Alam v Wollongong City Council

[2016] NSWLEC 1250

Land and Environment Court

New South Wales

Medium Neutral Citation:	Alam v Wollongong City Council [2016] NSWLEC 1250
Hearing dates:	17, 18 November 2015; 9, 10, 11 February 2016; conditions 14 March 2016
Date of orders:	17 June 2016
Decision date:	17 June 2016
Jurisdiction:	Class 1
Before:	Pearson C
Decision:	1. The appeal is dismissed. 2. The amended development application DA 2014/1198 for an animal boarding establishment at 125 Princes Highway Helensburgh is refused. 3. The exhibits are returned except for exhibits 1, 21 and A. 4.Pursuant to s 97B(2) of the Environmental Planning and Assessment Act 1979 the applicant is to pay those costs of the consent authority that are thrown away as a result of the amendment of the application for which leave was granted on 9 February 2016, as agreed or assessed.
Catchwords:	DEVELOPMENT APPLICATION: Animal boarding establishment - Amendment of local environmental plan – Development now prohibited – Land identified as Natural resource sensitivity - Endangered ecological community – Eastern Pygmy Possum – Bushfire prone land – Asset Protection Zone
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Rural Fires Act 1997 Threatened Species Conservation Act 1995 State Environmental Planning Policy No 55- Contamination of Land Wollongong Local Environmental Plan 2009 Wollongong Local Environmental Plan 2009 (Amendment 19)
Cases Cited:	Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190 Davis v Gosford City Council [2014] NSWCA 343 Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 153 Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21
Category:	Principal judgment
Parties:	Radwan Alam (Applicant) Wollongong City Council (Respondent)
Representation:	Counsel: Mr P Clay SC with Ms J Reid (Applicant) Mr M Staunton (Respondent)   Solicitors: Bartier Perry (Respondent)
File Number(s):	2016/150726 (formerly 11032 of 2014)
Publication restriction:	No

Judgment

1. This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal of a development application (DA 2014/1198) for an animal boarding establishment at 125 Princes Highway Helensburgh (the site).

2. The development application as amended seeks consent for the construction of an animal boarding establishment providing 13 dog kennels, on two levels. Vehicle access is from a driveway off the Princes Highway, with three customer parking spaces. There is an outdoor exercise area (50sqm), and 5 outdoor dog kennels for daytime use.

3. The site is located on the eastern side of the Princes Highway, and has an area of approximately 15,670sqm. To the west and north of the site is dense bushland with detached rural residential dwellings located beyond; and to the east and south is a mixture of residential and industrial uses interspersed with densely vegetated stands of trees. The Garawarra State Conservation Area is to the north, and the Woronora Special Area water catchment is to the west. The site slopes from the southwestern corner towards the northeastern corner at an approximately 11% gradient. Wilsons Creek, a tributary of the Hacking River which flows into the Royal National Park and then to Port Hacking, runs along the eastern boundary of the site. To the south are two largely vacant lots with hardstand areas and terraced gardens with a detached house.

4. The site contains no substantial structures apart from a caravan, access gate, gravel driveway and associated structures along the southern boundary. The site is heavily vegetated, with a cleared area along the road frontage and along the southern boundary.

5. The site contains Southern Sydney sheltered forest on transitional sandstone soils in the Sydney Basin Bioregion (SSSF), listed as an endangered ecological community (EEC) under the Threatened Species Conservation Act 1995 (the TSC Act). The site contains a population of Cercartetus nanus, Eastern Pygmy Possum (EPP), which is listed as Vulnerable under the TSC Act; potentially supports a population of Red Crowned Toadlet, also listed as Vulnerable under the TSC Act; and supports suitable habitat for and some likelihood of occurrence of other Vulnerable fauna species and Endangered and Vulnerable flora species.

6. The following image, an extract from the proposed Fencing plan (ex R), shows the location of the site, with the Princes Highway to the west and Wilsons Creek to the east; the proposed building envelope, including the wastewater treatment Wisconsin mound (blue cross hatching); and areas of low, moderate and high quality habitat on the site:

History of the application and the appeal

7. The development application the subject of this appeal was lodged on 30 September 2014. A previous development application (DA-2014/177) for a dwelling house, supported by an ecological investigation undertaken in 2013 by UBM Ecological Consultants Pty Ltd (UBM), was refused on 11 April 2014. The development application as lodged proposed a “night carer suite” in the location where the staff amenity room is now proposed, including a bed; six dog kennels; and a cattery and internal exercise area for cats on the basement level. The food preparation room initially proposed a cooktop; that has now been deleted from the proposal.

8. The matter was the subject of a conciliation conference under s34 of the Land and Environment Court Act 1979, conducted by another Commissioner. The parties did not reach agreement and the conciliation was terminated. On 23 July 2015 the applicant was granted leave to amend the application to rely on amended plans.

9. The hearing commenced on 17 November 2015 on site with a view, and resumed in court on 18 November 2015. The applicant sought an adjournment to enable further consideration of wastewater management and contamination issues, and foreshadowed an amendment to the application to amend the plans to delete the proposed cat boarding facilities, investigate arrangements for biobanking for part of the site, and prepare a species impact statement (SIS). The application was opposed by the Council, on the basis that the issues now identified by the applicant had all been raised in the Council’s contentions; if the applicant proposed to rely on additional expert evidence as to the Eastern Pygmy Possum (EPP), the Council would need the opportunity to obtain evidence from an expert with similar expertise; and that other issues remained, including the planning issues. The adjournment was granted, on the basis that the primary issue is the ecological impact of the proposed development, and the Council’s contentions included a contention that there was no power to consent in the absence of a SIS; the additional investigations and material would have implications for determination of the ecological impacts; the Council would have an opportunity to address any additional material and its costs could be either the subject of an order under s 97B of the Act or a separate application; and the proposed development is now prohibited under the Wollongong Local Environmental Plan 2009 (the LEP).

10. The hearing resumed on 9 February 2016. The applicant was granted leave to amend the application to rely on amended plans filed on 22 December 2015; the issue of whether the amendment is other than minor for the purposes of s 97B of the Act was reserved.

11. At the conclusion of the hearing, directions were made for the Council to clarify whether the site or part of it is identified as “Natural resource sensitivity—biodiversity” on the Natural Resource Sensitivity—Biodiversity Map pursuant to cl 7.2 of the LEP; and for the parties to provide conditions, identifying those conditions remaining in dispute, by 4 March 2016.

12. On 14 March 2016 the parties provided advice as to cl 7.2 (discussed below), and a consolidated set of conditions marked up to indicate the conditions in dispute. There are a number of conditions remaining in dispute:

1. The applicant opposes the Council’s proposed deferred commencement conditions C and D relating to approvals under the Native Vegetation Act 2003 required for clearing remnant native vegetation;

2. The applicant submits that the Council’s proposed deferred commencement conditions E and F, relating to preparation of a Fauna Management Plan (FMP) and Vegetation Management Plan (VMP) respectively, are unclear, and should set out the recommendations of the identified reports and documents that should be complied with. The Council’s response is that the onus is on the applicant to proffer a FMP and a VMP, and that in the absence of a FMP or VMP as at the date of consent, it is not appropriate for the Council to specify what recommendations should be incorporated. Notwithstanding that position, the Council provided further particulars in the proposed conditions for both the FMP and the VMP;

3. The applicant opposes the Council’s proposed deferred commencement condition requiring submission and approval of a Plan of Management, relying on the Plan of Management submitted for assessment and submitting that an operative condition requiring compliance with the Plan of Management should be inserted;

4. The parties disagree as to the appropriate condition for the wastewater treatment system (condition (5)), the proposed condition requiring a construction environmental management plan (condition (12), whether conditions specifying requirements for parking should be included (conditions (20), (21)); whether a condition specifying that use or occupation of the building must cease where the business has not traded for any period of 6 months following grant of an occupation certificate should be included (condition (47)); and whether a condition specifying that the 10/50 Vegetation Clearing Code of Practice for NSW under the Rural Fires Act 1997 does not apply should be included (condition (64)); and

5. The applicant opposes the Council’s proposed conditions requiring deletion of a murphy bed/lounge in the staff amenity room (condition (15)(i)), and prohibition on beds or human sleeping facilities within or external to the building (condition (59)).

Details of the Application

13. The proposed building and driveway access are adjacent to the southern boundary of the site, at the south western corner. The amended plans for the proposed development (ex A) provide on the basement level six kennels (including an isolation kennel), an office, food preparation room and laundry, and on the ground floor seven kennels, a pet bath, and a staff amenity room. The plans include a murphy bed/lounge in the staff amenity room on the ground floor, and a lift. Three customer parking spaces are located on the northern side of the building, between the five outdoor kennels and the 50sqm outdoor exercise area.

14. A Bushfire Protection Assessment report prepared by Travers Bushfire and Ecology dated May 2015 (ex J) proposes an Asset Protection Zone (APZ) of between 26m-31m from the building, which is a reduction of 18.29% from the area recommended in the earlier report prepared on behalf of the applicant by Building Code & Bushfire Hazard Solutions Pty Ltd in August 2014 (ex 13, p 8). The Bushfire Protection Assessment report recommends construction of the building to accord with BAL 40 under AS3959 Construction of buildings in bushfire-prone areas 2009.

15. The Fencing plan provided during the course of the hearing (ex R) shows a 2m solid colourbond fence around the building, driveway and outdoor exercise and kennel area; a 2m chain wire floppy top fence around the APZ and extending around the wastewater treatment system, with two gates; and a 2m floppy top fence around the western, northern and eastern boundaries, with gates at the north eastern corner for initial fauna handling operations, and at the south eastern corner for weed removal along Wilsons Creek.

16. The applicant provided a draft Plan of Management dated 18 December 2015 (ex N), and a further draft dated 8 February 2016 annexed to the proposed conditions of consent provided after the hearing. The February 2016 draft specifies a maximum of 13 dogs at any one time (cl 2.2), and no cats or kittens (cl 3.6). The proposed hours of operation for the reception area are 8.00am-8.00pm seven days a week for owners to check in and check out pets. The provisions relating to staff include a requirement (cl 4.1.2) that there be at all times a manager/person in charge of animals appropriately experienced and trained in animal care on the premises; veterinarians on call (cl 4.2.1); and appropriately trained and experienced animal attendants (cl 4.3.1). Section 5 deals with Husbandry, including feeding, vaccination and health care, hygiene, security, and exercise. Section 7 Housing specifies that all dogs are to be kept inside internal kennels between 5.00pm-9.00am in winter and 6.00pm-7.00am in summer with windows and door closed between 10.00pm-8.00am (cl 7.1.2), and includes the requirement that a staff member be in visual and audible range of animals in each enclosure at all times (cl 7.2.1). There is to be one staff member rostered on per shift (cl 7.2.2) and at least one staff member on call to come and assist where necessary (cl 7.2.3). The applicant proposes that compliance with the Plan of Management be an operative condition (proposed condition 3(a)). The Council’s position is that the Plan of Management is inadequate and presses for a deferred commencement condition requiring the applicant to submit to Council for its approval a detailed Plan of Management.

17. The applicant is proposing to set aside an area of 1.35ha outside the 0.23ha development envelope as a biobanking offset site, as shown on exhibit S:

18. The applicant agrees to deferred commencement conditions that a Biobanking Agreement pursuant to Part 7A of the TSC Act be finalised before any consent becomes operative (condition A), and that active management of the subject area under the Biobanking Agreement commence when 80% of the total fund deposit required under that Agreement is deposited (condition B).

19. The applicant proposes that a Fauna Management Plan (FMP) and a Vegetation Management Plan (VMP), not inconsistent with the Biobanking Agreement, be submitted to and approved by the Council (deferred commencement conditions E and F). The Council’s proposed condition F states that the FMP must include key threatening processes that the proposal will either contribute to, cause to commence, or that are already in operation, and reference to the VMP including integration of the timing of measures and tasks of both documents; and include measures to avoid, minimise and mitigate impacts to native fauna during construction and operation and incorporate recommendations contained in specified documents. The proposed condition G lists the matters that must be addressed in the VMP, and states that the VMP must include measures to avoid, minimise and mitigate impacts to native vegetation and fauna during construction and operation and incorporate recommendations contained in specified documents. The applicant has, in the comments on the Conditions provided after the hearing, requested detail of the recommendations which must be complied with for both the FMP and the VMP. The Council’s response is that the onus is on the applicant to proffer a FMP and a VMP, and that in the absence of a FMP or VMP as at the date of consent, it is not appropriate for the Council to specify what recommendations should be incorporated. Notwithstanding that position, the Council provided further particulars in the proposed conditions for both the FMP and the VMP.

Issues

20. In its Further Amended Statement of Facts and Contentions filed on 4 February 2016 (ex 1) the Council contends that:

1. the proposed development is prohibited as a dwelling under the Wollongong Local Environmental Plan 2009 (the LEP), and in the alternative, the dwelling is not ancillary to the proposed animal boarding establishment (contention 1);

2. the animal boarding establishment is prohibited in the E2 Environmental Conservation zone (contention 2);

3. the proposal is inconsistent with the objectives of the E3 and E2 zones under the LEP, and will adversely impact the SSSF EEC and listed fauna and habitats, by requiring removal and modification of areas of the EEC, providing olfactory lures for canids and an aural lure for stray and feral dogs which will impact on the EPP, and exacerbating invasion of native plant communities by exotic perennial grasses (contention 3);

4. the proposal involves significant impact on threatened species and endangered ecological communities, and the SIS is inadequate and deficient to enable meaningful assessment of those impacts (contention 4);

5. the proposal is incomplete and cannot be approved in the absence of a complete SIS (contention 5(a)), and in the absence of a Stage 2 targeted investigation of contamination (contention 5(b));

6. the proposal does not satisfy clause 7.1 (public utility infrastructure) of the LEP, in relation to wastewater treatment (contention 6);

7. the proposal does not satisfy clause 7.2 (natural resource sensitivity - biodiversity) of the LEP (contention 7);

8. the proposal is inconsistent with Chapters E6, E17 and E18 of the Wollongong Development Control Plan 2009 (the DCP) concerning preservation and management of trees and vegetation (contention 8);

9. the proposal is inconsistent with Chapter E8 of the DCP concerning impacts on the ecologically sensitive environment with respect to wastewater (contention 9);

10. the proposal has an unacceptable impact on the environment, by reason of the extent of tree and vegetation clearing, permanent modification and disturbance of the natural environment and provision of stormwater and wastewater systems on site, and the application of the 10/50 Code of Practice permitting tree and vegetation removal (contention 10);

11. the design and operational characteristics of the proposed development are not appropriate for the prevailing ecologically significant setting (contention 11); and

12. the wastewater assessment report is inadequate and clauses 7.2 and 7.4 of the LEP are not satisfied (contention 12).

21. Contention 9, part (c) of contention 8, part (a) of contention 10, and contention 12, relating to wastewater treatment, were resolved as a consequence of the agreement of the wastewater experts, and not pressed. Contention 6, relating to cl 7.1 of the LEP, was resolved subject to conditions.

22. Contention 13 was that the business plan/feasibility study is inadequate and does not provide adequate data and analysis to demonstrate that the proposed development is viable. The study referred to in the contention is not in evidence, and no submissions were made as to its relevance to the issues requiring determination.

23. Contention 14 identified inconsistencies and inadequacies in the submitted plans and documentation. Particular (b) is that a detailed site history has not been submitted, and as such it is not possible to confirm whether pre-existing land uses require further investigation in accordance with State Environmental Planning Policy No 55 – Remediation of Land; particular (d) is that the plan of management provided requires changes.

24. Contention 15 is that approval of the proposed development is not in the public interest in light of the submissions provided during the notification period, and the development is contrary to objectives (a)(i), (vi), and (vii) in s 5 of the Act.

Planning controls

25. The Wollongong Local Environmental Plan 2009 commenced on 26 February 2010. At the date of lodgement of the development application the site was zoned E3 Environmental Management. The objectives of the E3 zone are:

• To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values.

• To provide for a limited range of development that does not have an adverse effect on those values.

26. Development for the following purposes is permissible with consent:

Animal boarding or training establishments; Bed and breakfast accommodation; Building identification signs; Business identification signs; Community facilities; Dwelling houses; Environmental facilities; Environmental protection works; Extensive agriculture; Farm buildings; Farm stay accommodation; Forestry; Home-based child care; Recreation areas; Roads; Secondary dwellings

27. Clause 4.2A of the LEP provides that development consent must not be granted for the erection of a dwelling house on land in the E3 zone unless, relevantly, the land is a lot equal to or greater than 40ha.

28. Clause 5.9 relates to preservation of trees and vegetation, and the objective is “to preserve the amenity of the area, including biodiversity values, through the preservation of trees and other vegetation”. Clause 5.11 provides that bush fire hazard reduction work authorised by the Rural Fires Act 1997 may be carried out on any land without development consent.

29. Other relevant provisions include:

1. cl 7.1: development consent must not be granted for development on land unless the consent authority is satisfied that any public utility infrastructure (which is defined to include disposal and management of sewage) that is essential for the proposed development is available or that adequate arrangements have been made to make that infrastructure available when it is required;

2. cl 7.2: development consent must not be granted for development on land identified as “Natural resource sensitivity—biodiversity” unless the consent authority has considered the impact of the development on, inter alia, native terrestrial flora and fauna and its habitat, the ecological role of the land, waterways, riparian land or wetland, and threatened species, communities, populations and their habitats;

3. cl 7.3: specifies matters on which the consent authority must be satisfied before granting consent to development on land mapped as being flood prone; and

4. cl 7.4: development consent must not be granted for development on land identified as “riparian land” unless the consent authority has considered the impact of the proposed development on the land and any opportunities for rehabilitation of aquatic and riparian vegetation and habitat on that land.

30. On 17 July 2015 the Wollongong Local Environmental Plan 2009 (Amendment 19) (the Amending LEP) came into force, and rezoned the site as well as other land in the local government area to E2 Environmental Conservation. The Council’s Statement of Facts and Contentions at paragraph 45 notes the genesis of the Amending LEP as a planning proposal “Review of land formerly zoned 7(d) at Helensburgh, Otford and Stanwell Tops” exhibited in 2012, and adopted in 2013.

31. The objectives of the E2 Environmental Conservation zone are:

• To protect, manage and restore areas of high ecological, scientific, cultural or aesthetic values.

• To prevent development that could destroy, damage or otherwise have an adverse effect on those values.

• To retain and enhance the visual and scenic qualities of the Illawarra Escarpment.

• To maintain the quality of the water supply for Sydney and the Illawarra by protecting land forming part of the Sydney drinking water catchment (within the meaning of State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011) to enable the management and appropriate use of the land by Water NSW.

32. Development for the purposes of environmental facilities; environment protection works; extensive agriculture; and recreation areas, is permissible with consent. A range of nominate development, and any other development not specified as permissible without consent or with development consent, is prohibited.

33. Clause 1.8A of the LEP provides:

1.8A Savings provision relating to development applications

(1) If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not finally been determined before that commencement, the application must be determined as if this Plan had not commenced.

(2) A development application made (but not finally determined) before the commencement of Wollongong Local Environmental Plan 2009 (Amendment No 19) is to be determined as if that Plan had not been made.

34. The Wollongong Development Control Plan 2009 applies. Relevant provisions include Chapter E6 Landscaping, E8 On-Site Sewage Management, E17 Preservation and Management of Trees and Vegetation, and E18 Threatened Species Impact Assessment.

Evidence

35. The site view included the area of the proposed asset protection zone (APZ) and the locations of the proposed wastewater disposal areas; Wilsons Creek; and the location where an EPP was trapped in May 2015.

36. Written submissions made to the Council in response to notification of the original proposal and the amended proposal are in evidence (ex 2, tabs 1-10). Those submissions raised concerns as to inconsistency with the objectives of the zone, impacts on habitat and endangered fauna, traffic and noise, concerns with impacts of an existing boarding kennel in the locality, and excavation, fill and clearing being undertaken without consent.

37. Expert evidence was provided on behalf of the applicant by Mr S Harding (planning), Mr J Travers (ecology and bushfire), Dr D Martens (wastewater), Mr A Norris (contamination) and Associate Professor R Goldingay (EPP). Expert evidence was provided on behalf of the Council by Mr B Daintry (planning), Mr G Swain (bushfire), Ms E Ashby (ecology), Mr B Morrisey (wastewater), and Dr I Yassini (contamination).

38. Mr Travers prepared a Bushfire Protection Assessment dated May 2015 (ex J); a Flora and Fauna Assessment dated May 2015 (ex H); an SIS dated December 2015 (ex G); and a draft Vegetation Management Plan dated January 2016 (ex K) (the Draft VMP). He and Ms Ashby prepared individual statements of evidence (exhibits F, 6), and conferenced and provided two joint reports on ecology (ex 12, 13).

39. Ms Ashby and Dr Goldingay conferenced and prepared a joint report on issues relating to the EPP (ex 14). During the course of the hearing Ms Ashby, Dr Goldingay and Mr Travers conferred and provided a response to the Draft VMP (ex 17). Ms Ashby, Dr Goldingay and Mr Travers gave oral evidence.

40. Mr Swain prepared an individual statement of evidence on bushfire issues (ex 7), and he and Mr Travers conferenced and prepared a joint report (ex 16).

41. Dr Martens and Mr Morrisey prepared individual statements of evidence (exhibits E, 5), and conferenced and prepared two joint reports (exhibits 10, 11). In the latter report they agreed that an aerated wastewater treatment system (AWTS) with a lined Wisconsin mound system together with an emergency seepage management system was suitable and addressed the contentions relevant to on-site wastewater management. Dr Martens updated his original wastewater management report to include assessment and documentation of the Wisconsin mound system, annexed to exhibit 11.

42. Mr Harding and Mr Daintry prepared individual statements of evidence (exhibits D, 4), conferenced and prepared two joint reports (exhibits 8, 9), and gave oral evidence.

43. In relation to contamination, Martens & Associates Pty Ltd prepared a Preliminary Site Investigation dated November 2015 (ex B), and a Detailed Site Investigation dated February 2016 (ex C). Mr Norris (Director and Senior Engineer at Martens & Associates Pty Ltd) and Dr Yassini conferenced and provided a joint report (ex 15), and gave oral evidence.

44. The applicant provided a supplementary noise assessment for the increase from 6 to 13 dog kennels (ex M).

Submissions

Applicant’s submissions

45. The applicant submits that while regard should be had to the amendment to the LEP which prohibits the proposed development, the savings and transitional provision in cl 1.8A(2) should be given meaning. While the amendment can be considered imminent and certain, it should not be given determinative weight. The permissible uses in the E3 zone include a range of uses, and a use of those types in some form is likely to be an appropriate use. In the E2 zone, none of the uses, other than extractive agriculture, have a commercial component. It is relevant to have regard to the present situation where there is no protection for the EPP or other fauna from natural predators such as dogs or deer. There is a range of legitimate uses that could continue on the site, such as use of the caravan and the presence of dogs, and in comparison there are benefits in this proposal, namely the Biobanking area and the requirement for a VMP and FMP. That is a real and tangible benefit of the proposal. The applicant submits that there is sufficient information to manage appropriate remediation of contamination on the site. The Court should be satisfied on the evidence of Dr Goldingay as to the impacts on the EPP, and there is no proper basis for the assertion that there is likely to be distress caused to the EPP through the prospect of the olfactory lure of dogs in the kennels attracting dogs or foxes. The applicant submits that the study area and local population of EPP have been appropriately assessed, and the best habitat for EPP in the area will be protected. The impact on the EEC is the need to do work on the APZ, which requires some limbing of trees, removal of trees, and work on the canopy. The proposed development is not a dwelling. The proposal is consistent with the objectives of cl 7.2 of the LEP, by protection of the Biobanking site, the proposed fencing, and the VMP. In reply the applicant submits that the detail of the matters identified at section 6.8 of the SIS will be in the VMP, and the purpose of the SIS is to provide the general objectives and elements of the VMP and the mechanism that the Council needs to approve it. There is no significant impact so no requirement to provide an SIS, and in any event, the document in evidence (ex G) is a species impact statement for the purposes of the Act. If it is insufficient, the entirety of the evidence can be considered to determine whether the proposal is appropriate, and the ameliorative measures are appropriate.

Council’s submissions

46. The Council submits that the primary issue is the impact of the proposed development on the natural environment. The site is environmentally sensitive, given the location of the SSSF, the population of EPP and potential population of the Red Crowned Toadlet, the location of habitat for vulnerable fauna species and likelihood of occurrence for endangered and vulnerable flora species, and the proximity of the site to Garawarra State Conservation Area and the Woronora Special Area water catchment. Once it is concluded that the proposed development is antipathetic to the objectives of the E2 zone in which the site is now located, the amended LEP, under which the proposed development is prohibited, is of determinative weight. The Council submits that the Court should not be satisfied that there has been an appropriate assessment of site contamination: there is no record of where the fill on the site came from, and the testing has not provided sufficient information to determine the extent of contamination. In the absence of a detailed VMP the impacts on the SSSF EEC and the EPP cannot be considered properly, and there is insufficient certainty as to whether there is appropriate mitigation of those impacts. The SIS is not a “species impact statement” for the purposes of the Act; in the alternative, the impacts are unacceptable on consideration under s 79C(1)(b) of the Act. The Council submits that no detail has been provided of the measures identified at section 6.8 of the SIS which may, in addition to those proposed and described in the SIS, improve the habitat quality for EPP and provide further assurance to the local population, namely, preparation of a VMP; plantings of local and other foraging opportunities within the landscaped area of the proposal; construction of nest boxes; and control and management of feral animals.

Consideration

47. The central issue in this appeal is the impact of the proposed development on the ecological values of the site and area, in particular on the SSSF EEC and the EPP. A consideration of those impacts is relevant in addressing the Council’s contentions that the proposal is inconsistent with the objectives of both the E2 and E3 zones under the LEP, involves adverse impacts on threatened species and endangered ecological communities, does not satisfy the requirements of cl 7.2 of the LEP for that part of the site that is identified as “Natural resource sensitivity – biodiversity”, is inconsistent with the provisions of the DCP, has an unacceptable impact on the environment, and is not appropriate for the prevailing ecologically significant setting.

48. At the time the development application was lodged, development for the purpose of “animal boarding or training establishments” was permissible with consent in the E3 Environmental Management zone. Clause 2.3(2) of the LEP requires consideration of the objectives of the E3 zone in determining the application. After the application was lodged, the site was rezoned to E2 Environmental Conservation, in which development for such a purpose is prohibited. Clause 1.8A(2) requires that the application is to be determined as if the amendment made by the Amending LEP has not been made, and accordingly the proposed development is permissible with consent. The applicant submits that the effect of cl 1.8A(2) of the LEP is that regard should be had to the amendment as if it were a draft planning instrument, on the basis that it can be regarded as imminent and certain. The Council agrees with that approach, however submits that once it is determined that the proposed development is antipathetic to the objectives of the E2 zone, the prohibition of the proposed development is of determinative weight.

49. Clause 7.2 of the LEP imposes a threshold requirement. Development consent cannot be granted unless the Court, as consent authority, has considered the matters identified in subclause (3), and, under cl 7.2(4), is satisfied that the development is consistent with the objectives of the clause, and that paragraph (a) or (b) is met. If that threshold is met, the proposed development must be assessed having regard to the likely impacts of that development, including environmental impacts on both the natural and built environments (s 79C(1)(b)), and the suitability of the site for the development (s 79C(1)(d)).

Impacts on the SSSF EEC

50. The Flora and Fauna Assessment dated May 2015 (ex H) confirmed SSSF across the site in areas that had not been fully cleared. In that report Mr Travers noted that of the 1.57ha site, 12,051sqm is good quality EEC vegetation, 1,152sqm is edge effected EEC vegetation, 415sqm is underscrubbed EEC vegetation with young regrowth, and 2,152sqm is land which is cleared and managed (ex H, p i). The SIS calculates the extent of SSSF on the site as 12,748sq good quality, and 754sqm underscrubbed with regrowth (total 13,503sqm); and a further area of 2,272sqm cleared and managed (ex G, fig 3.1).

51. The critical issue is the extent of the SSSF EEC affected by the proposed development. The SIS estimates that the extent of the EEC covers 36.6% of the area directly affected by the proposal, estimated as being 332sqm of good quality vegetation plus the underscrubbed with regrowth area of 478sqm (ex G, p 93).

52. The Scientific Committee Determination for the SSSF EEC is in evidence (ex P). Flora species included in the community may be represented below ground in soil seed banks; and diverse fauna are included as a component of the community (para 3). The Determination notes (para 10) that clearing of areas where suitable habitat exists has occurred in the local government areas of Hurstville, Kogarah and Sutherland, where the community persists as small fragments surrounded by urban development; the remaining area of the community is principally in the upper Hacking River catchment around Helensburgh and in Royal National Park and clearing has resulted in a moderate to large reduction in the geographical distribution of the community. Clearing of native vegetation is a key threatening process under the TSC Act.

53. The SIS identifies the direct impacts of the proposal on the SSSF as being removal/modification of remnant vegetation within the APZ, ongoing management of the APZ to comply with fuel load ratings, and nutrient influx from the effluent disposal system (ex G, p 94). The SIS comments that the UBM report had overestimated the impacts of the proposal on the EEC by suggesting the impact as 3,600sqm; the APZ had been redesigned and thus the impacts reduced, and a portion of the APZ has already been cleared. The SIS concluded that based on the current proposal, there would be an impact of an estimated 810sqm on EEC vegetation of varying quality; and that based on the local extent of 38.4ha of the EEC, the direct impacts represent a loss/modification of less than 1%, being 0.21% (ex G, p 83).

54. In their first joint report Ms Ashby and Mr Travers considered the extent of removal of habitat and ongoing disturbance to remaining habitat by the proposed development having regard to the original extent of SSSF EEC on the site prior to works carried out by the current owners for the proposal; the area of clearing carried out by the current owners for the proposal; and the area and location of the wastewater disposal field. They agreed (ex 12, p 2) that as at 2006, 982.31sqm of native vegetation had been cleared and/or alienated by soil works prior to the current ownership; and an additional 870.69sqm had been cleared and disturbed for the proposal by February 2015; and that there appears to have been additional recent clearing along the southern boundary, an area of between 150-300sqm.

55. Their estimates of the area of clearing already undertaken for the proposed development varied. Mr Travers stated it to be equivalent to approximately 1,345.01sqm of vegetation that was most likely SSSF, while Ms Ashby’s estimate was approximately 1,020.69 to 1,170.69sqm that was mostly SSSF, together with additional clearing for the track along the northern boundary (ex 12, p 3).

56. The experts addressed the significance of the potential impact of the proposal on the SSSF EEC (ex 12, pp 5-6). Mr Travers’ opinion was that the direct impact of the development on the SSSF was 870.69sqm, including all infrastructure, the APZ and the effluent field, together with the 1,345.01sqm as a result of previous impacts by others. The impact was 53sqm of good quality SSSF, 529sqm of edge affected quality SSSF; underscrubbed with regrowth SSSF at 348sqm, and 1,287sqm of cleared and managed lands. Ms Ashby’s opinion was that the impact on SSSF includes direct loss of SSSF EEC to date; additional direct loss for the footprint; direct loss for the primary and backup effluent disposal fields; additional loss of understorey within the APZ; and indirect impacts by alteration of the floristic composition by leaching of nutrients. In her opinion the actual area of SSSF EEC to be removed could not be calculated until both the location and extent of recent clearing and the primary and backup effluent disposal fields are determined.

57. While the numbers vary, in general terms there was agreement as to the extent of the SSSF EEC on the site, and I accept Mr Travers’ estimate that there is in the order of 12,000sqm of good quality EEC vegetation, and in the order of 2,000sqm cleared and managed land, with the balance being edge effected EEC vegetation or underscrubbed EEC vegetation with young regrowth. Fig 6.5 of the SIS shows that the area of high quality EPP habitat is a band close to and parallel to Wilsons Creek, surrounded by a band of moderate quality EPP habitat; the remainder of the site, other than the cleared area, is low to very low quality EPP habitat.

58. The proposed building and driveway are proposed to be located on the part of the site that has already been cleared. The extent to which additional clearing or other work is required depends on whether an APZ is required, and if so, its extent.

50. Mr Travers’ Bushfire Protection Assessment report (ex J) was prepared on the basis that the development would contain residential accommodation for 1-2 persons (p1), noting (at p 10) that a portion of the building includes permanent residential accommodation. The Council referred the proposal on 7 October 2014 to the Rural Fire Service (RFS) pursuant to s 79BA of the Act. On 3 November 2014 the RFS responded (ex 2, tab 16):

Given this application is not for a residential dwelling or special fire protection purpose and that human life is not considered to be at risk, it is not considered to be of significant concern to the RFS. Therefore, no conditions for asset protection zones or construction standards have been recommended. However, the contents of the bushfire assessment report that does make such recommendations are noted, Implementation of these recommendations by the proponent would certainly provide a higher level of protection for the animals that would be housed in the facility.

60. On 19 December 2014 the RFS confirmed its earlier advice, noting (ex 2, tab 18):

This advice is with the acknowledgement that the development would be permanently staffed, ie 24 hours a day, 7 days per week. An Emergency and Evacuation plan is considered necessary, particularly arrangements to evacuate animals during a bushfire. …

I understand that Council is seeking to clarify the intended use of the development, in particular if the development would have any residential use. If this were to be so, the RFS recommends conditions that accord with the bushfire assessment report prepared by Building Code & Bushfire Hazard Solutions dated 20th August 2014. These conditions would be:

1.An asset protection zone of 31m to the north and east, and to the property boundary to the west and south.

2. Construction to BAL 40, southern elevation to BAL-29.

61. On 17 August 2015 the RFS wrote to the Council in response to a request for advice dated 5 August 2015 (ex 2, tab 20). The letter is headed “Proposed Animal Boarding Facility with carer’s overnight accommodation…”, and states that the RFS had reviewed the information provided, “… and advises that as the development now incorporates a residential component, the following recommendations are made”. Those recommendations included an APZ managed as an inner protection area (IPA), provision of water and utilities, access, evacuation and emergency management, and design and construction.

62. The Plan of Management requires that there be one staff member on the premises at all times. While the proposal as amended does not include permanent residential accommodation, there will be a carer present overnight. The applicant proposes a murphy bed/lounge in the staff amenity room. Whether or not that is provided, there will still be a carer present overnight. The RFS correspondence of 17 August 2015 confirms that a residential component, in the form as described in that correspondence as “carer’s overnight accommodation”, prompts a recommendation that there be an APZ. I am satisfied, based on that evidence, that the proposed development requires an APZ.

63. It is not possible on the evidence before the Court to reach a definite conclusion on the area required to be cleared and managed for an APZ. Mr Travers’ evidence was that the extent of the APZ is 2,215.70sqm (ex 12, p 3), However, Mr Travers acknowledged that the location of the Wisconsin mound is indicative (ex 12, p 4), while Ms Ashby’s evidence was that the wastewater disposal area needed to be determined in order to calculate the actual area of SSSF EEC to be removed. The details of the agreed wastewater system are provided in Dr Martens’ Updated Wastewater Report annexed to the second joint report (ex 11), however the dimensions of the area of the Wisconsin mound are not stated; on Drawing No SK-A004 Rev A approximately half the Wisconsin mound is located outside the APZ boundary. In oral evidence, Mr Travers noted that the solid fencing marked blue on ex R needs to go around the Wisconsin mound.

64. While noting that qualification, based on the available evidence I accept that the area of the APZ is in the order of the 2,215.70sqm calculated by Mr Travers, and, based on Mr Travers’ evidence, that it includes an area of good quality SSSF EEC, and more substantial areas of SSSF edge effects and SSSF (underscrubbed with regrowth) (ex J, Fig 3.1). He and Ms Ashby agreed that the areas identified earlier as “edge effected” have not been cleared, but instead have had weeds and rubbish removed from the understorey thus revealing bare ground in parts (ex 12, p 2). In oral evidence Mr Travers accepted that the area of the APZ would contain seedbank for the EEC. I accept that evidence.

65. Mr Travers’ evidence was that management of the APZ in accordance with RFS guidelines Standards for Asset Protection Zones 2005 would require removal of 20 trees, with the majority being smaller less mature trees or those with defects, and limbing of a further two trees (ex J). The SIS notes that the trees to be removed include 3 Acacia filicifolia, 9 Eucalyptus pilularis, 1 Angophora costata, 3 Hakea salicifolia and 1 Eucalyptus piperita (ex G, p 94). Ongoing management would be required to comply with fuel load levels, with regrowth of native vegetation suppressed and regeneration of canopy trees limited (ex G, p 95). The SIS considered indirect impacts, noting that current edge effects from site activities are excessive and unrestricted, having been the result of extended human activity and maintaining animals including dogs and chickens within the bushland fringes, and that gradual dumping of refuse, landfill, food waste and site material has exacerbated this effect; these current edge effects extend into the majority of the proposed APZ (ex G, p 96). That evidence was not contested, and I accept it.

66. The SIS provided responses (ex G, p 96-97) to the identified potential indirect impacts of the proposal including management restrictions in the APZ to avoid altered runoff and nutrients into adjoining vegetation; a VMP to assist in management of external vegetation to the APZ to avoid edge effects being transferred further into the bushland; application of a sediment and erosion control plan, including management and monitoring of best practice guidelines through a VMP; development of an ecological fire regime to assist in maximising longevity of the EEC and other vital habitat; and additional fencing to limit vehicular and pedestrian movement within the conserved parts of the site. At section 5.7 (p 97) additional measures to improve remnant SSSF were recommended, including preparation of a VMP to enhance overall habitat quality, undertaking weed control, planting EEC species in existing cleared areas outside the APZ, using sediment and erosion control practices around the APZ perimeter, using a swale and retaining bush rock in the north east corner of the APZ, minimising vehicular and pedestrian traffic, and applying safeguards to minimise risk of fungal diseases entering the site.

67. The evidence as to direct and indirect impacts of establishment and management of the APZ was generally agreed. Those impacts include removal of trees, suppression of native vegetation and limitation of canopy trees, potential nutrient runoff, and extension of edge effects. Whether the evidence before the Court establishes a sufficient degree of certainty as to ameliorative responses and management measures in response to the identified direct and indirect impacts, and their implementation, is addressed below.

Impact on the EPP

68. The Flora and Fauna Assessment report (ex H) and the SIS (ex G) identified a number of actual and potential threatened species, populations and habitats on the site. The central issue in this appeal is the impact on the local population of EPP. It was common ground that the vegetation on the site is habitat for EPP, and an EPP was trapped on the site in May 2015. The SSSF EEC includes Banksia ericifolia, which along with other Banksias is a significant foraging habitat for EPP (ex G, p 70; ex H, p 45). Mr Travers and Ms Ashby agreed that the potential impact on the EPP includes direct loss of habitat; Ms Ashby adding to that the deterioration of habitat through impacts on the keystone species Banksia ericifolia and impacts from increased predation (ex 12, p 6).

69. In their joint report on EPP (ex 14) Ms Ashby and Dr Goldingay agreed that:

1. a breeding population of EPP occurs on the site, Dr Goldingay noting that a single female EPP with pouch young was captured in the study area, being the site;

2. the site is connected to other areas containing EPP habitat which extend into Garawarra State Conservation Area and then into Royal National Park;

3. the presence of boarding cats and dogs may create a lure; and

4. the area of direct impact on EPP habitat is likely to be minimal.

70. They disagreed as to the numbers of EPP supported on the study area; whether the degree of indirect impact on EPP and its habitat may be significant; and whether the SIS is, as contended by the Council, inadequate and deficient. Dr Goldingay considered that while boarding of cats and dogs may create a lure, based on the SIS there are a large number of dogs known to occur on properties surrounding the site, which makes it difficult to conclude that an indirect impact would be significant. Ms Ashby was of the opinion that the uncertainty surrounding the nature and extent of indirect impacts requires the application of the precautionary principle and the assumption that a significant adverse impact will result.

71. The issues of whether the presence of canid predators, namely dogs and foxes, potentially attracted to the site by the smell of the boarded dogs, would elicit a stress response for EPP, and the significance of the impact on the EPP and its habitat, were explored in oral evidence.

72. In oral evidence the experts agreed that the home range for EPP is an average 3-7ha, and that population density is in the order of 1.1 per hectare. Based on Fig 6.5 of the SIS, Ms Ashby, Dr Goldingay and Mr Travers agreed that the total area of habitat likely to support the local population of EPP is in the order of 20.38ha, including the site at 1.6ha, 16.01ha immediately to the north which includes an area of very high quality habitat, and two areas on the western side of the Princes Highway, one at 1.38ha and the other 1.41ha, the latter being moderate quality. The agreed evidence was that the local population is in the order of 22 EPP. Dr Goldingay noted that that would be adult individuals, and may not count juveniles which would disperse from the site.

73. Ms Ashby’s evidence was that the presence of predators detected by smell elicits a response in small mammals increasing stress and change in behaviour. She accepted that there are potentially many olfactory attractors in the area, that the proposed fencing would be adequate to keep predators out of the site, and that the fence would reduce risk to EPP on the site. Dr Goldingay’s evidence was that while dogs are a potential predator, they are not significant. The EPP is an arboreal species so it could get above any potential predator. Dr Goldingay relied on studies of dog scats which do not show EPP, and only 1% of fox scats; while cats are predators, dogs and foxes focus on larger animals.

74. There were inconsistencies in the proposed fencing initially shown on the Draft VMP (ex K), and as discussed in the first joint ecological report (ex 12). Exhibit R, provided to clarify the proposed fencing, shows a 2m solid colorbond fence around the building, parking area and outdoor kennels; a 2m chain wire floppy top fence around the APZ and the Wisconsin mound; and a 2m floppy top fence around the site. Ms Ashby and Mr Travers addressed the issue of fencing in their oral evidence. They agreed that a fence is needed around the APZ, constructed so as to allow EPP to use the habitat in the APZ. Ms Ashby agreed that if the dogs are inside the solid colorbond fence the APZ fence would be a safeguard in case of breakouts; Mr Travers’ evidence was that the colorbond fence needs to be solid to prevent the dogs seeing out, and the perimeter fence on the eastern side needs to be flexible so it can avoid the creek as the boundary runs through the creek; that detail will be in the final VMP. Ms Ashby noted that the perimeter fence would exclude large native animals such as wallabies and bandicoots as well as predators. Mr Travers considered that the final VMP would deal with fauna care, using the contiguous bushland to the north of the site.

75. The SIS included responses to direct and indirect impacts of the proposal on the EPP (pp 113-116). That discussion noted current edge effects from site activities as the result of extended human activity including persons residing with visitors and vehicles, and maintaining animals including dogs and chickens, exacerbated by dumping of refuse, landfill, food waste and site material, and the presence of Black Rats. At section 6.8 the SIS recommended further measures to improve habitat quality for EPP, including preparation of a VMP to enhance overall habitat quality in remaining naturally vegetated areas, plantings of local and other foraging opportunities for EPP, construction of nest boxes to enhance denning opportunity, and control and management of feral animals, in particular control of Black Rat, Rusa Deer, Rabbits, Cats, Dogs and European Red Fox.

76. While there was ultimately agreement that the proposed fencing would provide a means of limiting physical interaction between the EPP and boarded and feral dogs or other predators, the experts remained in dispute as to the significance of olfactory lures, and the reaction of EPP to the presence of dogs. On balance, having regard to the evidence as to the existing high level of dog and cat ownership in the locality, and the limitation of the studies on which Ms Ashby relied, I prefer the evidence of Dr Goldingay that the presence of boarded dogs would be unlikely to provide any greater lure than currently exists. The critical issue in terms of the direct and indirect impact on EPP is the impact on habitat. The appropriateness of the proposed ameliorative measures and management responses is considered below in the context of the Draft VMP.

The Draft VMP

77. The Council’s position is that in the absence of a detailed VMP the impacts on the SSSF EEC and the EPP cannot be considered properly, and there is insufficient certainty as to whether there is appropriate mitigation of those impacts. The applicant’s position is that the SIS has provided the general objectives and elements of the VMP, and that the detail of the matters specified in the SIS will be provided in the final VMP.

78. Mr Travers’ evidence was that this is a simple site and the SIS and Draft VMP have provided the recommendations including for management techniques. The final VMP needs detail from the consent conditions. Ms Ashby accepted that it is common for a VMP to be in draft form to be finalised after a consent is granted; her preference was to see the VMP in final form rather than in the draft.

79. The Draft VMP tendered during the hearing (ex K) included provisions for Site Preparation, Weed Control, Vegetation Protection, Herbicide Use, Fire Intervals, Revegetation Specifications, Tree Removal Specifications, Landscape Management Performance Targets, and Project Management, Reporting and Auditing. In his contribution to the Supplementary Joint Report (ex 13), prepared after the SIS and alterations to the proposal arising from negotiations during the proceedings, and following the joint report on EPP prepared by Ms Ashby and Dr Goldingay (ex 14), Mr Travers expressed the opinion that that Draft VMP addresses all ameliorative measures apart from the extension of the chain wire fencing along the western boundary.

80. However, in their conferencing during the hearing Ms Ashby, Dr Goldingay and Mr Travers agreed (ex 17) that the Draft VMP requires significant enhancement of detail and attention to inconsistencies such as the development envelope definition, and vegetation condition estimates. They agreed that management units should be defined at a finer scale, and include weed mapping; the VMP should refer to the landscape plan and drive species selection for that plan; the VMP should include a detailed schedule of works and possibly costings; specific management actions for problematic weeds should be included; a specific monitoring schedule incorporating a restoration timeline should be included; professional bush regeneration contractors are to be engaged for all works; the “defendable space” on the southern boundary should be replaced by an access management track; recognition of the riparian zone relevant to Wilsons Creek should be incorporated; subject to the constraint for species native to SSSF, flexibility for species planting for specific areas should be allowed; the reference to ecological burning needs further consideration; a full list of exotic species is to be provided; and the VMP is to include fauna habitat enrichment details.

81. Having regard to the absence of detail in the Draft VMP as to how the recommendations identified in sections 5.7 and 6.8 of the SIS are to be implemented, and the agreed expert evidence as to the deficiencies in the Draft VMP, I agree with the Council that the evidence does not establish with a degree of certainty that the ameliorative measures and management strategies required to minimise and address the direct and indirect impacts impacts on the SSSF EEC and the EPP identified in the SIS are provided in sufficient detail so as to be satisfied as to the impacts of the proposed development, for the purposes of cl 7.2 of the LEP, or for the consideration of likely impacts under s 79C(1)(b) of the Act and ultimately the suitability of the site for the proposed development under s 79C(1)(c) of the Act. That detail is still not settled, there being a dispute between the parties as to the content and timing of a final VMP and FMP identified in their responses to the proposed draft conditions of consent.

82. The applicant relies on the proposal to establish a Biobanking arrangement for 1.35ha of the site outside the development envelope (ex S). The parties agree on deferred commencement conditions requiring finalisation of a Biobanking Agreement, with active management under the Biobanking Agreement to commence when 80% of the total fund deposit required to be deposited is deposited. Ms Ashby is an accredited biobanking assessor, and I accept her evidence that it is feasible the site could be the subject of a Biobanking Agreement, and it is large enough, however would need assessment to determine the biodiversity values and credits to be achieved. There remained uncertainty as to whether the site would generate credits: Ms Ashby considered that it could, while Mr Travers had doubts. While I accept that management of 1.35ha of the site, which would include the area of better quality EPP habitat, under a Biobanking arrangement, may be an improvement for the SSSF EEC, there is uncertainty on the evidence available to the Court as to whether there would be sufficient funds generated to ensure ongoing appropriate management. While the parties propose a deferred commencement condition requiring finalisation of a Biobanking Agreement, in the face of that uncertainty it is not appropriate in my view to defer consideration of whether ameliorative measures for the direct and indirect impacts of the proposed development are both identified and in place.

Clause 7.2

83. Clause 7.2 of the LEP provides:

7.2 Natural resource sensitivity—biodiversity

(1) The objective of this clause is to protect, maintain or improve the diversity and condition of the native vegetation and habitat, including:

(a) protecting biological diversity of native flora and fauna, and

(b) protecting the ecological processes necessary for their continued existence, and

(c) encouraging the recovery of threatened species, communities, populations and their habitats.

(2) This clause applies to land that is identified as “Natural resource sensitivity—biodiversity” on the Natural Resource Sensitivity—Biodiversity Map.

(3) Development consent must not be granted for development on land to which this clause applies unless the consent authority has considered the impact of the development on:

(a) native terrestrial flora and fauna and its habitat, and

(b) native aquatic flora and fauna and its habitat, and

(c) the ecological role of the land, waterways, riparian land or wetland, and

(d) threatened species, communities, populations and their habitats.

(4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development is consistent with the objectives of this clause and:

(a) the development is designed, sited and managed to avoid potential adverse environmental impact, or

(b) if a potential adverse environmental impact cannot be avoided, the development:

(i) is designed and sited so as to have minimum adverse environmental impact, and

(ii) incorporates effective measures so as to have minimal adverse environmental impact, and

(iii) mitigates any residual adverse environmental impact through the restoration of any existing disturbed or modified area on the site.

(5) This clause does not apply to or in respect of:

(a) the clearing of native vegetation that is authorised by a development consent or property vegetation plan under the Native Vegetation Act 2003 or that is otherwise permitted under Division 2 or 3 of Part 3 of that Act, or

(b) the clearing of vegetation on State protected land (within the meaning of clause 4 of Schedule 3 to the Native Vegetation Act 2003) that is authorised by a development consent under the provisions of the Native Vegetation Conservation Act 1997 as continued in force by that clause, or

(c) trees or other vegetation within a State forest, or land reserved from sale as a timber or forest reserves under the Forestry Act 1916, or

(d) action required or authorised to be done by or under the Electricity Supply Act 1995, the Roads Act 1993 or the Surveying Act 2002, or

(e) plants declared to be noxious weeds under the Noxious Weeds Act 1993.

84. An extract from the Natural Resource Sensitivity—Biodiversity Map is in evidence (ex 18). It was not clear from that extract whether the whole or only part of the site is included as land identified as “Natural resource sensitivity—biodiversity”, and the Council undertook further inquiries after the hearing. On 14 March 2016 the Council’s representative confirmed that on the basis of the further enquiries made, the maps that are exhibit 18, which appear to show that the part of the site on which the proposed APZ and part of the Wisconsin mound are located are identified as “Natural resource sensitivity—biodiversity”, and that the proposed building and driveway are not, are valid. That was the assumption on which the parties’ submissions at the hearing were based.

85. The applicant submits that the proposed development is consistent with the objectives of cl 7.2 because of the protection of the Biobanking area and protection by fencing, and the VMP. The applicant doubts whether work for the APZ is “development”, however accepts that work for the Wisconsin mound is; however, all that the Wisconsin mound is doing is putting soil on top of the spores present in the soil. The APZ is designed and sited as far away as possible from the high quality EEC. If cl 7.2(4)(a) is not satisfied, the proposal satisfies cl 7.2(4)(b), and any impact of the APZ is more than mitigated by the work required elsewhere on the site.

86. The Council submits that cl 7.2(4) is a bar to the granting of consent. The clearing for and maintenance of the APZ serves the purpose of the animal boarding establishment, and is “development”. The proposed development is not consistent with the objectives of cl 7.2. If the evidence of the Council’s expert is accepted, cl 7.2(4)(a) is not met. If cl 7.2(4)(b) is considered, there is proposed to be restoration of part of the existing disturbed areas, however the development is not “designed and sited” so as to have minimum adverse impact (cl 7.2(4)(b)(i)); and the proposed development does not incorporate “effective measures” so as to have minimal adverse environmental impact (cl 7.2(4)(b)(iii)).

87. Mr Travers was of the opinion that the proposed development responds to environmental protection by keeping the footprint small and adjacent to other impacted and developed landscapes; Ms Ashby’s opinion was that direct impact has occurred in the recent past and is continuing, and the indirect impacts will continue (ex 12, p 18).

88. Clause 7.2(3) and (4) refer to “development on land to which this clause applies”. That is the land identified on the Natural Resource Sensitivity – Biodiversity Map (cl 7.2(2)), which is that part of the site on which the proposed APZ and part of the Wisconsin mound are located. The primary impact of the proposed development on that land is the clearing and ongoing management required for the provision and maintenance of the APZ, and the clearing and work required for the Wisconsin mound. Ongoing management of the APZ requires suppression of regrowth of native vegetation and limitation of regeneration of canopy species (ex G, p 95). While some areas proposed to be included in the APZ are already cleared, the majority of the APZ outside the building envelope is, based on Mr Travers’ evidence (ex J, Fig 3.1, ex R), SSSF EEC either edge effected or underscrubbed with regrowth, and EPP habitat. The Wisconsin mound wastewater treatment system requires construction of the mound including lining, capping with a minimum 50mm clay cover, provision of a grass cover, and construction of a toe drain and perimeter drain (ex 11, pp 18-19). Provision of the APZ, and the wastewater treatment system, are required as part of the proposed development. That work is, as submitted by the Council, development for the purposes of the proposed animal boarding establishment, and cl 7.2(3) and (4) apply.

89. Clause 7.2(4) requires the consent authority to be satisfied that that proposed development is consistent with the objectives of cl 7.2. The objective is to protect, maintain or improve the diversity and condition of the native vegetation and habitat including protecting biological diversity, ecological processes, and encouraging the recovery of threatened species, communities, populations and habitats. Whether the term “consistent” is to be understood in terms of “not being antipathetic” (Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21), or as “agreeing or accordant; compatible; not self-opposed or self-contradictory” (Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190), I am not persuaded that the clearing required for the APZ and the Wisconsin mound is consistent with the objective of “protect, maintain or improve” the diversity and condition of the native vegetation and habitat on that part of the site. While I accept that the area of the APZ has been reduced (ex 13, Fig 2), it is the area as proposed in the amended application that must be considered. The APZ required as part of the proposed development requires clearing, and ongoing management, of the EPP habitat vegetation, on the land to which cl 7.2 applies. The VMP is intended, among other things, to assist in management so as to avoid transfer of edge effects. In the context where there is uncertainty as to the detail in the VMP, I am not satisfied that the development is “designed, sited and managed to avoid” environmental impact (cl 7.2(4)(a)). To the extent that the environmental impact of the clearing and management required for the APZ and the wastewater treatment system cannot be avoided, in the absence of the detail required in the VMP I am not persuaded that the development incorporates effective measures so as to have minimal environmental impact as required by cl 7.2(4)(b)(ii). While I accept that the reference in cl 7.2(4)(b)(iii) to “the site” would appear to include other land which is not “the land” to which the clause applies, again the lack of detail as to ongoing management in the VMP means that it is not possible to conclude that any residual adverse environmental impact is mitigated as required by cl 7.2(4)(b)(iii). Neither paragraph (a) nor (b) is met.

90. Having considered the matters required by cl 7.2(3), I am not satisfied that the development on the land to which cl 7.2 applies is consistent with the objectives of cl 7.2, or that either cl 7.2(4)(a) or (b) is satisfied. That means that consent cannot be granted to the proposed development.

Conclusion

91. Clause 7.2 is not satisfied and there is no power to grant development consent to the proposed development. That conclusion means it is unnecessary to determine the remaining contentions. In particular, it is not necessary to decide whether it has been established that the likely effects of the development on threatened species, populations or ecological communities are significant, or whether or not the SIS is, as contended by the Council, inadequate, Ms Ashby’s evidence being that it does not establish a baseline for predator impact or adequately address cumulative impacts or feasible alternatives. The effects of the development on the SSSF EEC and the EPP would have to be taken into consideration irrespective of whether the effects attain the threshold of being likely significant effects, in accordance with s 79C(1)(b), (d) and (e) of the Act: Davis v Gosford City Council [2014] NSWCA 343. It is also not necessary to decide whether an appropriate assessment of contamination has been undertaken, nor is it necessary to determine whether there is appropriate detail as to management and operation of the proposed animal boarding establishment in the proposed Plan of Management.

Section 97B of the Act

92. The remaining issue requiring determination is the question of whether the amendment for which leave was granted on 9 February 2016 is other than minor, such that an order under s 97B(2) of the Act must be made.

93. The Council submits that the amendment is not minor. The amendments amend the development application in a significant way, by removing the cats; providing accommodation for extra dogs; providing a SIS and draft VMP; and providing the Wisconsin mound for wastewater treatment. The level of assessment changed as a consequence of the amendments, requiring amendments to the contentions and by reference to the evidence, and new joint reports were required from Mr Daintry, Mr Morrissey, and Ms Ashby in relation to ecology and the EPP.

94. The applicant submits that the SIS was prepared as a precautionary measure and only becomes part of the development application if it is required because there is a significant impact; and the provision of the draft VMP and inclusion of the Wisconsin mound are minor changes. The only real issue is the removal of the cats and the increase in number of dogs; and while it would be open to find that the amendment is not minor, in essence the change is minor.

95. Having regard to the principles as stated in Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 153 at [42], I agree with the Council that the amendments to the application are not minor, and that as a consequence, an order pursuant to s 97B(2) of the Act requiring the applicant to pay the Council’s costs thrown away as a result of amending the development application must be made. The cumulative or overall effect of the amendments in the context and location of the proposed development, including provision of the SIS and draft VMP, is significant (Futurespace paragraph (b)); a re-assessment of the development application was required, including provision of additional expert evidence (Futurespace paragraph (c)); the concept changed, with the removal of cat boarding facilities (Futurespace paragraph (d)); while the adoption of the Wisconsin mound wastewater option was responsive to issues raised by the Council, that is not determinative (Futurespace paragraph (f)); and I accept the Council’s submission that it incurred additional costs in its reassessment of the application (Futurespace paragraph (h)). The appropriate order is one in the usual form, namely that costs be as agreed or assessed.

Orders

96. The orders of the Court are:

1. The appeal is dismissed.

2. The amended development application DA 2014/1198 for an animal boarding establishment at 125 Princes Highway Helensburgh is refused.

3. The exhibits are returned except for exhibits 1, 21 and A.

4. Pursuant to s 97B(2) of the Environmental Planning and Assessment Act 1979 the applicant is to pay those costs of the consent authority that are thrown away as a result of the amendment of the application for which leave was granted on 9 February 2016, as agreed or assessed.

Linda Pearson

Commissioner of the Court

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Decision last updated: 17 June 2016