Arkibuilt Pty Ltd v Ku-ring-gai Council
[2014] NSWLEC 1161
•14 August 2014
This decision has been amended. Please see the end of the decision for a list of the amendments.
Land and Environment Court
New South Wales
Case Title: Arkibuilt Pty Ltd v Ku-ring-gai Council Medium Neutral Citation: [2014] NSWLEC 1161 Hearing Date(s): 26, 27 and 28 May 2014 Decision Date: 14 August 2014 Jurisdiction: Class 1 Before: Dixon C Decision: 1. Appeal dismissed.
2. The Exhibits are returned.Catchwords: DEVELOPMENT APPEAL -residential and retail development - endangered ecological community - Sydney Turpentine Ironbark Forest (STIF) Legislation Cited: Threatened Species Conservation Act 1995
Ku-ring-gai Local Environmental Plan (Local Centres) 2012
Ku-ring-gai Local Centres Development Control PlanCategory: Principal judgment Parties: Arkibuilt Pty Ltd (Applicant)
Ku-ring-gai Council (Respondent)Representation - Counsel: P Tomasetti SC (Applicant)
J Robson SC (Respondent)- Solicitors: Di Marco Lawyers (Applicant)
Wilshire Webb Stanton Beattie (Respondent)File Number(s): 10865 of 2013
Judgment
The applicant, Arkibuilt Pty Limited, has lodged a development application with the Council for approval to construct an 8 storey mixed use development on a large site on the eastern side of Lindfield Station. The development comprises 62 apartments, with parking for 147 cars over three levels of basement car parking, a 100m2 neighbourhood shop and 1105m2 gourmet grocer.
The development site is a consolidation of 5 properties at 43 - 49, 51, 55 and 55A Lindfield Avenue, Lindfield (the site). Access to the site is proposed via 9 Havilah Lane, Lindfield.
Before the development can proceed the site must be cleared of all buildings and trees. Three of the trees, proposed to be removed, have been identified as remnant native trees comprising Turpentine species - mapped and forming part of the endangered Sydney Turpentine Ironbark Forest (STIF) ecological community. That ecological community is listed as an endangered ecological community under s 6 of the Threatened Species Conservation Act 1995. The removal of the STIF is the principal issue in these proceedings.
The general location of the trees is plotted on Figure 23 reproduced below. The Figure is taken from the Species Impact Statement (SIS) prepared by the applicant's consultant, Frazer Ecological Consulting, on 5 November 2013 and identifies the STIF as 'Tree 21', 'Tree 29' and 'Tree 10'.
Species Impact Statement 43-55a Lindfield Avenue LINDFIELD
(Jacaranda), Brachychiton acerifolius (Illawarra Flame Tree) and a remnant Syncarpia glomulifera (Sydney Turpentine).
Vegetation condition
The health and condition of the native remnant STIF trees on the subject site were identified in the Arboricultural Impact Assessment Report prepared by Jacksons Nature Works (June 2013) are shown below in Figure 23.
The trees are also identified as "Areas of Biodiversity Significance" on the Natural Resource Biodiversity Map referred to in cl 6.3 of Ku-ring-gai Local Environmental Plan (Local Centres) 2012 (LEP). Importantly, before determining a development application for development on land to which this clause applies, I must consider the impact of the proposed development by reference to the matters listed in cl 6.3 (3). I cannot grant consent to development on land to which the clause applies unless I am satisfied that the development is consistent with the objectives of the clause, and satisfactorily addresses the other matters identified in cl 6.3(4).
I will address cl 6.3 in due course but for present purposes I note the Council's position that I cannot form the requisite state of satisfaction required by cl 6.3(4) and therefore I am precluded from granting consent to this development. The Council contends that the development can be redesigned to preserve and protect the STIF in situ on the site.
The applicant contends that there is no opportunity for a redesign of the proposal to save the STIF because the trees block the access path to the basement car park entry. However, the applicant submits that the removal of the trees is not a problem because - based on its ecological evidence - the STIF are of poor condition and in decline. They can be removed to facilitate this development because the vegetation offset proposed in this application more than compensates for their loss. In short, it is submitted that after a consideration of the matters raised by cl 6.3(3) against the applicant's evidence the Court can be satisfied about the matters raised by cl 6.3 (4) and grant consent to this development.
Objectors
Not surprisingly there is significant community objection to the removal of the STIF and this development generally. The Court has read and considered the written submissions received by the Council and has heard oral evidence from several of the objectors at the commencement of the hearing. Generally, the objectors are concerned about the bulk and scale of the development, the traffic impacts generated by the development on the local road network, the loss of a local community shopping strip and services, affordable residential housing proximate to the railway and public services and the loss of the STIF.
Isolated sites
The owners of the adjoining properties at 39 and 41 Lindfield Ave are concerned about the impact of the development on their respective properties. They believe that if the development is approved that their properties will become isolated and highly constrained. In support of their claim that the applicant has not complied with its requirements under Part 3A of the Ku ring gai Local Centres Development Control Plan (DCP) they have provided valuation evidence and details about their negotiations with the applicant for the purchase of their sites.
Background
The revised statement of facts and contentions (statement) filed by the Council on 14 May 2014 sets out the relevant facts, statutory controls and the contentions raised by the original application. However, the amendments to the plans and the applicant's agreement to the imposition of the Council's conditions on any consent granted has resolved all of the contentions between the parties apart from those relating to the removal of the STIF.
Locality
The statement describes the site as being located in an area that is highly urbanised yet characterised by a mixture of some remnant native trees and introduced garden planting. Lindfield Avenue itself lies parallel to the railway line and the Pacific Highway and the adjacent uses of the site include medium to high-density residential apartment blocks and a small scale-shopping complex. The site presently contains a mixture of existing uses including a service station site, residential units and a residential dwelling. A bitumen car park at grade owned by the Council has recently been incorporated into the development area.
The site comprises gently sloping land that has a constant fall from the site's southern corner in Lindfield Avenue through to the north-eastern corner in Havilah Lane. Consistent with the fall of the land, all stormwater from the site is currently directed to the street drainage system in Havilah Lane. The applicant contends that the trees have been adversely affected by contaminants and pathogens due to the existing drainage pattern on the site.
Statutory Controls
The Council's LEP which came into effect on 8 February 2013 aims to establish a hierarchy of centres for Ku ring gai. It provides for a variety of housing choices within and adjacent to those centres. In determining the application, the Court is required by cl 2.3(2) to have regard to the objectives for development in a zone. In this case the site traverses two zones under the LEP. It is zoned partly B2 Local Centre and partly R4 High Density Residential.
The objectives for the zone R4 High Density Residential are as follows:
1 To provide for the housing needs of the community within a high density residential environment.
2 To promote a variety of housing types within a high density residential environment.
3 To enable other land uses that provide facilities or services to meet the day to day needs of residents.
4 To provide for high density residential housing close to public transport, services and employment opportunities.
There is no doubt that the proposed development offers a variety of housing types close to the railway station and bus links along the Pacific Highway. It also provides facilities or services, which meet the day-to-day needs of residents and employment opportunities. Therefore in my assessment the development meets the relevant objectives of this zone.
The objectives of the zone B2 Local Centre are as follows:
1 To provide a range of retail, business, entertainment and community uses that serve the needs of the people who live in it, work in and visit the local area.
2 To encourage employment opportunities in accessible locations.
3 To maximize public transport patronage and encourage walking and cycling.
4 To provide for residential housing close to public transport, services and employment opportunities.
5 To encourage mixed use buildings that effectively integrate suitable business, office, residential, retail and other development.
Again, there is no dispute that this proposal satisfies the objectives of the Zone B2 Local Centre. However, as noted earlier development consent to this application cannot be granted without addressing the matters raised by cl 6.3 of the LEP.
The clause provides:
6.3 Biodiversity protection
(1) The objective of this clause is to protect, maintain and improve the diversity and condition of native vegetation and habitat, including:
(a) protecting biological diversity of native fauna and flora and
(b) protecting the ecological processes necessary for their continued existence, and
(c) encouraging the recovery of threatened species, communities, populations and their habitats, and
(d) protecting, restoring and enhancing biodiversity corridors.
(2) This clause applies to land identified as "Areas of Biodiversity Significance" on the Natural Resource - Biodiversity Map.
(3) Before determining a development application for development on land to which this clause applies, the consent authority must consider:
(a) the impact of the proposed development on the following:
(i) any native vegetation community,
(ii) the habitat of any threatened species, population or ecological community.
(iii) any regionally significant species of plant, animal or habitat,
(iv) any biodiversity corridor,
(v) any wetland,
(vi) the biodiversity values within any reserve,
(vii) the stability of the land, and
(b) any proposed measure to be undertaken to ameliorate any potential adverse environmental impact, and
(c) any opportunity to restore or enhance remnant vegetation, habitat and biodiversity corridors.
(4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development:
(a) is consistent with the objectives of this clause, and
(b) is designed, and will be sited and managed, to avoid any potentially adverse environmental impact or, if a potentially adverse environmental impact cannot be avoided:
(i) the development minimises disturbance and adverse impacts on remnant vegetation communities, habitat and threatened species and populations, and
(ii) measures have been considered to maintain native vegetation and habitat in parcels of a size, condition and configuration that will facilitate biodiversity protection and native flora and fauna movement through biodiversity corridors, and
(iii) the development avoids clearing steep slopes and facilitates the stability of the land, and
(iv) measures have been considered to achieve no net loss of significant vegetation or habitat.
(5) In this clause:
biodiversity corridor means an area that facilitates the connection and maintenance of native fauna and fauna habitats and, within the urban landscape, includes areas that may be broken by roads and other urban elements and may include remnant trees and associated native and exotic vegetation.
The application is also subject to the provisions of the Ku ring gai Local Centres Development Control Plan (DCP). As the site is identified on the DCP Greenweb map as being of biodiversity significance, Part 6 of the DCP is relevant to this development. The Introduction to Volume B of Part 6 of the DCP explains how the DCP co-ordinates with cl 6.3 of the LEP.
It provides:
This Part applies to development that will have an impact on areas identified as the Greenweb in this DCP. It guides development in these areas in meeting the aims and objectives of the KLEP (Local Centres) 2012.
The Greenweb identifies lands containing significant strategic biodiversity values, considered important in the supporting of native flora, fauna and ecological processes and has a particular focus on key vegetation communities, threatened populations, specie and their habitats.
Lands identified as of biodiversity significance KLEP (Local Centres) 2012 (see Clause 6.3) are broken down into four biodiversity categories:
Category 1 Core Biodiversity Lands;
Category 2 Support for Core Biodiversity Lands;
Category 3 Landscaper Remnant;
Category 4 Biodiversity Corridors and Consolidation;
That is, four (4) of the five (5) categories identified on the Greenweb maps in 6R.1 of this Part.
The Greenweb for the purposes of the DCP consists of 4 categories identified above as well as additional lands, labelled as Category 5 Canopy Remnant " on the Greenweb maps at 6R.1 of this Part. Category 5 is also included for the role these canopy remnants play in supporting ecological processes and other values. Note however, that Clause 6.3 of the KLEP (local Centres) 2012 does not relate to Category 5 Canopy remnants.
(Exhibit D)
The purpose of the Greenweb is "to foster a consistent and strategic approach to biodiversity management". However, the DCP acknowledges that the maps have limitations and should not be used at a scale finer than 1:2,000. While "there are considerable benefits to natural resource planning at this scale, however, investigations at a site scale for individual proposal s may identify inaccuracies or on ground changes" the DCP specifically invites the consent authority to "consider on merit, arguments relating to any proposed mapping variations based on methodology outlined in the Ku ring gai Biodiversity and Riparian lands Study. In all cases the onus of proof rests with the proponent" (Exhibit D p 6-2).
The colour coding on the Greenweb is intended to signify the biodiversity significance of the land. In this case the development site is identified on the Lindfield Greenweb map with an orange patch in colour (Category 5 - Canopy Remnant) with a blue outline (Category 3- Landscape Remnant). It is the same area that is identified as being an area of Biodiversity Significance on the Natural Resources - Biodiversity Map in the LEP referred to in cl 6.3(2).
Contentions
As stated at the outset of this judgment, the Council contends on the evidence of Dr Clements that the STIF is Category 3 - Landscape Remnant and includes significant trees with key vegetation communities that need to be retained. This can be achieved if the development is redesigned. In those circumstances the Council submits that I do not have jurisdiction to approve this application because cannot be satisfied as required by cl 6.3(4) of the LEP.
The Council also contends that the retention of the STIF in situ on the land is required to achieve the objectives and controls of Part 6 Biodiversity Controls of the DCP, in particular:
·Part 6.1 Objectives 1,2 and 3; Controls 1 and 4;
·Part 6.4 Objectives 1,2 and 3;Controls 1,2,3 and 4;
·Part 6.7 Objective 1,2 and Controls 1,2,3 and 4(i).
Ecological expert evidence
Dr Stephen Ambrose, the applicant's consultant ecologist and Dr Annemarie Clements, the Council's consultant ecologist deal with the STIF. Their joint report is (Expert 4). Dr Clements has also prepared a separate statement of evidence (Exhibit 2) and Dr Ambrose has prepared a supplementary report dated 22 May 2014.
The experts' joint report was prepared after a consideration of the following documents: Arboriculture Impact Assessment Report of Jackson's Nature Works dated 15 June 2013 and addendum dated 4 November 4 2013, Seven part Test prepared by Fraser Ecological Consulting dated July 2013 and the Species Impact Statement prepare by Alex Fraser dated 5 November 2013.
After reading that material and inspecting the site their report records that they agree about the following matters:
·The site contains Sydney Turpentine Ironbark Forest (STIF).
·There are 4 large trees on the site (Tree 10, 12, 21 and 29).
·Tree 12 is a planted Syzgium paniculatum (Magenta Lilly Pilly).
·Trees 10, 21 and 29 are Syncarpia glomulifera (Turpentine) and they are visible on a 1943 aerial photograph in the same locations. Therefore they are thought to be about 70 years old.
·The location of the four trees is mapped by DECCW (2009) (figure 4cin the SoE of AC) as 3 Syncarpia glomulifera (STIF) and 1 Syzygium paniculatum (urban exotic/native).
·The location of the 3 Syncaroia glomulifera is mapped as "Biodiversity significance" in the LEP and on the Greenweb under the DCP.
·The location of the 3 Syncarpia glomulifera is mapped as an orange patch with a blue outline in the DCP Greenweb map.
·On the DCP Greenweb map there are other orange patches without the blue outline.
·The onsite mapped orange patch with a blue outline on the DCP Greenweb map is the same as on the LEP Biodiversity map (at p 1-2 Exhibit 4).
The experts do not agree about the colour classification of the land identified on the Greenweb under the DCP. Dr Clements is of the opinion that the land is Category 3 - Landscape Remnant (blue) while Dr Ambrose is of the opinion that the land is Category 5 (yellow). The DCP contains a notation that cl 6.3 of the LEP does not relate to Category 5 land however such a notation cannot displace the requirement to assess this application against the matters raised by cl 6.3 because the site is identified as "Areas of Biodiversity Significance" on the Natural Resource - Biodiversity Map referred to in cl 6.3(2) of the LEP.
The DCP at its highest "...guides development in these areas in meeting the aims and objectives of the KLEP (Local Centres) 2012." Importantly, the DCP acknowledges that its application is subject to individual site assessment. It states "...investigations at a site scale for individual proposals may identify inaccuracies or on ground changes" the DCP specifically invites the consent authority to "consider on merit, arguments relating to any proposed mapping variations based on methodology outlined in the Ku Ring gai Biodiversity and Riparian lands Study. In all cases the onus of proof rests with the proponent" (Exhibit D p 6-2).
In my assessment of this application the DCP offers assistance in the analysis required by cl 6.3. The fact that the Council contends that the colouring on the Greenweb map is inaccurately reproduced and that the land on the site should have been coloured all blue to identify it as Category 3 - Landscape Remnant with significant trees within key vegetation communities is in one sense academic because trees are living and dynamic and need to be assessed at the relevant date of determination.
The DCP anticipates the need for site-specific investigations for each application in order to understand the health and extent of any particular mapped area of biodiversity at that date. In this case the Council, consistent with the provisions of the DCP, invited the applicant to carry out a seven-part test.
The testing was carried out by Fraser and their report dated July 2013 concludes that "the proposed works are not likely to result in a significant impact upon species, populations and communities listed under the Threatened Species Conservation Act 1995".
In coming to that conclusion the report states:
The proposed development would result in the removal of 5 trees whose species are typical STIF species:
Tree No10 Sydney Turpentine (Syncarpia glomulifera)
Tree No12 Brush Cherry (Syzugium paniculatum)
Tree No13 Illawarra Flame (Brachychiton populneus)
Tree No 21 Sydney Turpentine (Syncarpia glomulifera)
Tree No 29 Sydney Turpentine (Syncarpia glomulifera)These trees potentially contribute to the genetic diversity of more intact local remnants of STIF by exchanging pollen with individual trees in these remnants through dispersal by wind, insect, bird and arboreal vectors, and stormwater runoff. However, these trees are a negligible proportion of the total gene pool for STIF. Therefore, their removal is unlikely to significantly impact on the genetic total gene pool for STIF.
Therefore, the proposed development will not;
1. have an adverse effect on the extent of the STIF such that their local occurrences are likely to be placed at risk of extinction ;and
2. will not substantially and adversely modify the composition of STIF such that their local occurrences are likely to be placed at risk of extinction .
The three (3) (Sydney Turpentine Syncarpia glomulifera) trees have been infected with root rot fungi that prevent their retention. However, it is proposed to replant a number of these trees in the new landscape works to compensate their loss and ecological value in the long term. The planting will occur within soil that be certified free of pathogens and diseases to ensure their long-term survival to maturity.
(p 11 Seven Part tests - Fraser)
Despite those findings the Council required the applicant to prepare an SIS. Again Frazer was commissioned for that task in accordance with the Director's General Requirements as set out in the letter from the Office of Environment and Heritage on 26 September 2013. Part 6 of the SIS report dated 5 November 2013 deals with the STIF. It relies on the recommendations contained in the Arboriculture Impact Assessment report prepared by Jacksons Nature Works in June 2013 (at p 82-84) for the removal of the native STIF trees as a result of their poor health. The SIS states as follows:
Tree 10 Syncarpia glomulifera (Turpentine) is an indigenous tree showing poor health and vigour as seen by loss of over 50% of the foliage in the canopy, dieback of small to medium branches and general poor condition - refer plat 1. We had the soil tested adjacent to this tree. The results found the presence of Fusarium, Penicillium and Cladosporium fungai - refer Annexure F. It would appeal this tree is in a spiral of decline brought about by the attack of parasites causing root rot. The extent of decline suggests this tree will not recover from the parasite attack. Although part of the Sydney Turpentine Ironbark Forest we support its removal due to failing health. The proposed landscape plan has included a number of Turpentine trees to maintain the presence of these trees in this locality, which will ensure the ongoing ecology in this site;
Tree 21 Syncarpia glomulifera (Turpentine) is an indigenous tree showing declining health and vigour with dieback in the upper canopy, deadwood and general average condition - refer plate 3. This tree likely suffering from the parasite attacked as identified in the soil analysis. We can draw this conclusion as this tree is downhill from Tree 10. The soil bourn fungi are spread by ground water. Therefore, we support the removal of this tree, as its longevity cannot be assured. The proposed landscape plan has included a number of Turpentine trees to maintain the presence of the trees in the locality, which will enure the ongoing ecology in this site;
Tree 29 Syncarpia glomulifera (Turpentine) is an indigenous tree showing declining health vigour and die back in the upper canopy, deadwood and general average condition - refer plate 4. This tree likely suffering from the parasite attacked as identified in the soil analysis. We can draw this conclusion as this tree is downhill from Tree 10. The soil bourn fungi are spread by ground water. Therefore we support the removal of this tree, as its longevity cannot be assured. In addition we found a fungus adjacent to this tree, which was identified as a "syprophytic species" (a species of plant dependant for nutrition on the reduction of organic matter from dead tissue or products of other organisms). This fungus has all the appearances of being the Armillaria app.4. The Armillaria spp is also rot rotting fungi and transmitted through soil by moisture and contact with roots from affected trees. The proposed landscape plan included...
Unfortunately, the Turpentine trees have been infected with root rot fungi that prevent their retention (p 82 -84).
The SIS assesses the vegetation community and concludes:
The vegetation community on site contains poor native resilience, which is evident by the lack of native regeneration, and dominance of introduced species. There are no sources of connective intact STIF vegetation upslope of the site that would provide mitigatory resilience to the site. Therefore, aside from the remnant native trees on site, the native STIF vegetation community is considered poor condition" (p 83 SIS).
Dr Ambrose and Dr Clements evidence - the health of the trees/STIF
The experts state in their joint report that the purpose of ecological assessment of the proposed development is to assess the current values of the subject site for flora and fauna (communities, species and populations), assess the significance of the proposed impacts of the development on these ecological values, and to recommend measures for avoiding or mitigating (reducing) these impacts.
After an assessment of the canopy of the trees, the parties' experts agree that there has been a decline in the health of trees on the site - particularly trees 10 and 12 that is noticeable since November 2012. Their assessment is based on a comparison of the Nearmap photographs of the canopy of the trees over time. As at 8 February 2012 Dr Clements notes that the photograph shows canopy die-back clearly visible and in her expert opinion canopy health is a good indicator of overall health (p 2-3 of Exhibit 4).
The reason for the decline in the health of the trees/STIF is a matter about which Dr Ambrose concedes he is not qualified to comment. As far as he is concerned "causation" is only relevant if it affects the ability to mitigate the ecological impacts of the proposed development. I accept that Dr Ambrose is an ecologist with a broad CV. He holds a PhD in Zoology and has a particular expertise is the physiological and behavioural ecology of the White-browed Scrubwren, Sericornis frontalis (Aves:Acanthizidae) in Western Australia. However, Dr Clements has academic qualifications in ecology, arboriculture and horticulture and for that reason I prefer Dr Clements' evidence to that of Dr Ambrose in respect the cause of the decline in the health of the trees.
Dr Clements rejects the reason reported by Jackson (2013) and assumed by Fraser (2013) for the canopy decline due to "fungal problems" and the assessment that "the turpentine have been infested with root rot fungi that prevent their retention"(at p 3 Exhibit 4).
Dr Clements is of the opinion that none of the listed fungi recorded (Penicillium, Cladosporium and Fusarium) in Jackson (2013) are likely to adversely impact the trees. She relies upon the research and email from Dr Edward Liew of Royal Botanic Gardens (Sydney) in Appendix 4 of her statement of evidence (Exhibit 2). She told the Court that soil fungi are well known to be important components of ecosystems.
At the site view, Dr Clements pointed out to the Court a drill hole on Tree 12 and frilling cuts on Tree 10. Dr Clements told the Court that in her assessment the decline in health of those trees was likely to be caused by poisoning and not root rot.
The extent of the STIF
At the site Dr Clements identified native STIF understorey beneath the trees and throughout the site (p44 Exhibit 2). She records that the current survey indicates 19 local native species and between 52 and 84% of the projected foliage ground layer cover recorded in the Transect 1 being indigenous local native species. In her assessment the extent of native groundcover indicates a viable native soil bank despite the long history as a planted garden with a midlayer of Camellia and Azalea (p44 Exhibit 2). Adopting what she describes as a "more objective Tree Protection Zone measure" based on tree diameter (AS 4970-2009) and the extent of native understorey, she estimates the area of the STIF on the site based on native ground layer occurrence beyond the extent of the canopy of the existing trees to be (p 5 Exhibit 4). The area of the STIF based on the trees assuming a minor (10%) encroachment of Tree Protection Zone (TPZ) (AS 4970 - 2009) is 1180m2 (using Jackson's TPZ radii) (at p 4-5 Exhibit 4). Ultimately, she concludes that the 1160m2 size patch of Biodiversity significance onsite in the Ku-ring-gai LEP 2012 appears to be a good estimate of the size of the STIF on the site and includes the 3 Turpentine (p6 Exhibit 4).
Dr Ambrose initially accepts the STIF measurement provided by Mr Mark Couston of Footprint Green Pty Ltd based on the tree canopy measurement method (i.e. measurement from the centre of the trunk in four directions using CAD software). Using that method Couston calculates the area of STIF at 698m2 (at p4 Exhibit 4). Dr Ambrose however, changed his evidence after he undertook measurements of the canopies on 21 May 2014. His final position is stated in his Supplementary Expert Report filed with the Court on 21 May 2014. He reduces the canopy area and the STIF to 636.7m2. He attributes the reduction in area to seasonal variations, shredding of branches due to inclement weather and /or decline in the health of the trees or variations in measurement methodology i.e. rounding up numbers.
Is the proposed development going to significantly impact on the status of the STIF?
Dr Ambrose agrees overall with the conclusions presented by Fraser (seven part tests) that the removal of this vegetation will not have a significant impact on the status of the STIF. Using the Couston measurement of the area of the STIF (698m2) he calculates that the site represents 0.006% of the total STIF canopy area documented by Tozer as being present on the Cumberland Plain in 1997. Using the Clements measurement of the STIF canopy area to be removed from the site for the proposed development (1160m2), Dr Ambrose estimates the vegetation would represent about 0.010% of the total STIF canopy areas documented by Tozer in 1997. On that basis Dr Ambrose concludes that the removal of the STIF - even without the mitigation proposed, would not have a significant impact on the regional or local abundance and distribution of STIF. In his assessment the compensatory planting of STIF species proposed by this application will result in a net biodiversity benefit through increasing the area of STIF canopy currently defined by the three Turpentine canopies and associated understorey.
Dr Clements takes the opposite view. Her evidence is that the proposed development is likely to significantly impact on the status of the STIF. She discredits the Fraser seven-part test because it assumes the trees to be diseased (infested with root rot fungi that prevent retention) and, that the landscape replacement of 5 trees "typical of STIF" being cleared with 353m2 of ground cover and 14 Turpentine is the proposed offset.
After comparing the DECCW (2009) mapped extent of the STIF (with STIF as brown patches and Blue Gum Forest as blue patches in Figure 4C of her statement Exhibit 2) with the areas of Council's Biodiversity significance in the LEP 2012 Dr Clements concludes that this demonstrates the limited extent remaining of these two communities. In her assessment the site represent a remnant of greater than 0.1ha.
In her assessment Fraser's response to the seven part test appears to overlook the listing of the STIF given in the final determination, namely:
3. The structure of the community was originally forest, but may now exist as woodland or as remnant trees.
In Dr Clements' assessment the loss of a group of three Turpentine and associated viable soil seed bank (demonstrated by the recorded native species in April 2013) from a community that includes in its listing single remnant trees is likely to be significant to its long term survival. Given the viable soil seed banks and relatively large size of the remnant onsite (greater that 0.1ha) compared with many other areas of STIF that include single trees and no native understorey on the DCP (orange patches), she believes that the proposal is likely to have a significant impact on the STIF in the Ku ring gai area. There is now very restricted occurrence of the once ridge-top High Forest described by Benson (1990). The SIS prepared by Fraser dated 17 October 2013 assumes the soil seed bank is exhausted, which is not supported by the current evidence (p 7-8 (Exhibit 4 and p 44 of (Exhibit 2)).
Dr Clements' evidence is that the listed STIF community has high conservation significance and that the site is accurately mapped in the LEP as being of Biodiversity significance. Therefore, the proposal should be redesigned to retain all three trees with adequate root zones for structural and feeder roots. In her assessment the compensatory planting proposed in an area of 653.72m2 (with the Jackson TPZ taken into account) is supportive of at best one or possibly two trees and this in her opinion does not achieve a "no net loss of significant vegetation or habitat" as required by the cl 6.3(4)(b)(iv) of the LEP.
With respect to replacement planting Dr Ambrose accepts that trees planted within 3 m from buildings will have significantly reduced growth. However, in this case the buildings on the land to the north of the site are set back 6 metres from the common boundary with the site and this provides a potential for tree roots of trees planted in Area A to grow into soil areas in the adjoining property and have overlapping of roots zones. Although he concedes that this density of planting generates a greater competition for soil space and resources and ultimately leads to reduced tree growth.
Has the proposal been designed and sited and managed to avoid any potentially adverse environmental impact?
The applicant's architect, Mr Victor Lake gave evidence about the design and siting of the current development on the site. He told me that trees numbered 21, 29 and 10 were required to be removed to allow access to the proposed basement car park. He said that as there is no vehicle access allowed from Lindfield Avenue, all vehicle access must enter the site Havilah Lane and that the trees impede access to the development. Mr Lake referred to a marked up landscape plan to explain his evidence (Exhibit E). The plan shows the trees, the compensatory planting area and a hatched area depicting about half of the development site.
Consideration - Jurisdiction
At stated at the outset of this judgment I must be satisfied about the matters raised by cl 6.3(4) in order to have jurisdiction to grant consent to the development because the land is identified on the "Areas of Biodiversity Significance" on the Natural Resource - Biodiversity Map" referred to in cl 6.3(2).
The first matter about which I must be satisfied under cl 6.3(4)(a) is that the development is consistent with the objectives of this clause. The objective is identified in cl 6.3 (1) and is "...to protect, maintain and improve the diversity and condition of native vegetation and habitat,". There are 4 identified measures in cl 6.3(1) to achieve this objective. They include; "(a) protecting biological diversity of native fauna and flora" and "(b) protecting the ecological processes necessary for their continued existence".
This application proposes the removal of the STIF - trees numbered 10, 21 and 29 and Dr Clements' evidence is that the removal of the 3 trees (STIF) is not consistent with the objectives in cl 6.3 (1) to "...protect, maintain and improve the diversity and condition of native vegetation and habitat, including:
(a) protecting biological diversity of native fauna and flora and
(b) protecting the ecological processes necessary for their continued existence, and"
As discussed above Dr Clements has formed this opinion after a detailed consideration of the applicant's documentation including the seven-part tests and SIS prepared by Fraser Ecological Consulting, the Director General's letter dated 26 September 2013 (attaching the General Requirements for a Species Impact Statement), the Jacksons Nature Works 2013 Arboriculture Impact assessment Report and letter to Mr Zogoridis of WZRM Pty Ltd dated 4 November 2013, Sydney Turpentine-Ironbark Forest determination 2 December 2012, the LEP, ACOR Consultants Pty Ltd Havilah Lane Road Widening and Cross Section dated 28.3.14, Stormwater Management Basement lee 1 plan dated 1.04.14 and statement of Evidence of Dr Ambrose dated 17 April and his supplementary report dated 21 May 2014 report and an inspection of the site.
Dr Clements expert opinion is that as the listed STIF community includes single trees, in circumstances where there are 3 Turpentine canopy trees and associated soil seed (as recorded), the STIF is of high conservation significance (at p 11 Exhibit 4). In her assessment and based on the recorded data, she is of the opinion that the site is accurately mapped in the LEP map as being of Biodiversity significance and is appropriately classified as Category 3 - Landscape Remnant with significant trees with key vegetation communities as defined under the DCP and depicted on the Greenweb map. For those reasons she is of the opinion that the development should retain all three Turpentine trees with adequate root zones for structural and feeder roots.
As already stated I accept Dr Clements' particular arboriculture and horticultural qualifications and for that reason prefer her evidence to that of Dr Ambrose in respect of the health of the trees and their significance. I also accept her criticism of the assumptions made by Fraser about the trees being affected by root rot and other pathogens in circumstances where the identified fungi are known to be part of a normal ecosystem and unknown to kill Turpentine. This evidence is supported by the expert opinion of Dr Edward C Y Lew, Manger Plant Pathology at the Botanical Gardens that the fungal genera identified by Fraser are "very unlikely" to cause any diseases on the Turpentine (Appendix 4 email dated 26 April 2014 Exhibit 2).
Dr Ambrose relies on the Fraser seven part tests to conclude that removal of the trees is acceptable. Given that reliance, I cannot accept Dr Ambrose's assessment that there is no ecological reason to retain the existing three Turpentines on the site. Nor do I accept his conclusion that their removal would have a negligible impact on the;
·Status of the STIF and
·Overall biodiversity in the Ku ring gai LGA and broader geographical area.
Dr Clements is of the opinion that the 70-year trees need to be retained and will in time regenerate. The only basis for the removal of the trees according to Mr Lake is to accommodate access to the basement car park from Havilah Lane. While I understand vehicle access from Lindfield Avenue is not available I am not satisfied on the evidence that the applicant has exhausted design alternatives, which would avoid the adverse environmental impact of the loss of all or any of these significant trees. Therefore, I am not satisfied on the evidence before me that the development has been designed or sited and managed to avoid potentially adverse environmental impacts - the removal of the STIF - as required by cl 6.3(4) (b).
I am not satisfied as required by cl 6.3 (4)(a) of the LEP that the removal of all 3 STIF is consistent with the objective in cl 6.3(1) to protect or maintain or improve the diversity and condition of native vegetation and habitat, including (a) protecting biological diversity of native fauna and flora and (b) protecting the ecological processes necessary for their continued existence.
The site is a consolidation of 5 existing properties and has a total area of approximately 6000m2. Based on the evidence before me I cannot accept that the development cannot be designed sited and managed to avoid the adverse environmental impact of removing the 3 Turpentine. For the above reasons I am precluded by cl 6.3 (4) of the LEP from granting development consent to this application.
The Court orders:
(1)Appeal dismissed.
(2)The Exhibits are returned.
Susan Dixon
Commissioner of the Court
Amendments
18 Aug 2014 typographical errors Paragraphs: 4, 28, 31, 37, 42, 43
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