Allen Price and Scarratts Pty Ltd v Shoalhaven City Council - [2021] NSWLEC 1362

Land and Environment Court

New South Wales

Medium Neutral Citation: Allen Price & Scarratts Pty Ltd v Shoalhaven City Council [2021] NSWLEC 1362
Hearing dates: 21-23 October 2019; 11 November 2019; 4 & 13 December 2019; 23 March 2020; 29 May 2020; 5-7 August 2020; 8 & 11 September 2020; written submissions filed on 22 September 2020 and 1 October 2020
Date of orders: 26 July 2021
Decision date: 26 July 2021
Jurisdiction: Class 1
Before: Adam AC
Decision:
See final orders at [286] below

Catchwords:
APPEAL – development application – subdivision – community title – threatened species – assessment guidelines – Green and Golden Bell Frog – endangered ecological communities – hollow bearing trees – water sensitive urban design (WSUD) – impacts on oyster leases – PFAS contamination – remediation – containment cell – adaptive management – community management statement

Legislation Cited:
Biodiversity Conservation Act 2016, Sch 2 Pt 2
Biodiversity Conservation Regulation 2017, cl 7.3
Biodiversity Conservation (Savings and Transitional) Regulation 2017, cll 27, 28
Community Land Development Act 1989, ss 3, 5
Community Land Development Act 2021
Community Land Management Act 1989, ss 5, 13, 13A, 15
Community Land Management Act 2021
Contaminated Land Management Act 1997, Pt 4, s 54
Environmental Planning and Assessment Act 1979, ss 4.15, 8.15 (current); ss 5A, 75J, 78A (previous)
Environmental Planning and Assessment Regulation 2000, cll 272, 273B
Land and Environment Court Act 1979, s 34
National Parks and Wildlife Act 1974, Pt 11
Protection of the Environment Operations Act 1997, ss 43, 48, 50, Sch 1 cl 15
Roads Act 1993, ss 138, 139
Rural Fires Act 1997, s 100B
Shoalhaven Local Environmental Plan 2014, cll 2.6, 3.3, 4.1, 7.1, 7.3, 7.4, 7.5, 7.6
State Environmental Planning Policy (Primary Production – Rural Development) 2019, cl 9
State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011
State Environmental Planning Policy No 55—Remediation of Land, cll 7, 9, 12
State Environmental Planning Policy No 62—Sustainable Aquaculture
Threatened Species Conservation Act 1995, Sch 1 Pt 3
Water Management Act 2000, s 91

Cases Cited:
BT Goldsmith Planning Services Pty Ltd v Blacktown City Council [2005] NSWLEC 210
Nambucca Valley Conservation Association v Nambucca Shire Council [2010] NSWLEC 38
Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited (2010) 210 LGERA 126; [2010] NSWLEC 48
Ryan v Northern Regional Planning Panel (No 4) [2020] NSWLEC 55
Smyth v Nambucca Shire Council (1999) 105 LGERA 65; [1999] NSWLEC 226
Statewide Planning Pty Ltd v Blacktown City Council [2019] NSWLEC 1397
Sustain Our Sounds Inc v The New Zealand King Salmon Co Ltd [2014] 1 NZLR 673; [2014] NZSC 40
Upper Mooki Landcare Inc v Shenhua Watermark Coal Pty Ltd (2016) 216 LGERA 40; [2016] NSWLEC 6

Texts Cited:
A Hamer et al, “Green and Golden Bell Frog Population Study, South Nowra: Final Report”, Contract No. 12.2574.2779, Australian Research Centre for Urban Ecology
A W White & G H Pyke, “Distribution and conservation status of the Green and Golden Bell Frog Litoria aurea in New South Wales” (1996) 30(2) Australian Zoologist 177
Australian Government, Department of Agriculture, Water and the Environment, “PFAS National Environmental Management Plan 2.0” January 2020
G Daly, “From rags to riches and back again: fluctuations in the Green and Golden Bell Frog Litoria aurea population at Nowra on the south coast of New South Wales” (2014) 37(2) Australian Zoologist 157
National Institute of Environmental Health Sciences, Endocrine Disruptors (online)
NSW Department of Primary Industries, “Threatened Species Assessment Guidelines: The assessment of significance” (February 2008)
NSW Department of Planning, Industry and Environment, “Saving our Species Hygiene guidelines – Protocols to protect priority biodiversity areas in NSW from Phytophthora cinnamomi, myrtle rust, amphibian chytrid fungus and invasive plants” (April 2020)
NSW Department of Primary Industries, “Healthy Estuaries for Healthy Oysters Guideline” August 2017
NSW Office of Environment and Heritage, “Statement of Management Intent: Worrigee Nature Reserve” May 2014
NSW Planning Assessment Commission Determination Report Port Waratah Coal Services Terminal 4, Newcastle LGA
Planning for Bush Fire Protection 2006
Planning for Bush Fire Protection 2019
R C Carvahlo & C D Woodroffe, “Evolution from estuary to delta: Alluvial plain morphology and sedimentary characteristics of the Shoalhaven River mouth, southeastern Australia” (2020) 242 Estuarine, Coastal and Shelf Science 106857
R Payne, A Chalmers & J Laxton, “Understanding the characteristics of a groundwater-dependent ecosystem: Eucalyptus parramattensis Woodland at Porters Creek Wetland, NSW” (2012) 12(3) Cunninghamia: a journal of plant ecology for eastern Australia 191-211
Sydney Catchment Authority, “Neutral or Beneficial Effect on Water Quality Assessment Guideline” 2015

Category: Principal judgment
Parties: Allen Price & Scarratts Pty Ltd (Applicant)
Shoalhaven City Council (Respondent)
Representation:
Counsel:
T Robertson SC (Applicant)
M Staunton (Respondent)
Solicitors:
HWL Ebsworth (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 2017/387668
Publication restriction: Nil

Judgment

This matter has a long history, during the course of which issues arose which substantially changed the course of the proceedings.
The matter commenced with the filing of the Class 1 application on 22 December 2017, by which the Applicant, Allen Price & Scarratts Pty Ltd, appealed the deemed refusal of Development Application No. SF10570, by the Respondent, Shoalhaven City Council.
Development Application No. SF10570 was lodged with the Respondent on 8 March 2017 seeking the subdivision of 23A Aldous Place (being, at that time, Lot 586 DP1048099) and 369 Worrigee Road, Worrigee (being, at that time, Lot 587 DP1048099). Later in 2017, a boundary adjustment subdivision (SF10530) of Lots 586 and 587 was registered, creating Lot 6 DP 1236686 (23A Aldous Place) and Lot 7 DP 1236686 (369 Worrigee Road), together Lot 6 (21.09 ha) and Lot 7 (74.52 ha) constitute the subject site in this matter.
Lot 7 is accessed from Worrigee Road. Access to Lot 6 was at the time of the original application from Aldous Place via a right-of-way extending over DP 1213693 to the benefit of the then existing Lot 6 only. To the north, Aldous Place connects to Boston Road – on the north side of which is a low-density residential estate.
On 11 December 2018, the Applicant lodged Subdivision Application No. SF10714 for an adjustment to the boundary between Lot 6 DP 123666 (23A Aldous Place) and Lot 2 DP 1213693 (15 Aldous Place) to provide proposed Lot 101 (currently known as Lot 6 DP 1236686) with direct access to Aldous Place, rather than relying on the existing right-of-way to provide access to the subject site. SF10714 is yet to be determined.
To the north of Lot 7, the site adjoins a crematorium and cemetery operated by the Council. Much of the cemetery site is densely vegetated. To the north-west, the site adjoins the Worrigee Nature Reserve. To the south of the site is an area which either is, or will become, an extension to Worrigee Nature Reserve. This area has been excised from Currambene State Forest, and will provide a link between the remaining part of Currambene State Forest to the south and the original part of Worrigee Nature Reserve, and will be part of a potentially important wildlife corridor. In the Further Amended Statement of Facts and Contentions (FASOFAC) (Exhibit 26 par 20), it is stated that land had been gazetted as an extension to the Nature Reserve under Part 11 of the National Parks and Wildlife Act 1974, and is subject to the Statement of Management Intent: Worrigee Nature Reserve, published by the NSW Office of Environment and Heritage May 2014. However, during the hearing the parties and their experts were uncertain as to the current status of this land and were not able to clarify the position. Nothing depends on this – the land will remain in public ownership and will not be developed. Recognition of this area as being of conservation value means that consideration of any impacts from development on neighbouring land will be required.

Figure 1 Exhibit F - Location Map

To the east of the site is the Brundee Swamp Nature Reserve. Rotten Creek and its tributaries traverse the subject site from the south-west and flow into the Brundee Swamp Nature Reserve.
The matter was set down as a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act), commencing on site in the car park associated with the previous use of the site as a golf course, accessed from Worrigee Road, on 24 July 2018.
I presided over the conciliation conference. A number of submissions had been received from objectors, in response to the public exhibition of the DA. A number of objectors gave oral submissions.
After hearing from objectors, an inspection of the site, principally that part of the site constituted by Lot 7 was undertaken. Present were the legal teams of the parties and their experts. The inspection was conducted in a convoy of off-road vehicles with frequent stops for closer observation and discussion.
After completion of the site inspection, an adjournment was made to Shoalhaven City Council Chambers in Nowra, where further discussion was held between experts. Progress was reported but no agreement was reached, and the s 34 conciliation was adjourned. Discussions continued subsequently, but as it became apparent that no agreement was imminent, I terminated the conciliation conference on 22 December 2018.
The matter was mentioned before the Registrar on a number of occasions through 2019, and orders were given setting a timetable for the preparation of joint reports in a number of fields. On 21 May 2019, leave was granted for the Applicant to rely on amended plans, which were notified, and further submissions were received.
The hearing commenced on site on 21 October 2019, again commencing at the car park on 369 Worrigee Road. A number of objectors made further submissions which were summarised in Exhibit 13. The inspection which followed covered more of the site than was the case in 2018. The locations where detailed observations were made, and discussions held, are illustrated in Exhibit E reproduced below:

The guidelines are for water quality within oyster aquaculture leases, and not for water leaving a source upstream of aquaculture areas, although the water quality within aquaculture areas will be affected by inputs from upstream.
The route followed was not that depicted in Exhibit E as it commenced at what had been intended as Stop 8. However, the locations at which stops occurred are correctly identified. Exhibit E shows the proposed, but not yet determined, boundary adjustment applied for in SF10714. The inspection took place during drought conditions, so there was little water in ponds or drainage lines above the tidal limit.
The northern part of Lot 6 was inspected, as was the area around Rotten Creek where it flowed into the Brundee Swamp Nature Reserve, which is contiguous with the site to the east. The southern boundary of the site was examined in some detail, with discussion of what, if any, trees would need to be removed along the road, and the value of trees as habitat for arboreal mammals, and the importance of Rotten Creek for Green and Golden Bell Frogs (GGBF) was subject of discussion between Mr Daly (the Respondent’s frog expert) and Dr Pyke (the expert for the Applicant). After leaving the site, an examination of a constructed wetland at Isa Road, Worrigee (Stop 10) was undertaken. This wetland had been developed for the purpose of habitat provision for GGBF as part of a suburban development. This provided opportunity for the experts on the frog to discuss the value of requiring construction of habitats for GGBF, and why the particular example being observed had not fulfilled its objectives.
During the course of inspection of the site between Stops 2 and 3 as depicted in Exhibit E, a long low bund was noted to the east of the route. On inspection, this was observed to be made of a grey friable material. I inquired as to whether anything was known about this feature, and the response from those with local knowledge was that it was possibly an emplacement of a paper product which may have originated from the local paper mill. I requested that inquiries be made to ascertain more details.

What was the bund made of?

The next day, in Court, the main concern expressed about the bund was that it might affect surface water flows in low flood conditions; at high floods, water would flow over the feature.

“ROBERTSON: We were going to get some instructions on whether that material would be removed. It appears to be acting as some kind of bund wall and so it would obviously affect at least low flooding. Large flood would just pass over it, but I don't know whether what consequence that has but I'll get some instructions on that.”
(Tcpt, 22 October 2019, pp 1(50)-2(4))

It was indicated on the next day that sampling of the material had occurred.

“ROBERTSON: There's one surviving matter which is the assessment of the ‑ as to whether the bund has contaminated material in it. Mr Williams has taken a sample, I understand, three samples but we won't get the test results back until next week. We would propose to seek leave through eCourt to submit the result of that analysis and if there's any fallout from it, if the material is contaminated we'll by agree to a condition to remove it in the usual way.”
(Tcpt, 23 October 2019, pp 114(49)-115(4))

By the hearing on 4 December 2019 the situation had changed, as the analytical results indicated hydrocarbon contamination.

“ROBERTSON: Low level contamination but nonetheless meeting the trigger point in the national environment protection measure 2009 as amended in 2013 which is the standard to which these things are measured. We’ve analysed the bund for other analytes but none meet the trigger point so there’s no carcinogens that will or suspected carcinogens there but there is hydrocarbon contamination. It’s not serious. It’s not very high. It’s not in all areas but it’s there. We have subsequently discovered or been advised by our consultant that the fill that comprised the bund was sourced from the Shoalhaven Paper factory that other parts of the site have been filled with it including an area to the southeast of the bund.
That area is zoned for a residential development, the bund is not and as a consequence we now have undertaken to analyse the residential area that has been filled with the same material from the Shoalhaven Paper factory. That work won’t be completed until 13 December but we are assured by our consultants that it will be completed by then. They have recommended that we prepare a RAP - remediation action plan - and we’ve accepted that recommendation. In the meantime council has been in correspondence with us and has recommended some further work be done on the site. We have accepted that our consultant should consider whether that work should be done and if they think it should be done they will do it.
To a large extent council and my client are in agreement about the areas that need to be tested and we have also accepted that ground water should be tested. At the moment we have soil testing, that is surficial testing of the bund material but we haven’t tested the ground water. We must do so downslope of the areas that are the subject of the filling. Just to put you in the regulatory picture we understand that this may have occurred in the early 2000s. At the time when it occurred there were requirements under the Protection of the Environment Operations Act because the material was classified as waste for the source company to have characterised the material and provided written assurance that it was not contaminated and for the transport company - transportation of waste being also something regulated to have conveyed that assurance to the recipient of the waste, us.
We understand that there were signoffs in relation to the waste. This was not done, as I understand it, under the table at all but it was - the company was offering the material and it was said to be inert but it turns out that it wasn’t at least in relation to hydrocarbons, so that was the regulatory position and we are undertaking a historical examination of what records there are, this having happened many years ago, to see what assurances we were given but whether or not that regulatory material exists I don’t think in the end matters given the fact that we accepted an obligation to do this additional work.
As you will recall we had both a phase 1 and phase 2 study. Phase 1 study did not pick up the contamination. Phase 2 study--
COMMISSIONER: As I understand it the phase 1 was restricted to the agricultural activity areas and didn’t actually look over where the bund is, did it?
ROBERTSON: That may be right because the agricultural activity was--
STAUNTON: Likely contaminated, yes.
ROBERTSON: --classified as potentially contaminating but there should have been an assessment of aerial photography, historical aerial photography and an inquiry into former land use. Whether or not it was part of the definition of potentially contaminated land under cl 7 subclause 4 of the SEPP. For whatever reason the phase 1 study didn’t pick this up. Phase 2 study which is basically following on from the phase 1 didn’t pick it up and therefore we’ve accepted the obligation to satisfy you under cl 7 subclause 1 of the SEPP of the extent of the contamination and the nature of any remediation that is proposed for it.
The RAP will deal with remediation options but we anticipate that the first option will be removal but that becomes very expensive because of the Government’s landfill tax that we have to pay and we’d prefer to mix it with soil material to reduce the concentration and rebury it on the site if that’s available but that’s a matter for the contamination specialist, not for us really, so there may be in the RAP a choice of method of destinations for the waste or the RAP specialist may simply say remove to landfill. That has been the first issue that has meant things have had to - we’ve had to deal with that.”
(Tcpt, 4 December 2019, pp 1(29)-3(1))

The Phase 1 and Phase 2 studies referred to above were part of the investigations required by cl 7 of State Environmental Planning Policy No 55—Remediation of Land (SEPP 55). At the commencement of the hearing, based on the Phase 1 and 2 reports and the actions proposed, it had been agreed between the parties that contamination issues had been addressed, did not give rise to contentions and could be dealt with by way of conditions.
The hearing was adjourned to allow for further analysis, but when the hearing recommenced on 13 December 2019, there had been a major change:

“MERLINO: On the last occasion it was indicated to you the applicant would be doing some further contamination testing and provision of a RAP by today. On doing that further contamination testing, we’ve found evidence of a substance that has not – it’s one of those new contaminant substances, PFAS, for which it is not one of the substances that is part of the NEPN but it has a specific national environmental management plan and there are very low levels of this PFAS substance, however, the finding of this substance means that we have to do further testing again.
COMMISSIONER: I mean it’s a bit difficult to work out ..(not transcribable)..
MERLINO: No. It’s a by-product we understand of the paper fill. What PFAS is is a chemical that is used for fire retardant so it’s used in non-stick cooking and all manner of – kids pyjamas to make them less flammable, and it was applied, it has been applied to paper to make it less combustible, hence the – and the use of the paper over the site, as we understand it, has resulted in low levels of PFAS being found. Consequently, we need to do further testing to find out the extent of where PFAS is on the site so that we can properly understand it and properly prepare a remediation action plan. I’m instructed that all of this testing, the result, et cetera, and the RAP can be prepared by 21 February, therefore we’d be seeking to vacate Friday and then seek a further date in March to finalise the hearing of this matter.”

(Tcpt, 13 December 2019, p 1(16-37))

Mr Merlino was solicitor for the Applicant. Referring to PFAS as a new contaminant substance is slightly misleading in that PFAS had been known for a considerable time – what was new in this particular circumstance was that the Applicant was possibly unaware that the paper material had been treated with PFAS.

What was the significance of the finding of PFAS?

PFAS is a term collectively applied to a group of manufactured chemicals – per-and poly-fluoroalkyl substances. None of these substances occur naturally. The first PFASs were manufactured in the USA in the 1940s. The number of PFAS has grown substantially, with estimates of at least 6000 different compounds having been synthesised, of which thousands have been, or continue to be, used in a range of products. Applications include the manufacture of non-stick cookware, stain protecting products, food packaging and some firefighting foams.
The range of uses indicates why the invention of PFAS has been regarded as a boon, but there has also been a downside. PFAS are very stable, and resistant to physical, chemical and biological degradation. Chemical analyses have revealed that PFAS are now probably ubiquitous throughout the global environment and can be detected in a very wide range of organisms including humans.
These characteristics are similar to those of a number of other contaminants that had given rise to environmental and health issues. Governments internationally and within Australia have been giving considerable attention to the detection and management of PFAS in the environment.
In Australia, coordination of governments’ efforts are under the aegis of the National Chemicals Working Group of the Heads of EPAs Australia and New Zealand, which is responsible for the PFAS National Environmental Management Plan, the current version 2.0 was issued in January 2020 (NEMP) (Exhibit 23, Tab 7). This has been endorsed by the New South Wales government.
The NEMP contains a succinct introduction to PFAS:

“1.2.1 Chemical structure and resulting environmental behaviour
The distinguishing characteristic of PFAS compounds is a chain of carbon atoms bonded to fluorine atoms. Some PFAS compounds, including PFOS, PFOA and PFHxS, have a hydrophilic functional group at the end of the chain.
The chemical structure of PFAS, including variations in chemical structure between different types of PFAS, is an important consideration for understanding the behaviour of PFAS in the environment. The high solubility of PFAS in water means that PFAS may readily leach from soil to surface water and groundwater, where they can move long distances to enter creeks, rivers and lakes and become part of the food chain, being transferred from organism to organism. Research into the effects of PFAS on organisms, such as potential multigenerational effects on aquatic wildlife, is ongoing. Work is also underway to understand and predict the behaviour of different PFAS in the environment. Sections 8.3 and 8.4 provide an overview of selected PFAS pathways in the environment.
1.2.2 Use and resulting contamination
In Australia, PFAS have been used for a long time in a wide range of consumer products and industrial applications, including certain firefighting foams. There are now PFAS-contaminated sites around Australia resulting from these various uses. Over time, the chemicals have worked their way across and through the soil to contaminate surface and ground water, and have migrated into adjoining land areas. PFAS are also present in waste streams, including at landfills and wastewater treatment facilities, and more broadly in the environment.
The NEMP uses terms including PFAS contamination and PFAS-contaminated when referring to environmental media in which detectable levels of PFAS are present. This reflects the fact that PFAS are synthetic organic compounds, for which there is no natural background level. The presence of PFAS in environmental media does not necessarily constitute an unacceptable human health or environmental risk. Risk depends on a range of factors including PFAS compounds present, PFAS leachability and concentration, degree of exposure, types of receptors exposed, land use, environmental values present, level of environmental protection, potential for bioaccumulation, and environmental media in which the contamination occurs. Section 9 provides further information on the assessment of PFAS contamination.”

To the extent that the public is aware of PFAS, it is most likely in relation to the use, over many years, of PFAS in firefighting foams, particularly at airfields, which has caused extensive contamination, including of groundwater. This has given rise to serious concerns amongst local populations about potential risks to human health. The Shoalhaven LGA contains military facilities where PFAS have been used and the consequent PFAS contamination issues are now being addressed as a national priority (maps in Exhibit 23, Tab 11).
It is important to emphasise that while PFAS has been detected on the subject site, there is no suggestion whatsoever that firefighting foams have been used in the locality. The source of the PFAS on the site was a fire retardant applied to paper; the amounts present on the site are significant and require attention but the quantities are relevantly small. The paper waste was applied for soil improvement; there is no information as to its efficacy for this purpose.
Possible involvement of PFAS in a large number of human medical conditions has been suggested, but as yet the evidence is not conclusive. Animal studies suggest that some PFAS may promote certain cancers, but it is not clear whether these studies can be extrapolated to humans.
The response of health and environmental regulatory agencies globally has been to adopt a precautionary approach, to minimise human exposure to PFAS by setting guidance values for tolerable daily inputs, regulating use and release of PFAS and setting requirements for remediation of existing contamination.
The identification of PFAS in the paper mill product on the site made it necessary to conduct further investigations and make proposals to remediate the contamination.
The outcome of the new investigations were reported in “Detailed PFAS Assessment” (DPA) prepared by Construction Sciences which is behind Tab 11 in Exhibit O.
The DPA shows that paper waste was much more extensively distributed across the site than had been observed during the site inspection conducted at the start of the hearing. In addition to direct observations of material on the surface, a large number of samples of soil, sediment and ground and surface water, were taken and analysed for the presence of PFAS (see section 10 of Exhibit O, Tab 11). The sampling included excavation of 57 test pits, extraction of 6 shallow bore holes and drilling and installation of 4 ground water monitoring wells.
Although the original SEPP 55 Phase 1 investigation had made no record of the paper waste, the DPA revealed surface deposits of the waste material at numerous locations. These were readily visible and are illustrated in a series of images in the DPA (Photos 6.1-6.20). Photos 6.5 and 6.20 included below, illustrate the size and visibility of some of the surface deposits.

It is not known from the Phase 1 report whether these deposits were not observed by the original investigator, or, if observed, were not considered contaminants, and that there was no awareness that the paper material had been treated with fire retardant chemicals. The site has also been visited by experts investigating other aspects of the site – none of whom mentioned the presence of the paper material in their reports.
PFAS was identified in many of the soil samples. The distribution of PFAS, as revealed by the DPA is shown in the map:

The DPA included re-examination of a series of historic aerial photographs. Historic aerial photographs had been included in several earlier reports to illustrate the development of the golf course, and the nature of the surrounding vegetation, but signs of the application of paper waste had not been the subject of comment. The photographs analysed for the DPA clearly show an area with numerous stockpiles of the material in an image from 1997 (image 5.1.8 in the DPA). Subsequent images show that the stockpiles had been spread over other parts of the site, into areas now known to be the subject of PFAS contamination.

Figure 5.1.8 The diagonal line crossing Lot 7 from the north west near the site entrance from Worrigee Road, impinging on the edge of the stockpile area and entering Currambene State Forest at the south-east corner of the site marks the position of a major water supply pipeline.

An image from 2006 shows what appears to be the paper pulp on either side of the access track running diagonally across a portion of the site.

As an outcome of the detailed assessment a conceptual model of the site was developed, which included a number of zones – AEC01-AEC07.

On 9 March 2020, the Applicant lodged a Notice of Motion seeking leave to rely on additional and amended material in the proceedings. On 23 March 2020, I granted leave to amend the DA and to rely on additional and amended material. The Applicant was to pay the Respondent’s costs thrown away as result of the amendments on an as ‘agreed or assessed’ basis.

Other events of note occurring during the proceedings.

Summer 2020 was marked in eastern Australia by a series of wildfires of unprecedented extent and intensity. These included a major fire in the vicinity of the subject site. This extended into the Brundee Swamp Nature Reserve and the Currambene State Forest. The fire extended to the edge of the subject site but not into it. A portfolio of images of the extent of burning close to the edge of the site was prepared by the Applicant’s ecology expert, Mr Berrigan (Exhibit M, Tab 7).
The fire event was followed by drought breaking rains which resulted in localised flooding. A further heavy rain event and flooding occurred in August 2020. As the consequences of flooding had been discussed during the proceedings, particularly in regard to provision of evacuation routes, and with respect to possible implications for management of the containment cell on the site, I inquired of the parties whether there was information on the extent of flooding during this event. The Applicant submitted a report (Exhibit W), prepared by Mr Philpott which included images taken during the August event.

The application

Following the amendments made during the course of the proceedings, the DA in the final form before the Court, taken from par 1 of the Further Amended Statement of Facts and Contentions (FASOFAC) (Exhibit 26) was:

“The Proposal
1. Development Application No. SF10570 seeks consent for the following works, in stages:
(a) Demolition of an existing shed (on proposed lots 205/206 as per plan by APS 26311-102-104 Rev P5 dated 04/03/2020) and clubhouse (shown as office and amenities block) to be demolished during stage 3 works (plan APS 26311-101 & 108 Rev P5 04/03/2020);
(b) Filling over approximately 15.6ha to raise the land above the 1:100 Average Recurrence Interval for flood;
(c) Clearing of vegetation located on the portion of the site proposed to be subdivided for residential lots, establishment of APZs, and clearing of forest in order to extend and upgrade Worrigee Road;
(d) Widening and re-alignment of Worrigee Road along the western boundary of the site (and dedication as public road) and construction of internal private roads, services, APZs and provision of landscaping;
(e) Subdivision in 6 stages resulting in the creation of 134 Community title lots and 2 community lots (lots 1001 and 4001) and one rural lot (lot 224) with internal private roads as follows:
i. Stage 1: Subdivision of Lot 6 DP1236686 to create:
● Lot 224 Rural Lot
● Lot 225 Development Lot containing lots 201-223
And provision of essential services to Lot 224

ii. Stage 2: Subdivision of Lot 7 DP123666 and Lot 225 from Stage 1 to create:
● Lot 1001 Community Lot
● Lots 1002 -1012
● Lot 1013 Residue Lot
● Lot 1014 Residue Lot
● Stevens Rd and Coney Rd
● Emergency egress via easement from Coney Rd to Aldous Place
And construction of Stevens Road and Coney Road and their connection to Aldous Place

iii. Stage 3: Subdivision of Lot 1013 Residue from Stage 2 to create:
● Lots 2001 -2008
● Lot 2009 Residue Lot
And upgrading of Worrigee Road to Lot 2008 and construction of temporary turning head

iv. Stage 4: Subdivision of Lot 2009 Residue Lot from Stage 3 to create:
● Lots 3001-3050
● Lot 3051 Residue Lot
And upgrading of Worrigee Road from Lot 2008 to Forest Road, Forest Road to the intersection with Brundee View, and construction of Vineyard Hill and Drivers Road

v. Stage 5: Subdivision of Lot 3051 Residue Lot from Stage 4 to create:
● Lot 4001 Community Lot
● Lots 4002-4043
And construction of roads proposed within the stage 5 subdivision, connecting driveways to perimeter roads within the stage 5 subdivision, and provision of emergency access from Drivers Road to Stevens Road;

vi. Stage 6: Subdivision of Lot 1014 to create:
● Lots 201-223
And construction of Stallion Way.

(f) Subdivision as part of Stage 4 will create a separate community title scheme within the greater community title scheme. Community Lot 4001 will include private internal roads.
(g) Proposed community Lot 1001 comprises the “conservation lands” zoned E3 and E2, and is to be managed in perpetuity in accordance with the VMP (management zones as identified in the VMP figures 3 and 4) and the community management statement by the community association. That part of proposed Lot 224 identified in the ‘management zone’ is to be managed in accordance with the VMP (figures 3 and 5) by the land owner.
(h) The development application includes the establishment and enhancement of frog habitat (including construction of offset ponds within community lot 1001). Post development, the community corporation of Lot 1001 will have the responsibility of implementing and maintaining in perpetuity the Green and Golden Bell Frog Management Plan and Vegetation Management plan (relating to the regeneration of the EEC).
(i) Remediation of contaminated land including via stabilisation and encapsulation …
(APZ = Asset Protection Zone, VMP = Vegetation Management Plan)

The site and its history

The site has had a long history of use since European colonisation and would also have been utilised prior to that by the First Nations people inhabiting the area.
The Shoalhaven region has a long history of agricultural development since European colonisation. The Phase 1 contamination report (Exhibit A1, Tab 16) documented the history of dairy farming in the area of the subject site, with the first farms developed in the earliest years of the 20th century. Numerous historical aerial photographs in several exhibits show the extent of paddock development, including within the area which is now Brundee Swamp Nature Reserve.
In 1994, approval was given for the development of a golf course on what is now Lot 7. Approval was given for a 27-hole course, of which 18 holes were developed. The activity at the golf course was not associated with a large clubhouse, nor was the course used for competitive golf, rather it was for groups of social golfers to play rounds. The history of the development of the golf course is presented in Exhibit 5. The golf course was referred to as Vineyards Links Golf Course. The proposed residential development is referred to as Vineyards Estate.
The owners of Lot 7 have the benefits of an existing consent which enables them to continue to operate it at any time, and is not extinguished by disuse, so the golf course could be reactivated (Tcpt, 22 October 2019, p 6(44 – 47)).
I enquired as to what would be possible if not all the currently proposed development proceeded. Mr Robertson responded:

ROBERTSON: That's an interesting question. If we have a consent for the whole of the land and we activate that consent then it becomes inconsistent with the earlier consent and must, according to the principles of statutory interpretation, override it, but some courts prefer to tidy these things up by imposing a condition requiring surrender. When I say some courts, it's not necessarily courts but decision makers. It would really depend on whether we I mean we could get a consent and not activate it. That happens frequently for economic reasons and in which case we could always revert to the golf course consent and reopen the golf course.
At the moment, as you saw on the site, the area is maintained to the extent that it's cut or the fairways are cut. I don't think the tees are maintained as tees but it probably wouldn't take much effort for there to be golfing resurgence on the site, but that maintenance work which is currently suppressing the vegetation or the recovery of the swamp vegetation would, under our management plans of course cease and one would then fairly rapidly see the extent of recovery…”
(Tcpt, 22 October 2019, p 7(3-19))

Draft condition of consent 8 provides for surrender of Development Consent No. 94/118 – the consent for the golf course prior to the issue of the subdivision certificate for Stage 2 of the present proposal.
The regrowth of vegetation on parts of the site, and on the Brundee Swamp Nature Reserve, is testimony to the relative resilience of the local native plant communities. However, the regeneration is still ongoing. It is difficult to reconstruct the natural extent of the original communities, especially as some communities respond to very small differences in topography and drainage. The aerial photographs allowed canopy to be distinguished but do not allow recognition of understorey species, nor provide any details of communities. Nevertheless, the native vegetation stands are functional ecological communities and are more than just canopy, and they provide comfort that what is proposed for revegetation and ongoing management, according to the provisions of the proposed Vegetation Management Plan, has good prospects of success.
Lot 6 contains a dwelling house, agricultural buildings, trotting track and farmland. Lot 7 contains a former golf course with associated facilities building, ponds, a dwelling and sheds.
Although use of the golf course on Lot 7 ceased some years ago, the greens and fairways are still clearly visible, and are heavily grazed by a large number of kangaroos, as were seen on both site inspections.
Both Lots 6 and 7 include exotic pasture with remnant trees, numerous water bodies and areas of native vegetation, including at least three Endangered Ecological Communities (EECs) which are listed on Schedule 2 Part 2 of the Biodiversity Conservation Act 2016 – relevantly these listings of the communities were transferred over from the schedules of the Threatened Species Conservation Act 1995 which was the relevant legislation at the time the DA was originally submitted and which still applies to the assessment required in this matter.
Wetlands occur within the site associated with the Brundee Swamp floodplain and the Rotten Creek corridor that traverses the site before entering the Brundee Swamp Nature Reserve. There are two arms to Rotten Creek which join to form the single main channel flowing into the Nature Reserve. The southern arm of the creek drains from a large area of forest (Currambene State Forest), under Worrigee Road in the vicinity of point W1 shown on Exhibit E. The north-western arm has a catchment which includes developed and developing suburbs in East Nowra and Worrigee, and the experts were in agreement that the water flowing in this arm of the creek was likely to be of lower quality, bringing nutrients and contaminants into the site.
The NSW Biodiversity Values Map identifies the riparian area associated with Rotten Creek as land with High Biodiversity Values as defined in the Biodiversity Conservation Regulation 2017 (BC Regulation) – cl 7.3(3)(e).

The site contains environmentally sensitive land subject to the provisions of cl 3.3 of the Shoalhaven Local Environmental Plan 2014 (SLEP 2014) (cl 3.3(2)(h) and (ja)). Exempt and complying development is excluded from environmentally sensitive areas.
The land contains biodiversity significant vegetation (terrestrial biodiversity layer) subject to cl 7.5 of SLEP 2014. (Note that the map layer under SLEP 2014 is identified on the SCC GIS, and is not the same map as that referred to in the BC Regulation although in this instance they would cover very similar areas.)
The site is within a broader area identified as being occupied by Crookhaven floodplain GGBF key population. Wetlands adjacent to the site have been monitored for a number of years as part of the ‘Save our Species’ (SoS) project for GGBF. At the time the FASOFAC (Exhibit 26) was prepared, it was indicated (par 16) that the NSW Department of Planning, Industry and Development considered the wetlands on the subject site were likely to be important for GGBF occupancy – despite changes to organisational identity, no indications were provided that this is not still the official position.
The site is part of the floodplain associated with the Crookhaven River estuary which, in turn, is part of the larger Shoalhaven River Delta; since 1822 the construction of Berrys Canal linking the Shoalhaven River to the Crookhaven River has meant that the flow of the Shoalhaven now normally enters the ocean through Crookhaven Heads, and the Crookhaven floodplain experiences the impact of major floods from the Shoalhaven (see R C Carvahlo & C D Woodroffe, “Evolution from estuary to delta: Alluvial plain morphology and sedimentary characteristics of the Shoalhaven River mouth, southeastern Australia” (2020) 242 Estuarine, Coastal and Shelf Science 106857).

Planning framework

The applicable local environmental plan is SLEP 2014, cl 2.6 of which requires development consent for subdivision. Four zones are currently applicable to the subject site.
The proposed residential development component of the proposal will occur in Zone R2 Low Density Residential for which the Land Use Table provides:

1 Objectives of zone
• To provide for the housing needs of the community within a low density residential environment.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• To provide an environment primarily for detached housing and to ensure that other development is compatible with that environment.
2 Permitted without consent
Home occupations
3 Permitted with consent
Bed and breakfast accommodation; Boarding houses; Boat launching ramps; Boat sheds; Building identification signs; Business identification signs; Centre-based child care facilities; Community facilities; Dual occupancies; Dwelling houses; Environmental protection works; Exhibition homes; Flood mitigation works; Group homes; Health consulting rooms; Home-based child care; Home businesses; Home industries; Jetties; Neighbourhood shops; Oyster aquaculture; Places of public worship; Pond-based aquaculture; Recreation areas; Respite day care centres; Roads; Semi-detached dwellings; Sewerage systems; Tank-based aquaculture; Water supply systems
4 Prohibited
Any development not specified in item 2 or 3

The proposed conservation lot (Lot 1001) is in zones E2 Environmental Conservation and E3 Environmental Management for which the Land Use Table provides:

Zone E2 Environmental Conservation
1 Objectives of zone
• 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 protect water quality and the ecological integrity of water supply catchments and other catchments and natural waterways.
• To protect the scenic, ecological, educational and recreational values of wetlands, rainforests, escarpment areas and fauna habitat linkages.
• To conserve and, where appropriate, restore natural vegetation in order to protect the erosion and slippage of steep slopes.
2 Permitted without consent
Nil
3 Permitted with consent
Bed and breakfast accommodation; Boat sheds; Dual occupancies (attached); Dwelling houses; Eco-tourist facilities; Emergency services facilities; Environmental facilities; Environmental protection works; Home businesses; Oyster aquaculture; Recreation areas; Research stations; Roads; Sewerage systems; Water recreation structures; Water supply systems
4 Prohibited
Business premises; Hotel or motel accommodation; Industries; Multi dwelling housing; Pond-based aquaculture; Recreation facilities (major); Residential flat buildings; Restricted premises; Retail premises; Seniors housing; Service stations; Tank-based aquaculture; Warehouse or distribution centres; Any other development not specified in item 2 or 3
Zone E3 Environmental Management
1 Objectives of zone
• 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.
• To protect the natural and cultural features of the landscape, including coastal and foreshore areas, that contribute to scenic value and visual amenity.
• To maintain the stability of coastal land forms and protect the water quality and ecological values of estuaries and coastal streams.
2 Permitted without consent
Home occupations
3 Permitted with consent
Animal boarding or training establishments; Boat building and repair facilities; Boat sheds; Building identification signs; Business identification signs; Camping grounds; Cellar door premises; Charter and tourism boating facilities; Dual occupancies (attached); Dwelling houses; Eco-tourist facilities; Environmental facilities; Environmental protection works; Extensive agriculture; Forestry; Group homes; Helipads; Home-based child care; Home businesses; Home industries; Information and educational facilities; Kiosks; Oyster aquaculture; Pond-based aquaculture; Recreation areas; Research stations; Roads; Roadside stalls; Sewerage systems; Tank-based aquaculture; Tourist and visitor accommodation; Water recreation structures; Water supply systems
4 Prohibited
Hotel or motel accommodation; Industries; Multi dwelling housing; Residential flat buildings; Retail premises; Seniors housing; Service stations; Serviced apartments; Warehouse or distribution centres; Any other development not specified in item 2 or 3

A large part of the existing Lot 6 is within zone RU2 for which the Land Use Table provides:

Zone RU2 Rural Landscape
1 Objectives of zone
• To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.
• To maintain the rural landscape character of the land.
• To provide for a range of compatible land uses, including extensive agriculture.
2 Permitted without consent
Extensive agriculture; Forestry; Home occupations
3 Permitted with consent
Agriculture; Air transport facilities; Airstrips; Animal boarding or training establishments; Aquaculture; Artisan food and drink industries; Boat building and repair facilities; Boat sheds; Building identification signs; Business identification signs; Camping grounds; Caravan parks; Cellar door premises; Cemeteries; Charter and tourism boating facilities; Community facilities; Crematoria; Depots; Dual occupancies (attached); Dwelling houses; Eco-tourist facilities; Environmental facilities; Environmental protection works; Extractive industries; Farm buildings; Flood mitigation works; Food and drink premises; Freight transport facilities; Funeral homes; Group homes; Hazardous industries; Helipads; Home-based child care; Home businesses; Home industries; Information and education facilities; Marinas; Markets; Mooring pens; Moorings; Offensive industries; Places of public worship; Plant nurseries; Recreation areas; Recreation facilities (indoor); Recreation facilities (major); Recreation facilities (outdoor); Roads; Roadside stalls; Rural industries; Tourist and visitor accommodation; Veterinary hospitals; Water recreation structures; Water supply systems
4 Prohibited
Hotel or motel accommodation; Pubs; Serviced apartments; Any other development not specified in item 2 or 3

A separate development application, SF10714, has been lodged, and by agreement between the parties is in abeyance. SF10714, when and if approved, will permit a boundary adjustment north of the subject site, after which the subject site would also include land zoned R5 – Large Lot Residential for which the Land Use Table provides:

Zone R5   Large Lot Residential
1   Objectives of zone
•  To provide residential housing in a rural setting while preserving, and minimising impacts on, environmentally sensitive locations and scenic quality.
•  To ensure that large residential lots do not hinder the proper and orderly development of urban areas in the future.
•  To ensure that development in the area does not unreasonably increase the demand for public services or public facilities.
•  To minimise conflict between land uses within this zone and land uses within adjoining zones.
2   Permitted without consent
Home occupations
3   Permitted with consent
Bed and breakfast accommodation; Building identification signs; Business identification signs; Community facilities; Dual occupancies (attached); Dwelling houses; Emergency services facilities; Environmental facilities; Environmental protection works; Exhibition homes; Extensive agriculture; Group homes (transitional); Home-based child care; Home businesses; Home industries; Horticulture; Neighbourhood shops; Oyster aquaculture; Pond-based aquaculture; Recreation areas; Roads; Sewerage systems; Tank-based aquaculture; Water supply systems
4   Prohibited
Any development not specified in item 2 or 3

Approval of SF10714 does not form part of these proceedings. However, the proposal in SF10570 was dependent on SF10714 being approved and proceeding prior to the commencement of the subdivision.
The question of how subdivision would be achieved was addressed in the joint report of the parties’ planning experts (Mr Philpott for the Applicant, Mrs Downing for the Respondent – Exhibit 6). Minimum subdivision lot sizes are shown in the Lot Size Map (SLEP 2014 cl 4.1(2)). The experts disagreed as to whether the size of proposed Lot 224 met the development standard.
However, the experts agreed on a modification to the subdivision proposal to avoid the area of disagreement (Exhibit 6, pars 65-84).
The proposed modification was either to withdraw the DA for the boundary adjustment or hold it in abeyance subject to the changed sequencing they proposed. Stage 5 of the subdivision proposal could be modified to involve only a subdivision of Lot 6 DP 1236686 – illustrated in Appendix F to Exhibit 6. This would allow Lots 224A and 225A to be lawfully created. Once Lot 224A is created, a boundary adjustment between Lot 2 DP 13693 and Lot DP 1236686 (proposed Lot 224A) could be pursued. There would be options to modify sequencing of the overall subdivision so that after creation of Lot 225A further subdivision of Lot 225 could be undertaken in stages.
On Day 1 of the hearing, the Applicant agreed that the planning experts’ possible modification should be adopted as it provided greater legal certainty and achieved the intended result.

“ROBERTSON: The confusion arises, Commissioner, because of a land swap that was negotiated with the neighbour to obtain the emergency access road which has included the R5 area into the development proposal and that was to be achieved by the boundary adjustment at or prior to stage 1 of the subdivision. I have instructions now to say that we are prepared to accept what the planners have described in the joint planning report as the second option which is a different system of subdivision but which reaches the same result. It strikes us that it provides greater legal certainty and it's the subject of agreement by the planners that it can be appropriately done. We will make an amendment when we get a plan together, hopefully today, which reflects the agreement of the planners about the second option. We no longer are pressing the boundary adjustment as a predicate to the grant of this consent or to the implementation of this consent, but it will achieve the same result and so sheet 11 reflects accurately what is proposed. Just the methodology for reaching that will be slightly different.
STAUNTON: Yes, so that boundary adjustment that was going to take place before anything happened will now take place after stage 5.
ROBERTSON: Yes.
STAUNTON: I should say not before stage 5.
ROBERTSON: Yes. There will still be a boundary adjustment to achieve that. Because we have, the underlying difficulty we have of course is a third party was involved in swapping some land and we had a legal agreement with that third party and that enables us to get the emergency access road. That was a critical step in meeting our fire requirements and council correctly had insisted on it and we solved that problem by disagreement.
COMMISSIONER: The approval of that third party is in the owners' consent.
ROBERTSON: It's in the application. Yes, we have owners' consent. Sorry, I thought I'd explain that now so you didn't have to deal with the subdivision issues, thank you.”
(Tcpt, 22 October 2019, pp 10(28)-11(12))
“STAUNTON: Then the matter that was in issue which appears to no longer be in issue is the minimum lot size standards which start on p 33 of 171 where there's a reference to 4.1 and then on p 34 of 171 4.1AA and then on 36 of 171 is the convoluted provision which is the subject of most of that planning report, Commissioner, which is 4.1E. The issue arose in relation to 4.1E(3)(c)(i) and also in relation to subs (7)(b) but we're anticipating that will be resolved.
ROBERTSON: Commissioner, it's probably unnecessary for you to crack your way through what my friend correctly describes as convoluted, but can I just state the effect of it, and because these clauses were inserted for this subdivision, they came into the plan, the instrument I think at the time of the rezoning that effectively it was to encourage us to manage the part of the land not committed for urban development as a whole and so required, if you like, a notional amalgamation of the E land and RU2 land to enable us to achieve the lot size map requirements for the R2 land. It has the effect of overriding the lot size map for all land other than the R2 land. It encourages, if you like, a holistic development rather than a thing of threads and patches or partial development and effectively forces the development of this land into a subdivision framework that caters for the whole of the land rather than just for a portion of it. It has two purposes it seems to us. It relieves us from complying with lot size provisions so long as we amalgamate all the non urban land and it forces us to develop it if you like once and for all, or to subdivide it once and for all and enables us consequently not to be bound by a minimum sizes except in the urban area. Do you agree with that?
STAUNTON: I do, yes. Then on p 68 of 171 of
ROBERTSON: Sorry, I should have just mentioned at 4.1G I think also came into effect at the time and applies specifically to I think the subject, part of the subject land. There are, you'll find occasional provisions that relate to that 4.1G relates to the boundary adjustment land. There was a specific clause authorising the boundary adjustment. This had been the subject of discussion with counsel prior to the rezoning.
STAUNTON: You picked that up, Commissioner, in subcl (2), the clause applies to and then it refers to 15 Aldous Place, 23A Aldous Place and 369 Worrigee Road.
ROBERTSON: We can do a boundary adjustment so long as we didn't produce anymore building lots than we were allowed. That introduced flexibility and enabled us to provide a better ecological outcome.
(Tcpt, 22 October 2019, pp 14(12)-15(2))

As the possible modification is adopted, no question of requiring to seek modification of a minimum development standard arises. All the proposed lots meet the minimum lot size requirement for the applicable zone. What is proposed within each zone is permissible with consent.
SLEP 2014 is in the standard template form, and includes in Pt 7 additional provisions dealing with environmental issues which have been drafted to address the specific circumstances of the LGA.

STAUNTON: Commissioner, the additional provisions in pt 7 commence on p 68 of 171. First of all is 7.1 which is acid sulphate soil where there was originally a contention raised by council which there's an agreement now as to how that's to be addressed and I will take you to that in due course. There's a clause that deals with earthworks in cl 7.2 and there was some concern raised with respect to filling and there's an agreement with respect to that matter. Then the flood planning map that I took you to is the subject of cl 7.3 flood planning and there's a residual issue with respect to that matter as to whether or not there should be a restriction as to user on title of residential lots that have part high hazard flooding.
Riparian land and water courses is dealt with at 7.6 and you'll see that that clause sets out some objectives and then it tells you that it applies to the land identified as riparian land on the riparian land and water courses map in relation to the category 1, category 2 or category 3 water courses identified on the map and all land that is within 50 metres from the top of bank of each water course on land identified as category 1, 2 or 3 on that map and then there's some matters that the consent authority has to consider which are in 7.6(3). Then in 7.6(4) there's some matters that the consent authority must be satisfied with respect to and you'd be familiar with those I think from that case of Statewide v Blacktown City Council before consent can be granted. I think that's all of the relevant provisions that I need to take you to in the LEP.
Commissioner, the DCP is contained behind tab 61 and the matters that are relevant to matters in issue, if you can go to up in the top there's stamped folio numbers and there's a number which is 465. This is part of chapter G9 which deals with development on flood prone land. On p 4 you've got five controls, 5.1 general or specific objectives R2 and at (iii) this is reference in the contentions "Ensure development does...the natural environment". Then over the page on p 5 under the performance criteria you can see P1 and the first three bullet points are referenced in the contentions.”
(Tcpt, 22 October 2019, p 15(4-34))

In describing the site, I mentioned that the site contains land mapped under cl 7.5 (Terrestrial biodiversity) and cl 7.6 (Riparian land and watercourses) and the consequences of the provision of both clauses must be addressed.

7.5 Terrestrial biodiversity
(1) The objective of this clause is to maintain terrestrial biodiversity, by—
(a) protecting native fauna and flora,
(b) protecting the ecological processes necessary for their continued existence, and
(c) encouraging the conservation and recovery of native fauna and flora and their habitats.

(2) This clause applies to land—
(a) identified as “Biodiversity—habitat corridor” or “Biodiversity—significant vegetation” on the Terrestrial Biodiversity Map, and
(b) situated within 40m of the bank (measured horizontally from the top of the bank) of a natural waterbody.

(3) Before determining a development application for development on land to which this clause applies, the consent authority must consider—
(a) whether the development is likely to have—
(i) any adverse impact on the condition, ecological value and significance of the fauna and flora on the land, and
(ii) any adverse impact on the importance of the vegetation on the land to the habitat and survival of native fauna, and
(iii) any potential to fragment, disturb or diminish the biodiversity structure, function and composition of the land, and

(iv) any adverse impact on the habitat elements providing connectivity on the land, and

(b) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

(4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that—
(a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or
(b) if that impact cannot be reasonably avoided by adopting feasible alternatives—the development is designed, sited and will be managed to minimise that impact, or
(c) if that impact cannot be minimised—the development will be managed to mitigate that impact.

(5) For the purpose of this clause—
bank means the limit of the bed of a natural waterbody.
bed, of a natural waterbody, means the whole of the soil of the channel in which the waterbody flows, including the portion that is alternatively covered and left bare with an increase or diminution in the supply of water and that is adequate to contain the waterbody at its average or mean stage without reference to extraordinary freshets in the time of flood or to extreme droughts.
7.6 Riparian land and watercourses
(1) The objective of this clause is to protect and maintain the following—
(a) water quality within watercourses,
(b) the stability of the bed and banks of watercourses,
(c) aquatic and riparian habitats,
(d) ecological processes within watercourses and riparian areas.

(2) This clause applies to all of the following—
(a) land identified as “Riparian Land” on the Riparian Lands and Watercourses Map,
(b) land identified as “Watercourse Category 1”, “Watercourse Category 2” or “Watercourse Category 3” on that map,
(c) all land that is within 50 metres of the top of the bank of each watercourse on land identified as “Watercourse Category 1”, “Watercourse Category 2” or “Watercourse Category 3” on that map.

(3) Before determining a development application for development on land to which this clause applies, the consent authority must consider—
(a) whether or not the development is likely to have any adverse impact on the following—
(i) the water quality and flows within the watercourse,
(ii) aquatic and riparian species, habitats and ecosystems of the watercourse,
(iii) the stability of the bed and banks of the watercourse,
(iv) the free passage of fish and other aquatic organisms within or along the watercourse,
(v) any future rehabilitation of the watercourse and its riparian areas, and

(b) whether or not the development is likely to increase water extraction from the watercourse, and
(c) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

(4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that—
(a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or
(b) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or
(c) if that impact cannot be minimised—the development will be managed to mitigate that impact.

(5) For the purpose of this clause—
bank means the limit of the bed of a watercourse.
bed, of a watercourse, means the whole of the soil of the channel in which the watercourse flows, including the portion that is alternatively covered and left bare with an increase or diminution in the supply of water and that is adequate to contain the watercourse at its average or mean stage without reference to extraordinary freshets in the time of flood or to extreme droughts.

Both cl 7.5(4) and cl 7.6(4) require that I be satisfied (acting as consent authority standing in the shoes of Council) that they have been met in order to have jurisdiction.
The DA is for integrated development and requires a Bushfire Safety Authority from the Rural Fire Service (RFS) under s 100B of the Rural Fires Act 1997, and a Control Activity Approval from the Department of Primary Industries (NSW DPI) – Water under s 91 of the Water Management Act2000.
On 20 March 2017, the Respondent submitted the Development Application for Comment to the RFS, Department of Primary Industries – Water, Department of Primary Industries – Fisheries, Endeavour Energy, the Office of Water, the Office of Environment and Heritage and Shoalhaven Water.
In the long interval between the lodging of the initial DA and the end of the hearing, a number of changes to legislation occurred.
At the time, the DA was submitted Planning for Bush Fire Protection 2006 (PFP 2006) set down the requirements which have to be met in order to obtain a s100B authority. PBP 2006 was superseded by PFP 2019. Application of PFP 2019 is mandated by cl 272 of the Environmental Planning and Assessment Regulation 2000.

272 Planning for Bush Fire Protection
For the purposes of section 4.14(1)(a) of the Act, the version of the document entitled Planning for Bush Fire Protection with ISBN 978 0 646 99126 9 and dated November 2019 is prescribed.

However, a transitional provision is provided in cl 273B:

273B Transitional provision—Planning for Bush Fire Protection
An amendment made to clause 272 or 273 by the Environmental Planning and Assessment Amendment (Planning for Bush Fire Protection) Regulation 2020 does not apply to a development application made (but not determined) before 1 March 2020.

This means that PFP 2006 is the relevant document applicable in this matter.

Insofar as there are differences between PFP 2006 and PFP 2019, they would not appear to make a material difference to the requirements to be applied in this particular case.
The Threatened Species Conservation Act was repealed and replaced by the Biodiversity Conservation Act. The Biodiversity Conservation Act commenced on 25 August 2017, which was after 8 March 2017, the date when the DA was submitted. The Biodiversity Conservation (Savings and Transitional) Regulation 2017 (Transitional Regulation) therefore applies to the DA. I discussed the application of the Transitional Regulation in Statewide Planning Pty Ltd v Blacktown City Council [2019] NSWLEC 1397 at [46] to [58]. The parties, after some discussion, agreed that this interpretation was applicable in the present matter.
Clause 27(1) of the Transitional Regulation includes the following definition

pending or interim planning application means any of the following—
(a) an application for planning approval (or for the modification of a planning approval) made before the commencement of the new Act but not finally determined immediately before that commencement,
(b) an application for planning approval (or for the modification of a planning approval) made within 18 months after the commencement of the new Act if an environmental impact statement is to be submitted in connection with the application and the Secretary of the Department of Planning and Environment issued, before the commencement of the new Act, environmental assessment requirements for the preparation of the statement,
(c) an application for planning approval (or for the modification of a planning approval) made within 12 months after the commencement of the new Act if a species impact statement is to be submitted in connection with the application and the Environment Agency Head issued, before the commencement of the new Act, requirements for the preparation of the statement,
(d) an application for planning approval (or for the modification of a planning approval) made after the commencement of the new Act if an environmental impact statement is to be submitted in connection with the application and the Secretary of the Department of Planning and Environment determines in writing that the proponent had undertaken substantial environmental assessment in connection with the statement before the commencement of the new Act (but only if the application is made within 18 months after that determination),
(e) except in the case of State significant development—an application for development consent under Part 4 of the Environmental Planning and Assessment Act 1979 (or for the modification of such a development consent) made within 6 months after the commencement of the new Act (but only if any species impact statement that is to be submitted in connection with the application is submitted within 12 months after the commencement of the new Act),
(f) in the case of development (except State significant development) within a Western Sydney interim designated area under subclause (3)—an application for development consent under Part 4 of the Environmental Planning and Assessment Act 1979 (or for the modification of such a development consent) made on or before 24 November 2019 (but only if any species impact statement that is to be submitted in connection with the application is submitted on or before 24 May 2020),
(f1) in the case of development (except State significant development) within an expired interim designated area under subclause (3)—an application for development consent under Part 4 of the Environmental Planning and Assessment Act 1979 (or for the modification of such a development consent) made on or before 24 November 2018 (but only if any species impact statement that is to be submitted in connection with the application is submitted on or before 24 May 2019),
(g) in the case of development for the purposes of mining—an application for development consent under Part 4 of the Environmental Planning and Assessment Act 1979 (or for the modification of such a development consent) made within 2 years after the commencement of the new Act if the Secretary of the Department of Planning and Environment determines in writing (within 3 months after the commencement of the new Act) that the proponent had submitted before that commencement the conceptual project development plan for the mining project that is required by departmental policy before an application for development consent is made.
former planning provisions means the provisions of the Environmental Planning and Assessment Act 1979 that would be in force if that Act had not been amended by the new Act.

Clause 28 of the Transitional Regulation states:

28 Former planning provisions continue to apply to pending or interim planning applications
(1) The former planning provisions continue to apply (and Part 7 of the new Act does not apply) to the determination of a pending or interim planning application.
(2) However, Part 7 of the new Act applies to the determination of a pending or interim planning application referred to in paragraph (b), (c) or (d) of the definition of pending or interim planning application in clause 27 (1) if the applicant or proponent and the planning approval body for the application agree in writing that Part 7 of the new Act is to apply to the determination of the application instead of the former planning provisions.

For purposes of biodiversity assessment, the DA is a pending or interim planning application. Subclause 28(2) does not apply and the relevant former planning provisions are those in the Environmental Planning and Assessment Act 1979 (EPA Act) as of 24 August 2017 (ie the EPA Act before the 2018 amendments), so that the assessment of significant effects requires application of the then s 5A of the EPA Act (the so called 7-part test). Section 5A of the EPA Act reads:

5A Significant effect on threatened species, populations or ecological communities, or their habitats
(1) For the purposes of this Act and, in particular, in the administration of sections 78A, 79B, 79C, 111 and 112, the following must be taken into account in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats:
(a) each of the factors listed in subsection (2),
(b) any assessment guidelines.

(2) The following factors must be taken into account in making a determination under this section:
(a) in the case of a threatened species, whether the action proposed 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 population, whether the action proposed is likely to have an adverse effect on the life cycle of the species that constitutes the endangered population such that a viable local population of the species is likely to be placed at risk of extinction,
(c) in the case of an endangered ecological community or critically endangered ecological community, whether the action proposed:
(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,

(d) in relation to the habitat of a threatened species, population or ecological community:
(i) the extent to which habitat is likely to be removed or modified as a result of the action proposed, 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 action, and
(iii) the importance of the habitat to be removed, modified, fragmented or isolated to the long-term survival of the species, population or ecological community in the locality,

(e) whether the action proposed is likely to have an adverse effect on critical habitat (either directly or indirectly),
(f) whether the action proposed is consistent with the objectives or actions of a recovery plan or threat abatement plan,
(g) whether the action proposed constitutes or is part of a key threatening process or is likely to result in the operation of, or increase the impact of, a key threatening process.

(3) In this section:
assessment guidelines means assessment guidelines issued and in force under section 94A of the Threatened Species Conservation Act 1995 or, subject to section 5C, section 220ZZA of the Fisheries Management Act 1994.
key threatening process has the same meaning as in the Threatened Species Conservation Act 1995 or, subject to section 5C, Part 7A of the Fisheries Management Act 1994.

In the hierarchy of planning instruments below SLEP 2014 is the Development Control Plan (DCP) - Shoalhaven Development Control Plan 2014, which provides fine level detail for the operation of SLEP 2014. The DCP will have much work to do, if the current proposal is approved, when individual lots are developed.
At the subdivision stage, there are apparent contradictions between provisions of different parts of the DCP in regard to water and runoff management. The proposed development will be sewered, but how surface water is managed was a matter of debate between the parties, particularly in regard to the adoption of Water Sensitive Urban Design (WSUD) principles, with particular emphasis on stormwater capture and treatment.
This was first raised in the hearing on day one during Mr Staunton's opening when he was taking the Court through the relevant planning documents including the DCP (Exhibit 2, Tab 61).

“STAUNTON: Commissioner, just returning then to folio 509. I don't know whether you need to turn your folder upside to read yours. There's a table, p 28. There is a table that goes across the top and then underneath it there's table 3, pt 2, large residential development. You would have seen some of the evidence that there was this issue about whether or not there should be kerb and gutter and you'll see the table there says allotment size 2000 square metres layback kerb and gutter and then when you get to 4000 square metres grass table drain, concrete edge strip, grade 10% plus layback kerb and both of them provide for drainage underground. That's one of the matters that I think remains in issue.
ROBERTSON: Yes, we proudly don't comply with that.
STAUNTON: My friends just asked a question about the WSUD provisions and I'll just
ROBERTSON: Yes, it's at 5.11 on p 38 and it requires us to comply with chapter G2 sustainable stormwater management and erosion control and chapter G2 starts at p 440. You will see that we are required for large scale development on p 444 to do a number of things, all of which would involve us not complying with the generic subdivision prescriptions to which my learned friend has just referred but indeed to minimise our impacts on post development loads and flows by providing retention, infiltration and attention to limit post development flows, which we say we do. Part of that are swales and certainly not using conventional kerb and gutter, but there's also a requirement in the performance criteria on p 13 at 445 in A 10.9 to A 10.11 requiring us to adopt the soft rather than the hard drainage measures for the site and to obey guidelines for filter media in infiltration systems or demonstrated equivalent. Which we say we do.
Anyway the point is, Commissioner, it's all very well for my friend to refer to the generic provisions but there are highly specific provisions that require us to adopt the WSUD approach in designing the subdivision and we have chosen to follow those provisions and they have certain impacts downstream which are beneficial for ecological reasons which they wouldn't have if we complied with council's preferred position. It surprises us that council is preferring a generic provision in the DCP to a highly specific one in the interest of its road maintenance practice rather than in the interest of the environment, but as you'll see when we take you to other parts of the DCP regrettably that is also the position with their stormwater treatment prescriptions which provide that all developments in Shoalhaven must pollute the oyster growing areas. It's actually the provision, it's a requirement to meet a minimal amount of pollution to be discharged from subdivisions. It permits subdivisions to pollute. We have taken the view that we won't comply with that, we design to a stricter standard.
STAUNTON: I understand they're proposing to comply with the control which is on folio 538 that relates to the Worrigee subdivision and there is a performance criteria P17 "Development of the...natural water courses" and 17.1 "A stormwater assessment...onsite stormwater detention".
ROBERTSON: Yes, which we do or have. I mean we can't do that and have conventional drainage with kerb and gutter. We saw the consequence of that in the conventional subdivision of 500 square metre lots yesterday when we looked at the detention pond. The need for those massive detention ponds is made necessary because of the failure to put storage on individual sites on individual lots and also because of the failure to infiltrate stormwater rather than convey it by drainage.
STAUNTON: Commissioner, there was some contention about no requirement about natural or beneficial but that's where it is in the DCP on 538, and when you have the acceptable solutions at 17.3 "Stormwater discharge designed...and nutrient loads".
(Tcpt, 20 October 2019, pp 16(19)-17(31))

(The detention pond mentioned by Mr Robertson was that at Worrigee – Stop 10 in Exhibit E.)

Mr Robertson returned to this matter slightly later in the hearing when the question of NorBE – Neutral or Beneficial Effect on Water Quality - was raised. The concept of NorBE was introduced in State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011 (Sydney Drinking Water SEPP). Consent authorities within the area to which the SEPP applies are obliged to consider whether a development application will have a NorBE on water quality. Consent authorities are advised how to assess whether NorBE is achieved by the Neutral or Beneficial Effect on Water Quality Assessment Guideline 2015 (NorBE guideline) published by the Sydney Catchment Authority. Included within the assessment guidelines in Appendix 1, is the Neutral or Beneficial Effect on Water Quality Assessment Tool 2015.

(2) The activity to which this clause applies is declared to be a scheduled activity if—
(a) in any case, it has the capacity to treat more than 1,000 cubic metres per year of contaminated soil received from off site, or
(b) where it treats contaminated soil originating exclusively on site, it has a capacity—
(i) to incinerate more than 1,000 cubic metres per year of contaminated soil, or
(ii) to treat (otherwise than by incineration) and store more than 30,000 cubic metres of contaminated soil, or
(iii) to disturb more than an aggregate area of 3 hectares of contaminated soil.

The activity proposed to be carried out on the site falls within cl 15(2)(b)(iii) as the contaminated soil to be stored in the containment cell would have originated from more than 3 ha of the site.
There is little doubt that it will be necessary for the Applicant to obtain an EPL. However, while an application has to be made, there is no obligation on the EPA to issue a licence; absent a licence, the project cannot proceed.
If an EPL is issued, then the Applicant (in the first instance, and the Community Association subsequently) will be bound by the conditions of the licence.
As the construction of the containment cell is part of the application for which an approval is sought, s 50 of the PEOA applies.

50 Timing of licensing of development requiring consent under EP&A Act
(1) Licensing of development controlled under EP&A Act This section applies to development that cannot be carried out without development consent under the Environmental Planning and Assessment Act 1979. This development is called controlled development in this section.
(2) Licence to be concurrent A licence that relates to controlled development must not be granted or varied (other than on the initiative of the EPA) by the appropriate regulatory authority, unless development consent has been granted for the controlled development. However, this section does not prevent the consideration of a licence application by the appropriate regulatory authority before development consent is granted.
(3) Existing use Without limiting the above, this section does not apply to the extent that development consent is not necessary under the Environmental Planning and Assessment Act 1979 because of an existing use.
(4) Definitions In this section—
development has the same meaning as in the Environmental Planning and Assessment Act 1979.
development consent means consent under Part 4 of the Environmental Planning and Assessment Act 1979, and includes approval to carry out a project or infrastructure under Part 3A or Part 5.1 of that Act.
existing use has the same meaning as in Division 10 of Part 4 of the Environmental Planning and Assessment Act 1979.

The proposed remediation work (including the containment cell) is, for the purposes of SEPP 55, categorised as Category 1 Remediation (SEPP 55, cl 9).

9   Category 1 remediation work: work needing consent
For the purposes of this Policy, a category 1 remediation work is a remediation work (not being a work to which clause 14(b) applies) that is—
(a)  designated development, or
(b)  carried out or to be carried out on land declared to be a critical habitat, or
(c)  likely to have a significant effect on a critical habitat or a threatened species, population or ecological community, or
(d)  development for which another State environmental planning policy or a regional environmental plan requires development consent, or
(e)  carried out or to be carried out in an area or zone to which any classifications to the following effect apply under an environmental planning instrument—
(i)  coastal protection,
(ii)  conservation or heritage conservation,
(iii)  habitat area, habitat protection area, habitat or wildlife corridor,
(iv)  environment protection,
(v)  escarpment, escarpment protection or escarpment preservation,
(vi)  floodway,
(vii)  littoral rainforest,
(viii)  nature reserve,
(ix)  scenic area or scenic protection,
(x)  wetland, or

(f) carried out or to be carried out on any land in a manner that does not comply with a policy made under the contaminated land planning guidelines by the council for any local government area in which the land is situated (or if the land is within the unincorporated area, the Minister).
Note—
See section 5A of the Environmental Planning and Assessment Act 1979 for the factors to be taken into account in assessing whether there is likely to be a significant effect as referred to in paragraph (c) above. The terms used in that paragraph are defined in that Act by reference to both the Threatened Species Conservation Act 1995 and the Fisheries Management Act 1994.

Clause 12 of SEPP 55 provides that:

12 Refusal of consent to category 1 remediation work
(1) The consent authority must not refuse development consent for a category 1 remediation work unless the authority is satisfied that there would be a more significant risk of harm to human health or some other aspect of the environment from the carrying out of the work than there would be from the use of the land concerned (in the absence of the work) for any purpose for which it may lawfully be used.
(2) Nothing in this clause prevents the consent authority from refusing consent to a development application if—
(a) by operation of an environmental planning instrument or section 79B(3) of the Act, the development application may not be determined by the granting of consent without the concurrence of a specified person, and
(b) that concurrence is not given.

Removal of the soil contaminated with PFAS at concentrations above the trigger level and containment of the removed soil within a dry cell will reduce the risk of harm to less than would be the potential risk of leaving it in situ over a wide area.

Consideration

There are a number of jurisdictional issues which must be addressed. For threatened species, there have been numerous cases which have addressed the issue of whether a SIS was required, either as a standalone document or incorporated within an EIS (See Ryan and the cases cited within). Pain J said in Ryan (at [144]) that:

“…whether or not a SIS is required is a question of jurisdictional fact which the Court must decide for itself on the basis of the evidence before it. If a SIS is required but does not accompany the DA, development consent cannot be granted…”

In their approach to deciding whether a SIS was required, the parties differed as to what constituted the proposal that could be considered. Pain J in Ryan (at [145]) continued:

…The inquiry must focus on the development as it stood immediately prior to the determination…Ameliorative measures proposed as part of the DA can be considered (not measures imposed as conditions of development consent) …” (citations omitted)

The requirement for a SIS to accompany the DA is provided in the then s 78A(8)(b) of the EPA Act.

The development application at the end of the hearing included proposed ameliorative measures. The proposed conditions include conditions which apply to the ameliorative measures, but the ameliorative measures themselves did not appear de novo in the conditions.
On the basis of Ryan (at [145]) and the early authorities cited therein, it is clear that in conducting the seven part test in s 5A of the EP&A Act, ameliorative matters proposed as part of an application for consent not only can, but should, be taken into account.
This would appear to conflict with Mr Daly’s interpretation of the Threatened Species Conservation Act guidelines for assessment (Exhibit 29). Section 5A requires that the guidelines be taken into account. The Respondent argued that the judgment in Smyth (the case which the Applicant cited as the first statement that ameliorative measures could be taken into account) was handed down long before the guidelines were issued and was therefore irrelevant. In my view, Mr Daly’s implicit interpretation of the guidelines is incorrect. The advice on p 12 of the guidelines is not a blanket recommendation not to take into account all ameliorative measures proposed, but rather, it is not to consider those that “have not been used successfully for that species in a similar situation”.
Even without the guidelines, I would consider that any application of the 7-part test would not have considered measures never previously applied to a species or community, although whether extrapolation from measures applied to other species is appropriate and whether how similar the circumstances of the particular matter are similar to those of other cases would be matters for expert opinion.
For GGBF, what becomes critical is whether the proposed ameliorative measures are such that a SIS was not required. Lot 1001 contains remnants of natural vegetation, but has otherwise been substantially modified by its history of grazing and use as part of the golf course. The proposal is for regeneration of the EECs and for the provision of new ponds which will be managed to increase their value as habitat for GGBF; and although Dr Pyke considers that these ponds are unlikely to become breeding habitats, this could not be ruled out. Mr Daly considered that sites where GGBF have been recorded calling should be considered breeding sites, although positive evidence of breeding within the subject site has not yet been obtained. One water body for which calling has been recorded (the pond identified as SN53 in Exhibit 14) will be destroyed but more water bodies with similar characteristics would be constructed on Lot 1001. SN53 itself is not a natural feature but one that was previously constructed.
It is also recognised that GGBF will have moved more widely across the site when foraging or dispersing. The development of a residential estate would result in construction of roads and buildings and these may provide some restrictions on GGBF movement, but they would not constitute an absolute barrier.
GGBF in the general area has been the subject of much study over many years and information from those studies is accessible, and was indeed considered by both parties. While there are still (and always will be) unknowns, it seems to me unlikely that production of a SIS, conducted over a brief period, would have added much extra information, rather a SIS would have been largely based on the existing data and its interpretation.
The 7-part test focuses on risks of extinction. I am mindful of the consequences of cumulative impacts (the death from a thousand cuts scenario) and of the insidious nature of the extinction process, but I am of the opinion that the Applicant correctly applied the 7-part test, and that a SIS is not required. Further, the 7-part test and the available data do not provide a basis for refusal of the proposed development on grounds of impact on GGBF.
GGBF is not the only threatened entity of relevance to the proposal. A number of EECs are relevant. A number of EECs occur on the site. Three are listed in the FASOFAC as occurring on the site (Exhibit 26, Part B, par 1):

“Swamp Sclerophyll Forest on Coastal Floodplains of the NSW North Coast, Sydney Basin and South East Corner Bioregions
Swamp Oak Floodplain Forest on Coastal Floodplains of the NSW North Coast, Sydney Basin and South East Corner Bioregions
Freshwater Wetlands on Coastal Floodplains of the NSW North Coast, Sydney Basin and South East Corner Bioregions”

From my own observations on site inspections, and from the reports prepared for the Applicant and from the expert reports, I have no doubt that these EECs have been correctly identified.
During the second of the site inspections, I observed small patches of a further EEC – Coastal Saltmarsh in the NSW North Coast, Sydney Basin and South East Corner Bioregions – between the trotting track and the Nature Reserve extending southwards towards Rotten Creek. I mentioned this at the time and in Court (Tcpt, 7 August 2020, p 76(4-10)). No development is proposed in this vicinity, although existing use will continue. The occurrence is not a relevant consideration for the current proposal.
There was little discussion of the EECs during the hearing, although the contentions raised in the ASOFAC were covered in the joint report of Mr Berrigan and Dr Wotherspoon (Exhibit 11). Dr Wotherspoon’s main concerns were in relation to hydrology and nutrient impacts.
The proposal includes substantial revegetation, including restoration of the EECs within Lot 1001. These ameliorative measures are to be taken into account in the 7-part test. I agree with Mr Berrigan’s conclusions that the proposal does not increase the risk of extinction of the local occurrence of the EECs. When the ameliorative measures and the long-term management of Lot 1001 required by the Community Management Statement and the proposed conditions are taken into account, the outcome would be an improvement on the present situation. SISs for the EECs are not required and there are no issues relating to the EECs warranting refusal.
The occurrence of YBG on the site was a matter of difference between the parties. For the purpose of carrying out a 7-part test, Mr Berrigan (on precautionary grounds) assumed YBG occur on the site. Mr Daly asserted that it did (Exhibit 19). In Ryan (at [110], discussing a different species), Pain J observed “…[at] least two separate independent sightings would constitute sufficient foundation for finding the presence of any threatened species”. In this matter, there are two observations (Exhibit 19) – the sighting of YBG overhead by Mr Daly, and an indirect (surrogate) sighting in the form of the observations of incisions on a Grey Gum, which, if not fresh, were relatively recent. These incisions were observed by the Court on the site inspection. Accordingly, the presence of YBG is a fact, rather than a presumption. However, this does not alter the outcome of the 7-part test.
In view of the possible impacts on YBG, as a result of the recent fires, it is difficult to predict the future of the more widely distributed YBG population. Nevertheless, while continuing to be mindful of cumulative impacts, I am persuaded by Mr Berrigan’s arguments that the proposed development will not be such as to warrant refusal of the proposal.
A jurisdictional issue also arises from cl 7 of State Environmental Planning Policy No 55—Remediation of Land (SEPP 55).

7 Contamination and remediation to be considered in determining development application
(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 subclause (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.
(3) The applicant for development consent must carry out the investigation required by subclause (2) and must provide a report on it to the consent authority. The consent authority may require the applicant to carry out, and provide a report on, a detailed investigation (as referred to in the contaminated land planning guidelines) if it considers that the findings of the preliminary investigation warrant such an investigation.
(4) The land concerned is—
(a) land that is within an investigation area,
(b) land on which development for a purpose referred to in Table 1 to the contaminated land planning guidelines is being, or is known to have been, carried out,
(c) to the extent to which it is proposed to carry out development on it for residential, educational, recreational or child care purposes, or for the purposes of a hospital—land—
(i) in relation to which there is no knowledge (or incomplete knowledge) as to whether development for a purpose referred to in Table 1 to the contaminated land planning guidelines has been carried out, and
(ii) on which it would have been lawful to carry out such development during any period in respect of which there is no knowledge (or incomplete knowledge).

There is no dispute that the land is contaminated (SEPP 55, cl 7(1)(a)).
There is no dispute that the contaminated land is not suitable for development in its contaminated state. Remediation is proposed. After completion and validation of remediation (to the satisfaction of the site auditor and the EPA), the site will be suitable for development, although long-term management of the containment cell would be required (SEPP 55, cl 7(1)(b)).
Clause 7(1)(c) is prospective. It does not require the site to be already remediated and developable, rather the wording is “will be remediated”. The proposal requires removal from the site of the ‘agricultural’ contaminants identified in the Phase 2 report and the stockpiles and surface deposits of the PFAS-coated paper material and the scraping of the soil over an area of about 8.5 ha and the encapsulation of the material in a purpose-built containment cell. Any material exceeding the capacity of the cell will be removed to landfill off-site. The contamination would be managed, in perpetuity, by the Community Association.
I am satisfied that the site will be remediated prior to development.
Jurisdictional thresholds are set by a number of the special provisions in SLEP 2014. These take the form of the consent authority being required to be satisfied that the various matters have been considered and/or that the consent authority cannot grant consent unless there is satisfaction that certain matters have been addressed in a specified manner. The various provisions were identified in the FASOFAC, but were not specifically the subject of evidence or discussion beyond that contained in discussion of other contentions. I am, nonetheless, satisfied that the matters arising from cll 7.1, 7.3, 7.4, 7.5 and 7.6 have been properly addressed, and that application of the proposed conditions of consent will provide satisfactory outcomes.
There not being a jurisdictional bar to considering the proposal on its merits, I have reached the opinion that the outcome of the proposal, and the continuing operation of the large number of management plans which will be required under the consent conditions, will be such that there are no grounds under which consent should be refused.
Approval imposes considerable and ongoing responsibility on the Community Association. The Community Management Statement provides for a model of funding that requires an independent auditor determining the amount required in the sinking fund(s) and for levies. While I can understand the concerns of the Respondent and the resident objectors regarding these arrangements, the model is legally enforceable. I must assume that there will be regularity in the application of the Community Management Statement (and the associated by-laws), the conditions and the requirements of any external regulatory authority.

Orders

Accordingly, the Court orders that:

The Applicant be granted leave to rely on the plans and other documents listed in Condition 3 of Annexure A.

The Applicant is to pay the Respondent’s costs “thrown away” as a result of the amendments made to the development application on 5 August 2020 pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

The appeal is upheld.

Development consent is granted to Development Application No. SF19570 for the works, in stages, described in Annexure B, at 23A Aldous Place and 369 Worrigee Road, Worrigee, subject to the conditions of consent set out in Annexure A.

The exhibits are returned, except for Exhibits, D, M (Tabs 1, 4, 8), N (Tab 2), O (Tab 11), V (Tabs 2, 4, 5), X, Z and 26.

……………………….

P Adam

Acting Commissioner of the Court

Annexure A (710136, pdf)

Annexure B (132598, pdf)

**********

Endnote

Decision last updated: 26 July 2021

Medium Neutral Citation:	Allen Price & Scarratts Pty Ltd v Shoalhaven City Council [2021] NSWLEC 1362
Hearing dates:	21-23 October 2019; 11 November 2019; 4 & 13 December 2019; 23 March 2020; 29 May 2020; 5-7 August 2020; 8 & 11 September 2020; written submissions filed on 22 September 2020 and 1 October 2020
Date of orders:	26 July 2021
Decision date:	26 July 2021
Jurisdiction:	Class 1
Before:	Adam AC
Decision:	See final orders at [286] below
Catchwords:	APPEAL – development application – subdivision – community title – threatened species – assessment guidelines – Green and Golden Bell Frog – endangered ecological communities – hollow bearing trees – water sensitive urban design (WSUD) – impacts on oyster leases – PFAS contamination – remediation – containment cell – adaptive management – community management statement
Legislation Cited:	Biodiversity Conservation Act 2016, Sch 2 Pt 2 Biodiversity Conservation Regulation 2017, cl 7.3 Biodiversity Conservation (Savings and Transitional) Regulation 2017, cll 27, 28 Community Land Development Act 1989, ss 3, 5 Community Land Development Act 2021 Community Land Management Act 1989, ss 5, 13, 13A, 15 Community Land Management Act 2021 Contaminated Land Management Act 1997, Pt 4, s 54 Environmental Planning and Assessment Act 1979, ss 4.15, 8.15 (current); ss 5A, 75J, 78A (previous) Environmental Planning and Assessment Regulation 2000, cll 272, 273B Land and Environment Court Act 1979, s 34 National Parks and Wildlife Act 1974, Pt 11 Protection of the Environment Operations Act 1997, ss 43, 48, 50, Sch 1 cl 15 Roads Act 1993, ss 138, 139 Rural Fires Act 1997, s 100B Shoalhaven Local Environmental Plan 2014, cll 2.6, 3.3, 4.1, 7.1, 7.3, 7.4, 7.5, 7.6 State Environmental Planning Policy (Primary Production – Rural Development) 2019, cl 9 State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011 State Environmental Planning Policy No 55—Remediation of Land, cll 7, 9, 12 State Environmental Planning Policy No 62—Sustainable Aquaculture Threatened Species Conservation Act 1995, Sch 1 Pt 3 Water Management Act 2000, s 91
Cases Cited:	BT Goldsmith Planning Services Pty Ltd v Blacktown City Council [2005] NSWLEC 210 Nambucca Valley Conservation Association v Nambucca Shire Council [2010] NSWLEC 38 Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited (2010) 210 LGERA 126; [2010] NSWLEC 48 Ryan v Northern Regional Planning Panel (No 4) [2020] NSWLEC 55 Smyth v Nambucca Shire Council (1999) 105 LGERA 65; [1999] NSWLEC 226 Statewide Planning Pty Ltd v Blacktown City Council [2019] NSWLEC 1397 Sustain Our Sounds Inc v The New Zealand King Salmon Co Ltd [2014] 1 NZLR 673; [2014] NZSC 40 Upper Mooki Landcare Inc v Shenhua Watermark Coal Pty Ltd (2016) 216 LGERA 40; [2016] NSWLEC 6
Texts Cited:	A Hamer et al, “Green and Golden Bell Frog Population Study, South Nowra: Final Report”, Contract No. 12.2574.2779, Australian Research Centre for Urban Ecology A W White & G H Pyke, “Distribution and conservation status of the Green and Golden Bell Frog Litoria aurea in New South Wales” (1996) 30(2) Australian Zoologist 177 Australian Government, Department of Agriculture, Water and the Environment, “PFAS National Environmental Management Plan 2.0” January 2020 G Daly, “From rags to riches and back again: fluctuations in the Green and Golden Bell Frog Litoria aurea population at Nowra on the south coast of New South Wales” (2014) 37(2) Australian Zoologist 157 National Institute of Environmental Health Sciences, Endocrine Disruptors (online) NSW Department of Primary Industries, “Threatened Species Assessment Guidelines: The assessment of significance” (February 2008) NSW Department of Planning, Industry and Environment, “Saving our Species Hygiene guidelines – Protocols to protect priority biodiversity areas in NSW from Phytophthora cinnamomi, myrtle rust, amphibian chytrid fungus and invasive plants” (April 2020) NSW Department of Primary Industries, “Healthy Estuaries for Healthy Oysters Guideline” August 2017 NSW Office of Environment and Heritage, “Statement of Management Intent: Worrigee Nature Reserve” May 2014 NSW Planning Assessment Commission Determination Report Port Waratah Coal Services Terminal 4, Newcastle LGA Planning for Bush Fire Protection 2006 Planning for Bush Fire Protection 2019 R C Carvahlo & C D Woodroffe, “Evolution from estuary to delta: Alluvial plain morphology and sedimentary characteristics of the Shoalhaven River mouth, southeastern Australia” (2020) 242 Estuarine, Coastal and Shelf Science 106857 R Payne, A Chalmers & J Laxton, “Understanding the characteristics of a groundwater-dependent ecosystem: Eucalyptus parramattensis Woodland at Porters Creek Wetland, NSW” (2012) 12(3) Cunninghamia: a journal of plant ecology for eastern Australia 191-211 Sydney Catchment Authority, “Neutral or Beneficial Effect on Water Quality Assessment Guideline” 2015
Category:	Principal judgment
Parties:	Allen Price & Scarratts Pty Ltd (Applicant) Shoalhaven City Council (Respondent)
Representation:	Counsel: T Robertson SC (Applicant) M Staunton (Respondent) Solicitors: HWL Ebsworth (Applicant) Marsdens Law Group (Respondent)
File Number(s):	2017/387668
Publication restriction:	Nil