746 Greendale Road Greendale Pty Ltd v Liverpool City Council

[2023] NSWLEC 1372

Land and Environment Court

New South Wales

Medium Neutral Citation:

746 Greendale Road Greendale Pty Ltd v Liverpool City Council [2023] NSWLEC 1372

Hearing dates:

29, 30 and 31 May and 1 June 2023

Date of orders:

18 July 2023

Decision date:

18 July 2023

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders:

In Proceedings 2022/234271, the Court orders that:

(1) The appeal is dismissed.

(2) The Applicant’s development application No. DA-688/2022 seeking consent for the use of land for a landscape supply business and associated works at 746 Greendale Road, Greendale, is determined by way of refusal.

(3) The exhibits are returned, with the exception of exhibits A, B, C, D, E and 1.

In Proceedings 2022/77111, the Court orders that:

(1) The appeal is upheld.

(2) Pursuant to the provisions of s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, Development Control Order NO-973/2021 is modified such that the period for compliance with Development Control Order NO-973/2021 is modified to read: “The Development Control Order must be complied with from the 16th of September 2023”.

Catchwords:

DEVELOPMENT APPLICATION – proposed landscape material supplies business – determination of development application – appeal against development control order - whether impacts on biodiversity have been assessed – potential impacts on biodiversity values not assessed – potential serious and irreversible impacts on Cumberland Plain Woodland and Cumberland Plain land snail not assessed – biodiversity development assessment report cannot be relied upon to determine development application - date for compliance with the terms of a development control order modified.

Legislation Cited:

Biodiversity Conservation Act 2016, ss 1.3, 1.5, 6.5,6.12, 6.15, 7.2, 7.3, 7.5, 7.7, 7.13, 7.16, Pt 6, Pt 7

Biodiversity Conservation Regulation 2017 cll 1.4, 6.7, 6.8

Environmental Planning and Assessment Act 1979, ss, 4.15, 4.16, 8.7, 8.18, 9.34, Sch 5

Liverpool Local Environmental Plan 2012, cll 2.3, 7.6

State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 4.9

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Cases Cited:

El Kouri v Gemaveld Pty Ltd [2023] NSWCA 78

Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99

Kouflidis v Salisbury City Corporation (1982) 29 SASR 321

Omaya Investments Pty Ltd v Dean Street Holdings Pty Ltd (2021) 247 LGERA 62; [2021] NSW CA 2

Ralph Lauren Pty Ltd v New South Wales Transitional Coastal Panel; Stewartville Pty Ltd v New South Wales Transitional Coastal Panel; Robert Watson v New South Wales Transitional Coastal Panel (2018) 235 LGERA 345 ; [2018] NSWLEC 207

Texts Cited:

Liverpool Community Participation Plan 2019

Liverpool Development Control Plan 2008

NSW Department of Planning, Industry and Environment, Biodiversity Assessment Method Manual, 2020

Category:

Principal judgment

Parties:

746 Greendale Road Greendale Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
C Leggatt SC (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Kekatos Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2022/234271
2022/77111

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This judgment concerns two appeals in relation to the proposed use of land for the purposes of a landscape material supply business at 746 Greendale Road, Greendale, (the Subject Site) and works proposed, and undertaken, associated with that proposed use. The Applicant in the appeals is at 746 Greendale Road, Greendale Pty Ltd and the Respondent is Liverpool City Council.

2. The first appeal (2022/234271) (the development application appeal or DA appeal) relates to the Respondent’s deemed refusal of development application (DA-688/2022) (the DA or the Applicant’s DA), made with owner’s consent, and lodged pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) seeking consent for use of the Subject Site as a landscape material supplies business and for certain civil and landscaping works associated with that proposed business use (the Proposed Development).

3. The second appeal (the development control order appeal or the orders appeal) is against the Respondent’s decision to issue to the Applicant a development control order (including Stop Use Orders, Demolish Works Orders and Restore Works Orders), identified as order NO-973/2021 (the Order), under s 9.34 and Schedule 5 of the EPA Act, requiring that it cease works associated with the establishment of the proposed landscape supply business and undertake certain works to restore areas of the Subject Site to the condition in which those areas were found prior to certain unauthorised works being undertaken. The Applicant seeks that the Order be revoked.

4. The appeal with respect to the development application, made with owner’s consent, was lodged pursuant to s 8.7 of the EPA Act, and the appeal with respect to the development control order was lodged pursuant to s 8.18(1) of the EPA Act. Both appeals fall under Class 1 of the Court’s jurisdiction.

5. The Applicant’s Proposed Development was notified between 14 and 28 September 2022 consistent with the requirements of Liverpool Community Participation Plan 2019, and no submissions were received in response to that notification.

6. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to s 4.16 of the EPA Act. The Court also has broad powers with respect to determining the orders appeal, pursuant to s 8.18(4) of the EPA Act.

7. The Parties agreed that the outcomes of the orders appeal would be dependent upon the outcome of the DA appeal such that:

1. if the Court determined the DA appeal by way of refusal, then the Court should confirm the order with the timing reset to require compliance with the order within 60 days of the date of the Court’s judgement; or

2. if the Court determined the DA by the grant of consent, then in the Respondent’s submission:

1. items 1, 2, 3 and 4 of the order (being stop work orders) would remain; and

2. compliance would continue to be required for items 5, 6, 7, and part of item 8 (being demolish works orders) as well as items 9 (a restore works order); with

3. item 10 would be set aside (being a further restore works order).

8. As a consequence of these submission, I will first consider the DA appeal, before then considering the implications of that appeal for the orders appeal.

9. A site view was undertaken at the commencement of the hearing on 29 May 2023 in relation to both appeals. No objectors sought to make submissions to the Court during the view.

The DA appeal

The Proposed Development

10. The Applicant’s Proposed Development includes the following:

1. use of the Subject Site for a landscaping material supplies business;

2. 12 truck parking spaces, 15 staff car parking spaces, and 15 customer car spaces, including 4 trailer spaces for drive-in pickup;

3. a new hardstand area associated with the car parking;

4. an upgrade of the existing driveway crossings to facilitate passenger vehicle entry from the south-east of the site and heavy vehicle entry from the north-west of the site;

5. widening of internal driveways to support two-way movement;

6. retention of an existing dwelling on the Subject Site;

7. the use of demountable buildings for offices, storage, staff rooms and lunch-rooms;

8. removal of a tree subject to requirements to establish certain bushfire related asset protection zones (APZs);

9. landscaping works;

10. site grading, implementation of an on-site waste management system, and stormwater drainage works;

11. the storage of fuel on-site to facilitate the refuelling of equipment; and

12. employment of 24 staff including 8 administrative staff, 12 drivers and 4 staff associated with on-site handling and supervision.

The Subject Site and its context

11. The Subject Site is located at 746 Greendale Road, Greendale (the Subject Site) also known as Lot 9 in DP 224005, approximately 14 km south of Mulgoa, and is zoned RU1 Primary Production under the provisions of cl 2.3 of Liverpool Local Environmental Plan 2008 (LLEP). It has an area of around 13 hectares (ha) and is of irregular shape.

Contentions

12. The Applicant had filed its appeal against the deemed refusal of the DA on 9 August 2022, and on 28 September 2022 the Respondent had filed its Statement of Facts and Contentions detailing its initial contentions as to why the Proposed Development should not be granted consent.

13. Subsequently, on 11 April 2023, the Applicant, by Notice of Motion, sought, and was granted, leave by the Court. to amend the DA, and on 5 May 2023, the Respondent filed an amended Statement of Facts and Contentions.

14. The appeal was listed for hearing across four days between 29 May and 1 June 2023, on the basis of the above, and in their opening remarks:

1. the Respondent advised that, following receipt of further information from the Applicant, it did not press a contention relating to whether the Proposed Development had been correctly characterised as a landscape material supplies business (permissible within consent in the RU1 zoning of the Subject Site), along with certain ancillary uses concerning the parking and servicing of certain vehicles, including trucks, that might, on their own, have been characterised as a truck depot.

2. the Applicant confirmed that:

1. it would prepare an addendum to its original Statement of Environmental Effects (SEE) prepared by AAP Corporation Pty Ltd dated 13 March 2023 to address certain residual concerns in relation to earthworks, and the DA’s compliance with the provisions of Liverpool Development Control Plan 2008 (LDCP) in relation to developments near watercourses along with erosion and sediment control;

2. a screening and stockpiling machine that had been proposed for operation as part of the management of landscaping material stockpiles would not be used on the Subject Site, and that based on this, and the Applicant’s acceptance of the imposition of a condition confirming this fact, contentions concerning potential acoustic impacts were resolved;

3. a proposal for the relocation of tractor storage and office facilities at the entry to the Subject Site would be deleted from its plans; and

4. it would relocate the position of proposed carparking near the southern boundary of the Subject Site to reflect the advice of the Parties’ ecologists and landscaping experts to avoid potential impacts on trees in that location.

3. the Respondent said that principal remaining contentions in the appeal concerned the following matters:

1. the adequacy of the Applicant’s assessment of potential impacts biodiversity values, including:

1. the adequacy of the Applicant’s biodiversity development assessment report (BDAR), which it is required to supply consistent with the terms of ss 7.13(2) and 6.15 of the Biodiversity Conservation Act 2016 (the BC Act);

2. whether the Applicant’s BDAR had correctly and adequately considered all potential impacts of the Proposed Development, including in relation to the calculation of biodiversity credits required to offset those potential impacts;

3. whether the Applicant has adequately assessed potential impact of the Proposed Development in relation to koalas and koala habitat as required under the provisions of s 4.9 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C);

4. whether the Applicant has adequately assessed, including in relation to its BDAR, the potential impacts of the Proposed Development on the vegetation on riparian lands and waterways on the Subject Site, and any proposals for the mitigation of such impacts;

5. the potential impacts of proposed vegetation clearing to establish required bushfire asset protection zones (APZs) on Cumberland plains woodland; and

2. the adequacy of the Applicant’s site investigation reports concerning contamination of the Subject Site, and in particular whether the Applicant’s report had been prepared by a suitably qualified consultant, and whether it’s expert, Mr Israel, who had peer reviewed and attested to the adequacy of the reports, held qualifications that would satisfy the requirements of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H);

3. matters related to the need to upgrade a public road, that is Greendale Road, or otherwise whether the Applicant should be required undertake dilapidation reports on the road with a related requirement that it restore the road to pre-approval condition; and

4. the adequacy of the applicant’s Operational Environmental Plan (OEMP) and landscape plans upon which the Applicant relies in the proceedings.

15. The Court was assisted in its considerations of these contentions by the evidence, including the joint reporting, of the Parties’ experts as follows:

1. the Parties’ expert ecologists, Ms Geraldine Dalby-Ball, for the Applicant, and Dr Chris McLean, for the Respondent;

2. the Parties’ expert planners, Mr Andrew Wilson, for the Applicant, and Mr Gerard Turirsi, for the Respondent;

3. the Parties’ traffic experts, Mr Morgan Stanbury, for the Applicant, and Mr Patrick Bastawrous, for the Respondent;

4. the Parties’ acoustic engineering experts, Mr Fu Siong Hie, for the Applicant, and Mr Stephen Gauld, for the Respondent; and

5. the Applicant’s contamination expert Mr Nicholas Israel.

Statutory context

Environmental Planning and Assessment Act 1979

16. Development on the Subject Site is subject to the provisions of the EPA Act, and the following provisions of that Act are of relevance in this appeal:

1. section 4.15(1) of the EPA Act provides that:

(1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application -

(a) the provisions of -

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),

(v) (Repealed)

that apply to the land to which the development application relates,

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

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

Biodiversity Conservation Act 2016

17. The following provisions of the BC Act are of relevance to the current appeal:

1. Section 1.3 which provides the purpose of the Act, and which includes, inter alia:

The purpose of this Act is to maintain a healthy, productive and resilient environment for the greatest well-being of the community, now and into the future, consistent with the principles of ecologically sustainable development (described in section 6(2) of the Protection of the Environment Administration Act 1991), and in particular –

….

(k)  to establish a framework to avoid, minimise and offset the impacts of proposed development and land use change on biodiversity,

…

2. Section 1.5, which confirms the meanings of biodiversity and biodiversity values for the purposes of the BC Act, as follows:

(1) For the purposes of this Act, biodiversity is the variety of living animal and plant life from all sources, and includes diversity within and between species and diversity of ecosystems.

(2) For the purposes of this Act, biodiversity values are the following biodiversity values -

(a) vegetation integrity—being the degree to which the composition, structure and function of vegetation at a particular site and the surrounding landscape has been altered from a near natural state,

(b) habitat suitability—being the degree to which the habitat needs of threatened species are present at a particular site,

(c) biodiversity values, or biodiversity-related values, prescribed by the regulations.

3. Part 6, in relation to the biodiversity offsets scheme, and which includes the following provisions of relevance to the current appeal:

1. section 6.5 concerning serious and irreversible impacts of a proposed development which provides:

(1) The determination of serious and irreversible impacts on biodiversity values for the purposes of the biodiversity offsets scheme is to be made in accordance with principles prescribed by the regulations.

(2) The Environment Agency Head may provide guidance on the determination of any such serious and irreversible impacts, and for that purpose may publish, from time to time, criteria to assist in the application of those principles and lists of potential serious and irreversible impacts.

2. section 6.15 in relation to the currency of biodiversity assessment reports, which provides as follows:

(1) A biodiversity assessment report cannot be submitted in connection with a relevant application unless the accredited person certifies in the report that the report has been prepared on the basis of the requirements of (and information provided under) the biodiversity assessment method as at a specified date and that date is within 14 days of the date the report is so submitted.

(2) A relevant application is an application for planning approval, for vegetation clearing approval, for biodiversity certification or in respect of a biodiversity stewardship agreement.

4. Part 7 of the BC Act concerns biodiversity assessment and approvals under the EPA Act which include the following provisions of relevance to the current appeal:

1. subsections 7.2(1) and 7.2(2) which define the circumstances in which a development or activity is “likely to significantly affect threatened species”, and which provides as follows:

(1) For the purposes of this Part, development or an activity is likely to significantly affect threatened species if -

(a) it is likely to significantly affect threatened species or ecological communities, or their habitats, according to the test in section 7.3, or

(b) the development exceeds the biodiversity offsets scheme threshold if the biodiversity offsets scheme applies to the impacts of the development on biodiversity values, or

(c) it is carried out in a declared area of outstanding biodiversity value.

(2) To avoid doubt, subsection (1)(b) does not apply to development that is an activity subject to environmental impact assessment under Part 5 of the Environmental Planning and Assessment Act 1979.

2. section 7.3 which provides the test for determining whether proposed development or activity is likely to significantly affect threatened species or ecological communities, or their habitats, and which provides as follows:

(1) The following is to be taken into account for the purposes of determining whether a proposed development or activity is likely to significantly affect threatened species or ecological communities, or their habitats -

(a) in the case of a threatened species, whether the proposed development or activity is likely to have an adverse effect on the life cycle of the species such that a viable local population of the species is likely to be placed at risk of extinction,

(b) in the case of an endangered ecological community or critically endangered ecological community, whether the proposed development or activity -

(i) is likely to have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction, or

(ii) is likely to substantially and adversely modify the composition of the ecological community such that its local occurrence is likely to be placed at risk of extinction,

(c) in relation to the habitat of a threatened species or ecological community—

(i) the extent to which habitat is likely to be removed or modified as a result of the proposed development or activity, and

(ii) whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed development or activity, and

(iii) the importance of the habitat to be removed, modified, fragmented or isolated to the long-term survival of the species or ecological community in the locality,

(d) whether the proposed development or activity is likely to have an adverse effect on any declared area of outstanding biodiversity value (either directly or indirectly),

(e) whether the proposed development or activity is or is part of a key threatening process or is likely to increase the impact of a key threatening process.

(2) The Minister may, by order published in the Gazette with the concurrence of the Minister for Planning, issue guidelines relating to the determination of whether a proposed development or activity is likely to significantly affect threatened species or ecological communities, or their habitats. Any such guidelines may include consideration of the implementation of strategies under the Biodiversity Conservation Program.

3. section 7.5, which concerns the relationship between the BC Act and the Planning Act, being the EPA Act, and which provides that:

(1) This Part prevails to the extent of any inconsistency between this Part and the Environmental Planning and Assessment Act 1979 (or any instrument under that Act).

(2) A reference in the Environmental Planning and Assessment Act 1979 or any other Act or in any statutory instrument or document to the Environmental Planning and Assessment Act 1979 (whether an express or implied reference) is a reference to that Act as applying in accordance with this Part.

4. section 7.7 which concerns biodiversity assessment for Part 4 development (other than State significant development or complying development), and which provides:

(1) This section applies to an application for development consent under Part 4 of the Environmental Planning and Assessment Act 1979, except—

(a) an application for development consent for State significant development, or

(b) an application for a complying development certificate.

(2) If the proposed development is likely to significantly affect threatened species, the application for development consent is to be accompanied by a biodiversity development assessment report.

5. section 7.13, which concerns development other than State significant development or infrastructure, and which provides:

(1) This section applies to an application for development consent under Part 4 of the Environmental Planning and Assessment Act 1979 that is required under Division 2 to be accompanied by a biodiversity development assessment report, except—

(a) an application for development consent for State significant development, or

(b) an application for a complying development certificate.

(2) The consent authority, when determining in accordance with the Environmental Planning and Assessment Act 1979 any such application, is to take into consideration under that Act the likely impact of the proposed development on biodiversity values as assessed in the biodiversity development assessment report that relates to the application. The consent authority may (but is not required to) further consider under that Act the likely impact of the proposed development on biodiversity values.

(3) If the consent authority decides to grant consent and the biodiversity offsets scheme applies to the proposed development, the conditions of the consent must require the applicant to retire biodiversity credits to offset the residual impact on biodiversity values of the number and class specified in the report (subject to subsection (4)). The residual impact is the impact after the measures that are required to be carried out by the terms or conditions of the consent to avoid or minimise the impact on biodiversity values of the proposed development (being measures on which the report was based).

Note -

Division 6 of Part 6 enables a person who is required under this section to retire biodiversity credits to make a payment instead to the Biodiversity Conservation Fund of the value of the credits in accordance with the offsets payment calculator.

(4) The consent authority may reduce or increase the number of biodiversity credits that would otherwise be required to be retired if the consent authority determines that the reduction or increase is justified having regard to the environmental, social and economic impacts of the proposed development. The consent authority must give reasons for a decision to reduce or increase the number of biodiversity credits.

(5) A condition to retire biodiversity credits is required to be complied with before any development is carried out that would impact on biodiversity values. However, a consent to a concept development application may provide for a corresponding staged retirement of biodiversity credits before each stage of development is carried out and without the need for a further biodiversity development assessment report in connection with development applications for the subsequent stages of the development.

(6) This section does not operate to limit the matters that a consent authority may take into consideration -

(a) in relation to the impact of proposed development on biodiversity values, the measures that a consent authority may require to avoid or minimise those impacts or the power of a consent authority to refuse to grant consent because of those impacts, or

(b) in deciding whether to reduce or increase the number of biodiversity credits to be retired.

(7) If a consent authority fails to include a condition relating to the retirement of biodiversity credits required by this section (or fails to give reasons for a decision to reduce or increase the number of biodiversity credits), the Environment Agency Head may impose or vary that condition in accordance with this section in the same manner used by the consent authority in granting the development consent.

6. section 7.16, which concerns a proposed development that has a serious and irreversible impact on biodiversity values, and which provides:

(1) In this section, serious and irreversible impacts on biodiversity values of proposed development or activity means serious and irreversible impacts on biodiversity values as determined under section 6.5 that would remain after the measures proposed to be taken to avoid or minimise the impact on biodiversity values of the proposed development or activity.

(2) The consent authority must refuse to grant consent under Part 4 of the Environmental Planning and Assessment Act 1979, in the case of an application for development consent to which this Division applies (other than for State significant development), if it is of the opinion that the proposed development is likely to have serious and irreversible impacts on biodiversity values.

(3) If the Minister for Planning is of the opinion that proposed State significant development or State significant infrastructure that is the subject of an application to which this Division applies is likely to have serious and irreversible impacts on biodiversity values, the Minister—

(a) is required to take those impacts into consideration, and

(b) is required to determine whether there are any additional and appropriate measures that will minimise those impacts if consent or approval is to be granted.

(4) If the determining authority is of the opinion that the proposed activity to which this Division applies is likely to have serious and irreversible impacts on biodiversity values, the determining authority—

(a) is required to take those impacts into consideration, and

(b) is required to determine whether there are any additional and appropriate measures that will minimise those impacts if the activity is to be carried out or approved.

Biodiversity Conservation Regulation 2017

18. The Biodiversity Conservation Regulation 2017 (the BC Regulation) is of particular relevance in this appeal including:

1. the provisions of cl 1.4 which provide additional biodiversity values, as follows:

The following are prescribed as additional biodiversity values for the purposes of the Act—

(a)  threatened species abundance—being the occurrence and abundance of threatened species or threatened ecological communities, or their habitat, at a particular site,

(b)  vegetation abundance—being the occurrence and abundance of vegetation at a particular site,

(c)  habitat connectivity—being the degree to which a particular site connects different areas of habitat of threatened species to facilitate the movement of those species across their range,

(d)  threatened species movement—being the degree to which a particular site contributes to the movement of threatened species to maintain their lifecycle,

(e)  flight path integrity—being the degree to which the flight paths of protected animals over a particular site are free from interference,

(f)  water sustainability—being the degree to which water quality, water bodies and hydrological processes sustain threatened species and threatened ecological communities at a particular site.

2. the provisions of cl 6.7 of the BC Regulation which confirm the principles applicable to the determination of “serious and irreversible impacts on biodiversity values” as referred to in s 6.5(1) of the BC Act (see above at [17(3)(a)]), and which provides as follows:

(1) This clause applies for the purposes of determining whether an impact on diversity values is a serious and irreversible impact for the purposes of the biodiversity offsets scheme.

(2) An impact is to be regarded as serious and irreversible if it is likely to contribute significantly to the risk of a threatened species or ecological community becoming extinct because—

(a) it will cause a further decline of the species or ecological community that is currently observed, estimated, inferred or reasonably suspected to be in a rapid rate of decline, or

(b) it will further reduce the population size of the species or ecological community that is currently observed, estimated, inferred or reasonably suspected to have a very small population size, or

(c) it is an impact on the habitat of the species or ecological community that is currently observed, estimated, inferred or reasonably suspected to have a very limited geographic distribution, or

(d) the impacted species or ecological community is unlikely to respond to measures to improve its habitat and vegetation integrity and therefore its members are not replaceable.

(3) For the purpose of this clause, a decline of a species or ecological community is a continuing or projected decline in—

(a) an index of abundance appropriate to the taxon, or

(b) the geographic distribution and habitat quality of the species or ecological community.

(4) If the guidance published by the Environment Agency Head under section 6.5(2) of the Act is changed, a biodiversity assessment report may, during the period of 90 days after the guidance was changed, be prepared on the basis of the guidance in force before the change, but only if the report states that it has been prepared on that basis.”

3. the provisions of cl 6.8 of the BC Regulation which confirm the requirements for the content of biodiversity assessment reports as anticipated under the provisions of s 6.16 of the BC Act, including the requirements under s 6.8(e) and (f), as follows:

A biodiversity development assessment report must include -

….

(e) the date of the report and the requisite certification under section 6.15 of the Act, and

(f) details of the accreditation of the person preparing the report and of the qualifications and experience of any other person commissioned to conduct research or investigations that are relied on in preparing the report

….

State Environmental Planning Policy (Biodiversity and Conservation) 2021

19. The Proposed Development is subject to the provisions of SEPP B&C, and the provisions of Pt 4 in relation to Koala habitat protection. Particularly s 4.9, concerning the development assessment process when there is no approved koala plan of management for the relevant land, which is of relevance in this appeal, and provides as follows:

4.9   Development assessment process—no approved koala plan of management for land

(1) This section applies to land to which this Chapter applies if the land—

(a) has an area of at least 1 hectare (including adjoining land within the same ownership), and

(b) does not have an approved koala plan of management applying to the land.

(2) Before a council may grant consent to a development application for consent to carry out development on the land, the council must assess whether the development is likely to have any impact on koalas or koala habitat.

(3) If the council is satisfied that the development is likely to have low or no impact on koalas or koala habitat, the council may grant consent to the development application.

(4) If the council is satisfied that the development is likely to have a higher level of impact on koalas or koala habitat, the council must, in deciding whether to grant consent to the development application, take into account a koala assessment report for the development.

(5) However, despite subsections (3) and (4), the council may grant development consent if the applicant provides to the council—

(a) information, prepared by a suitably qualified and experienced person, the council is satisfied demonstrates that the land subject of the development application -

(i) does not include any trees belonging to the koala use tree species listed in Schedule 3 for the relevant koala management area, or

(ii) is not core koala habitat, or

(b) information the council is satisfied demonstrates that the land subject of the development application -

(i) does not include any trees with a diameter at breast height over bark of more than 10 centimetres, or

(ii) includes only horticultural or agricultural plantations.

(6) In this section—

koala assessment report, for development, means a report prepared by a suitably qualified and

State Environmental Planning Policy (Resilience and Hazards) 2021

20. Development on the Subject Site is also subject to the provisions of s 4.6 of SEPP R&H in relation to contamination, and which relevantly in relation to the current appeal provides as follows:

(1) A consent authority must not consent to the carrying out of any development on land unless -

(a) it has considered whether the land is contaminated, and

(b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

(2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subsection (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines.

…

Liverpool Local Environmental Plan 2012

21. The following provisions of LLEP are of relevance to the principal contentions in this appeal:

1. clause 2.3 concerning zone objectives and land use table, and in relation to which:

1. clause 2.3(2) requires that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone; and

2. the Subject Site is zoned RU1 Primary Production, the objectives of which are:

• To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.

• To encourage diversity in primary industry enterprises and systems appropriate for the area.

• To minimise the fragmentation and alienation of resource lands.

• To minimise conflict between land uses within this zone and land uses within adjoining zones.

• To ensure that development does not unreasonably increase the demand for public services or public facilities.

• To ensure that development does not hinder the development or operation of Western Sydney International (Nancy-Bird Walton) Airport.

• To preserve bushland, wildlife corridors and natural habitat.

2. clause 7.6 in relation to environmentally significant land, which provides:

(1) The objectives of this clause are as follows -

(a) to maintain bushland, wetlands and wildlife corridors of high conservation value,

(b) to identify areas of significance for revegetation to connect to or buffer bushland, wetlands and wildlife corridors,

(c) to protect rare and threatened native flora and native fauna,

(d) to ensure consideration of the significance of vegetation, the sensitivity of the land and the impact of development on the environment prior to the giving of any development consent.

(2) Before determining an application to carry out development on environmentally significant land, the consent authority must consider such of the following as are relevant -

(a) the condition and significance of the vegetation on the land and whether it should be substantially retained in that location,

(b) the importance of the vegetation in that particular location to native fauna,

(c) the sensitivity of the land and the effect of clearing vegetation,

(d) the relative stability of the bed and banks of any waterbody that may be affected by the development, whether on the site, upstream or downstream,

(e) the effect of the development on water quality, stream flow and the functions of aquatic ecosystems (such as habitat and connectivity),

(f) the effect of the development on public access to, and use of, any waterbody and its foreshores.

Remaining contentions resolved

22. The remaining contentions in the appeal were identified above (at [14(3)]). Principal amongst these contentions were those associated with the adequacy of the Applicant’s assessment of potential impacts biodiversity values.

23. The specific issues sitting underneath that principal contention were identified above (at [14(3)(a)]) as:

1. The adequacy of the Applicant’s BDAR, which it is required to supply consistent with the terms of the ss 7.13(2) and 6.15 of the BC Act;

2. Whether the Applicant’s BDAR has correctly considered all potential impacts of the Proposed Development, including in relation to the calculation of biodiversity credits required to offset those potential impacts;

3. Whether the Applicant has adequately assessed potential impact of the Proposed Development in relation to koalas and koala habitat as required under the provisions of cl 4.9 of SEPP B&C;

4. Whether the Applicant has adequately assessed, including in relation to its BDAR, the potential impacts of the Proposed Development on the vegetation on riparian lands and waterways on the Subject Site, and any proposals for the mitigation of such impacts;

5. The potential impacts of proposed vegetation clearing to establish required bushfire APZs on Cumberland plains woodland.

24. I will address each of these matters in turn.

Has the Applicant provided a Biodiversity Development Assessment Report that satisfies the statutory requirements for such a document under the provisions of ss 7.13(2) and 6.15(1) of the Biodiversity ConservationAct2016 and the Biodiversity ConservationRegulation2017?

25. The Applicant provided a BDAR within its amended DA, prepared by Ecological Consultants Australia (trading as Kingfisher Urban Ecology and Wetlands) dated March 2023, in satisfaction of the statutory requirements for such a document under the provisions of:

1. Section 7.13(2) of the BC Act (see above at [17(4)(e)]) which requires that:

1. When determining the DA, which is an application made in accordance with the EPA Act, the consent authority, or the Court on appeal, is to take into consideration under that EPA Act the likely impact of the Proposed Development on biodiversity values as assessed in the biodiversity development assessment report that relates to the application; and

2. The consent authority, or the Court, may (but is not required to) further consider under the EPA Act the likely impact of the Proposed Development on biodiversity values.

2. Section 6.15(1) of the BC Act (see above at [17(3)(b)]) which requires that a biodiversity assessment report cannot be submitted in connection with a relevant application unless the accredited person certifies in the report that the report has been prepared on the basis of the requirements of (and information provided under) the biodiversity assessment method as at a specified date and that date is within 14 days of the date the report is so submitted; and

3. Clause 6.8(f) of the BC Regulation (see above at [18(3)]) which requires that a BDAR must include details of the accreditation of the person preparing the report and of the qualifications and experience of any other person commissioned to conduct research or investigations that are relied on in preparing the report.

26. The biodiversity values to which the provisions of cl 7.16(2) refer are those in s 1.5 of the BC Act (see above at [17(2)]) and cl 1.4 of the BC Regulation (see above at [18(1)]: and

1. in terms of the BC Act, biodiversity values include vegetation integrity, habitat suitability and any other values identified in the BC Regulation; and

2. clause 1.4 of the BC Regulation also identifies additional matters as being biodiversity values, including the following:

(a) threatened species abundance - being the occurrence and abundance of threatened species or threatened ecological communities, or their habitat, at a particular site,

…..

(d) threatened species movement - being the degree to which a particular site contributes to the movement of threatened species to maintain their lifecycle,

27. The Parties expert ecologists provided a joint report and oral evidence at the hearing in relation to this and other matters concerning potential biodiversity impacts. At the hearing Dr McLean appeared in person, and the Applicant’s expert, Ms Dalby-Ball, provided her evidence via audio-visual link (AVL) as she was located in the United States of America.

28. Within their joint report tendered as evidence at the hearing (as Exhibit 5), the Respondent’s expert ecologist, Dr McLean, had commented, and the Applicant’s expert ecologist, Ms Dalby-Ball, had conceded, that the Applicant’s BDAR had not been prepared consistent with the timing requirements of s 6.15(1) of the BC Act (see above at [25(2)]), and was, therefore, invalid for the purposes of determining the DA.

29. More specifically, cl 6.15(1) requires that any BDAR submitted in relation to a development application must be prepared on the basis of the requirements of the NSW Department of Planning, Industry and Environment Biodiversity Assessment Manual 2020 (BAM Manual) at a specified date and within 14 days of the date of submission of the BDAR. Ms Dalby-Ball confirmed that the BDAR had not been so prepared, and that in order to be valid, the calculations concerning biodiversity impacts and offsetting under the BAM would need to be re-done and added to an amended BDAR.

30. Ms Dalby-Ball further conceded during her oral evidence that her accreditation to prepare the BDAR and certify its contents under the BAM had lapsed in March 2023, and that no accredited person had certified the Applicant’s BDAR, further invalidating the Applicant’s BDAR for the purposes of determining the Applicant’s DA in the appeal.

31. Notwithstanding other technical deficiencies in the BDAR identified by Dr McLean, and conceded to by Ms Dalby-Ball, as discussed in more detail below:

1. the Applicant:

1. sought leave to undertake work during the course of the hearing to rectify the identified deficiencies in its BDAR in terms of both its content and to ensure that the BDAR was correctly certified as required under cl 6.8(f) of the BC Regulation and s 6.15 of the BC Act;

2. noted that it would provide two documents in response to the identified deficiencies in its BDAR, being:

1. an updated version of its BDAR assessing the prospective elements of its Proposed Development and required biodiversity offsets; and

2. a retrospective BDAR to address the assessment of works undertaken without consent but for which it now seeks consent as part of its DA;

2. the Respondent, while not opposing the grant of leave as requested by the Applicant, noted the availability constraints of its expert ecologist, and the timelines for completion of the hearing, along with the time required for Dr McLean to review and comment on the further BDARs within a supplementary expert report.

32. In response to the matters identified above (at [31]):

1. the Applicant proceeded to tender two further BDARs (as anticipated above at [31(1)(b)]) during the second day of the hearing, in relation to which:

1. the documents each contained a document control sheet indicating that the authors of the BDARs were Geraldene Dalby-Ball, Luke Johnson, Myrna Calumpong and Brooke Thompson; and

2. both reports were signed by Geraldine Dalby-Ball.

2. The Respondent’s expert ecologist, Dr McLean, in response to a direction from the Court, undertook to review these documents and to provide to the Parties, by the commencement of the third day of the hearing, a supplementary expert report containing the results of this review so that these assessments could be considered by the Applicant’s expert ecologist prior to the experts being called to give their oral evidence at the hearing on the afternoon of the third day of the hearing.

33. Following the tendering of the Applicant’s amended BDARs, and noting the listed authors of the BDAR, the Applicant sought to add to each document a certification as to the compliance of each BDAR with the provisions of s 6.15 of the BC Act and the requirements of the BAM. This certification was provided by Ms Kat Deuchatel (BAM Assessor Accreditation no. BAA17054). The certification page provided by Ms Deuchatel was added to each of the tendered BDARs, which became Exhibits J and K in the proceedings, and it was in the following form:

“I, Kat Deuchatel, certify that this report has been prepared based on the requirements of, and information provided under, the Biodiversity Assessment Method and clause 6.15 of the Biodiversity Conservation Act 20156 (BC Act)”.

34. Within his supplementary expert report, which became Exhibit 8, Dr McLean identified that:

1. the BAM manual, which was the version current at the time of preparation of the Applicant’s amended BDARs, and which remains current at the time of this judgment, requires under its clause 1.3 that:

“1. Biodiversity Assessment Reports (BARs), which set out the outcomes of an assessment, must be prepared by a person accredited under Section 6.10 of the BC Act. An accredited person is referred to as an assessor.”

2. while Ms Deuchatel was recorded as the assessor who had prepared the BAM calculator (BAM-C) reports that formed appendices to the Applicant’s BDARs, she was not listed as an author of the BDARs. As a consequence, Dr McLean said that, in his opinion, the BDAR remained formally uncertified.

35. In closing, the Respondent, consistent with the opinion of Dr McLean, submitted that:

1. it was common ground between the Parties that the Applicant was required to provide a valid BDAR in relation to its Proposed Development under the provisions of s 7.13(2) of the BC Act.

2. the certification of the Applicant’s BDARs provided by Ms Deuchatel did not state that Ms Deuchatel, or any other specific person, had prepared the BDARs.

3. none of the people listed as being authors of the Applicant’s further BDARs were identified as holding the requisite accreditation in relation to certifying the BDARs.

4. as confirmed by Ms Dalby-Ball (see above at [30]), and as conceded by the Applicant, during the hearing, Ms Dalby-Ball, who is identified as the lead author of the BDARs, was not an accredited person for the purposes of certifying the BDARs at the time of their preparation, including at the time of the hearing.

5. section 7.13(2) of the BC Act requires that the consent authority, or the Court on appeal, when determining in accordance with the EPA Act, that any such application is to take into consideration under that Act the likely impact of the proposed development on biodiversity values as assessed in the BDAR; and further

1. section 6.12 of the BC Act confirms that, for the purposes of the biodiversity offsets scheme, a BDAR is a report “prepared by an accredited person in relation to proposed development or activity that would be authorised by a planning approval”;

2. s noted by Dr McLean, clause 1.3 of the BAM manual requires that BDARs must be prepared by a person accredited under Section 6.10 of the BC Act (see above at [34(1)]);

3. the Applicant’s BDARs had not been prepared by an accredited person, and so consequently, were not BDARs as required under the provisions of s 7.13(2) of the BC Act and could not satisfy the requirements of that section of the BC Act; and

4. the Court would be unable to complete the considerations required under s 7.13(2) of the BC Act to determine the appeal.

36. In its closing remarks, the Applicant submitted that:

1. the required certification of the BDAR, like a requirement for owner’s consent for a development application, is able to be provided at any point in the evaluation of the application up until the point, on appeal, that final orders are made by the Court.

2. the provision of the certification of the BDARs by Ms Deuchatel established jurisdiction such that the Court was able to move past the jurisdictional requirements of the BC Act in relation to the Applicant’s BDARs and could the address the merits contentions identified by the Respondent.

3. the adequacy of the BDAR certification provided by Ms Deucahtel was similar to matters considered by the Court of Appeal concerning certification of construction certificates in Omaya Investments Pty Ltd v Dean Street Holdings Pty Ltd (2021) 247 LGERA 62; [2021] NSWCA 2, and in relation to jurisdictional facts for the purposes of the EPA Act in El Kouri v Gemaveld Pty Ltd [2023] NSWCA 78.

37. I have considered the evidence of the Parties’ ecology experts, notably that of Dr McLean provide above (at [34]), along with the Parties’ submissions (above at [35] and [36]), I have concluded that:

1. I accept that the certification of the Applicant’s amended BDARs by Ms Kat Deuchatel (see above at [33]) is acceptable for the purposes of satisfying the provisions of s 6.15 of the BC Act in relation to the currency of the Applicant’s BDARs because, the terms of the certification refer specifically to the report being prepared on the basis of the requirements of the BAM and in relation to the provisions of s 6.15 of the BC Act;

2. I agree with the submission of the Respondent, that the certification does not satisfy the provisions of s 6.12 of the BC Act, which extend beyond matters concerning the currency of a BDAR, adequately certified by Ms Deuchatel, and which require that a BDAR is a report “prepared by an accredited person” in relation to a proposed development; in relation to which:

1. Ms Deuchatel is specific in relation to the certification she provides and that only relates, in my assessment and in her words, to the matters in s 6.15 of the BC Act concerning the currency of the BDARs;

2. Ms Deuchatel does not state, nor certify, that she, as an accredited person, has prepared either the Applicant’s amended BDAR concerning prospective works, or its retrospective BDAR, as required under s 6.12. In my assessment, there is a difference between certifying that an accredited person has prepared a BDAR and certifying that the BDAR has been prepared, possibly by a non-accredited person/s, in a manner consistent with the BAM along with certifying the currency of the BDAR;

3. there is no indication that any of the authors of the BDAR, clearly identified on the document control page of each document, and who in my assessment, are those individuals who have prepared the BDARs, are an “accredited person” for the purposes of the BC Act; and

4. the accreditation of the lead author of the BDARs, who is the Applicant’s expert ecologist in the proceedings, Ms Dalby-Ball, by her own concession during the hearing, had lapsed at the time that the BDARs had been produced, both in terms of the original BDAR and the Applicant’s amended and retrospective BDARs tendered into evidence at the hearing.

38. Based on by conclusions above (at [37]), I am satisfied that the Applicant has not provided a BDAR that is of a form that:

1. would satisfy the provisions of clause 1.3 of the BAM Manual and s 6.12 of the BC Act requiring that the Applicant’s BDARs had been prepared by an accredited person; and therefore

2. that the BDARs could be relied upon for the purposes of cl 7.13(2) of the BC Act.

39. Notwithstanding this conclusion, and should I be wrong in relation to adequacy of the Applicant’s certification of its BDARs, I will consider the remaining merits contentions in relation to the potential impacts of the Proposed Development on biodiversity value on the Subject Site as if the BDAR were correctly prepared by an accredited person under the BC Act.

Has the Applicant’s Biodiversity Development Assessment Report correctly considered all potential impacts of the Proposed Development, including the calculation of biodiversity credits required to offset those potential impacts;

40. As noted above, the Parties’ expert ecologists had agreed in their joint report (Exhibit 5) that the Applicant’s BDAR was deficient with respect to its consideration of the Proposed Development’s potential impacts on biodiversity values on the Subject Site. These agreed deficiencies included:

1. the lack of consideration of potential serious and irreversible impacts of the Proposed Development in relation to the Cumberland Plan Woodland in the Sydney Bioregion Critically Endangered Ecological Community (CPW CEEC), and particularly as it concerned unauthorised clearing for which the Applicant seeks retrospective approval.

2. the inadequate documentation of efforts to avoid and minimise potential impacts on biodiversity values in the design of the Proposed Development, including in relation to bushland, wildlife corridors and other natural habitats.

3. the inadequate assessment of impacts of unauthorised clearing and other works in relation to riparian areas and waterways, including in relation to sedimentation due the breach of sediment fencing.

4. the inadequate assessment of the Proposed Development on koalas and koala habitat as required under the provisions of cl 4.9 of SEPP B&C.

5. the inadequate assessment undertaken in relation to the provisions of cl 7.6 of LLEP in relation to environmentally sensitive land and unauthorised clearing of vegetation that may have taken place prior to the assessment as reported in the Applicant’s original BDAR.

6. the inadequate assessment of clearing and vegetation management required for the establishment and maintenance of bushfire related APZs, including in relation to any required impacts on CPW CEEC areas.

7. the inadequate scope identified for any proposed vegetation management plan that may be required as part of any conditions of consent or offsetting arrangements proposed in relation to the Proposed Development.

41. The Applicant submitted that, consistent with the findings of Preston CJ in Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99 (at [35]) that, in undertaking a merit determination of an application, it is irrelevant to enquire into whether the owner of the land has in the past acted or used the land unlawfully.

42. However, the Applicant also conceded that, consistent with the further conclusions of Preston CJ in Ralph Lauren Pty Ltd v New South Wales Transitional Coastal Panel; Stewartville Pty Ltd v New South Wales Transitional Coastal Panel; Robert Watson v New South Wales Transitional Coastal Panel (2018) 235 LGERA 345 ;[2018] NSWLEC 207 (at [128] and [129]), citing King CJ in Kouflidis v Salisbury City Corporation (1982) 29 SASR 321 (at [324]), arguments based on applications seeking to take advantage of unlawful existing works and use are to be rejected.

43. As a consequence, and as already noted (above at [31(1)(b)]), the Applicant tendered two documents:

1. an amended BDAR to address the deficiencies in its BDAR concerning the potential impacts of the Proposed Development as assessed in its BDAR and in relation to the impacts of past activities; and

2. a retrospective BDAR to address the actual impacts of past clearing and other works on biodiversity values.

44. These two further BDARs were reviewed by the Respondent’s expert ecologist, Dr McClean, who presented the findings of his review in a supplementary expert report. That report was provided to the Applicant and its expert, Ms Dalby-Ball, on the morning of the third day of the hearing and it formed the basis for the oral testimony provided by the Parties’ expert ecologists on the afternoon of the third day of the hearing.

45. Setting aside the matter of the satisfactory certification or otherwise of those BDARs, Dr McLean had opined that the Applicant’s amended BDAR and its retrospective BDAR remained deficient in relation to the assessment of potential impacts of the Proposed Development on biodiversity values, for the following reasons:

1. the amended BDAR had not assessed, or calculated the biodiversity offset credits required, in relation to certain of the Applicant’s proposed works including:

1. the estimation of vegetation integrity scores for vegetation associated with a dwelling house and the calculation of related biodiversity offset credits arsing through the creations of APZs in that location;

2. the impacts on vegetation, and required vegetation clearing, in relation to a proposed security hut and associated APZs, including the required biodiversity offset credits for those impacts;

3. the impacts on vegetation of proposed roadworks required in relation to the provision of access associated with a so-called western truck entry, where plans indicated vegetation understory removal was required;

4. the potential impacts of these works on threatened species and communities.

2. The BDAR did not indicate that the Applicant had undertaken any targeted surveys for koalas on the Subject Site, had not discussed potential indirect impacts on koalas and their habitats, including in relation to potential noise generated by the Applicant’s proposed landscape supplies business.

3. The BDAR had not considered other indirect impacts of the Proposed Development including in relation to proposed water harvesting, habitat of the southern myotis, and habitat fragmentation in relation to non-mobile species such as the Cumberland Plain land snail, (Meridolum corneovirens.

4. The Applicant’s retrospective BDAR had not accurately estimated past vegetation removal activity, including in relation to CPW CEEC removal; as well as the consideration in the retrospective BDAR of efforts to avoid and minimise potential impacts of the Proposed Development.

46. In response to questions from the Respondent in cross examination, the Applicant’s expert ecologist, Ms Dalby-Ball, confirmed that:

1. she did not recall giving consideration to the Applicant’s cut and fill plan as part of the amended BDAR assessment.

2. works required for the widening of the driveway and road through the north-west part of the Subject Site had not been assessed in the amended BDAR.

3. she agreed with Dr McLean’s assessment that the vegetation integrity score allocated to the lands proposed for APZ creation near the dwelling house should be increased so as to require additional offset credits than calculated in the BDAR and that, based on this at least, the Applicant would need to re-run its BAM offset calculation for the Proposed Development.

1. the potential impacts of works associated with the installation of swales along roadways had not been assessed, and these also needed to be taken into account and reassessed within the Applicant’s BDAR.

2. the consideration and discussion of efforts to avoid and minimise impacts had not been completed within the amended and retrospective BDARs and needed to be completed in assessing the Applicant’s Proposed Development.

3. although the Applicant’s BDAR had stated that targeted surveys had been undertaken for the Dural Land Snail, Pommerhelix duralensis, and the Cumberland Plain land snail, she was uncertain as to what areas of the Subject Site had been surveyed for the BDAR.

4. she agreed with the Respondent that the potential impacts of roads and swales associated with the Proposed Development on Cumberland land snails, previously detected in a 2019 study by Lesryk Environmental Pty Ltd, and their habitat, which is CPW CEEC, should be assessed in terms of direct and indirect impacts, and this had not yet been completed.

47. In response to further questions from the Applicant, Ms Dalby-Ball confirmed that, in relation to the inadequacies of the Applicant’s BDAR and the need to assess the certain additional impacts of the Applicant’s proposed cut and fill works, the Applicant could consider moving the positions of proposed roads, so as to minimise and avoid impacts, before then recalculating the required offset credits under the BAM calculator.

48. On the basis of the above evidence (at [45] and [46]), I am satisfied that the Applicant’s BDARs:

1. remain deficit in relation to their assessment of the Proposed Development’s impacts on biodiversity values; and

2. cannot be relied upon for the purposes of the considerations required of the Court to determine the Applicant’s DA in relation to the provisions of s 7.13(2) of the BC Act concerning the assessment of impacts on biodiversity values and cl 7.6(2) of LLEP in relation to potential impacts on environmentally sensitive land.

Has the Applicant has adequately assessed potential impact of the Proposed Development in relation to koalas and koala habitat as required under the provisions of cl 4.9 of State Environmental Planning Policy (Biodiversity and Conservation) 2021

49. As noted above (at [45(2)]), the Respondent’s expert ecologist, amongst other criticisms, had said within his expert report reviewing the Applicant’s amended and retrospective BDARs that, in his opinion, the Applicant’s BDARs had not adequately assessment the potential impacts of the Proposed Development on koalas and koala habitat as required under cl 4.9 of SEPP B&C.

50. In her oral testimony, Ms Dalby-Ball said that, on the basis of work she had undertaken and her knowledge of the Subject Site, she had formed a view that the Proposed Development would have a low or no impact on koalas and their habitat, also noting that:

1. she had retained data sheets for three evenings of survey she had undertaken in relation to koalas on the Subject Site;

2. she confirmed that she had not undertaken koala surveys using acoustic call playback, but had undertaken spotlighting and searches for droppings;

3. the current BAM methodology included a requirement for mapping in relation to koala assessment outcomes including mapping of koala food trees, and this work had not been completed or included in the Applicant’s BDARs.

51. In his oral evidence at the hearing, Dr McLean had confirmed his assessment of the shortcomings of the Applicant’s BDARs in relation to their assessment potential impacts on koalas and koala habitat, opinions, and added that no details had been provided to him of any surveys that may have been undertaken in relation to such an assessment.

52. Having considered the evidence of the Parties’ expert ecologists, and the submissions of the Parties’ during the closing remarks, which were consistent with the evidence of the experts, I am unable to be satisfied that the Applicant has adequately assessed potential impact of the Proposed Development in relation to koalas and koala habitat as required under the provisions of cl 4.9 of SEPP B&C (see above at [19]) because:

1. I accept the evidence of the Applicant’s ecologist, Ms Dalby-Ball, that the BAM Methodology as it currently applies, requires that the Applicant’s BDAR should include, inter alia, a map of the koala habitat including koala food trees on the Subject Site, which it does not provide;

2. I agree with the evidence of the Respondent’s ecologist, Dr McClean, which is consistent with the evidence of Ms Dalby-Ball, that while she may have undertaken certain surveys of the Subject Site in relation to koalas and koala habitat, these had not been undertaken in a manner consistent with the requirements of the BAM Manual, and had not been reported and assessed, and as a consequence:

1. I am not satisfied that the impact of the Proposed Development on koalas or koala habitat would be low or no impact, which would be required if I were to consider granting consent without the benefit of a koala assessment report;

2. the Applicant has not provided a koala assessment report to address the circumstances where the potential impact of the Proposed Development is likely to have a higher level of impact on koalas and koala habitat;

3. the Applicant’s assessment of the Proposed Development’s potential impact on koalas and koala habitat is inconsistent with the provisions of cl 4.9 of SEPP B&C;

4. consistent with the evidence of the Applicant’s ecologist, Ms Dalby-Ball, the assessment of the potential impact of the Proposed Development on koalas and koala habitat in the Applicant’s BDAR as amended, is inconsistent with the provisions of the BAM Manual and so the Applicant’s BDARs cannot be relied upon for the purposes of cl 7.13(2) of the BC Act, which is a matter that the Court on appeal must consider in relation to the determination of the Applicant’s development application.

Conclusion in relation to biodiversity contentions

53. Based on the agreed evidence of the Parties’ expert ecologists, I am satisfied that the Applicant’s assessment of the potential impacts on biodiversity values, including its original BDAR, and amended and retrospective BDARs, is deficient and does not enable the Court to satisfy the provisions of cl 7.13(2) of the BC Act or cl 7.6 of LLEP, which are matters that the Court is required to consider in the determination of the Applicant’s Proposed Development.

54. I note, in particular, that it was the agreed evidence of the Parties’ expert ecologists (see above at [45(4)] and]) that the Applicant’s assessment of the potential impacts of the Proposed Development on biodiversity values, as defined under the BC Act and BC Regulation, had not assessed potential impacts on CPW CEEC and the endangered Cumberland Plain land snail. Consequently, I am unable to be satisfied in relation to the potential serious and irreversible impacts of the Proposed Development, which is a matter that I am required to take into consideration in determining the Applicant’s development application pursuant to cl 7.16 of the BC Act.

55. Consequently, noting the provisions of s 4.15(1) of the EPA Act, on the basis of my conclusions above (at [52]), and in addition to the reasons provided above (at [53] and [54]) in relation to the assessment of the potential impacts of the Proposed Development on other biodiversity values, I am satisfied that the Applicant’s Proposed Development should not, on its merits, be approved, and any approval would not be in the public interest,

56. I also note again my finding above (at [38]) in relation to the certification of the Applicant’s BDARs, and based on this I cannot be satisfied that:

1. any of the versions of the Applicant’s BDARs have been prepared by an accredited person, as required under the provisions of cl 6.12 of the BC Act; and consequently

2. any of the Applicant’s BDARs could be relied upon for the purposes of the considerations required under cl 7.13(2) of the BC Act.

57. Noting my conclusions above (at [55] and [56]), the Applicant’s appeal must be dismissed, and there is no utility in further considering the Respondent’s remaining contentions concerning potential impacts on biodiversity values (see above at [23(4)] and [23(5)]). However, I note that these remaining biodiversity related matters have been considered, at least in part, in relation to the contentions concerning the adequacy of the Applicant’s BDAR and its assessment of potential impacts on biodiversity values within that document.

58. There is also no utility in giving further consideration to the other remaining contentions concerning contamination, traffic or planning/landscaping (see above at [14(3)(b)], [14(3)(c)] and [14(3)(d)] respectively).

Other matters

The Applicant seeks leave to rely upon further versions of its BDAR

59. Following the conclusion of the oral evidence of the Parties’ expert ecologists, and at the conclusion the third day of the hearing, the Applicant sought leave to have its expert prepare a further amended version of its BDAR between the conclusion of the third day of the hearing and the commencement of the fourth and final day set down for the hearing.

60. Noting that this would require additional consideration of the Applicant’s further amended BDARs by the Respondent’s expert ecologist Dr McLean, in circumstances where he had already undertaken such a task in relation to the Applicant’s amended BDAR and retrospective BDAR. Due to significant time constraint during the hearing, and further noting that Dr McLean had prepared a supplementary expert report to assist the proceedings, the Court indicated that it was not minded to grant the leave sought. That application for leave was formally withdrawn by the Applicant.

61. Further, and also following the conclusion of the testimony of the Parties’ expert ecologists at the hearing, the Applicant sought to tender a further version of its BDAR into evidence for the Court to consider in determining the appeal.

62. The Respondent objected to the tender, noting that the Applicant’s further amended BDAR contained no changes with respect to the assessment of the potential impacts of the Proposed Development on Cumberland Plain land snails such that, consistent with the evidence provided by its expert Ms Dalby-Ball, the BDAR even if admitted into evidence at that late stage would remain deficient in respect of the provisions of ss 7.13(2) and 7.16 of the BC Act.

63. In response to a query from the Court, the Applicant confirmed that the Respondent’s observation concerning the assessment of potential impacts on the Cumberland Plain land snail was accurate.

64. Noting the Respondent’s submission (above at [62]), and the Applicant’s concession (at [63]), the Court denied the Applicant’s request to tender its further amended BDAR documentation.

The Applicant requests the Court adjourn proceedings to permit a further revision of its BDAR.

65. At the conclusion of the hearing the Applicant sought that the proceedings be adjourned to a future date to allow it to prepare further amended documentation in relation to the assessment of potential impacts on biodiversity values and to facilitate consideration of this material by the Parties’ expert ecologists including the opportunity for further oral evidence from those experts.

66. Noting that the Court had already provided the Applicant with the opportunity during proceedings to amend its BDAR, and the Respondent’s facilitation of its expert’s assessment of this material, and further noting the comment by the Applicant’s expert, Ms Dalby-Ball, that the mitigation of potential impacts on CPW CEEC and Cumberland Plain land snails may require alteration to the design of roads in the Proposed Development, the Applicant’s request was denied because, in the Court’s assessment:

1. the Applicant had already been afforded significant opportunity and procedural fairness to address the shortcomings of its BDAR documentation during the hearing;

2. the Respondent and its expert ecologist had already responded generously to the requests of the Applicant during the proceedings, and it would be unreasonable to ask the Respondent to incur the further costs and delays associated with agreeing to the Applicant’s request for an adjournment;

3. it was uncertain, given the nature of any further required changes to the design of the Proposed Development as to whether changes that may be made by the Applicant, including road design, as identified by Ms Dalby-Ball as being likely (see above at [47]), might give rise to further assessment needs, in relation to, for example, traffic matters; and

4. it would not be consistent with the just, cheap, and quick principles applied by the Court for resolution of proceedings that the Applicant’s request be granted.

The Orders appeal

67. I have already made findings in this judgment that the Proposed Development, as amended, should not be approved

68. As noted above (at [7(1)]) it was the Respondent’s submission unopposed by the Applicant, that if the Applicant’s appeal were determined by way of refusal, then the orders appeal should be determined such that the orders against which the Applicant has also appealed, be confirmed with the date for compliance with the orders also confirmed as requiring completion within 60 days of the handing down of the judgment.

69. I accept that this is a reasonable outcome, not opposed by the Applicant, and so I agree that an order should be made to this effect, pursuant to the provisions of s 8.18(4)(b) of the EPA Act.

Conclusions

70. On the basis of my assessment and conclusions above in this judgment, I am satisfied that, having regard to the matters in s 4.15(1)(b) – (e) of the EPA Act, the Proposed Development should not be approved because:

1. I am not satisfied that:

1. the Applicant’s biodiversity development assessment report (BDAR), which it is required to supply consistent with the terms of the ss 6.15 and. 7.13(2) of the BC Act meets the requirements of those section of the BC Act;

2. the Applicant’s BDAR has correctly considered all potential impacts of the Proposed Development, including in relation to the calculation of biodiversity credits required to offset those potential impacts;

3. the Applicant has adequately assessed potential impact of the Proposed Development in relation to koalas and koala habitat as required under the provisions of cl 4.9 of SEPP B&C;

4. the Applicant has adequately assessed, including in relation to its BDAR, the potential impacts of the Proposed Development on the vegetation of riparian lands and waterways on the Subject Site, and any proposals for the mitigation of such impacts;

5. the Appliant has assessed potential impacts of proposed vegetation clearing to establish required bushfire APZs on Cumberland plains woodland, a critically endangered ecological community.

2. On the basis of the above (at [70(a)]), I am also not satisfied that the Proposed Development would not have a serious and irreversible impact on the Cumberland Plain land snail;

1. I am not satisfied that the Proposed Development has avoided and minimised impacts of a Cumberland woodland endangered ecological community;

2. I am not satisfied that the matters in cl 7.6(a) to (c) of LLEP in relation to environmentally significant land can be considered on the basis of materials constituting the Applicant’s development application, as requited under cl 7.6; and

3. I am not satisfied that the likely impacts of the Proposed Development, particularly in relation to threatened species, being the Cumberland land snail, can be properly considered in the evaluation of the Applicant’s DA as required under the provisions of s 4.15(1)(b).

71. Having concluded that the Proposed Development should not be approved for reasons identified above (at [70]), it is not necessary for me to resolve the remaining contentions in the appeal in relation to traffic and potential contamination of the Subject Site.

72. As a consequence, and noting my conclusion also above (at [69]) in relation to the orders appeal, the Court is able to make the following orders.

Orders

73. In Proceedings 2022/234271, the Court orders that:

1. The appeal is dismissed.

2. The Applicant’s development application No. DA-688/2022 seeking consent for use of land for a landscape supplies business and associated works at 746 Greendale Road, Greendale, is determined by way of refusal.

3. The exhibits are returned, with the exception of exhibits A, B, C , D, E and 1.

74. In Proceedings 2022/77111, the Court orders that:

1. The appeal is upheld.

2. Pursuant to the provisions of s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, Development Control Order NO-973/2021 is modified such that the period for compliance with Development Control Order NO-973/2021 is modified to read: “The Development Control Order must be complied with from the 16^th of September 2023”.

M Chilcott

Commissioner of the Court

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Decision last updated: 18 July 2023