Anglican Retirement Villages, Diocese of Sydney v Wollongong City Council
[2013] NSWLEC 1181
•27 September 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Anglican Retirement Villages, Diocese of Sydney v Wollongong City Council [2013] NSWLEC 1181 Hearing dates: 28, 29, 30, 31 May and 18 June 2013 Decision date: 27 September 2013 Jurisdiction: Class 1 Before: Dixon C Decision: (1) The appeal is upheld.
(2)Development Consent is granted to Development Application No 2011/1383 subject the conditions in exhibit R2.
(3)The exhibits are returned apart from exhibits A1, A4 and A9 R2.
Catchwords: Appeal - development application for the site investigation works under a concept plan approval, ecological impacts on flora and fauna, impacts on Aboriginal Cultural heritage and a sacred women's area Legislation Cited: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Land and Environment Court Act 1979
Land and Environment Court Rules 2007
Threatened Species Conservation Act 1995
Uniform Civil Procedure Rules 2005Category: Principal judgment Parties: Anglican Retirement Villages, Diocese of Sydney (Applicant)
Wollongong City Council (First Respondent)
Roy 'Dootch' Kennedy on behalf of the Sandon Point Aboriginal Tent Embassy (Second Respondent)Representation: J E Robson SC (Applicant)
J Riley (solicitor) (First Respondent)
F Berglander (Second Respondent)
Norton Rose Australia (Applicant)
Wollongong City Council Legal (First Respondent)
Indigenous Justice Advocacy Network (Agent) (Second Respondent)
File Number(s): 10982 of 2012
Judgment
Background
This case is about the drilling of twenty-one (21) boreholes and the environmental impact of that activity. An aspect of the environmental impact includes the effect the works will have on the Aboriginal Cultural Heritage values of a "women's area".
The site is known as 2 Sturdee Ave Bulli. It is located about 14 km north of Wollongong at Sandon Point. The land is owned by Anglican Retirement Villages (ARV) and is part of a greater land holding which has a concept plan approval No MP06_0094 under Part 3A of the Environmental Planning and Assessment Act 1979 (the EPA Act) for a retirement village complex. The site contains a variety of vegetation and landscaped environments including habitat for the Green and Golden Bell Frog and areas of rare Turpentine Forest with trees possibly in excess of 100 years old.
The proposed drilling works are preliminary site investigation works under the concept plan approval. Development consent is required for the works under Part 4 of the EPA Act. The location of the field-sampling program including the twenty-one (21) evenly spaced boreholes and the instillation of three (3) groundwater-monitoring wells at selected locations to assess widespread groundwater contamination conditions (within the boreholes) are generally identified on the plan that is Exhibit A4. Five of the boreholes will be hand dug and the remaining sixteen (16) boreholes will be dug by machine because the hand digging cannot achieve the necessary depth to locate potential contaminants. The drilling machine will enter the site along an identified 2.5 m wide temporary access path, which will widen to about 4 m at borehole locations. The works will be completed over two days (weather permitting) and do not intrude into the Turpentine Forest or into the identified E2 zoned area.
Despite the refusal of the original development application the Council now supports the approval of this development subject to the conditions in Exhibit R2. It was the Council's refusal of the application that founded the appeal to the Court pursuant to s 97 of the EPA Act.
The second respondent, Mr Roy Kennedy, who objects to the development, represents a number of local residents and members of the Illawarra Aboriginal Community. They believe the site, as part of the wider Sandon Point area, is a place of social, spiritual and cultural significance for Aboriginal people, principally because it contains a sacred Women's area. According to Dr White, the applicant's anthropologist the Women's area is a spiritual place that exists within a broader understanding of place and cultural heritage and is not identified by physical boundaries. It is said to be over the entire area and the inability to fix a firm spatial boundary on a place that is not specifically archaeological in nature is not uncommon in Aboriginal ethnographic research. In fact Dr White's research supports the objectors' view that "...the Women's area most likely exists in the wider Sandon Point area but that the exact location will never be known". Dr White's report (Exhibit A7) was commissioned to fulfil certain conditions of the concept approval and the associated statement of commitments. The report acknowledges the cultural significance of the Sandon Point area as a meeting place, gathering place, camping place and a place of ceremony for Aboriginal people in the past and today.
The lay evidence received at the hearing confirmed Dr White's assessment of the area's Aboriginal cultural significance. Several Aboriginal witnesses told the Court about the ongoing spiritual connection between members of the Illawarra Aboriginal community and the Sandon Point area, its Turpentine Forest and orche/clay pit and the Women's area. They explained (with the assistance of photographs) the geographic features understood to indicate the spiritual areas including fresh water, certain trees and the ceremonial use of ochre in relation to birthing on the site. They also described their individual beliefs about the area and explained to the Court how Aboriginal cultural information has been passed on from their elders about the sacred Women's area over the site. They explained that men generally did not enter onto the site without permission and asked the Court to respect that custom by inspecting the site in the company of female representatives of the parties - which happened.
I have been told that some of the culturally sensitive evidence given by Ms Gough, Ms Speechly and Ms Robinson and others about the use of the Women's area today was not communicated to Dr White through the consultation process and, therefore, her report does not represent the entirety of knowledge about the site. While that may be so I accept that the White report presents the results of an Aboriginal community consultation process undertaken in accordance with the methodology identified in the Aboriginal Archaeological Report prepared by Mary Dallas (MDCA 2005). That consulting process which involved contacting 10 Aboriginal organisations and speaking with 23 Aboriginal community members. Eight formal interviews and as well as two site visits.
The second respondent also raises concerns about the impact of the investigation works on specific native flora and fauna said to be on the site. However, he concedes that because the forest and plants and animals are all connected to the Aboriginal cultural significance of the site, both intrinsically and as a source of resources, these issues cannot easily be separated. (Second Respondent's written submissions (2nd RWS at [1])
The site also has a European settlement history. It records that a portion of the land has, in the past, been used for industrial activities. It was both quarried for its clay and used for the manufacturing of bricks. Therefore, one purpose of the development application is to establish the extent to which, if at all, the site is contaminated as a consequence of its former industrial use.
Jurisdiction and a chronology of events
The proposed development has a capital investment value of $30,000 and is a stage of the concept plan approval.
Under the terms of the concept plan approval any stage of the project with a capital investment value of less than $5 million is required to be assessed under Part 4 or Part 5 of the Act (s 75P(1)(b)).
Accordingly, this development must be assessed under Part 4 of the EPA Act and that is why ARV lodged this development application with the Council on 10 November 2011.
But the Council refused its consent to that application on 24 April 2012 so ARV appealed that decision to the Court under s 97(1) of the Act on 21 September 2012.
The events that occurred after the lodgement of this appeal are detailed in the chronology set out in the applicant's written submission.
Importantly, the chronology records that in January 2013 and following a conciliation conference under s34 of the Land and Environment Court Act 1979, the Council was prepared to agree to the grant of development consent subject to conditions accepted by ARV. However, before the proceedings could be listed before the Court for the making of final orders in accordance with the s 34 agreement, Mr Kennedy (on behalf of the Sandon Point Aboriginal Tent Embassy) applied pursuant to s 39A of the Court Act to be joined as a second respondent in the proceedings.
His application was successful when Pain J made an order for joinder on 29 January 2013. As a consequence of that order, Mr Kennedy, by his agent Mr Oshlack, attended a resumed s34 conference on 7 February.
That conference was terminated as agreement was not reached among all parties as to the manner in which the appeal should be resolved; s 34(4). The report prepared pursuant to s 34(4)(a) of the Court Act by the Commissioner who conducted the conference, records that the Council no longer pressed the contentions raised by it in opposing the grant of development consent but that the contentions raised by Mr Kennedy were pressed.
The contentions raised substantially reflected those that had been stated by the Council. An amended statement of facts and contentions was filed by Mr Kennedy on 14 February 2013 and responded to by ARV on 20 February.
After the commencement of the hearing, however, the contentions were reduced to those detailed at paragraphs [16] - [36] of the second respondent's written submissions (2nd RWS). Generally, they complain about inadequacies in the application documentation and unacceptable impacts on native flora and fauna and the Women's area.
Consistency with conditions of concept plan approval
The Court cannot approve this development unless it is satisfied that the proposed investigations are generally consistent with the terms of the approval of the concept plan, including its conditions and the statement of commitments.
The requirements of the concept plan approval relevant to these proceedings are described below (SEE, Annexure A and B; Exhibit A1 tab 3).
(1) The Statement of Commitments approved as part of the Concept Plan Approval requires:
(12) Consultation with appropriate Aboriginal community members to determine the location and significance of the "Women's Area" which may be located over the subject site will be undertaken as identified in the Aboriginal Archaeological Report prepared by Mary Dallas (as Appendix H). This consultation is to take place prior to sub service archaeological investigations, which may be commissioned with respect to proposed future development. This will determine the appropriateness and possible extent of these works.
(13) Where any work in the north-east corner of the site is proposed, ARV will undertake a targeted archaeological excavation testing for Aboriginal artefacts to determine the nature, extent and significance of any deposits. This work is to be undertaken by a suitably qualified archaeologist.
(14) Prior to development, ARV will undertake excavation testing for potential archaeological remains to determine the nature, extent and significance of any deposits in accordance with section 5.of the European heritage Report by Graham Brooks (at Appendix L). This work is to be undertaken by a suitably qualified archaeologist.
(2) The conditions of the Concept Plan Approval further require:
B (1) The ARV Statement of Commitments concerning cultural heritage are to be modified to include measures outlined below
(2) The Proponent shall:
(a) include an appropriately qualified and practicing anthropologist as part of any investigations into the potential Aboriginal Cultural values of a "women's area";
(b) submit the report by the appropriately qualified and practising anthropologist as part of any future application proposing to develop the ARV lands.
ARV contends, based on the evidence of Dr Robertson, Dr White and the report by Mary Dallas (co-authored with Dr Susan McIntyreTamwoy) as amended by her letter dated 29 May 2013 (Exhibit A9) that the proposed Aboriginal/Archaeological/contamination investigations are generally consistent with the requirements and conditions of the concept plan approval and the statement of commitments.
What is the primary purpose of the proposed development?
A consideration of the purpose of this development highlights how minor the proposed works really are.
The Statement of Environmental Effects prepared Don Fox Planning dated November 2011 and lodged with the development application describes the proposal as preliminary contamination and archaeological site investigations works without the need for tree removal.
According to Environmental Investigation Services (EIS) who prepared a Sampling Analysis and Quality Plan (SAQP) (Appendix E) for the investigations the objectives of works are to:
(1) Assess the potential risk of significant widespread contamination of the site;
(2) Assess the soil and groundwater contamination conditions at the site in relation to the proposed land uses;
(3) Undertake a waste classification assessment of off-site disposal of evacuated soil associated with the proposed development works;
(4) Prepare a report presenting the results of assessment generally in accordance with the Reporting Guidelines 1997, SEPP 55 and the Site Auditor Guidelines 2006.
The proposed scope of the works includes:
(1) Review of historical information as detailed in s 3 of this SAQP;
(2) Design and implementation of a field sampling program including twenty-one (21) evenly spaced boreholes;
(3) Instillation of three (3) groundwater monitoring wells at selected locations to assess widespread groundwater contamination conditions (within the boreholes);
(4) Laboratory analysis of selected soil and groundwater sampling; and
(5) Preparation of a report presenting the results of the assessment together with recommendations on the suitability of the site for the proposed development.
The proposed SAQP works are said to be generally consistent with the concept plan approval and statement of commitments and are necessary for ARV to determine the extent of remediation (if any) that would be required as part of any future development proposal on the site.
Mary Dallas Consulting Archaeologists (MDCA) has prepared an Aboriginal and European Archaeological Investigations Management Strategy (AME) (Appendix F) to accompany the proposal. The purpose of the AMS is to assess material excavated during the auger drilling on the site and to ensure that activities are not inconsistent with the requirements of the concept plan approval and the statement of commitments. In particular, the AME report proposes a methodology for undertaking Aboriginal and European archaeological investigations on the site in order to satisfy Items 13 and 14 of the statement of commitments, which formed part of the concept plan approval. That methodology has been modified to accord with the recently published Code of Practice for Archaeological Investigations of Aboriginal Objects in NSW [2010] published by the NSW Office of Environment and Heritage (the Code). The best practice under the Code, in relation to Aboriginal archaeological investigations, is by way of handdug squares. The Code does not permit machine trenching and it is recommended that individual testing squares be 50 cm x 50 cm in size and spaced on a grid of 20 m intervals.
Ms Dallas details her modified methodology in a letter dated 29 May 2013 (Exhibit A9). Importantly, the letter includes the following statement: "...I consider the undertaking the Aboriginal and European archaeological test excavations as described in our Report and with the methodology refinements described in the letter will satisfy the requirements of Items 13 and 14 of the statement of commitments."
The Council accepts the modified methodology proposed in the letter of 29 May 2013 and has incorporated it into the conditions of consent. The applicant also agrees to the imposition of the conditions proposed by the Council.
While the second respondent prefers the hand digging proposed by Ms Dallas in Exhibit A9 he is concerned that the location of the test pits and boreholes is different to that originally proposed by the applicant and assessed by the experts. In making that submission he relies on the plan with the locations marked attached to Exhibit A9. The second respondent is also concerned that the native vegetation removal and ground disturbance will by increased to a "significant degree" with at least ten (10) new squares of earth opened up, in addition to the impacts of the borehole sites and pathway links (second respondent's written submission dated 11 June 2013).
The applicant maintains that there is no change to the location of the test pit and boreholes originally proposed and, that the plan attached to the Dallas letter of 29 May 2012, is out of scale.
The Second respondent's remaining contentions
I propose to deal with the remaining issues raised by Mr Kennedy under general headings because there is some overlapping of the issues.
The Ecology Evidence
The ecological issues in this case essentially boil down to a disagreement about the need for an SIS (Species Impact Statement); the need and location of any temporary frog proof fence; and criticisms about the extent of the ecological survey investigations carried out by the applicant's ecologists Cumberland Ecology and Dr Robertson on 11 April 2013.
Dr David Robertson
The applicant relies upon the evidence of Dr David Robertson who is a director of Cumberland Ecology with over twenty-seven years experience as a specialist ecologist having expertise in both botany and zoology. His Curriculum Vitae describes extensive experience in large-scale vegetation mapping and flora and fauna impact assessment projects, consulting, employment as a senior ecologist with the Australian Museum, ERM Australia, the Department of Planning and lecturer in ecology and aquatic biology at Charles Sturt University. Dr Robertson has prepared an Individual Statement of Evidence, which is Exhibit A6. He has also participated in a joint report with the second respondents' experts, Mr Leonard and Mr Miller. The Ecologists' Joint report is Exhibit A5.
Dr Robertson told the Court that the ecological impacts of the development have been comprehensively investigated and assessed. (Ex A6 p3.4, paras [59] - [68]). Including all necessary Assessments of Significance for all potentially occurring threatened species as well as species listed by the second respondent as having potential to occur on the site.
And following that assessment he is of the opinion that the proposed development, the installation of boreholes and groundwater monitoring wells and targeted archaeological investigations will not have any significant impacts on any native flora and fauna present within the site including threatened species such as the Green and Golden Bell Frog (Ex A6 p4.1 para 97).
His response in Court to Mr Miller's evidence demonstrates that he is an objective and experienced expert witness. He said:
"...the turpentine forest is a significant patch of forest, and it's been suitably zoned E2 , and there's a strip of land along the creek that zoned E2, and that's not necessarily in particularly good condition but it's a riparian corridor that can potentially link to other streams off the site, further to the east, and you know , together those areas of E2, and other areas on the site, because I don't want to pre-empt what might happen in DA's or anything like that in the future....
...there is regenerative potential; I have no doubt that's the case. But I think that this site has been considered over quite a number of years, and its not an unknown site, and there are not records of threatened plant species on the site, and there's no records of Green and Golden Bell frogs on the site, despite the searches. And whereas some of the plants, like Acacia falcate, might be unusual for the locality, they're not regarded as threatened species, and I think a reasonable level of care can be taken for the drilling to ensure that there would not be, you know, significant environmental damage; And in my view is that, I know that I've already clarified the nature of the grassland and regenerating shrub land and trees and things...
...But within that area, only a few years ago, that was quite, you know, quite heavily mown, and it's come back from that mowing and within parts of that area there was an old quarry, there are areas where there's been rubbish dumped in the past, and still, a lot of native plants that are there show a degree of resilience. So I've taken that on board when I've done my assessment, and I believe the drilling rig is relatively small, it's 1.5 metres wide, it works on rubberised tracks, it comes in for a short period of time along defined areas, it's guided in, so that it does minimum damage to trees and shrubs. You will have seen from the site view that there was a thick carpet of grass in a lot of areas, and including the areas that are marked as access routes for the drill rig to move in on, so it will crush down the grass, certainly, and in places, in some of the nominated drill holes, it will crush down some tree and shrub regeneration, certainly I believe that that's not going to be major, significant or lasting damage that won't regenerate...
I am satisfied, and I think, when you do a seven-part test, it's not purely based on site survey, because the site survey gives you a snapshot of what might be around at a particular point of time, so we routinely use literature, we use an analysis of the quite extensive database records for threatened species that are know within, you know, different parts of New South Wales. So we take it on board, we look at the records, and the current condition of the site, and we evaluate the information available against the level of disturbance that is proposed. And in this case, its not a construction, its an activity, so it's a short and sharp activity that will. You know, we've talked about weather conditions that might extend to but in good weather it might be as quick as several days, it might stretch out for a week or more, but it's not a really long term construction activity. So I think that our assessments of significance and the mitigation measures proposed are adequate to deal with the likely level of disturbance."
(Transcript 30.5.2013 at p 25 at [15] - [50]) and 26 at [5] -[20])
Dr Robinson supports the imposition of the Council's proposed conditions in Exhibit R2. But he does not endorse a need for a remediation plan.
His oral evidence reinforced the conclusions of his written statement (Exhibit A6) and his comments in the ecologist's joint report (Exhibit A8).
In short he is of the opinion that the construction of the boreholes and targeted archaeological investigations will not have any significant impacts on any potentially occurring threatened species, populations or any potential EEC's within the site. And that there will be no significant loss of native fauna and flora because the development does not involve any significant removal, modification or isolation of native vegetation.
Mr Robert Miller
The second respondent relies upon the evidence of Mr Robert Miller. His Curriculum Vitae is attached to his individual statement which Exhibit K5. Mr Miller has an Associate Diploma of Horticulture from the University of Western Sydney (formerly Hawkesbury Agricultural College), conferred on 17 April 1982 and a number of certificates including: Four Wheel Drive Techniques and Four Wheel Drive Recovery Course; St John's Senior First Aid; Forestry Commission of NSW 1981 Tree Care Certificate, Ryde School of Horticulture 1983 Advanced Wildflower Course. He is currently employed as principal of Cumberland Flora and Fauna Interpretive Service.
Mr Miller resides in Bulli and is the convener and founding member of the Cookson's Landcare Group for 2003-2007 which undertook bush regeneration works within and adjacent to the remnant vegetation known as the 'Turpentine Forest' and eastward along the unnamed creek often referred to as Cookson's Creek. He was also commissioned by the Illawarra Aboriginal Land Council in partnership with the Southern Rivers Catchment Committee and Wollongong Council to prepare a Vegetation Management Plan for the Sandon Point environs.
Mr Miller was engaged by the second respondent "...to express an expert opinion in relation to the matters concerning environmental issues relating to proposed contamination investigation works as outlined in DA 2011/1383" (para 6 of introduction to his statement of evidence dated 14 May 2013).
It was clear from Mr Miller's oral evidence in Court that he is neither objective or informed about the detail of this application. He told the Court that he was against any development in the area east of the turpentine forest or outside the E2 zone or any development in the area generally apart from the factory site (transcript dated 30.5.2013 p15 paras [15]-[30]).
He expressed concern that any development including the proposed investigations would adversely impact on existing native vegetation that Dr Robertson describes incorrectly as "grassland" (transcript 30.5.2013 at p18 [15] - [50]). He did not, however, present any reliable evidence to the Court to suggest that the proposal is likely to significantly affect threatened species; population or ecological community such that a species impact statement is required. Nor did he provide any reliable and independent evidence to challenge the comprehensive evidence given by Dr Robertson.
Mr Gary Leonard
The second respondent also relies upon the evidence of Mr Gary Leonard. His Curriculum Vitae is located at the end of this statement of evidence, which is Exhibit K5. Mr Leonard's CV states that he has the following qualifications: MSc (Hons) Biology - preliminary; from the University of Wollongong Completing thesis through SCU Lismore, Dip Ed, Sydney CAE, National Diploma of Horticulture, NZ, Horticulture Certificate, Ryde TAFE, Green keeping Certificate, Wollongong TAFE, Workplace Training and Assessment - Cert IV - TAFE.
The Court was told that Mr Leonard is currently employed as a casual Senior Ecologist, Botanist with GHD Sydney. He resides at Thirroul and was employed as an Environmental Strategy Officer with the Council from 2010 until 2012. In that role he was responsible for reviewing environmental assessments, particularly where threatened flora and fauna species or threatened ecological communities occurred. His CV records that he carried out the initial flora survey for a flora and fauna assessment of McCauleys and Sandon Point prepared by Quality Environmental Management (QEM 1992). During these surveys he apparently carried out searches for the threatened species of Maundia triglochinoides and other species for which historical records existed, as well as surveying for vegetation mapping. He accompanied Mr Garry Daley, the consulting fauna ecologist during his nocturnal searches for frog species. He is especially interested in the distribution of the Green and Golden Bell frog meta populations in the Illawarra and continues to monitor some local populations on behalf of Dr Ross Goldingay, Southern Cross University. He has surveyed the site on two occasions 13 March and 8 May 2013 and at the last visit prepared a survey plan indicating his view of the revised locations of proposed drill sites as a cross reference to the locations of recently installed survey pegs.
Mr Leonard was retained by the second respondent "...to express expert opinion in relation to matters concerning environmental issues relating to proposed contamination investigation works outlined in DA 2011/1383" (para 4 of his statement dated 14 May 2013 in exhibit K5).
His evidence centred on the Green and Golden Bell frog, its habitat and, the impact of the proposed works on any EEC. He was critical of the timing of the frog survey undertaken by the applicant's experts but did not carry out any survey work to refute that of the applicant. In fact he agreed with the conclusions of Cumberland Ecology that there have been no recent sighting of the frog on the applicant's land and that "...if species occurs on the site it may do so only as transient, dispersing individuals..."(para 7.4 of his statement).
Despite agreeing that any frog on the site was transient he was adamant that the proposed works should be stopped in order to protect the existing native vegetation and frog habitat.
Again I found it difficult to accept Mr Leonard's evidence as objective in this case. For example Mr Leonard could not accept the proposition, put to him by the applicant's counsel Mr Robson, that these investigations may, by identifying contaminants and the need for remediation, improve the site and indeed the habitat.
Mr Leonard told the Court he has only skimmed through the applicant's expert reports including the EISs attached to Dr Robertson's report. (Transcript dated 30.5.2013 at p 41 paras [35] to [50]). His limited understanding of the detail of the application including the location of the proposed boreholes, and the investigations carried out by Dr Robertson makes it difficult to accept his evidence as either objective or informed. He offered no reliable evidence based on any objective assessment that the proposed development was likely to significantly affect a threatened species; population or ecological community such that a Species Impact Statement was required. Mr Leonard's evidence did not seriously challenge the comprehensive evidence given by Dr Robertson.
Findings about ecological evidence
Dr Robertson has extensive relevant experience and carried out comprehensive site investigations into the ecological impacts of the proposed works. He understood the detail of the proposed works and its impacts.
Mr Leonard and Mr Miller did not appreciate the detail of the proposed works and did not carry out any independent reliable testing to displace the investigations of Dr Robertson.
In light of the above I must accept the unchallenged evidence of Dr Robertson in his statement of Exhibit A6 and his conclusion that the proposed works are consistent with the requirements under the concept plan and the statement of commitments.
Finding about Native Vegetation raised in the submissions of the second respondent dated 11 June 2013
The written submissions filed by the second respondent on 11 June 2013 raise a concern that the access point for the drill rig will interfere with public pedestrian access to the beach along the temporary pathway, which is the only east-west access point between McCauley Beach and the residential Bulli and south Thirroul.
Having inspected that area on the view I am satisfied that this development, which is intended to be completed within 2 days, will not unreasonable impede public pedestrian access. I am also satisfied on the evidence of Dr Robertson that the conditions satisfactorily deal with the protection of vegetation removal.
Finding about the Frog Proof fence
I have decided to impose the condition 2.7 requiring the frog proof fence proposed by Dr Robertson during the construction phase of the drill holes notwithstanding his opinion that the proposed development will have no significant impact on the Green and Golden Bell frog. In my assessment it may protect any transient frog on the site during the short development period and complete the other extensive measures required under the conditions to protect the frog.
Those measures include a requirement that the applicant, prior to the commencement of any work on the site, engage a suitably qualified ecologist/herpetologist to:
(a) Undertake pre-clearing surveys for Green & Golden Bell Frogs.
(b) Supervise the installation and excavation of any mitigation measures required for Green & Golden Bell frogs (i.e. fence).
(c) To direct works to ensure that there is no adverse impact upon any Green & Golden Bell frog or their habitat.
(d) Provide written certification that the requirements of the consent, with regards to the Green & Golden Bell frog, have been implemented and completed.
Condition 2.7 requires the installation of the frog proof fence and signage.
The hours of work onsite are restricted from 7 am to 5 pm Monday to Friday and 7 am to 1 pm Saturday without prior written consent of the principal certifying authority or Council.
No work is permitted on public holidays, Sundays or the Saturday adjacent to public holidays on Mondays or Fridays.
If heavy rain falls (50 mm daily rainfall) then no work is allowed onsite for a period of 12 hours thereafter.
If any Green and Golden Bell frog is observed then procedures are in place requiring all work is to cease immediately until the supervising ecologist/herpetologist gives approval for works to continue. All works are to be certified by the supervising ecologist/herpetologist (condition 4.1).
The frog exclusion fence is to be designed as detailed in schedule 1 to the conditions of consent. It is essentially a high structure of shade cloth attached to a pipe connected at right angles to a star picket. Its location is as depicted in schedule 2 to the consent.
Finding about Women's area
After a careful consideration of the oral and written evidence of the Aboriginal witnesses (including the photographic evidence) I am satisfied that the report of Dr White is generally consistent with the terms of the concept plan approval its conditions and the relevant statement of commitments.
Conclusion
The applicant submits that these works are relatively minor and nonintrusive and emphasises that any further approvals for the actual development of the retirement village under Part 3A of the Act (which applies because of the transitional provisions) will involve notification, public participation and an environmental assessment.
It also submits that any wholesale opposition to this development is, in a planning or legal sense, premature and I must agree.
Put simply, the results of the investigations will largely determine the future development of the site. And, in my assessment of the evidence, the installation of boreholes and groundwater monitoring wells and targeted archaeological investigations do not and will not have any significant impacts on any native flora and fauna present within the site including threatened fauna species such as the Green and Golden Bell Frogs.
The investigation works are minor and will be completed (weather permitting) in a short period of time. The locations of the boreholes are generally depicted on the plan, which is Exhibit A4 and they will be carried out in accordance with the conditions proposed by the Council in Exhibit R2. All necessary permits under the NSW Heritage Act 1977, National Parks and Wildlife Act 1974, Water Management Act 2000(NSW) are required under the conditions of consent and the conditions provide comprehensive detail for the supervision of the works by the specified experts consistent with the terms of the concept plan approval and the associated statement of commitments. Based on Dr Robertson's Assessments of Significance no Species impacts Statements under the TSC Act or EPA Act are required. Therefore, I am able to grant conditional consent to this development application.
I understand that the prospect of people and machinery moving through and working in the forest (the site) even on a short term basis is considered disrespectful and inappropriate by Aboriginal people to whom it is significant (2nd RWS at [3]). The ecology, Aboriginal cultural heritage and objectors' concerns do overlap and are not really able to be separated. The Women's area exists over an undefined area and there is no dispute that the site is of high significance to Aboriginal people.
I have carefully considered all of the expert and lay evidence and I am satisfied on the evidence of Dr Robertson, Dr White and Mary Dallas that this development is consistent with the requirements of the concept plan approval and the statement of commitments and there is no planning reason to refuse the application. The methodology recommended by the Mary Dallas letter dated 29 May 2013, which is incorporated into the conditions of consent, will ensure the best practice under the Code adopted during the course of the investigations and in my assessment is appropriately incorporated into Council's conditions of consent which I have decided to impose rather than those drafted by the second respondent.
I appreciate that some of the local community who addressed the Court orally and in the written submissions expressed the view that "enough is enough". They do not want any development on the site or in the area. While they generally understood, that on one view, the works are small in scope (2nd RWS [4]) they believe the value of the site to the local community as a whole has been elevated by the perceived loss of other areas, for example to the Stockland site next door. Their views are understandable. However, this application does not seek approval for a particular retirement village complex. It is an application for consent to carry out preliminary site investigations under a concept plan approval. Based on the evidence before me there is no planning reason to refuse conditional consent to this application.
Accordingly, the Court orders:
(1) The appeal is upheld.
(2) Development Consent is granted to Development Application No 2011/1383 subject the conditions in exhibit R2.
(3) The exhibits are returned apart from exhibits A1, A4 and A9 R2.
Susan Dixon
Commissioner of the Court
Decision last updated: 27 September 2013
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