model, I'm going to use rain forest fuel loads when it doesn't meet the criteria here, it's not appropriate and both at the time that this application was lodged and that this bush fire assessment was done, the proposition of a short fire run could have been offered as the alternative if they believed that was to be the case, not simply just to plug in different fuel loads. O'GORMAN HUGHES: Mr Short, do you agree with what Dr Douglas' proposition that the parts of vegetation does not have a size of less than 1 hectare? WITNESS SHORT: It's greater than 1 hectare, yes. O'GORMAN HUGHES: Do you agree with the proposition that it doesn't have a shape that provides potential fire run directly toward a building as not exceeding 50 metres? WITNESS SHORT: Yes. O'GORMAN HUGHES: Do you agree that the riparian area next to the subject development is greater than 20 metres? WITNESS SHORT: Yes. O'GORMAN HUGHES: It doesn't satisfy any of those pre criteria to be classed as remnant vegetation to be treated as rain forest? WITNESS SHORT: Not strictly in accordance with ..(not transcribable).. O'GORMAN HUGHES: Do any of those three criteria to be classed as remnant vegetation which is treated as rain forest? WITNESS SHORT: Correct. O'GORMAN HUGHES: Having regard to your evidence that it doesn't satisfy the criteria to be treated as rain forest under page 52 of Planning for Bush Fire Protection 2006 and your opinion that the vegetation should be treated as forest, not rain forest, I'm putting to you that the methodology used in issuing that assessment was wrong, do you agree with that? WITNESS SHORT: As I've said before, Mr O'Gorman Hughes, I think it's appropriate that the RFS can exercise some judgment and latitude in the application, the Planning for Bush Fire Protection which discretion that they would use every day. O'GORMAN HUGHES: We have a report which you both accept was flawed, there's no dispute about you agreeing to that and we've got a document called Planning for Bush Fire Protection 2006 which sets the criteria for when vegetation can be classed as rain forest, which you accept is not met, so why wouldn't the Court assume that the Bush Fire Safety Authority that was issued adopted the 3 metre recommendation for the asset protection zone to lead west was also flawed? WITNESS SHORT: That would have to be a question for the Rural Fire Service but as I've said before Mr O'Gorman Hughes, I think it's a low risk environment and the RFS have exercised discretion in their application in Planning for Bush Fire Protection and in the consideration of the application before them. O'GORMAN HUGHES: But you used a methodology in the joint report where you have said, you said what the asset protection zone should be haven't you? WITNESS SHORT: Yes. O'GORMAN HUGHES: You're not suggesting that methodology that you've used which come to a different number is the methodology that the Rural Fire Service used are you? WITNESS SHORT: Sorry, I just missed that last bit I'm sorry? O'GORMAN HUGHES: You have used a methodology for assessing the asset protection zone required in the joint report? WITNESS SHORT: Yes. O'GORMAN HUGHES: You have a different figure, you come to a figure of 37 metres? WITNESS SHORT: Yes. O'GORMAN HUGHES: But the Bush Fire Safety Authority that's issued by the Rural Fire Service has a figure of 33 metres which matches the figure in this flawed Bush Fire Assessment Report? WITNESS SHORT: Yes. O'GORMAN HUGHES: You're not suggesting further that the Rural Fire Service used your methodology that you've used in the joint report which comes to a different figure are you? WITNESS SHORT: Sorry, I just missed that last bit again. O'GORMAN HUGHES: You're not suggesting that the Rural Fire Service used the methodology that you used in the joint report that came to a different figure are you? WITNESS SHORT: No, they attacked the problem from a different way sir. O'GORMAN HUGHES: They have come with exactly the same figure that the applicant's Bush Fire Assessment Report has come to which is a 33 metre set back to the west WITNESS SHORT: Yes. O'GORMAN HUGHES: Some of that by assuming that the fuel load that's applicable is for rain forest? WITNESS SHORT: For remnant vegetation sir as I've said. O'GORMAN HUGHES: For remnant vegetation that is to be treated as rain forest because it satisfies the criteria? WITNESS SHORT: Yes. O'GORMAN HUGHES: You accept that it doesn't satisfy the criteria? WITNESS SHORT: By accepting the black and white application of Planning for Bush Fire Protection it does not, but the Rural Fire Service in their consideration of an application can use discretion and I would think knowing how the RFS do their assessments that they've assessed this as a lower risk in doing their parallel assessment are comfortable with the outcome. O'GORMAN HUGHES: Dr Douglas, anything to say in response? WITNESS DOUGLAS: Well my response is that the contention that the RFS can just use a discretion for what is otherwise offered as a performance approach when in fact it doesn't meet the performance approach that's necessary, is not an acceptable way to actually assess the matter. The RFS had before it the short fire run methodology which Mr Short relies upon if it had have done that exercise it could have come to its own conclusion but as Mr Short says, they've exercised a discretion, in this case I don't believe that the discretion is appropriately to be exercised. The criteria are not met and that means that if they wish to pursue it then they should use a performance approach in this case a performance approach hasn't been used, what's being used is just some numbers to fill in to a calculator to come up with a number. That's not the same thing. O'GORMAN HUGHES: Mr Short, do you agree with that proposition that this isn't a performance based approach, they've simply put the numbers into a calculator, but used the fuel load for rain forest? WITNESS SHORT: I think that the approach which has been taken Mr O'Gorman Hughes, is a straight application with the fuel loads within Planning for Bush Fire Protection without drilling into a lot of detail on it. O'GORMAN HUGHES: When you say WITNESS SHORT: ..(not transcribable).. the normal sort of approach with the calculations you would use what is within Planning for Bush Fire Protection to support the designation of vegetation. O'GORMAN HUGHES: When you say it "A straight application of the fuel loads in Planning for Bush Fire Protection", what they've done is said it's rain forest rather than forest WITNESS SHORT: ..(not transcribable).. vegetation. O'GORMAN HUGHES: Let me finish, which has a fuel load further of what you say the vegetation should be classed as? WITNESS SHORT: Yes. O'GORMAN HUGHES: It's not a ..(not transcribable).. application of the fuel loads and Planning for Bush Fire Protection at all is it? WITNESS SHORT: Yeah, like I said, Mr O'Gorman Hughes, you can come at it from two ways of doing a short fire run which I've done or you can look at a simplified approach which is identified in Planning for Bush Fire Protection 2019 to ..(not transcribable).. O'GORMAN HUGHES: I'll get to your approach shortly, but we're talking about the approach that was taken by the original bush fire assessment and the RFS which accepted the number in that assessment, now you say do you that in relation to that assessment that using a fuel load for rain forest which is a third of the fuel load for forest, in circumstances where you've accepted Planning for Bush Fire Protection aren't allowed to be treated as rain forest, it is a straight out application of the fuel loads and Planning for Bush Fire Protection, how do you come to that conclusion? WITNESS SHORT: Because that's actually what's in the report. O'GORMAN HUGHES: I know it's in the report, but WITNESS SHORT: My ..(not transcribable).. have taken the information which has been presented to them and it's the rationale for which the Bush Fire Safety Authority was issued. The Rural Fire Service in their assessment undertake an independent review and O'GORMAN HUGHES: I'm not asking that I'm asking you to give me the opportunity to withdraw the statement that you made a few moments ago that that report was a straight application of the fuel loads and Planning for Bush Fire Protection? WITNESS SHORT: No, because the fuel load which has been applied in that report for the western run on remnant vegetation is the 8 and 10 tonnes a hectare that we've been talking about which is drawn straight from Planning for Bush Fire Protection in table A2.1 on page 54 that we earlier. O'GORMAN HUGHES: That's the load for rain forest which you accept it isn't and you say that the criteria on page 52 for treating remnant vegetation for rain forest aren't met, so what I'm putting to you is that this isn't a straight application of the fuel loads of Planning for Bush Fire Protection at all? WITNESS SHORT: It's a straight application on the understanding that remnant vegetation has been used and that the Rural Fire Service have accepted it. O'GORMAN HUGHES: Yes, but it's not an application of the fuel loads of Planning for Bush Fire Protection for reason that Planning for Bush Fire Protection doesn't permit this vegetation to be treated as rain forest? WITNESS SHORT: Again, Mr O'Gorman Hughes, by the Rural Fire Service issuing the O'GORMAN HUGHES: I'm not asking ..(not transcribable).. we know that they issued it that's why we're having this live questioning, but you, don't you know that it's not a straight out application in fuel loads from Planning for Bush Fire Protection that was carried out in the original assessment was it? WITNESS SHORT: Sorry could you say that in another way? O'GORMAN HUGHES: You would accept that the original bush fire assessment did not carry out a straight out application that the fuel loads and Planning for Bush Fire Protection don't you? WITNESS SHORT: No, the bush fire report talks to when the vegetation with the fuel loads of 8 and 10 tonnes per hectare which is straight from the Planning for Bush Fire Protection. O'GORMAN HUGHES: Yes. But the Planning for Bush Fire Protection sets out fuel loads for rain forests of 8 to 10 tonnes per hectare, they ought to be treated as rain forest, remnant vegetation must satisfy the ..(not transcribable).. criteria on page 52 of the document which you say it doesn't satisfy. WITNESS SHORT: Yes, but I have also said Mr O'Gorman Hughes that it's a reasonable discretion from the RFS to consider it a lower risk and to apply the remnant vegetation in terms of the assessment. O'GORMAN HUGHES: Is it your position then that it's not a straight out application of the fuel loads and Planning for Bush Fire Protection but it's a reasonable discretion that they exercised? WITNESS SHORT: No, that's not what I'm saying sir, what I am saying very clearly is that the fuel loads for remnant vegetation are drawn from Planning for Bush Fire Protection as rain forests in table A2.1 of 8 and 10 tonnes per hectare. The classification of the vegetation has been considered and accepted as remnant vegetation. O'GORMAN HUGHES: But you've accepted that it satisfies none of the three criteria on page 52 of the document that ..(not transcribable).. as rain forests WITNESS SHORT: As I said Mr O'Gorman Hughes, that it's a reasonable position, it's well within the ball park and not far off the 50 metres and it's a lower risk vegetation type. What I'm saying on behalf of the RFS you know they're not here, that the Bush Fire Safety Authority was issued on merit and consideration of the risk of vegetation that was there and it was considered remnant vegetation and accepted as remnant vegetation for the calculation purpose. O'GORMAN HUGHES: You say it's ..(not transcribable).. remnant, but the real test is whether it is remnant vegetation that is to be treated as rain forest isn't it? WITNESS SHORT: It's one in the same sir. O'GORMAN HUGHES: Remnant vegetation in order to be classed as rain forest needs to satisfy the criteria on page 52 and this doesn't do that as you've said? WITNESS SHORT: No, strictly not, but as I've said before, there is more likely being some discretion applied to it. O'GORMAN HUGHES: It's not an approach that you use yourself to justify reducing the asset protection zone below the 70 or 79 metres required under either of the two Planning for Bush Fire Protection documents? WITNESS SHORT: No, I considered that the short fire run was an option that I'd pursue as the first pass and didn't consider the or work my way through the simplified approach. O'GORMAN HUGHES: Dr Douglas anything else to say in response. WITNESS DOUGLAS: Look, I just referred to page 10 of the assessment report undertaken by the consultants and submitted to Council to the Court and it says on page 10 and this is I think a crucial element "For the purposes of assessment the vegetation posing a hazard to the north, east and south has been assessed as forest. The vegetation posing a hazard to the west is associated with the Nattai River and has subsequently been assessed as riparian area in accordance with A2.3 of PDP. A2.3 of PDP are the paragraphs that we've just read a little while ago in relation to remnant. This document that was prepared and whilst Mr Short says there's discretion, there are many issues that may or may not have affected the Rural Fire Service in arriving at its decision, they could have been under a lot of work pressures and were trying to process matters very quickly, we have no idea, but what we do know is that in assessing this in accordance with their, I mean the vegetation description which is set out here does not in fact comply with what they actually say and is not aligned to Planning for Bush Fire Protection on page 52. As a result of that, a performance approach could have and should have been undertaken, I don't think that the way that the consultants involved in the Bush Fire Assessment Report approached the matter was an appropriate way of dealing with that matter. O'GORMAN HUGHES: I've shared on the screen the extract of that original Bush Fire Assessment that you referred to being page 10 of that report. WITNESS DOUGLAS: Yes. The paragraph underneath is also very interesting because it says "Bush fire design modelling was utilised from the northern and western aspects to determine compliance with the minimum APZ whilst minimising environmental impacts". Now, I'm not sure how that one gets, how one gets to compliance with the minimum required APZ by doing that modelling and I would have accepted quite clearly if people had have said look, this is the problem, we think that it's nearly the riparian area, we're making the assumption that it is behaving the same as the riparian area but none of that description, none of that language has been put into the report and doesn't reflect at all how an approach could be undertaken and nor does it reflect the approach Mr Short himself has taken. O'GORMAN HUGHES: The riparian area exception that's relied on in that report is relevantly an area of vegetation which ..(not transcribable).. with ..(not transcribable).. a river, creek or stream, you both accept that we're well in excess of that 20 metre limit? WITNESS DOUGLAS: Yes. WITNESS SHORT: Yes. O'GORMAN HUGHES: In terms of how much more, I note Mr Short you have some figures in your on page 8 of the joint report about various areas of remnant vegetation, ..(not transcribable).. and 71 metres in width? WITNESS SHORT: Yes. O'GORMAN HUGHES: Can you offer an opinion about the extent of the noncompliance with the 20 metre riparian width limit? WITNESS SHORT: No, as I've said before O'GORMAN HUGHES: It's double or triple the width that's set out as the limit? WITNESS SHORT: It is, but it's also that the remnant vegetation is the 50 metres so the first part of page 52, you know, so you're balancing a couple of different things here, so you're looking at the riparian vegetation, there's remnant vegetation on either side of that, so yes, there's a 20 metre corridor explicitly attached to the riparian vegetation, but then you also have at the first part of that paragraph on page 52, that 50 metre width of what is considered remnant vegetation and as I've said before that length of vegetation or the distance of it is within the ball park of what could be considered a reasonable determination of remnant vegetation. O'GORMAN HUGHES: We've measured it in your report on page 8 of the varying you know 60, 71 metres, 68 metres, it's well over the 50 metres that's in that ..(not transcribable).. of the limit to be passed as rain forest isn't it? WITNESS SHORT: As remnant vegetation. O'GORMAN HUGHES: Remnant vegetation to be classed as ..(not transcribable).. WITNESS SHORT: Yes." (Tcpt, 7 April 2022, pp 23(39)-31(24))
The transcript extract above explains the RFS approach and why Mr Short accepted it.
I agree with Mr Short that the RFS has a discretion and that the Bush Fire Safety Authority is valid, although I also agree with Dr Douglas that it is an outcome that from some perspectives was not consistent with the specification in PBFP 2006.
Dr Douglas did not consider that the short fire run method was appropriate when there was potential for ember attack (Tcpt, 7 April 2022, pp 32(42)-35(49)). Dr Douglas identified possible sources of embers to the north, the south and the southwest but thought that the risk of ember attack from east and southeast was minimal.
Mr Short disagreed: "WITNESS SHORT: Again Mr O'Gorman Hughes, the words which are important there is parcels of land containing vegetation capable of developing a fully developed fire that would directly impact the asset, that there is no chance for a fully developed fire to come in from the north, I agree that there could be ember attack but it is not a fully developed fire, you're looking at having to burn through 700 metres of residential properties, roads, railway tracks as Dr Douglas has said, the same distance applies to the east where you've got residential properties you've got extensive areas of residential properties to the west and the vegetation to the south as I have said before, is fragmented and linear and in my professional opinion will not support a fully developed crown fire pushing in from the north and being sustained as a crown fire and passing through those linear areas and directly impacting the site." (Tcpt, 7 April 2022, p 43(8-19))
The experts also disagreed as to the assessment of radiant heat impact on buildings. Dr Douglas modelled a radiant heat level about three times that of Mr Short. A critical determinant of heat load calculation is mid-storey vegetation height, for which Dr Douglas used Dr Robertson's data.
The RFS GTAs require the production of a Bush Fire Emergency Management Plan and an Evacuation Plan - the drafts of these plans are in Ex C behind Tabs 18 and 19 respectively.
Dr Douglas commented: "WITNESS DOUGLAS: Yes. I think you're right, I think we do need to assess those and I think we need to assess those into the context in which they will be operationally used and I think that's really important, because from a risk point of view, we take a hierarchy of controls in relation to reduction of risk. So in this case, because of the nature of the development, we have separated the development and we avoid the risk by using the 10 kilowatt rule and try to minimise human exposure. We then engineer the controls by actually offering a construction requirement. We mitigate the risk further by maintaining the APZ into the longer term and then we provide some operational or human elements, including the use of the evacuation plan. Now obviously, all of those have to work in concert, but the problem with the human element is that it's exactly that - it's a human element and humans do unusual things in bushfires." (Tcpt, 7 April 2022, p 66 (14-25))
The proposal is that the site will be closed under extreme and catastrophic weather conditions, with which Dr Douglas agreed (and see further discussed at [284]-[286]). There would be no staff and students present under extreme and catastrophic conditions. The only people who could be at the site would be emergency services personnel trying to defend the asset.
Mr Larkin and Dr Douglas engaged in a very long discussion about ignition possibilities before Mr Short entered the discussion. Mr Larkin mentioned that in the experts' earlier joint report they had made no, or at least no overt, mention of embers. Mr Short responded: "WITNESS SHORT: Look, there is potential there, absolutely; ember attack and building loss has been observed out to 700 metres from the main fire front, so we roughly have 700 metres separating the vegetation to the north, to the east. Yes, you can get ember attack I don't think you will get ember attack to the point where you're going to get a fully developed fire start and run over a short distance into the edge of the asset protection zone and that is the main point of difference." (Tcpt, 7 April 2022, pp 80(48)-81(4)) "WITNESS DOUGLAS: The only other comment I'd make and I agree with where Mr Short's coming from that, however the observation about the effect that embers have I think becomes crucially important and I accept the proposition that we agree to disagree and that's fine, I have no problem with that. One could talk at length about the inputs and things that were done by Mr Short; I take no view that he's done other than what he sees is right in relation to this and being conservative. However, my view is quite clearly that it's not the appropriate model to be using. I think that's really the difference that we have." (Tcpt, 7 April 2022, p 81(34-42))
Mr O'Gorman-Hughes asked about evacuation when the fire danger was high but not extreme or catastrophic. Under those circumstances the proposal was that evacuation would occur when a fire was a certain distance from the site.
Dr Douglas said: "WITNESS DOUGLAS: Yep, look I think there's just a couple of logistical challenges and then there's also a difficulty with the on the ground issues. The reason why I like to use the trigger of a total fire ban and note that they say very high here as to the total fire ban is that a total fire ban is actually announced it's publicised, it's on the radio, it's on the television and people are made aware of it as an intention and it's done the day before the actual day it develops on a total fire ban. The other issue that I have is that during our site inspection and I'm sure Mr Short can clarify this he indicated that students would be able to evacuate and go to the hall that we were at on the first day. LARKIN: Is that the swimming pool hole? WITNESS DOUGLAS: No, the hall, yeah, club hall. LARKIN: Apologies. WITNESS DOUGLAS: No, that's fine, unfortunately you weren't there, Mr Larkin, but the issue that I had, I guess, is that people generally do have great difficulty understanding when a fire is 1 kilometre away or 2.5 kilometres, or whatever, clearly no fire in even 20 kilometres I'm sure that that's a bit easier to say that it's certainly more than 2.5 but the perception that people have about the proximity of fires can be very difficult. I'm not even suggesting and I know that this is suggested that at very high the site gets closed and evacuated I see the trigger of a total ban as being a more practical outcome and I do see that although there's a built in conservatism here, there'll be a challenge with people perceiving that distance. And then the other thing is, if there actually was a fire on site, I can't see how it would be appropriate to evacuate children through the riparian area to go to the club hall and I note that the emergency evacuation which Mr Short has prepared, I prefer his idea, which is that people reside in place and having said that, the Victorian Royal Commission did identify that there needed to be options. In my view, he's done the best he can with an emergency plan, but in fact I think it reflects the challenges that we have with the proximity of the development to the bush land and forget the west issue, any of that vegetation that's burning around that building is going to be a challenge in terms of visually, looking through smoke and then trying to evacuate. So I'm a little concerned about the site and the evacuation. Having said that, Mr Short's done the best as what he can. O'GORMAN HUGHES: Mr Short, giving the same response? WITNESS SHORT: Thank you, Mr O'Gorman Hughes, yeah, I agree with Dr Douglas. The conservative and easy position is to close the site at total fire ban. I tend to have a little bit more faith in systems, processes and people within the school environment to understand and manage the risk to staff and students; I did have a conversation with Mr Patrick Duck of the school that said they have a range of risk management strategies and processes that are in place and this would nest into that existing arrangement. I would also disagree with Dr Douglas that since the 2009 fires and I think this was really the seminal difference is that before the Black Saturday 2009 fires it was a pretty dumb system there was no emergency alerts really to speak of, you didn't have fires, the immediately operational capability was significantly lower and that the environment post the 2009 Black Saturday fires the operational preparedness, the emergency management, the community messaging and warning side of things has increased exponentially where I have great confidence that people within the school will actually be able to monitor very easily what's happening with fire danger; they will very easily be able to set alert levels through something like Fires Near Me, for example, that give you the distance that then actually gives you a notice that there's a fire burning within a certain area and I certainly do recall the conversation with Mr Duck that there is no way that the school will risk students and staff to something where they don't necessarily have to do it they can move back into the school and go to other classrooms and other facilities where they don't actually have to be exposed to that risk so the trigger points that are enclosed within that short emergency management and evacuation plan I think is a very good reflection of what is reasonable and what is a conservative position in terms of the trigger points. O'GORMAN HUGHES: What do you if one is reached in the middle of the night, how is that communicated that then arranges for the evacuation of the children? WITNESS SHORT: I tend to think that that's something procedural the school would put into place. I would think, Mr O'Gorman Hughes, that the way that I have structured the emergency management plan and if I could ask us to look at the very last page, which is a map I'll just hold this one up so we can all get on the right image that actually shows where those trigger points are and 20 kilometres beyond the site is a vast distance and for a fire to be occurring in that. So the way that the emergency management system works is you get these facts, you know, fire near O'GORMAN HUGHES: If you're asleep, how does the person responsible for evacuating get notified that the trigger point is reached unless they leave their mobile phone on during the night and they continually have their sleep disturbed by standing SMS texts from overseas? WITNESS SHORT: If think, Mr O'Gorman Hughes, that the closure points are pretty clear and where you've got, so the triggers for fire and for action are I think sufficiently large and even someone sleeping overnight, I think they will still receive and be able to act on those measures, but I would think that the school would seek to avoid the risk and if there's any doubt, to not have students and staff there." (Tcpt, 7 April 2022, pp 86(40)-88(32))
Mr Short partly agreed with Dr Douglas in that "the conservative and easy position" is to close the site when a total fire ban is announced. Nevertheless, he thought that since the Black Saturday 2009 fires in Victoria, community messaging and warning had increased.
I incline to Dr Douglas' position - an absolute rule at total fire ban stage is clear cut and does not permit any other decision to be made.
Both experts thought that provision for vehicle access roads and tracks capable of supporting a 23-tonne fire truck was essential. The only difference between them was that Dr Douglas considered that there should be an emergency egress route in addition to the main route (Tcpt, 7 April 2022, p 90(1-9)).
The experts discussed how the RFS requirements for canopy separation and how many trees would be required to be maintained. (Tcpt, 7 April 2022, pp 91(48)-93(13)).
I inquired as to how the canopy could be maintained in the long term given the requirements to maintain a low ground layer. "WITNESS DOUGLAS: Yeah, that is one of the challenges and what is normally done and I think Mr Short and I talked about it on site, is that there is a challenge with actually maintaining the site and tree selection so that those trees which provide the best habitat are retained as long as possible, so for example trees with hollows, but yes, you're going to have a situation where eventually trees will die. Now that doesn't mean that you can't replant trees later, but as Mr Short pointed as well, the shrubby layer can be in clumps not exceeding 20%. So there is an opportunity, but the general rule of thumb is if you have shrubs you don't have trees, if you have trees you don't have shrubs; the idea is you don't have an effective fire from the shrub layer getting up into the canopy as a result of burning the shrubs. But that is a challenge to maintain it and I guess it needs to be recognised that asset protection zones are by their very nature designed to provide space between the fire heart and buildings, that's their purpose and as such they need to be maintained to do precisely that. WITNESS SHORT: Commissioner, I agree with Dr Douglas. To your initial question, can you maintain limbs, absolutely; it's just an exercise in effort and management and intent to achieve that." (Tcpt, 7 April 2022, p 93(20-38)) "O'GORMAN HUGHES: Do you have anything else to say with regards to what Dr Douglas has said about the difficulty in trimming branches because of the type of trees that we have here with tall canopies? WITNESS SHORT: Thank you, Mr O'Gorman Hughes, I think, you know, as I've said to the Commissioner, it's a matter of effort to provide it; I've certainly been involved with jobs in the past where they've done it. As Dr Douglas has pointed out, that clash in words between the Bushfire Safety Authority and Planning for Bushfire Protection I think is important because I think what the Rural Fire Service have really sought to do here is to recognise the lower risk of the site and the significant number of pine trees that are going to be taken out to provide very specific conditions in the Bush Fire Safety Authority; that provides for the latitude to not strictly apply Planning for Bushfire Protection as written." (Tcpt, 7 April 2022, pp 95(47)-96(10))
APZs are a requirement in many GTAs. I accept that long-term management can involve replacement of trees in the canopy layer, but maintaining a ground layer if the height requirement is strictly observed is likely to change the species composition of the ground layer, and probably favour introduced grasses over native grasses. I am not aware of published research which has reported long-term monitoring of ground layers subject to the standard requirements for maintaining APZs. If Dr Douglas' and Mr Short's agreed dimensions for the APZ, particularly in the west, are adopted, the area affected is large. The experts agreed on the dimensions because they had independently determined that that the dimensions were required to provide the level of protection required to protect life and property. Section 39(6) of the Land and Environment Court Act 1979 allows the Court in an appeal to make a decision in the absence of a decision from an authority whose concurrence is required, as the development is an integrated one, or to amend a decision already made. I have determined that I will adopt the agreed position of the bush fire experts. I would be reluctant in the present circumstances to go against the opinion of two highly regarded experts who had inspected the site in detail. Mr Short and Dr Douglas agreed to applying forest/woodland fuel loads rather than rainforest loads. The required APZ was larger than that specified by the RFS in their GTAs. Mr Short nevertheless considered that the RFS approach was permissible and that the 'correctly' calculated APZ was very precautionary given that his opinion on the risk of fire was low.
If it is considered that the loss or change of biodiversity is unacceptable, it would be an option for a consent authority to not grant development consent, but this would require evaluation of the importance of risk against the impacts on biodiversity

Discussion

The matter raises a number of issues. One which, although raised by the Council in contentions and submissions, was not given much attention asked whether the proposal was required and whether it was compatible with maintaining biodiversity and other values. The Holt, has been an integral part of Frensham School for over a hundred years. The students of Frensham have access to the northern Holt (the part of the school grounds which includes the site of the proposed development, and also inter alia Sporting Fields and a swimming pool).
Objectors raised the question of why it was necessary for a cohort of students to 'live in the bush' when their accommodation in the main school was maintained, so that there was no overall increase in the number of resident pupils. Could other means of increased environmental awareness be achieved with less environmental impacts? This was not addressed and although there were witnesses for both parties who addressed technical issues, there were no witnesses called to address the purpose of the proposal.
From the Applicant's side, it appeared to be self-evident that it would be a good thing. That does not mean that the proposal should be automatically approved, other matters need to be considered, but the fact that the site is part of the grounds of an existing school used for a variety of purposes associated with the School for many years and the provisions of the Education SEPP now incorporated into the consolidated TI SEPP, give primacy to education arguments it would require a compelling argument to base a refusal on an incompatibility argument.
The environment of the Holt valued by the School's founder, Miss West, and by generations of students. The current weedy state of much of the proposed development site suggests that there may have been slippage in the standard of management. The continuing and enforceable proposed conditions of consent in relation to vegetation management mean that there should be improvement in management outcomes.
The site is agreed to be bushfire prone (notwithstanding the lack of a fire history for the Holt vegetation) and the fire hazards must be addressed. The required APZ will require substantial change to the vegetation within the APZ, the long-term ecological consequences of which are not well understood. This is an issue for many developments on the rural fringe, and is one which is yet to be properly addressed. However, any development proposed, even if with a different footprint would require an APZ, and although indicating my concerns the APZ does not provide grounds for refusal. The RFS requires that the APZ be managed in perpetuity to maintain fuel loads and vegetation structure so that the risk to assets is reduced. The composition of the vegetation may be permanently changed, and the effects of reducing the height of the ground layer vegetation may be considerable. An APZ is required at many sites in the rural and rural/ urban fringe. There is nothing unique about the subject site in this regard, nor is there any evidence that there are any features of the biodiversity of the subject site which could be regarded as exceptional or as being at particular risk (with the exception of the possible sporadic occurrence of koalas). This is not to say that there may not be such features, a large component of the biota (invertebrates, cryptogamic plants and microorganisms) have never been investigated at most sites. The paucity of information could not be used to stop development in circumstances such as this. In NHVSS the lack of data on the possibility of stygofauna being present in a limestone deposit proposed for quarrying did not prevent approval being granted for a quarry, but the approval included conditions requiring monitoring and establishment of protocols for instituting protective processes in the event of any fauna being discovered within the limestone deposit. The nature of the environment that will be affected by approval does not require that such measures be mandated in the present case, but the processes required by the BDAR, if properly performed, which I must assume will be the case, will lead to an environment which is in better condition than that currently prevailing.

Koalas

Considerable time was spent discussing koalas. There is no doubt that they are a species of very great interest both within Australia and internationally that the long-term survival of koala populations is a major concern for governments at all levels.
I am satisfied that no land in the northern Holt satisfies the definition of core koala habitat. There is not a resident koala population and there was no evidence that within the time (more than a century) that Frensham School has been the landholder there has ever been a koala population (population in the sense used within the SEPP 2020) present. Nevertheless, koalas have been recorded in the subject site, although the occurrence of individuals has never been anything other than spasmodic.
Dr Clements appeared to suggest that the absence of records was due to the inability of members of the public to enter the site for natural history recording. Pupils and staff do have access to the Holt. Dr Phillips was of the view that seeing koala would be regarded as a 'special' event by pupils and would be recorded. Dr Clements thought that the chances of a koala being seen by a pupil would be small, owing to a lack of observational skills and the many other competing matters such that pupils would not be likely to record koalas even if they could see them. I would like to support Dr Phillips' view, but recognise that the mobile phone screen may be of greater interest than natural history. Nevertheless, there are at least some pupils with natural history interests who have worked with Tania Clancy on rehabilitation of wombats and other species. As far as I am aware, there are no public rights of way (in the sense of public footpaths in the UK) through the Holt. I also recognise that security concerns in this day and age mean that it would be undesirable to permit free access to the school grounds, although encouraging pupils to spend more time in the Holt developing observational skills, as well as encouraging the databasing of observations, could provide long term reliable data on trends in koala occurrence.
However, while human access could and should be controlled, access by koalas should be encouraged and nothing should be done that would impair access to and through the upper Holt by koalas. The most likely access route would appear to connect through from the southwest (Mount Gibraltar) to the northwest in Nattai National Park. However, connectivity to the south is broken by Range Road while connection to the north involves crossing urban development and infrastructure.
It is not for the Applicant nor the Court to promote works outside Frensham land for the development of koala access routes. It will be for State and Local Government or amalgamation of private land holders to come up with detailed proposals and where appropriate, the Schools may be able to support an increase level of conservation.
The Applicant is proposing that there will be improved ecological conditions and a series of plans are included in the BDAR, to give teeth, to what otherwise might be just an arm-waving exercise. Mr Larkin points out that these management actions will be embodied in enforceable conditions. If the conditions are enforced, which I must assume they will be, then there will be greater long-term security than would be the case with any voluntary agreement, such as Land for Wildlife. Voluntary agreements, if successful, can develop a strong sense of community among participants, but if not successful a project may die because of lack of enforceability.

Platypus

Platypus are not currently formally recognised under NSW or Commonwealth legislation as threatened, although the IUCN Red Data List does describe platypus as near threatened. There are anecdotal data suggesting that numbers, both of individuals and populations, have declined throughout the species' range. There is great public interest in platypus owing to their charismatic nature and biological uniqueness.
Platypus have been recorded since the early days of the Frensham School from the Nattai River, and this was highlighted in submissions, and the Applicant was aware of the concern and responded by its proposals for minimising potential impacts. The design of the drainage outlet for the runoff from the site was the subject of debate between the experts and the proposal is that the design include a grill over the outlet to prevent entry by platypus, and that the outlet pipe diameter be sufficient so as to permit a platypus to turn round if, by some chance, it had been able to enter the pipe. Mr Larkin in submissions stated: "LARKIN: …You would be confident in those circumstances there is no credible or likely impact on platypus. You would be confident, for example, that there is no credible or likely impact on other aquatic species. The particular area to be physically disturbed is an area of the site in respect of which our submission is there is no unacceptable environmental impact." (Tcpt, 11 April 2022, p 15(34-39))
However, what remains of concern are the potential impacts of actual construction. It will be a essential to ensure that there is no existing platypus burrow in the area to be disturbed to create the swales and drainage outlet. There will need to be a careful survey, shortly before commencement of the works, to detect for the presence of any part of a borrow. Dr Clements suggested the borrows may extend a considerable distance from their entrance and the entrances themselves may be hard to spot. If a burrow is detected, the proposed conditions require appropriate action be taken.

Water quality - is NorBE satisfied?

I am satisfied that the evidence shows that the possible impacts of the proposed development on water quality in the Nattai River will meet the NorBE requirements, and this requires that I accept Mr Weber's argument that movement of parts of the development is required to provide for the changed nature of the catchment vegetation which will occur as a result of the RFS requirements. Mr Weber's contribution was important, and I would suspect that the possible consequences for hydrology of establishing APZs have rarely been considered in other sites.
There has been development in the catchment of the Nattai River and input to the river occurs from the existing developments upstream from the subject site. There will be further development in the catchment, even if it is only from infill and renovation/rebuilds, and less likely from large-scale subdivisions, and the consent authority would be required to consider whether any such proposal would satisfy NorBE.

Evacuation

Both bushfire and floods may give rise for a need to evacuate the accommodation and associated buildings.
Bushfire gives rise to limited issues of route, the issue is when should an order be given and I have determined to accept Dr Douglas' proposal that it be when a Fire Ban day is declared. Bushfires can occur at any time of the year, but most are likely to occur in summer, so given that students would not be in residence during the summer vacation, for that period there would be no need for evacuation.
Floods can equally occur throughout the year, and in some cases with little or no advanced warning.
Risk is inevitable, and so is the possibility that individuals may not have understood instructions, or not follow them. A comprehensive risk assessment process is no guarantee that all possibilities can be covered - and this applies across all activities, not just in a school context.
I am satisfied that the proposed evacuation regime presented in the Flood Emergency Response Plan (FERP), clear presentation of information to pupils, warning mechanisms and importantly the carrying out of trial evacuations will provide the best possible outcome. The processes should be capable of responding to events with learning from experience and feedback loops established as part of a continuing adaptive management regime.
I do not consider that the proposed evacuation procedures either for fire or flood form a basis for refusing consent. There may be imperfections which when recognised can be addressed, but unfortunately nothing invented or carried out by humans, is ever perfect to the nth degree.

Dr Clements - Witness or advocate?

Mr Larkin raised, both during the hearing and in his submissions, concerns that Dr Clements was not, as an expert, acting in the service of the Court., but as an advocate for the Respondent, and Mr Larkin invited me 'to prefer the evidence of Dr Phillips and Dr Robertson wherever it differs from Dr Clements' (Tcpt, 11 April 2022, p 22(6-8)).
Dr Clements has frequently appeared in the Court as an expert witness. In this matter there are elements of her performance which could give rise to criticism. Some of the issues arise from the difficulties of AVL, and her evidence was affected by breakdowns in connections. However, concerns were raised by Dr Clements giving evidence from within an open plan office, with staff visibly close behind her. For her not to have appreciated that this was inappropriate was surprising, and she should either have given her evidence from a separate location or have instructed her staff to leave. Dr Clements had not sought to verify information provided with her instructions, wasting time - both on the site inspection and in Court - over the labelling of trees. Breakdown of communication between the parties and their experts and lawyers was, however, a problem for both sides.
Dr Clements did display an element of obtuseness in responding to questions and continued to provide answers to questions that had not been asked. However, as I have mentioned earlier Mr Larkin's questioning sometimes ventured into irrelevant areas.
I recognise that Dr Clements and her team are very proficient in plant identification. I also consider that some of the questions she raised were relevant, even if the answers she gave to issues she had raised were not always satisfactory.
Dr Clements was critical of the Respondent's performance in providing information: "WITNESS CLEMENTS: Nothing would surprise me. Nothing would surprise me at all. This is the council that did not know the BioNet records despite having been sent them and only loaded the BioNet records when this Court case started and the community and myself were very active about getting the BioNet records recorded, so that Steve Phillips could assess those records." (Tcpt, 22 March 2022, p 8(33-37)) This is not the response which might be expected if she were attempting to be an advocate for her party.
Some of her evidence could be considered misguided, and at times, both she and Mr Larkin embarked on irrelevant lines of argument, but I do not consider that Mr Larkin, despite the fact that at times he was clearly, and understandably, frustrated by Dr Clements' response to questions, established a case for her being an advocate for her client.

Conclusion

After considering the evidence and submissions I am on balance inclined to grant consent, subject to appropriate conditions being imposed.
The parties provided draft conditions of consent, most of which were agreed between them. For contested conditions, they provided competing versions; in some cases, the difference was only in part of the condition. Below I determine whether the Applicant's or Respondent's, or some other version, of the wording of those conditions where there are differences, is to be adopted.
The parties are to consider whether the discussion in paragraph [97] requires a new condition to be inserted.

General - Lot 1

Any reference to Lot 1 should be amended to Lot 100 (and within any of the documents in Condition 2 which refer to Lot 1 the reference should also be changed).

Condition 2

Condition 2 requires that the development be carried out in accordance with the approved plans and supporting documents included within the table which forms part of the conditions. Condition 2 was not subject to any disagreement between the parties. Importantly, among the supporting documents included in Condition 2 are the Vegetation Management Plan (VMP), the Biodiversity Development Assessment Report (BDAR), the Biodiversity Management Plan and the Koala Management Guidelines (all documents prepared and provided by Cumberland Ecology).

Condition 7 - Monitoring of Compliance with mitigation - Koala Management Guidelines

The Respondent seeks a number of additions to Condition 7. The Koala Management Guidelines are included in the Table to Condition 2. The modifications to Condition 7 proposed by the Respondent go beyond monitoring of compliance with the Koala Management Guidelines and require actions to be performed, a number of which appear, at least in part, to be required by other conditions. (For example, Condition 7 requires both a CMP and a CMEP, which could encompass what the Respondent seeks). As the Koala Management Guidelines are included in Condition 2, the Council has an oversight role to ensure compliance.
If the Respondent was of a mind to alter plans incorporated in Condition 2, these concerns could have been raised and if the Applicant had not responded to the Council's satisfaction, the Council could have not agreed to including Condition 2 (including the table). No argument justifying the need for the changes the Respondent seeks to Condition 7 has been provided.
The Respondent's proposed additions to Condition 7 are not to be included.

Condition 14

The Respondent seeks to note Conditions 15A and 15B
The Applicant has to apply all the conditions of consent. There is no requirement to include the words proposed by the Respondent, and they should be omitted.

Condition 15

The Respondent to include an additional section (aa) requiring a Fauna Safety Plan with reference to a number of named species.
There are legislated requirements that address the issue, as do other plans that are part of the conditions, particularly the BMP.
Section (aa) should not be included in Condition 15.
The Respondent seeks, in 15(a)(a) to replace the VMP 2021. However, the 2021 VMP is included in the table in Condition 2, and as that was not objected to, it will be the VMP to apply. The Respondent's change to 15(a)(a) is not accepted.
The Respondent seeks to add 15A Protection of Platypus and native water rat habitat, and 15B Protection of Wombat habitats.
The Applicant's position is that Conditions 15A and 15B includes a number of 'design principles' which had been discussed during the concurrent evidence of the hydrologists and which would be addressed in the final design (see Condition 18).
Drawing specific attention to Platypus in the Conditions is appropriate and the Applicant's version of 15A is imposed.
Wombats were a concerned raised by many of the objectors. Some of the Wombats management proposed may require the Applicant to apply for a Biodiversity Conservation Licence (BCL). If a BCL is required, it can only be issued by the Environment Agency Head, and not by the Court.
One difference between the two version of 15B proffered is that the Applicant's version requires that in the event of a wombat being injured, it should be taken to the nearest veterinary clinic, whereas the Respondent required treatment by 'the wildlife specialist'. The Respondent did not identify 'the wildlife specialist', if there is one formally designated. Neither did the parties provide information on the number of veterinary practices in the general area.
The Applicant's version of Condition 15B is imposed but this does not preclude a veterinarian in the exercise of their professional judgement, from seeking advice from other veterinarians, if that is considered appropriate.

Condition 24 - Landscape Plan

The parties disagree as to the wording of dot point 8 of the condition.
The Applicant refers to 'the approved VMP' - the Respondent refers to the 'VMP approved by the conditions of consent'.
The 2021 VMP is included in the table of Condition 2, and is thus the VMP which applies to the consent. If the Respondent's wording would allow more than one VMP applying to a single development that would be inappropriate. (It would be possible to have separate VMPs for difference vegetation types/habitats - for example wetland and forest, but in my view a landscape plan for the whole of the site and for all issues would appropriately adopt a single VMP).
The Applicant's wording for dot point 8 of Condition 24 is imposed.

Condition 25(a)(ii)

The Respondent proposed to add words required for protection of preferred Koala Habitat and feed trees. The proposed words do not provide specificity - are feed trees those identified in SEPP 2020, or would it include the additional species suggested by the experts? What criteria would apply to determining whether retention of particular trees is practicable?
I do consider that it would be appropriate to include within 25(a)(i) specification of what the Arboricultural Impact Assessment Report is to include in addition to the TPP. It could be restricted to native species. Should it specifically require identification of Koala feed trees (as proposed by the ecologists rather than SEPP 2020)?
The parties are to agree on appropriate wording.

Condition 25(b)

The Respondent proposes two additional parts which if adopted, should be (iv) and (v) (not as indicated (iii) and (iv)).
In the first of the proposed additions, there is again the issue of how preferred Koala Habitat of feed trees are defined.
Inspection is required 'immediately prior' - does this mean 'the day before' or some longer period?
Similarly, in the second proposed addition 'information is to be submitted to Council before commencement' - again, does immediately mean the day before? If the information is submitted to Council, what is the Council to do in response?
Given the other conditions of consent and the uncertainty of what is intended, the Respondent's (iii) and (iv) should not be included.

Condition 25(c)(c)

The Respondent's addition is imposed but should be worded; 1. '…and should be undertaken by a suitably qualified (minimum AQF3) and insured arborist'.
In the Reason, the words 'and native fauna' are to be added. Koalas are members of the fauna and, while recognising they are a subject of concern, they do not need to be singled out in this context.

Condition 26A

The BDAR is listed in the Table to Condition 2. The BDAR is therefore a document which must be taken into account when applying the conditions of consent.
There are requirements in the conditions for preparation of a Construction Management Plan and a Construction Environmental Management Plan. Fauna Management Protocols are described in the BDAR.

Condition 26B

This would require that a 'suitably qualified as experienced ecologist' prepare a Vegetation Management Plan (VMP) to be submitted and approved by Council prior to the issue of any construction certificate.
What is proposed in 26A and 26B would be a VMP which would be in some instances broader in scope than the VMP listed in Condition 2. The Reason for both 26A and 26B include stipulating the requirements for the preparation of CEMP and the VMP when in the case of the VMP there is already a VMP which by dint of inclusion in Condition 2 has, de facto, been approved, and in the case of the CEMP, the document is to be produced under another condition.
There will be reasons in place which cover the proposed additions and 26A and 26B are not to be included.

Condition 34 - Bio Basins and Swales

The Applicant proposed inclusion of Koala Feed Trees, the Respondent Koala use trees. Koalas may 'use' almost any tree (even on Dr Phillips' evidence, Banana trees).
While it needs to be clarified as to what constitutes a Koala Feed Tree, those words are to be used rather than Koala use trees, which term could apply to every tree on the site.

Condition 35A - Koala Management Guidelines

Koala Management Guidelines are included in Condition 2. Aspects of what are proposed in this proposed extra condition could be covered in the CEMP which is already required to be produced.
The wording proposed includes 'no new structures; road or paths should be built…'.
If works of this nature were to be constructed on the site during the construction period for the approved structures, they would be in breach of the approval. If they were to be proposed at another time they would be assessed on their merits.

Proposed Condition 35A(e)

Proposed Condition 35A(e) would strictly prohibit dogs even if on a leash. This is generally appropriate - except that it prevents use of dogs to detect Koala scats, and circumstances may arise where such a survey is required.

Proposed Condition 35A(f)

This contains important contact information that should be available during (or beyond) the construction phase.
This paragraph should be included in an appropriate place in a document which forms part of the conditions, possibly the CMP and CEMP, but there were other appropriate locations.
The parties are directed to agree on a location for the paragraph.

Condition 57

The Applicant's proposed (i) is to be included.
I am supportive of the underlying sentiment of the Respondent's proposed (i). However, the staff and students should be aware of the 'environmental aspects' of all the Frensham site and not just Lot 100.
I will not impose the Respondent's proposed (i) or (j). It will be a matter for the School whether it wishes to prepare documentation that would address the intent of the Respondent's (i) for the whole of the School land.
Any recommendations in the approved Operational Management Plan are part of the Conditions so that the Respondent's proposed (j) will take place.

Condition 58

The Applicant's proposed wording is imposed.

Condition 59 - Use of Premises

The Respondent's proposed additions to the title are not supported.
I support the Applicant's proposed additional wording in the text. The Respondent's proposed version is too restrictive and would not permit maintenance staff (who might not be employees of the School) from attending in an emergency at any time, including overnight.

Condition 60- Conservation Protection

The Reason should be to ensure biodiversity conservation (not just Koala protection).
The Applicant's wording is imposed.
The text in the Respondent's version may guide production of the broader environmental statement if the School is inclined to produce one.

Condition 61 - Lighting

A reporting Exterior Lighting Principles by Shelmerdines Consulting Engineers is listed in the Table to Condition 2.
There has been increasing awareness globally of impacts on fauna (including invertebrates) or outdoor lighting.
However, the impacts vary, depending on the species involved, the intensity of light, wavelength and the time (both during the night and at different seasons).
There are relatively few reported studies in the literature from Australia, so it will be difficult to set condition appropriate for local species.
The importance of downward direction is well recognised, and I also appreciate that motion sensors could be used to control when the illumination is required. However, this could result in rapid changes from on to off which might adversely impact on neighbours and wildlife.
I am not inclined to not impose the Respondent's wording but it is an issue which should be kept under review.

Condition 62 - Landscape area (planting and maintenance)

There can be many reasons for failure to establish, including that the soil contains a pathogen to which the planted species is susceptible. If the cause of death is suspected to be a pathogen, then it would be an exercise in futility to keep planting the same species.
It would be appropriate to amend the first sentence in the condition by adding, except where presence of pathogens is suspected when planting of a different species of tree or shrub with similar form and predicted maximum height is to occur.

Condition 66

The Applicant suggests wording headed - Ongoing Environmental Management, the Respondent heads its proposed wording - Vegetation Management Plan.
The Respondent proposes that the site be managed in accordance with the VMP 'in perpetuity'.
We are in a time of rapid environmental change. Any environmental plans should be structured so as to respond to change, and permit adaptive management.
I impose the Applicant's version of Condition 66, but with the hope that there will be opportunities to modify over time.

Condition 69 - General Forms of Approval - NSW Rural Fire Service

My understanding was that the experts (Mr Short and Dr Douglas) has agreed on the dimensions of the APZ if the appropriate fuel load was the basis for calculation (despite Mr Short recognising the RFS version as also being valid).
I am not aware of the basis for the suggested differences between the parties in the proposed condition. The parties are to confer with the bushfire experts as to what they consider to be their agreed dimensions.

IPA Management - Dot point 2

The Respondent's wording is adopted.

IPA Management - Dot point 3

In dot point 3 (Respondent) and dot point 4 (Applicant) the parties are referring to different things.
The Applicant retains up to 10% shrub cover - but only if not associated with any trees.
The Applicant retains trees and shrubs as clumps or islands covering up to 20%.
The Respondent also requires that vegetation be separated from doors and windows by at least 4 metres whereas the Applicant requires separation of at least twice the height of the shrubs at maturity. Depending on the identity of the shrub species this may be more than 4 metres.
The Respondent's dot point 3 is not accepted.
The Applicant's dot point 4 is imposed.

IPA Management Dot point 5

The 'projected' to be included.

The OPA - Dot point 1

Dot point 1 is to include 'projected'.

The OPA - Dot point 2

The Respondent's wording appears to require that shrubs be mown to a height of less than 25mm. There has been little reported on the effects of regularly mowing prostrate shrubs to this height, but for many it would be the kiss of death, particularly if it were to occur at the start of the growing season in September.
The management of the ground layer is likely to result in changes in structure and composition regardless of the height limit imposed. The parties' fire and ecology experts are directed to consider whether a level higher than 25 mm but less per 100 mm could be specified that would not create unacceptable risk.

Dot point 4

The Applicant's wording of dot point 4 is accepted.

Dot point 5

Is a category I fire appliance 23 tonnes? If so, is a 10 metre turning area adequate?

Condition 69(4)

The track/road is to be upgraded. I do not know whether there is a formal distinction between track or road. If there is the word which signifies higher standard of construction should be imposed.
The bush fire experts were in agreement that the fire truck should be specified as 23 tonnes, and this should be the weight specified in the condition.

Condition 69(9)

I am not aware of the basis for this proposed addition. The Respondent is to provide reasoning for the proposal, and the Applicant is to present an alternative view if it thinks it is appropriate and I will determine whether to accept proposed 69(9).

Directions

The draft conditions should be amended to reflect my reasons as stated above and to that end, I make the following directions: 1. By 22 January 2024, the parties are to amend the conditions of consent to reflect the findings of this judgment, and file the amended conditions of consent. 2. By 22 January 2024, the parties are to forward a Word copy of the amended conditions of consent to the Court and subject to my satisfaction that the conditions reflect my reasons for judgment I will make final orders. 3. The matter is listed for Online Court on 22 January 2024 for the parties to confirm they have complied with directions (1) and (2). 4. Liberty to restore the matter on 24 hours' notice should the need arise.

Endnote

NSW Department of Planning and Environment, Southern Highlands Shale Woodlands in the Sydney Basin Bioregion - Determination to make a minor amendment to Part 3 of Schedule 1 of the Threatened Species Conservation Act, accessed on 12 December 2023, . 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: 04 January 2024

USC s 1531 et seq.) (US) Environment Protection and Biodiversity Conservation Act 1999(Cth)

(2008) 159 LGERA 361

(2010) 210 LGERA 126

(2003) 128 LGERA 419

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (66 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (11)