Blake v Ku-ring-gai Council

[2021] NSWLEC 1461

Land and Environment Court

New South Wales

Medium Neutral Citation:

Blake v Ku-ring-gai Council [2021] NSWLEC 1461

Hearing dates:

15-17 June 2021, further submissions received 29 July 2021

Date of orders:

13 August 2021

Decision date:

13 August 2021

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) Leave is granted to the applicant to rely on the amended Clause 4.6 Variation Request dated 28 July 2021.

(2) The appeal is upheld.

(3) Development consent is granted for the construction of a multi dwelling housing development comprising 12 dwellings, basement parking and associated works at 5-7 Duff Street, Turramurra, subject to the conditions of consent in Annexure A.

(4) Exhibits 1, 2, 3, 5, 6, 8, E and F are returned.

Catchwords:

APPEAL – development application – multi dwelling housing – removal of two trees species of endangered ecological community – whether there is an adverse environmental impact – breach of the height development standard

Legislation Cited:

Biodiversity Conservation Act 2016 ss 6.5, 6.12, 7.3, 7.7, 7.13, 7.16, Sch 2 Pt 1

Biodiversity Conservation Regulation 2017 cll 6.2, 6.7

Environmental Planning and Assessment Act 1979 ss 4.15, 8.7

Environmental Planning and Assessment Regulation 2000, Sch 1

Ku-ring-gai Local Environmental Plan 2015 (Amendment No 21)

Ku-ring-gai Local Environmental Plan 2015 cll 1.8A, 4.3, 4.4, 4.6, 6.3

Ku-ring-gai Local Environmental Plan (Local Centres) 2012 (Repealed)

State Environmental Planning Policy No 55—Remediation of Land, cl 7

Threatened Species Conservation Act 1995 (Repealed)

Cases Cited:

Arkibuilt Pty Ltd v Ku-ring-gai Council [2014] NSWLEC 1161

Barrak v City of Parramatta Council [2018] NSWLEC 67

Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited (2013) 194 LGERA 347; [2013] NSWLEC 48

Ingham Planning Pty Ltd v Ku-ring-gai Council [2010] NSWLEC 1222

Mackenzie Architects International Pty Limited v Ku-ring-gai Council [2015] NSWLEC 1353

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Wenli Wang v North Sydney Council [2018] NSWLEC 122

Wingecarribee Shire Council v De Angelis [2016] NSWCA 189

XLJ Investment Group Pty Ltd v Ku-ring-gai Council [2020] NSWLEC 1607

Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167

Texts Cited:

Building Code of Australia

Ku-ring-gai Development Control Plan 2020

Ku-ring-gai Housing Strategy (December 2020 – Revised)

Livable Housing Australia, Livable Housing Design Guidelines

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

NSW Office of the Environment and Heritage, ‘Guidance to assist a decision-maker to determine a serious and irreversible impact’ (2017)

NSW Scientific Committee - final determination, ‘Blue Gum High Forest in the Sydney Basin Bioregion - critically endangered ecological community listing’ (2007)

Category:

Principal judgment

Parties:

Peter Blake (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
J Smith (Respondent)

Solicitors:
Mills Oakley (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2020/260875

Publication restriction:

No

Judgment

1. COMMISSIONER: Duff Street, in Turramurra, is characterised by dwelling houses set amongst canopy trees, but its north-eastern end is within the Turramurra Local Centre where a number of residential flat buildings are located. The zoning of Duff Street is R4 High Density Residential at that north-eastern end, where it intersects with the Pacific Highway, but changes to zoning for E4 Environmental Living as the road descends down the hill away from the Pacific Highway. In the area where the road changes its zoning, two sites at 5 and 7 Duff Street are zoned R3 Medium Density Residential. Mr Peter Blake lodged a development application with Ku-ring-gai Council (the Council) for the development of those two sites for the purpose of multi dwelling housing. Following the expiry of the period after which an application is deemed to have been refused, Mr Blake lodged the present appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

2. On the first day of the hearing, leave was granted to Mr Blake to amend the development application to rely on amended plans and an amended written request concerning the breach of the height development standard. The proposed development that is before the Court is for the demolition of the existing dwelling houses and the construction of multi-dwelling housing comprising 12 townhouses, basement parking and associated works. The proposed development includes the removal of two trees and grasses that form part of the Blue Gum High Forest (BGHF), the revegetation of the site in accordance with a landscape plan, and the ongoing management of the vegetation on the site through a vegetation management plan (VMP).

3. Although a number of the contentions raised by the Council were resolved by reason of the amended plans the subject of the grant of leave at the hearing, the Council remains opposed to the grant of development consent on the basis that the proposed development will have a serious and irreversible impact on BGHF, and that the Biodiversity Development Assessment Report (BDAR) has not sufficiently demonstrated avoidance and minimisation measures through alternate or reduced development schemes. The Council contends that the site can be developed with an alternate design that avoids the impact on the BGHF.

The local environmental plan is repealed following the hearing

4. After three days of hearing on 15-17 June 2021, I reserved judgment on the appeal. Subsequently, on 28 June 2021, the applicable environmental planning instrument relied upon by the parties at the hearing, the Ku-ring-gai Local Environmental Plan (Local Centres) 2012, was repealed by the Ku-ring-gai Local Environmental Plan 2015 (Amendment No 21). There is no savings provision within the amending instrument.

5. The Ku-ring-gai Local Environmental Plan 2015 (KLEP 2015) now applies to the site, and the parties agree that the general savings provision cl 1.8A would not be considered to save the application, having regard to the Court of Appeal decision in Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 (at [9]-[12]).

6. Similarly, the Ku-ring-gai Local Centres Development Control Plan 2012, which was also relied upon by the parties, was also repealed and the Ku-ring-gai Development Control Plan 2020 (KDCP 2020) effective as at 28 June 2021 applies and has no savings provision.

7. In response to these changes, which were not foreshadowed at the hearing, on 29 July 2021 the parties provided a table comparing the clauses relevant to the appeal in the repealed instrument to the KLEP 2015, and a further table comparing the relevant controls in the repealed development control plan to the KDCP 2020. The parties agree that there are no substantive changes that require any new evidence or any legal submissions in relation to the same. Mr Blake has provided an amended written request concerning the breach of the height development standard, dated 28 July 2021, which makes reference to the KLEP 2015 and a minor amendment in the relevant objective, and the Council consents to leave being granted for him to rely on the amended written request.

A summary of the outcome of the appeal

8. For the reasons that are set out below, I have determined that the proposed development avoids and minimises its impact on the BGHF by siting the development so as to ensure the retention of three trees, by proposing plantings that will ensure that there is no net loss of biodiversity values and that will restore a greater diversity in BGHF species than what is currently on the site. Further, the proposed development minimises any adverse environmental impact by including a VMP that will ensure the ongoing maintenance of the BGHF community in an area of the site that is equivalent to the current area of BGHF community on the site.

The site and its planning context

9. The site comprises two separate lots, being Lot 12 in DP1120994 (5 Duff Street, Turramurra) and Lot A in DP325897 (7 Duff Street, Turramurra). The site is rectangular in shape with a total frontage of 40.075m to Duff Street, a depth of approximately 66m and a total area of 2 644m².

10. Duff Street falls away from the Pacific Highway and the site has a significant slope, falling from the north-eastern front corner of the site to the south-western rear corner with a difference of approximately 15.4 metres in levels across the site. The site is vegetated at the rear, with five large trees that are species of the BGHF, a small number of smaller trees, mown grass containing a mix of grass species, and garden beds primarily containing exotic species.

11. A four-storey dwelling house is located on 5 Duff Street, and a two-storey dwelling house is located on 7 Duff Street.

12. The site is located within the R3 Medium Density Residential Zone pursuant to the KLEP 2015. The zone objectives are as follows:

• To provide for the housing needs of the community within a medium density residential environment.

• To provide a variety of housing types within a medium density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To provide a transition between low density residential housing and higher density forms of development.

13. The site forms part of a transitional group of properties that sit between higher density zoned land to the north-east, to the lower density E4 lands to the south-west. An extract of the zoning map is shown in Figure 1.

14. The properties to the east and north-east are zoned R4 High Density Residential and contain residential flat buildings. The properties to the west, south and south-east (across Duff Street) are zoned E4 Environmental Living and contain detached, single dwellings in a landscaped setting. Further to the south-west the land around Duff Street is zoned R2 Low Density Residential. The site is located to the south-west of the Turramurra Town Centre and is less than 400m walking distance to the entry to Turramurra Railway Station.

15. A proportion of the site is identified as “Biodiversity” under cl 6.3 of the KLEP 2015, with the mapped area shown in Figure 2. This map corresponds with the existence of the BGHF endangered ecological community.

16. At the rear of the site there are five significant canopy trees, three Eucaplytus saligna (Sydney Blue Gums) and two Eucalyptus pilularis (Blackbutts). Those trees are contiguous with the tree canopies that form part of a larger area of BGHF that extends to the north and west of the site.

17. The rear of the site is also mapped as “Support for Core Biodiversity Lands” and “Biodiversity Corridors and Buffer Areas” under Part 18 of the KDCP 2020.

The objector evidence

18. The development application was publicly notified in August 2020, and was again re-notified by the Council in April 2021 upon the amendment to the plans following the lodgement of the appeal. Submissions were received in response to each notification, and two local residents also spoke at the commencement of the site inspection. The issues raised in the written submissions and by the local residents at the site inspection can be summarised as follows:

• Adverse impacts on flora and fauna, including excessive tree removal and clearing;

• Adverse overshadowing;

• Loss of privacy;

• Excessive bulk and scale including excessive front building width, inadequate setbacks, and overdevelopment;

• Adverse stormwater and traffic impacts; and

• Inadequate mix of housing types, inadequate on-site parking, and inadequate solar amenity for the proposed development.

19. The issues raised by the residents do not warrant refusal of the development application. The proposed development meets the controls that are now in the KDCP 2020 concerning on-site parking, solar amenity, setbacks and building separation (see Ex B Tab 5). Further, the adjoining dwelling and rear yard will retain solar access in accordance with the controls in the KDCP 2012, and there is no actual discernible evidence of overlooking created by the proposed development (see Ex B Tab 5). Similarly, there is no discernible evidence that the proposed development and the stormwater design will cause any adverse impacts on the drainage of stormwater from the site, or that the design of the driveway will create any traffic impacts. In relation to the latter, I accept the evidence contained in the Traffic Impact Statement by Traffix (Ex A Tab 10) and the response to contentions by Traffix (Ex B Tab 12). The impact of the proposed development on flora and fauna is considered below, and found to be acceptable as a result of the landscaping plan and the VMP.

The expert evidence

Town planning

20. Expert opinion evidence on the town planning issues was given by Mr Garry Chapman, a consultant town planner engaged by Mr Blake, and Mr Stuart Ratcliff, a town planner employed by the Council. They participated in a joint conference with Dr Michael Zanardo, an urban designer engaged by the Council.

21. Mr Chapman and Mr Ratcliff agree that the proposed development complies with the development standard for the floor space ratio (FSR). The FSR development standard, pursuant to cl 4.4 of the KLEP 2015, is 0.8:1, and the proposed development has a FSR of 0.794:1. There is a small area that Mr Chapman points out provides access to car parking, which he considers could be excluded from the calculation of the FSR, which means that he opines that the FSR is less than 0.794:1.

22. Mr Chapman and Mr Ratcliff also agree that the proposed development meets the setback controls. They, together with Dr Zanardo, agree that the roof terrace of the two-storey dwelling (dwelling 6) will not have unreasonable privacy impacts to the living areas and private open space of 9 Duff Street. Further, whilst Dr Zanardo notes that there is a non-compliance with the requirement in clause 9(i) and (ii) of Part 6C.10 of the KDCP 2020 for a step-back of the top storey, he considers that the objectives of these controls are better met through the proposed development, which achieves the appropriate scale and character to transition and to minimise the visual bulk.

23. However, Mr Chapman and Mr Ratcliff do not agree whether the proposed development acceptability minimises the ecological impacts. It is Mr Ratcliff’s evidence that the clearing of BGHF should not be carried out “in order to achieve development that maximises the floor space ratio yield available”. He considers that doing so would be contrary to the objectives of cl 6.3 of the KLEP 2015 (the terms of which are outlined further below). He also considers that the impact on the BGHF is such that the proposed development does not satisfy the first objective of the FSR development standard, which is as follows (cl 4.4(1)):

(a) to enable development with a built form and density that is compatible with the size of the land to be developed, its environmental constraints and its contextual relationship

24. Mr Ratcliff opines that, in circumstances where the BDAR demonstrates that different configurations are possible to retain the vegetation on the site, an alternative is available to Mr Blake that allows the impact to be avoided and therefore the proposed development cannot be seen to minimise that impact.

25. On the other hand, the evidence of Mr Chapman is that each of the alternative options in the BDAR are not orderly or economic development of land, as they do not achieve an acceptable FSR on the site, they do not incentivise the re-development of the site in accordance with the objectives of the zone, and they do not achieve the housing provisions in the Ku-ring-gai Housing Strategy (December 2020 – Revised).

Accessibility

26. Expert opinion evidence concerning the accessibility of the dwellings within the proposed development was given by the town planners together with Dr Zanardo, and Mr Bill Casey, a disability consultant engaged by Mr Blake. Their evidence is contained in a joint expert report. They agree that the amended plans that now form part of the proposed development show an acceptable revised egress path treatment, and that the revised arrangement concerning the door from the TH9 and TH10 basement car spaces, which also now forms part of the proposed development, is acceptable.

27. The experts disagreed in relation to the adequacy of the bedroom space provided on the ground floor of the nominated platinum level dwellings (TH9 and TH10), the adequacy of the corridor and doorway widths for bedroom one of TH9 and TH10, and the provision of winders for stairs in all dwellings. Whereas Mr Chapman and Mr Casey consider that the space on the ground floor is sufficient for a bedroom space in accordance with the requirements, Dr Zanardo opines that its location adjacent to the entry door and the lack of privacy from the corridor and stairs means that it could not be considered a “bedroom”.

28. Mr Chapman and Mr Casey rely on the provision of lifts in each dwelling to provide accessibility for a person with mobility impairments, such that reliance on the winder staircases is not required.

29. Despite their disagreements, Mr Chapman and Dr Zanardo agree that the corridor width for bedroom 1 of TH9 and TH10 could be designed to meet 1.2m, and that the doors could be widened to 0.9m. Mr Chapman notes that this would provide a bedroom at the first floor with suitable corridor widths, accessed by a lift, as an acceptable alternative to providing space on the ground floor. Consistent with this approach, Mr Blake has agreed to the imposition of a condition of consent that requires a generator to continue to operate the lift in the event of a loss of mains power.

Landscaping

30. Expert opinion evidence on the landscaping was given by Mr John Storch, a registered landscape architect engaged by Mr Blake, and Mr Geoff Bird, a landscape architect employed by the Council. Mr Storch and Mr Bird agree that a condition with respect to the species for planting within the front setback can be imposed, which will require an amended landscape plan prior to the issue of the construction certificate. Mr Storch and Mr Bird agree to the following changes to the plantings in the front setback:

“• The proposed planting of Dodonaea triquetra (Hop Bush) shall be deleted and replaced with Acmena smithii ‘Minor’

• The proposed planting of 3 x Angophora floribunda (Rough Barked Apple) located within the site frontage shall be amended to 2 x Angophora costata (Sydney Red Gum) and 1 x Angophora floribunda (Rough Barked Apple)

• The proposed planting of 3 x Elaeocarpus reticulatus (Blueberry Ash) located within the site frontage shall be deleted and replaced with Pyrus calleryana (Callery Pear).

• The proposed planting of Lomandra longifolia (Spiny Matt Grass) within the site frontage shall be deleted and replaced with Lomandra ‘Tanika’.”

Ecology

31. Expert opinion evidence on ecology was given by Dr David Robertson, an ecologist engaged by Mr Blake, and Mr John Whyte, an ecologist employed by the Council.

32. Mr Whyte’s position is that the removal of the two trees will cause a “serious and irreversible impact” on BGHF on the basis that it is an endangered community that is in a rate of decline as a result of an identified key threatening process. He opines that this impact can be avoided by an alternate design with less townhouses, as set out in the BDAR. Mr Whyte’s position is that the removal of trees is also prohibited by the controls, which are now found in the KDCP 2020. He also considers that the replanting and the VMP will not actually restore a BGHF community to the site, and that the combination of species proposed to be planted in the proposed development cannot be considered BGHF given that it is outside of the mapped BGHF area.

33. Dr Robertson’s position, on the other hand, is that the whole of the proposed development ought to be considered, and it also should be assessed in the context of the entire patch that the trees belong to. His evidence is that the occurrence of BGHF on the site comprises five native trees, and that although two will be removed, three will be retained and a further nine medium-sized trees will be replanted “in addition to a variety of other Blue Gum High Forest species”. He therefore opines that the occurrence of BGHF on the site “will be rehabilitated and enhanced, and result in a larger and more diverse patch of Blue Gum High Forest that will be actively managed and protected under the VMP” (Ex 7 p 17). Further, when considered against the entire patch of BGHF to which the trees belong, Dr Robertson points out that it is the removal of two trees from a patch with over 253 trees, such that, even considering the removal alone, it is confined to an impact of less than 1% of the trees within the patch.

The breach of the height development standard

34. Clause 4.3 of the KLEP 2015 establishes a height development standard for the site of 11.5m. The proposed development has a maximum height of 12.63m which is 1.13m above the height development standard. The extent of the exceedance is constrained to the roof forms of dwellings 3 to 5 and the southern edge upper level of dwelling 6, and is shown in Figure 3.

35. In circumstances where there is a breach of a development standard, consent cannot be granted except in accordance with cl 4.6(2) of the KLEP 2015. Clause 4.6 provides, at (3) and (4):

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Secretary has been obtained.

36. A written request was prepared by Mr Chapman and is dated 28 July 2021. Mr Chapman, Mr Ratcliff and Dr Zanardo gave the following agreed evidence concerning the breach of the height development standard:

“The portions of the building exceeding the height are central to the building and are a result of the site topography. The proposed development presents a suitable stepped built form and the portions of the building do not result in unreasonable bulk and scale or amenity impacts to the adjoining property” (Ex 4 p 8).

37. In accordance with cl 4.6(4)(a) of the KLEP 2015, I am satisfied that the written request adequately establishes sufficient environmental planning grounds that justify the breach in the height development standard by demonstrating that the breach is the direct result of the topography of the land and the requirement to raise the floor level of the ground floor of dwellings 5 and 6 so as achieve the required driveway ramp grades and clearance height at the entrance to the basement carparking. The location of the driveway, with a straight run and located at the south-east of the site (the lowest point of the road frontage), is the better planning outcome for the site when compared to other driveway designs, and the built form of the dwellings nevertheless steps down in accordance with the slope of the site. Accordingly, the sloping topography of the site and the requirement to raise the floor levels of dwellings 5 and 6 to accommodate the driveway and basement entrance are environmental planning grounds that are sufficient to justify the contravention of the height development standard.

38. I am also satisfied that the written request demonstrates that compliance with the height development standard is unreasonable and unnecessary as the objectives of the height development standard are met notwithstanding the non-compliance, and the breach of the standard has no adverse impact. The objectives of the height development standard are as follows:

4.3 Height of buildings

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

(a) to ensure that the height of buildings is appropriate for the scale of the different centres within the hierarchy of Ku-ring-gai centres,

(b) to establish a transition in scale between the centres and the adjoining lower density residential and open space zones to protect local amenity,

(c) to enable development with a built form that is compatible with the size of the land to be developed.

39. On the basis of what is set out in the written request, I am satisfied that the proposed development is consistent with objective (a) as it is of an appropriate scale, with a three-storey presentation to Duff Street, when having regard to permissible heights within the Turramurra Local Centre and the rise in storeys of immediately adjoining development, and dropping down to two-storeys where it adjoins the neighbouring property containing a dwelling to the south.

40. Similarly, I am satisfied that the proposed development is consistent with objective (b) on the basis that, notwithstanding the contravention of the height development standard, it provides an appropriate transition in height from the residential flat buildings adjoining the northern boundary and the E4 Environmental Living zone adjoining the southern boundary of the site. I accept that the portions exceeding the 11.5m height control will not be visually dominant when viewed from Duff Street or affect local amenity in any way.

41. I am also satisfied that the proposed development is consistent with objective (c) on the basis that the built form meets the FSR, setback and deep soil landscape area controls, and is designed to present as a three-storey building that steps down the sloping topography of the site, with a two-storey built form at the south western edge of the site.

42. Further, for the reasons outlined in the written request, the proposal is in the public interest as it is consistent with the objectives of the zone and of the height development standard. With respect to the zone objectives, I am satisfied that the proposed development provides for additional housing and housing choice within a medium density residential environment, contributes to the range of housing types by providing multi-dwelling housing in a locality characterised by dwelling houses and residential flat buildings, and provides a suitable transition between the higher density forms of development adjoining the northern boundary and the lower density dwelling houses in the E4 Environmental Living zone adjoining the southern boundary of the site.

43. Finally, I have considered the matters in cl 4.6(5) and there is nothing that arises, in my view, that would cause me to decline to exercise the power pursuant to s 39(6) of the Land and Environment Court Act 1979 to grant development consent without the formal concurrence of the Secretary. In any event, the Secretary’s concurrence can be assumed as a result of the written notice dated 21 February 2018 attached to the Planning Circular PS 20-002.

44. For those reasons, I am satisfied that consent can be granted notwithstanding the contravention of the height development standard, consistent with cl 4.6(2) of the KLEP 2015.

Ecology

45. The Council contends that the proposed development will have adverse ecological impacts, and that development consent cannot be granted because it does not satisfy the provisions within cl 6.3 of the KLEP 2015 or the objectives of that clause (Contention 7). Clause 6.3(4) sets out jurisdictional prerequisites to the grant of consent and cl 6.3 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 “Biodiversity” on the Terrestrial 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 flora 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.

46. Further, the Council contends that the proposed development will result in a serious and irreversible impact on the BGHF, and that the BDAR is inadequate as it has not sufficiently demonstrated avoidance and minimisation measures as required by the Biodiversity Conservation Act 2016 (BC Act) (Contention 8). Section 7.16(2) of the BC Act precludes the grant of consent in the event that there is a serious and irreversible impact on biodiversity values. It provides:

7.16 Proposed development or activity that has serious and irreversible impacts on biodiversity values

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

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

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

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

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

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

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

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

47. Section 7.16(1) refers to s 6.5 of the BC Act, which provides:

6.5 Serious and irreversible impacts on biodiversity values

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

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

48. The relevant principles prescribed by the regulations, which are referred to above in s 6.5, are contained in cl 6.7 of the Biodiversity Conservation Regulation 2017 (BC Regulation) as follows:

6.7 Principles applicable to determination of “serious and irreversible impacts on biodiversity values” (section 6.5(1))

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

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

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

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

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

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

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

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

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

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

49. Section 7.7(2) of the BC Act requires that a BDAR accompany an application for development consent if “the proposed development is likely to significantly affect threatened species”. Although a Flora and Fauna Assessment Report prepared by Conacher Consulting previously determined that the proposed development would not result in a significant impact on any threatened ecological communities and was not likely to trigger the biodiversity offset threshold identified in Part 7 of the BC Regulation, the BDAR was prepared in response to the Council’s contention that the proposed development would result in significant impacts on the BGHF.

50. In s 6.12 of the BC Act, a BDAR is described in the following way:

6.12 Biodiversity development assessment report

For the purposes of the biodiversity offsets scheme, a biodiversity development assessment report is a report prepared by an accredited person in relation to proposed development or activity that would be authorised by a planning approval, or proposed clearing that would be authorised by a vegetation clearing approval, that—

(a) assesses in accordance with the biodiversity assessment method the biodiversity values of the land subject to the proposed development, activity or clearing, and

(b) assesses in accordance with that method the impact of proposed development, activity or clearing on the biodiversity values of that land, and

(c) sets out the measures that the proponent of the proposed development, activity or clearing proposes to take to avoid or minimise the impact of the proposed development, activity or clearing, and

(d) specifies in accordance with that method the number and class of biodiversity credits that are required to be retired to offset the residual impacts on biodiversity values of the actions to which the biodiversity offsets scheme applies.

51. The Council relies on Section 7 paragraph 7.1.1 of the Biodiversity Assessment Method in support of its position that the BDAR does not adequately address the avoidance and minimisation measures. At (3) and (4) of paragraph 7.1.1 it states:

“7.1.1 Locate the proposal to avoid or minimise direct and indirect impacts on native vegetation, threatened species, threatened ecological communities and their habitat

…

3. Impacts from clearing native vegetation and threatened species habitat can be avoided or minimised by locating the proposal in areas:

a. lacking biodiversity values

b. where the native vegetation or threatened species habitat is in the poorest condition (i.e. areas that have a low vegetation integrity score)

c. that avoid habitat for species with a high biodiversity risk weighting or land mapped on the important habitat map, or native vegetation that is a TEC or a highly cleared PCT.

d. outside of the buffer area around breeding habitat features such as nest trees or caves.

4. When selecting a proposal’s location, all of the following should be analysed. Justification for the decisions in determining the final location must be based on consideration of:

a. alternative modes or technologies that would avoid or minimise impacts on biodiversity values

b. alternative routes that would avoid or minimise impacts on biodiversity values

c. alternative locations that would avoid or minimise impacts on biodiversity values

d. alternative sites within a property on which the proposal is located that would avoid or minimise impacts on biodiversity values.”

52. At paragraph 7.1.1(6), there is also a requirement for the BDAR that “the assessor must document and justify any actions taken to avoid or minimise impacts through careful location of the proposal.”

53. The Court, in exercising the functions of the consent authority, is not limited to the BDAR in assessing the impact of the proposed development. In particular, s 7.13(2) and (6)(a) of the BC Act provide:

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

…

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

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

…

54. Further, the Council contends that the proposed removal of the two trees and associated BGHF vegetation is contrary to the following objectives and controls that are within Volume B, Part 18 of the KDCP 2020, which are set out further below.

55. The Council also contends that the removal of the trees is contrary to the controls in Part 21.2 of the KDCP 2020, the relevant provisions of which are set out below.

The significance of Blue Gum High Forest

56. The BGHF in the Sydney Basin Bioregion is listed as a critically endangered ecological community in Pt 1 of Sch 2 of the BC Act, which relies on its description in the determination of the Scientific Committee under Div 5 of Pt 2 of the now repealed Threatened Species Conservation Act 1995 (the scientific determination). The scientific determination lists around 50 species, an assemblage of which it says characterises BGHF in the Sydney Basin Bioregion. However, the scientific determination then states that the “total species list of the community is considerably larger than that given above, with many species present in only one or two sites or in low abundance”. The determination describes the following characteristics of BGHF (emphasis added):

“Blue Gum High Forest is dominated by a tall canopy of eucalypts that may exceed 30 m in height. Its understorey is typically multi-layered with a midstorey of mesophyllous shrubs and small trees and a diverse ground layer of herbs, ferns and some grasses. Most stands of the community are in a state of regrowth after past clearing or logging activities, and consequently trees may be shorter, less dense or more dense than less disturbed stands. Blue Gum High Forest is dominated by either Eucalyptus pilularis (Blackbutt) or E. saligna (Sydney Blue Gum). Angophora costata (Smooth-barked Apple) is frequently observed in remnants close to the shale/sandstone boundary, but also occurs infrequently on deep shale soils, as does A. floribunda (Rough-barked Apple). Eucalyptus paniculata (Grey Ironbark) is typically found on upper slopes. A relatively diverse stratum of small trees is usually present, and includes Pittosporum undulatum (Sweet Pittosporum), Elaeocarpus reticulatus (Blueberry Ash) and Allocasuarina torulosa (Forest Oak). Shrub species are typically mesophyllous, such as Breynia oblongifolia (Coffee Bush), Pittosporum revolutum, (Yellow Pittosporum), Clerodendrum tomentosum, Notelaea longifolia forma longifolia (Large Mock-olive), Maytenus sylvestris (Narrow-leaved Orange Bark), Polyscias sambucifolia subsp. A (Elderberry Panax) and Rapanea variabilis (Muttonwood). Mesophyllous species are generally more common in gullies associated with both shale and volcanic soils than slopes and ridgetops. Sclerophyllous species such as Persoonia linearis (Narrow-leaved Geebung) and Leucopogon juniperinum (Prickly Bearded-heath) occur more frequently closer to the shale/sandstone boundary. The ground stratum is often dense and contains a mixture of herb, grass and fern species including Adiantum aethiopicum, Entolasia marginata (Bordered Panic), Lomandra longifolia (Spiny-headed Matrush), Calochlaena dubia (Common Groundfern), Dianella caerulea (Blue Flax Lily), Pseuderanthemum variabile (Pastel Flower) and Oplismenus imbecillis. Vine species are also frequently present, in particular Tylophora barbata (Bearded Tylophora), Eustrephus latifolia, (Wombat Berry), Clematis aristata (Old Man's Beard) and Pandorea pandorana (Wonga Wonga Vine).”

57. The scientific determination relies on a study in 2003 and states that the area of BGHF is “less than 200ha”. However, more recent studies by the NSW Office of Environment and Heritage in 2021 have found that there is around 758ha of BGHF.

The Blue Gum High Forest on the site

58. Remnant BGHF vegetation occupies approximately 0.11ha of the site, which includes five large canopy trees, three Sydney Blue Gums and two Blackbutts. The understorey vegetation is highly disturbed, with large mown areas and garden beds containing high levels of exotic vegetation, including high threat exotic species. There is negligible BGHF mid-storey vegetation on the site.

59. The BDAR considers that the BGHF within the subject site is in a highly modified state with the understorey largely replaced by exotic species, and that due to this severely modified state it does not fall within the definition of the BGHF ecological community and does not meet the criteria for listing under the BC Act.

60. The remnant BGHF on the site forms part of a larger patch of vegetation that is mapped as “Biodiversity”, which is an area of around 11.66ha.

The proposed development

61. The proposed development requires the removal of two of the tall canopy BGHF trees. One of the trees, T29 is a Blackbutt and is of high retention value, with a canopy spread of 22m. The second tree, T26, is a Sydney Blue Gum of medium retention value, and the arborist report concludes that, if it was retained, the area around it would place people at risk of impact from future branch failures. Specifically, the report states (Ex B Tab 10):

“The tree has had several substantially sized branch failures in the past and significant borer damage indicative of a stressed individual. There is a notable amount of dead and declining limbs in the crown which is not typical of a healthy specimen. If the tree is retained, the area beneath and around it would place people at risk of impact from future branch failures.

From an arboricultural perspective, the tree may live for some time, but its retention in an area where increased occupancy by people in its zone of influence is likely, it is prudent to consider its removal as sensible tree management in relation to the proposed development, and replacement with new trees to offset its loss as a reasonable long-term landscape option.”

62. The proposed development also requires the removal of a number of smaller trees, shrubs and grasses, which comprise the disturbed understorey. The total area to be cleared, including with the removal of the two trees, is 0.07ha.

63. The area to be retained (0.04ha) includes three canopy trees, two blackbutts that are around 30m in height (T21 and T23) both of which have high retention value, and T47, which is a Sydney Blue Gum which is hollow-bearing with high retention value. The retained canopy leaves the canopy connectivity with the larger patch intact.

64. In addition, the proposed development includes landscaping works including new plantings across an area of 0.07ha in addition to plantings within the 0.04ha of BGHF to be retained. The proposed plant species within the planting schedule are species typical of the BGHF community. This includes groundcover species, mid-storey species, and nine Angophora floribunda (Rough Barked Apple) trees. The conditions agreed upon by Mr Storch and Mr Bird would mean that two of those trees would instead be two Angophora costata (Sydney Red Gum). The landscape plans also include specifications concerning regular weed removal.

65. The proposed development also includes the VMP, which provides measures to restore and enhance the BGHF community within the site, including weed removal and planting density targets. The area to be managed is approximately 0.11ha, which is the sum of both the BGHF community to be retained and the areas of new plantings. The proposed development also includes the installation of nest boxes within retained vegetation.

66. As a result of the landscaping works and the VMP, all areas of the site that do not contain built form will be rehabilitated and revegetated with species from the BGHF community and will be managed in perpetuity. The result is that the proposed development, once carried out, will have the same area of land of BGHF species as what is on the site currently, and that area of land will be better maintained over time with a greater diversity of BGHF species, which includes an established mid-storey.

67. In addition, Mr Blake seeks to ensure that the proposed development results in a positive biodiversity outcome through the purchase and retirement of six ecosystem credits for BGHF under the NSW Biodiversity Offset Scheme. In the event that there are no BGHF credits available, a payment into the Biodiversity Conservation Fund is proposed to be made, in accordance with cl 6.2(2) of the BC Regulations.

The Council’s position on the ecological impact

68. The primary submission of the Council is that the proposed development does not avoid the impact on the BGHF as it is not sited to avoid that impact, and that Mr Blake has not demonstrated that an alternative siting or land use could not be pursued. The Council submits that the reasons advanced by Mr Blake are insufficient to justify the siting of the built form in its proposed location.

69. The Council submits that critically endangered ecological communities require that every effort be taken to avoid any adverse impacts on them (relying on the decisions of the Court in Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited (2013) 194 LGERA 347; [2013] NSWLEC 48 at [147]-[153] and Ingham Planning Pty Ltd v Ku-ring-gai Council [2010] NSWLEC 1222 at [139]-[168]).

70. As such, the Council says that Mr Blake should pursue an alternate scheme consistent with Massing Option 5 in the BDAR, where seven dwellings can be constructed at the front of the property and all trees are retained. The Council says that the reasons put forward in the BDAR for not pursuing this option are insufficient. Those reasons include that the site would only achieve 51% of the permissible FSR, the zone objectives would not be achieved, and such a proposal would not incentivise redevelopment of the site. In response, the Council submits that there is no entitlement to the permissible FSR, that Mr Blake has not considered other permissible uses in the zone that meet the zone objectives and avoid the impact on the BGHF, and that there is insufficient evidence to demonstrate that the proposed configuration is the only economically viable approach to developing the site. The Council further submits that the Court ought not to accept Mr Blake’s reliance on the Ku-ring-gai Council Housing Strategy (the Housing Strategy) to justify the yield of the proposed development and the consequential impacts on the BGHF that could be avoided with a smaller yield.

71. In support of its position, the Council refers to one of the objectives of the FSR control, which is to “enable development with a built form and density that is compatible with the size of the land to be developed, its environmental constraints and its contextual relationship”. The Council submits that this objective is required to be achieved, notwithstanding that the FSR development standard is met. The Council says that the built form and density of the proposed development is not compatible with the environmental constraints that arise by the presence of the BGHF on the site. The Council relies on the decision in Barrak v City of Parramatta Council [2018] NSWLEC 67 to support its submission that the objectives of the cl 4.4 concerning FSR are required to be separately satisfied notwithstanding that the FSR development standard is met.

72. The Council further submits that the proposed development will cause a “serious and irreversible impact” on diversity values because, on the evidence before the Court, each of the matters in cl 6.7(2)(a), (b), (c) and (d) are met. In particular, the Council submits that the VMP does not represent BGHF as it is confined to the perimeter of the site and there are no 30m high canopy trees proposed. The Council points out that no credits exist for BGHF, and submits that it is unknown when the credits will take practical effect. The Council also relies on the published ‘Guidance to assist a decision-maker to determine a serious and irreversible impact’ (Office of the Environment and Heritage, 2017), which identifies BGHF as being a species of ecological community in a rapid rate of decline.

73. The Council submits that, because the proposed development does not minimise disturbance and adverse impacts by the inclusion of dwellings 8-12 and the resulting removal of two trees, the proposed development should be refused because it does not satisfy the requisite provisions of cl 6.3 of the KLEP 2015. Specifically, the Council submits that the location of the proposed buildings within the mapped area of biodiversity will result in disturbance and adverse impacts on the BGHF community on the site, which is contrary to the requirements of cl 6.3. The Council submits that such a conclusion is consistent with the Court’s consistent application of cl 6.3 in the same manner, as seen in Mackenzie Architects International Pty Limited v Ku-ring-gai Council [2015] NSWLEC 1353 (at [24] [61]-[91] and [95]-[101]), XLJ Investment Group Pty Ltd v Ku-ring-gai Council [2020] NSWLEC 1607 (at [71]-[82]) and Arkibuilt Pty Ltd v Ku-ring-gai Council [2014] NSWLEC 1161 (at [45]-[49] and [52]-[61]).

74. For the same reasons, the Council says that the proposed development is contrary to the provisions in Part 18 of the KDCP 2020. The Council submits that the dwellings could have readily been designed to avoid the impact altogether by focusing development at the front of the property, and the failure to do so is contrary to the KDCP 2020. The Council points out that a number of the objectives are focussed on the protection, retention, consolidation and improvement of existing significant vegetation, which means that the removal of the two trees is clearly contrary to those objectives. The Council submits that the proposed plantings will take time to reach maturity, and relies on the evidence of both Dr Robertson and Mr Whyte, who agreed that whilst the ground and mid-storey species will mature quite quickly, there would be a delay in the rough barked apple trees reaching maturity and their full height.

The applicant’s position that there is no adverse impact

75. Mr Blake submits that the proposed development does, in fact, avoid the impact on the BGHF by siting the built form to remove only two trees, and minimises it by proposing plantings that will restore the site so that there is no net loss of vegetation or habitat. In addition, Mr Blake relies on the evidence of Dr Robertson that the corridor and the connection to the area of significance that is mapped is maintained and ultimately, extended. Further, because the plantings include putting back mid-storey and ground covers, Mr Blake submits that it enhances the vegetation and the ability for movement of fauna through the site. As such, the submission is that, even without consideration of the offsets, there is no adverse impact.

76. With respect to the BDAR, Mr Staunton, counsel for Mr Blake, points out that the Biodiversity Assessment Method does not require the BDAR to assess the viability of different proposals or to address the different zone objectives. Mr Blake submits that the BDAR has acceptably considered the Biodiversity Assessment Method of avoidance, and provided suitable justification. He submits that the BDAR has complied with Sections 7.1.1 and 7.1.2 by setting out different options for the layout of the proposed development. Mr Blake submits that it is entirely reasonable to consider the planning context of the site, and that although option 2 (of Figure 13) was the preferred option, it was not pursued because it did not avoid or minimise the impact on the BGHF. Given the arboricultural assessment of T26, the only option that would retain all of the trees would be option 5, and Mr Blake submits that it is clear that option 5 results in an FSR of approximately what currently exists on the site which means that there is no incentive to redevelop the site.

77. In that context, Mr Blake submits that he has minimised the impact on the BGHF by the retention of three trees, and points out that it cannot be claimed that avoidance and minimisation has not been achieved. Mr Blake says that the Council’s position is merely that more should be done.

78. Mr Blake therefore submits that each of the matters required to be satisfied in cl 6.3 of the KLEP 2015 and the KDCP 2020 are met. Further, in relation to the determination of whether there is serious and irreversible impact, Mr Blake submits that there does need to be focus on the chapeau in cl 6.7 of the BC Regulation, which requires that an impact “is likely to contribute significantly to the risk of a threatened species or ecological community becoming extinct” on the basis of any of (a) to (d). In circumstances where Mr Whyte’s evidence ignores that chapeau, Mr Blake submits that his evidence must be rejected. Mr Blake instead relies on Dr Robertson’s evidence that, even if you were to confine the consideration to the removal of the area of BGHF (and ignoring the proposed plantings and enhancement of the BGHF to result in no net loss), the percentage of BGHF being removed will not “contribute significantly” to the ecological community becoming extinct, given its overall population of either 758ha based on recent studies, or 180ha based on the scientific determination. Further, Mr Blake points out that the assessment of serious and irreversible impact “means serious and irreversible impacts on biodiversity values as determined under section 6.5 that would remain after the measures proposed to be taken to avoid or minimise the impact” (see s 7.16(1) of the BC Act), and that the proposed plantings and the VMP, which cause there to be no net loss of BGHF, therefore ensure that there is no serious and irreversible impact. Mr Blake also submits that, to the extent there’s any residual impact, the proposed development offsets it three times through the NSW Biodiversity Offset Scheme.

79. In relation to the objective in cl 4.4 for the FSR development standard, Mr Blake submits that whilst the environmental constraints of the site can be considered in an assessment of the impacts of the development and site suitability under s 4.15(1) of the EPA Act, there is no separate requirement to be satisfied that the objectives of cl 4.4 are met. This submission is consistent with the decisions of Preston J in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [43], and Robson J in Wenli Wang v North Sydney Council [2018] NSWLEC 122 at [38]-[41].

The proposed development does not have an unacceptable impact on the endangered ecological community

80. The Council’s contentions concerning the ecological impact of the proposed development are framed by reference to the impact on the BGHF endangered ecological community. That is, they are not framed by reference to the acceptability of the removal of two trees based on their significance, and there is no arboricultural evidence furnished by the Council that contradicts the evidence in the arborist report (Ex B).

81. Contrary to the position of Mr Whyte, the fact of the removal of two BGHF trees, of itself, is not sufficient to establish that there will be an unacceptable impact on the endangered ecological community. The proposed development needs to be considered as a whole, and its impacts considered in the legislative framework established by the BC Act and the EPA Act. The latter includes consideration of cl 6.3 of the KLEP 2015, which contains some matters that are prerequisites to the grant of development consent. It also includes consideration of the KDCP 2020 as a “focal point”, but, contrary to the position of Mr Whyte, it is well established that a development control plan cannot operate to prohibit the carrying out of development: see Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167 at [74].

82. In considering the development as a whole, and for the reasons that are set out below, I find that the proposed development avoids and minimises its impact on the BGHF by siting the development so as to ensure the retention of three trees, by proposing plantings that will restore a greater diversity in BGHF species than what is currently on the site, including an established mid-storey, and by proposing a VMP that will ensure the ongoing maintenance of the BGHF community in an area of the site that is equivalent to the current area of BGHF community on the site.

The biodiversity development assessment report is adequate

83. As set out above, s 7.7(2) of the BC Act requires that a BDAR accompany an application for development consent if “the proposed development is likely to significantly affect threatened species”. Without considering the question as to whether the proposed development that is before the Court “is likely to significantly affect” the BGHF endangered ecological community (based on the test in s 7.3 of the BC Act) the BDAR dated 16 April 2021 now accompanies the development application the subject of the appeal.

84. On the assumption that a BDAR is required on the basis that the proposed development meets s 7.7(2), I consider that the BDAR dated 16 April 2021 acceptably addresses the matters required by s 6.12 of the BC Act. It assesses the biodiversity values of the land by reference to the matters raised in each of the chapters in the Biodiversity Assessment Method concerning Stage 1 Biodiversity Assessment, consistent with s 6.12(a) and it assesses the impact in accordance with the chapters concerning Stage 2 Impact assessment, consistent with s 6.12(b). This includes, pursuant to s 6.12(c) of the BC Act, setting out the measures that the proponent of the proposed development will take to avoid or minimise the impact. Those measures are set out in Part 7 of the BDAR, as well as in Part 8.5 and 8.6, which outline the mitigation measures that minimise the impact.

83. One of the measures the BDAR identifies in Part 7 to avoid the impact is to pursue a massing option that avoids the impact on three BGHF trees, and this was compared to various other massing options in Figures 12 and 13. I do not accept the Council’s position that the discussion of these alternatives is deficient in some way. I accept the submission made on behalf of Mr Blake that the Biodiversity Assessment Method does not require the justification as to why different schemes are not pursued on a planning basis. The BDAR adequately considers the different massing options, adequately justifies why the selected massing minimises the impact on the BGHF when compared to other designs, and outlines why other options are not pursued. I do not accept the Council’s submission that the BDAR is required to take this further by providing evidence of the economic viability of the options that are not pursued.

84. Further, the BDAR adequately specifies, in accordance with the Biodiversity Assessment Method, the number and class of biodiversity credits that are required to be retired to offset any residual impacts that may arise.

85. The BDAR therefore meets the description required by s 6.12 of the BC Act. I consider the adequacy of the efforts to avoid and minimise the impact of the proposed development on the BGHF community immediately below.

The proposed development avoids and minimises the impact on the endangered ecological community

88. The Court, in exercising the function of the consent authority, is required by s 7.13(2) of the BC Act to consider the “likely impact of the proposed development on biodiversity values as assessed in the biodiversity development assessment report that relates to the application”. However, I am not limited to the BDAR in considering the impact of the development (s 7.13(6)(a)).

89. On the basis of the content of the BDAR, and the evidence of Dr Robertson, I am satisfied that the proposed development has minimised its impact on the BGHF by siting the development so as to avoid the maximum potential impact, by ensuring the retention of three large canopy trees, by proposing plantings that will result in no net loss of BGHF community, by plantings that comprise a range of species that improve the structure of the BGHF community with grasses and mid-storey species, and by the implementation of the VMP for the ongoing management of an area that is the equivalent area of BGHF currently on the site. I accept the evidence of Dr Robertson that the condition of the current BGHF on the site is of low quality because it lacks an intermediate structure and contains weed species, and that the proposed development will benefit the site by having that component of the biodiversity replanted, with the VMP resulting in a level of protection into the future. As such, I accept the submission of Mr Blake that, when considering the proposed development in its entirety, it does not have an adverse impact on the BGHF community and on biodiversity values.

90. When having regard to each of the massing options in the BDAR, the only proposal that would completely avoid the removal of trees is one with a FSR the same as what is currently on the site, with two dwelling houses. It is axiomatic that this will not incentivise development for higher density, which means that the objective of the zone, to “provide a transition between low density residential housing and higher density forms of development”, will not be achieved. That is precisely what is outlined in the BDAR. I do not accept the Council’s submission that Mr Blake is required to take this further by providing evidence of economic viability of this option. The site, located between the high density zoning and the low density residential housing in the E4 zone, presents an opportunity for medium density housing that provides that transition. I accept the evidence of Mr Chapman that a FSR equivalent to what is already on the site will not incentivise re-development of the site to achieve the density envisaged to provide the orderly use of the site to achieve that transition. There are then two other proposals in Figure 12 of the BDAR that retain T26, but the arboricultural assessment, which is recited in the BDAR, clearly establishes that this is a medium value retention tree that is recommended for removal. As such, all other massing options would result in the removal of the same number of BGHF trees.

91. Further, I do not accept the Council’s submission that the proposed plantings and the VMP cannot be considered as part of the proposed development, and can only be considered as measures to offset the impact of the proposed development. The proposed plantings are on the site and form part of the development application, and the VMP concerns the ongoing management of the site, and is similarly part of the proposed development of the site. Therefore, in considering whether the proposed development has avoided and minimised the impact on the BGHF, I can consider both the proposed plantings in the landscape plan, and the ongoing management of the BGHF species on the site with the VMP.

92. Further, I do not accept the evidence of Mr Whyte that I ought to discard the plantings as not constituting BGHF community because it is not on the area mapped as ‘biodiversity’ in the KLEP 2015 or mapped in the KDCP 2020. Instead, I accept the evidence of Dr Robertson that there is a considered replanting of trees, shrubs, herbs and grasses that will increase diversity, to create a better structure of BGHF across the site and into the front of the site, which provides a potential stepping stone link to the reserve in the east on the other side of the street.

The impact is not serious and irreversible

93. As set out above, s 7.16(2) of the BC Act precludes the grant of consent in the event that there is a serious and irreversible impact on biodiversity values. I consider that there is not such an impact. In considering whether there is a serious and irreversible impact in accordance with cl 6.7 of the BC Regulation, I accept Mr Blake’s submission that regard must be had to the chapeau to subcl (2). In doing so, I consider that none of the matters in (a) to (d) have been established by the evidence as causing an impact that is likely to “contribute significantly to the risk of [the BGHF] becoming extinct”. I reach this conclusion for two reasons.

94. Firstly, even ignoring the benefits offered to the biodiversity of the local BGHF community by the proposed development, the removal of the two trees and associated BGHF species in the amount of 0.07ha is quite small in the context of the size of the patch in the local community, and will have negligible impact given the size of remaining BGHF community both in the scientific determination and in recent studies. I accept the evidence of Dr Robertson that the clearing of two trees within the subject site corresponds to an impact of between 0.009% to 0.04% of the current geographic extent of BGHF community in NSW. I accept his evidence that the extent of removal is so small that it cannot be said that it is likely to contribute significantly to the risk of the BGHF becoming extinct. As such, any decline or reduction in the community on the site that meets the description of the words following subcl (a), (b) or (c) does not cause the outcome stipulated by the chapeau in cl 6.7(2), and therefore cannot be regarded as a serious and irreversible impact.

95. Secondly, the proposed development will result in greater diversity in the BGHF community on the site, in a total area that is equivalent to where the current low standard BGHF is located on the site, and will be managed into the future through the VMP. As such, once established, it will contain a diversity of species across the ground cover, mid storey and canopy trees that is not achieved on the site at present. I accept the evidence of Dr Robertson that this will then create opportunities to connect with BGHF to the east of the site. As such, there can be no doubt that the ecological community will have improved vegetation integrity as a result of the proposed development, and the development will not be likely to “contribute significantly to the risk of the BGHF becoming extinct”. The delay in the rough barked apple trees reaching maturity does not dissuade me from this conclusion.

96. For those reasons, I consider that, in accordance with cl 6.7(2), the impact on diversity values cannot be regarded as serious and irreversible.

97. Further, I note that, to the extent there’s any residual impact, the proposed development offsets it three times through the NSW Biodiversity Offset Scheme, through which a contribution will be made to enhance BGHF into the future.

The matters required by cl 6.3 are satisfied

98. Consistent with my consideration above, each of the matters about which I am required to be satisfied pursuant to cl 6.3 of the KLEP 2015 are met. In reaching that state of satisfaction, I am assisted by the evidence of Dr Robertson, the content of the BDAR and the Clause 6.3 assessment carried out by Cumberland Ecology.

99. Pursuant to cl 6.3(3), I am required to consider the impact of the proposed development on the matters set out in subcl (3)(a), what measures are taken to ameliorate potential adverse environmental impact, and any opportunity to restore or enhance remnant vegetation, habitat and biodiversity corridors. In doing so, the impacts on the native vegetation community (see subcl (3)(a)(i)) are limited to the loss of around 0.07ha of BGHF, but this is minimal when compared to the 11.66ha patch to which it belongs. Further, I accept the evidence of Dr Robertson that the plantings, which form part of the development, will provide a better diversity of species in the native vegetation community.

100. With respect to the requirement to consider the impact on the “habitat of any threatened species, population or ecological community” (cl 6.3(3)(ii)), the relevant ecological community is the BGHF and I similarly consider that the proposed development will not adversely affect the BGHF in circumstances where the area of land containing BGHF species pursuant to the proposed development will be the same as what is currently on the site, with the proposed development creating a better structure for the community, which will be managed into the future through the VMP. Further, I accept the evidence in the Clause 6.3 assessment that the vegetation to be removed is likely to provide foraging resources, but that the lack of hollows means that it is unlikely that it comprises significant breeding habitat for threatened fauna. In considering the impact on any biodiversity corridor (cl 6.3(3)(iv)), I accept that the existing patch of BGHF has connected and overlapping tree canopy that spans numerous properties, where boundaries of properties are fenced. Therefore, at the level of tree canopy there is connectivity that provides habitat for birds, bats, flying foxes and non-flying arboreal mammals. However, the vast majority of the tree canopy is retained, and the proposed development removes only two trees on the very edge of the larger patch. There is no impact on any regionally significant species, any wetland, the biodiversity values within any reserve or the stability of the land, as none of these were detected on the site and the proposed development is not expected to impact the stability of land or the land adjacent to it (see Ex B Tab 7).

101. In considering the matters required by cl 6.3(3)(b) and (c) of the KLEP 2015, the proposed measures to be undertaken to ameliorate any potential impact include the retention of 0.04ha of BGHF, the plantings of species of BGHF community across the site to improve the composition of the BGHF in the retained area and to provide additional areas of species characteristic of BGHF, and the ongoing management of the total area of 0.11ha through the VMP. This will also enhance the remnant vegetation, and improve the biodiversity corridor by creating potential connections with the BGHF to the east of the site.

102. In accordance with cl 6.4(4)(a) of the KLEP 2015, development consent must not be granted unless I am satisfied that the development is consistent with the objectives of the clause. I am satisfied that the development protects, maintains and improves “the diversity and condition of native vegetation and habitat” by retaining three large mature canopy trees that are characteristic of the BGHF and by proposing the planting of ground covers, mid-storey vegetation, seven Angophora floribunda (Rough Barked Apple) trees and 2 Angophora costata (Sydney Red Gum), which, when compared to the composition of BGHF on the site at present with the presence of weeds, will promote and restore the biological diversity of the flora and provide habitat for fauna, consistent with cl 6.3(1)(b). I accept the evidence of Dr Robertson that the improvement in the biological diversity through the plantings and the VMP will protect the ecological processes necessary for their continued existence, will encourage the recovery of the BGHF and provide habitat to facilitate the movement of fauna in the locality, consistent with each of cl 6.3(1)(b), (c) and (d).

103. Further, in accordance with cl 6.4(4)(b), I am satisfied that the development “is designed, and will be sited and managed, to avoid any potentially adverse environmental impact”. The development has avoided a potential adverse environmental impact by siting the built form so as to avoid the maximum potential impact and retaining three large canopy trees that are characteristic of BGHF. The development is also managed to avoid any potential adverse environmental impact by the inclusion of plantings that will result in no net loss of BGHF community, by plantings that comprise a range of species that improve the structure of the BGHF community with grasses, mid-storey species and 9 trees, and by the implementation of the VMP for the ongoing management of an area that is the equivalent of area of BGHF currently on the site. Therefore, when considering the development as a whole, there is no adverse environmental impact.

104. I am therefore not required to consider the matters that arise under cl 6.3(4)(b)(i)-(iv). Nevertheless, I consider that, for the same reasons, the development minimises disturbance and adverse impacts on the remnant BGHF community, includes measures to maintain native vegetation and habitat across a sufficient parcel of land to facilitate biodiversity protection and movement through biodiversity corridors, and that the plantings and VMP are measures to ensure that there is no net loss of significant vegetation and habitat.

The proposed development complies with the controls in the KDCP 2020 or otherwise achieves the objectives

105. For the same reasons, I am satisfied that the proposed development complies with Part 18 of the KDCP 2020, or otherwise provides an alternative solution that meets the objectives therein.

106. Firstly, Part 18.3 applies to the proposed development and contains the following objectives and controls relied upon by the Council:

“18.3 CATEGORY - SUPPORT FOR CORE BIODIVERSITY LANDS

Objectives

1 To support core areas of vegetation and fauna habitat.

2 To contribute to the protection and recovery of Key Vegetation Communities, threatened species, populations and their habitats.

3 To contribute to the protection, restoration and management of Biodiversity Corridors.

4 To contribute to the protection, restoration and management of vegetation and habitat in riparian lands.

5 To contribute to the net improvement of ecological function.

Controls

…

Biodiversity Corridors have been located in positions of strategic importance, providing linkages between natural habitat areas such as formal reserves or remnant patches. Whilst these corridors typically contain barriers, including buildings, roads and infrastructure or discontinuous vegetation, they are important stepping stones or refuge sites for movement and dispersal of mobile species between more extensive habitat areas.

…

3 Vegetation retention and rehabilitation must be designed to enhance and link existing vegetation and habitat within the site and within adjacent sites, Biodiversity Corridors and riparian lands.

…”

107. Although the proposed development locates development on area identified as “Support for Core Biodiversity Lands” on the Greenweb map, which means that it does not completely avoid that area, contrary to the first control in Part 18.3, the proposed development includes plantings that will ensure that there is no net loss of vegetation, that the vegetation will have greater diversity of BGHF species across the ground, mid-storey and canopy, and the VMP will ensure that it will be protected and managed into the future. This means that each of objectives 1-5 are met notwithstanding that the first control has not been complied with. Each of the remaining controls in Part 18.3 are met.

108. Secondly, Part 18.5 applies to the proposed development, and contains the following controls and objectives relied upon by the Council:

“18.5 CATEGORY - BIODIVERSITY CORRIDORS AND BUFFER AREAS

Objectives

1 To manage areas providing a buffer to Core and Support for Core Biodiversity Lands.

2 To reduce edge effects and to improve the health, connectivity and function of local ecosystems.

3 To revegetate and restore Biodiversity Corridors, significant vegetation and habitat across the landscape.

Controls

…

1 Within Biodiversity Corridors and Buffer Areas (refer to maps in 18R.1 of this Part):

i) The siting and design of development must minimise edge effects on Greenweb.

ii) Planting is to consist of:

- not less than 50% locally native species;

- species that reflect the relevant vegetation communities within the area; and

- a mix of groundcover, shrubs and trees.

iii) Within Biodiversity Corridors (refer to maps in 18R.1 of this Part):

- landscaping and revegetation must be designed to consolidate fragmented and linear vegetation and habitat areas within the site and adjacent sites.

- the width of Biodiversity Corridors should be enhanced and gaps and barriers reduced or minimised

…”

109. I accept the evidence of Dr Robertson that the controls in Part 18.5 are each satisfied (see Ex 7 p 26). His evidence, which was not changed or modified in cross-examination, is as follows:

“The project is consistent with Part 18.5. The project will remove two trees on the edge of a larger patch of Blue Gum High Forest which likely comprises >250 trees (see Appendix D). Through retention of 0.04 ha (or three trees) and replanting of 0.07 ha (including nine trees) the subject site will continue to contribute to the local biodiversity corridor. Furthermore, the occurrence of Blue Gum High Forest will be further enhanced under a VMP with the replanting of a more diverse understorey which will provide additional biodiversity values to the local biodiversity corridor.

At present, on the subject site there is no active management for conservation and there is erosion of greenweb values from weed invasion, surface flows that presumably contain nutrients, and other factors. There is also no replanting of native vegetation. Under the proposal, the edges of the retained greenweb vegetation will be managed and maintained.”

110. The evidence of Mr Whyte, who simply focuses on the removal of the two trees and ignores the improvement that will result from the development, is not sufficient to contradict the evidence of Dr Robertson, and I am satisfied that the design of the development will minimise edge effects on Greenweb, that the planting meets the requirements of control 1(ii), and that the landscaping and revegetation provides continuity that seeks to consolidate fragmented and linear vegetation and habitat areas on the site with the patch at the rear of the site and the BGHF community to the east.

111. Part 18.7 of the KDCP 2020 also applies, and requires that there be no net loss of biodiversity as follows:

“18.7 NO NET LOSS OF BIODIVERSITY

Objectives

1 To ensure maintenance of vegetation (particularly) canopy within the LGA, Covering a range of habitats, species and age classes. In recognition of the social and ecosystem services provided.

2 To facilitate continuity of the ecological diversity currently alive in the locality.

3 To increase the level of security for significant vegetation and habitat.

4 To allow for reasonable development while maintaining and enhancing biodiversity and ecological integrity.

5 To provide a range of mechanisms to achieve no net loss of significant vegetation or habitat.

6 To ensure that where biodiversity values need to be offset, policy requirements are applied consistently across developments and in such a way as to enhance the ecological integrity across the LGA.

Controls

1 Development proposals must seek to achieve no net loss of significant vegetation or habitat. Retention of vegetation and habitat in situ is the preferred method of biodiversity conservation. In the event that loss of vegetation is unavoidable, the loss must be mitigated and/or offset.

Note: Both informal compensatory measures and formal offsetting include a number of ecological, administrative and financial risks. The inclusion of such measures within a proposal does not preclude Council requiring redesign of, or refusing consent to, a proposal on grounds of biodiversity loss.

2 Any application for works within the Greenweb, must be accompanied by a proposal to protect, enhance or create habitat on or off site, where it:

i) requires the removal of native vegetation; or

ii) will negatively affect actual or potential habitat of fauna or flora; or

iii) is likely to cause degradation to vegetation or habitat.

3 No net loss of significant vegetation or habitat may be achieved by:

i) retention and protection of existing significant vegetation and habitat; or

ii) informal compensatory measures:

- planting and habitat creation, especially where it improves connectivity;

- rehabilitation of degraded areas; or

- translocation of plants or soils;

Note: Where disturbance to intact, resilient natural soil profiles (that are likely to contain a healthy native seedbank) is to occur, translocation to and establishment within a viable recipient site is a key action towards no net loss of significant vegetation or habitat.

Note: In certain circumstances Council may request that native flora, fauna, natural features (e.g. rocks, logs) or viable soil profiles are translocated. This material may be used by the proponent, Council or other relevant authority to aid either in the offsetting site or other restoration program.

iii) formal offsetting measures: such as offsetting on or off site in accordance with Part 7A of the NSW Threatened Species Conservation Act 1995 (also known as Biobanking).

…

5 Any proposal involving an offsetting mechanism, on or off site, must be in accordance with the following principles:

i) Principle 1: Avoid, Minimise and Mitigate

- Offsetting will only be considered once all efforts to avoid, minimise or mitigate any negative impacts have been exhausted.

ii) Principle 2: Improve or Maintain Overall Biodiversity

- In order to achieve no net loss, offsetting must seek to improve or maintain overall biodiversity.

- Offsetting must not be used as a justification for granting approval to developments, where the cumulative impacts are greater than the benefit to be obtained from the offset action.

- Offset sites are to be identified and selected in accordance with regional and local conservation priorities. Offset sites and actions must be assessed according to their long-term viability.

iii) Principle 3: Like for Like

- The area which receives offset actions (the offset site) must contain or restore the same ecological community or threatened species/population habitat as the area which is being adversely impact by the development or activity (the impact site).

- Within areas where one vegetation community grades into another (ecotone areas) flexibility will be permitted. Similarly, Council will consider offsetting to adjoining vegetation communities where a benefit to the relevant community is demonstrated.

- Where a proposal will impact an area of known breeding or key habitat for threatened species, the offset site must include known habitat for that species (i.e. the species is known to be present).

- Offsets that are not like for like will only be considered where no suitable ‘like for like’ offset is available or the alternate offset will provide a net biodiversity benefit of equal or greater ecological significance within the bioregion.

iv) Principle 4: Supplement Existing Protection and Management

- Offsets must be supplementary and provide for increased extent, improved condition and/or protection.

v) Principle 5: Enforceability

- Offsets and their actions must be enforceable and include monitoring and reporting to ensure that the actions have been carried out, and are leading to positive biodiversity outcomes.

vi) Principle 6: The Precautionary Principle

- In conducting an offsetting action the precautionary principle must be applied. This principle requires that a conservation approach be taken, where there is uncertainty or lack of scientific confidence in an action and there are threats of serious or irreversible environmental damage.

6 An offsetting action will not be appropriate if:

i) the applicant fails to adequately demonstrate to Council’s satisfaction that all measures to address the offsetting principals in Clause 4 have been taken.

ii) the proposed development is an inappropriate use of the land subject to the proposal, as assessed under the NSW Environmental Planning & Assessment Act 1979 and any local plans, policies or strategies.

iii) the applicant has failed to adequately demonstrate to Council the need for the offsetting action.

iv) the environmental impact in the development site is unacceptable. An example of how this may arise is where there is a likelihood of irreplaceable loss of biodiversity values that will not be adequately compensated by the proposed offsetting actions.”

112. Consistent with my findings above, I am satisfied that the development complies with all of these controls. The proposed development complies with the first control, by retaining 3 mature canopy trees characteristic of the BGHF and by fully mitigating the loss of vegetation by the proposed plantings and VMP, such that there is no net loss of significant vegetation and such that the vegetation will be enhanced. The remaining controls clearly contemplate this as an acceptable outcome. I accept the evidence of Dr Robertson that:

“In accordance with the controls of Part 18.7, the project will seek to achieve no net loss of significant vegetation or habitat through a combination of on-site retention, mitigation through replanting and enhancement of existing vegetation, and formal offsetting of ecosystem credits under the BAM. Furthermore, in accordance with the Principle 6 of Control 5 ‘The Precautionary Principle', the offsetting proposed for the project involves the retirement of three times the required number of ecosystem credits under the BAM.”

113. This evidence is not contradicted by Mr Whyte, who agreed in cross-examination that there was no net loss of biodiversity “with the actions that are put forward in the application” including the biodiversity offset credits (Tcpt, 16 June 2021, p 105 (38-40)).

114. The Council also contends that the removal of the trees is contrary to the controls in Part 21.2 of the KDCP 2020, which requires that:

“1 The site planning and design of developments must:

i) retain and enhance indigenous vegetation, biodiversity corridors and existing natural features on the site including trees, shrubs and groundcovers, soils, rock outcrops and water features. These provide habitat, breeding sites, food and shelter for a wide variety of life forms and ecological processes that support life and define the character of the locality.

Note: Specific controls for the areas mapped for their biodiversity significance on the Greenweb map in Part 6R are included in Part 6 of this DCP.

ii) retain significant and visually prominent trees and vegetation that contributes to neighbourhood character;

…

7 Vegetation retention must consider the following:

i) healthy specimens that have a high Safe Useful Life Expectancy are to be the first priority for retention;

ii) trees within heritage items or heritage conservation areas are to be assessed in terms of heritage significance;

iii) mature trees and hollow-bearing trees within biodiversity areas are a priority for retention; and

iv) while single trees may be ecologically important in their own right, or as part of a broader community, retaining and planting trees in groups.”

115. I consider that the site planning and design of the proposed development meets the control at 1(i), on the basis that the site planning and design of the development retains 3 of the 5 trees and enhances the indigenous vegetation by proposing plantings that will improve the structure of the BGHF community with grasses and mid-storey species, and by the implementation of the VMP for the ongoing management of an area that is the equivalent of area of BGHF currently on the site.

116. In relation to the control at 1(ii), there is no evidence to support Mr Whyte’s opinion that the trees to be removed are “significant and visually prominent” or that they contribute to neighbourhood character. The principles in control 7 provide guidance on the priority for retention, but the requirement for retention arises from control 1(ii). The mere repetition of the control by Mr Whyte is not sufficient to establish a foundation for the opinion that there is a breach of control 1(ii). Even if I was to accept that control 1(ii) has not been met by the proposed development because of its removal of two trees that have high Safe Useful Life Expectancies, s 4.15(3A)(b) requires that I consider alternative solutions that meet the objectives of the control.

117. There are a large number of objectives within Part 21.2, the most relevant of which are:

“1 To contribute to the landscape character of Ku-ring-gai.

2 To ensure landscape design and species selection is suitable to the site and its context and considers the amenity of residents and neighbours.

3 To increase the resilience of significant vegetation and habitat, through the improvement of condition, extent and connectivity of vegetation”

118. I consider that the landscape design for the proposed development, including the retention of three trees, is an alternative solution to the retention of all 5 trees which achieves each of these objectives. For reasons that I have already expressed in various ways, I consider that the proposed plantings in the landscape plan, and the removal of weeds, are suitable for the site and its context, and, by increasing the biodiversity of the site through plantings of a range of BGHF species, it will increase the resilience of the vegetation “through the improvement of condition, extent and connectivity of vegetation”. In addition, the extension of BGHF species to the front of the site in the landscape plan will contribute to the landscape character of Ku-ring-gai, and the landscaping throughout the site will provide amenity to residents and neighbours.

The objective of cl 4.4 of the KLEP 2015 does not require separate consideration

119. I do not accept the Council’s position that I am required to be satisfied that the proposed development meets all of the objectives of cl 4.4, which includes the objective to “enable development with a built form and density that is compatible with the size of the land to be developed, its environmental constraints and its contextual relationship”. Instead, I accept Mr Blake’s submission that there is no separate requirement to do so. As set out by Robson J in Wenli Wang v North Sydney Council [2018] NSWLEC 122 at [39]-[41], concerning the objectives of the height development standard:

“39 I agree with the position of the parties’ representatives in relation to the application of the objectives. Although the maximum set by a development standard is not a right, a development is taken to comply with the objectives of a standard where compliance with the standard is achieved. This is made clear by the chapeau of cl 4.3(1) which provides that what follows are the “objectives of this clause” as opposed to the objectives of the development. The clause is the development standard set by cl 4.3(2).

40 The objectives of the standard have relevance where an applicant seeks to vary the development standard by way of a request pursuant to cl 4.6. The consent authority must then be satisfied that the objectives of the clause are met notwithstanding the breach of the development standard. Such a request is not required in the present case as the proposed development complies with the 8.5 metre building height development standard.

41 Accordingly, I find that the objectives of the development standard are of limited assistance in the present case. In those circumstances it is not necessary to make a finding as to whether the objective of promoting “the retention and, if appropriate, sharing of existing views” is achieved by the proposed development.”

120. Similarly, the proposed development is taken to comply with the objectives of the FSR development standard where compliance with the FSR development standard is achieved. It is not necessary to make a finding as to whether the objective to “enable development with a built form and density that is compatible with the size of the land to be developed, its environmental constraints and its contextual relationship” is achieved by the proposed development.

121. I do not accept the Council’s submission that the decision of Moore J in Barrak v City of Parramatta Council [2018] NSWLEC 67 is authority for a contrary proposition – in that matter there was a breach of the relevant development standard so the objectives of that standard were indeed a relevant matter for consideration. Further, a finding that there was no error in law for a Commissioner to have regard to an objective of a development standard is not equivalent to a finding that it is mandatory to be satisfied that the objective is met.

Accessibility of the dwellings

122. The Council contends that the nominated platinum level dwellings (TH9 and TH10) do not meet the requirements of the Livable Housing Design Guidelines (LHDG), which are required to be met by Part 6C.5 of the KDCP 2020 at control (3), on the basis that there is no bedroom on the ground floor. Further, the Council contends that the proposed stairs in all other dwellings do not comply with control 21 in Part 6C.6 of the KDCP 2020 as they contain winders in the staircases.

123. In support of its contention with respect to the requirements of the LHDG, the Council says that although the Livable Platinum Level Plan shows that a queen bed and circulation area fits within the family room on the ground floor, this does not meet the definition of bedroom under the KDCP 2020 as it is not enclosed as its own room. The definition of bedroom is “any habitable room, which in the opinion of Council, is capable of being used as a bedroom.” The requirement of the LHDG is that “there is a space on the ground (or entry) level that can be used as a bedroom”.

124. I do not accept that either of these matters warrant the refusal of the development application. Firstly, I consider that the space on the ground floor of TH9 and TH10 is sufficient to be used as a bedroom and there is no requirement in the LHDG for that area to be separately closed off from the entrance or living areas by walls. In any event, there is a bedroom on the upper level that can be accessed by an internal lift, and the access to that bedroom will comply with the LHDG upon the imposition of a condition that requires the corridor widths to be designed to meet 1.2m and the doors to meet 0.9m. This is contained in the parties’ agreed conditions of consent, in the following terms:

“Apartments (9 and 10) identified as Platinum - The corridor within Bedroom 1 in apartments 9 and 10 is to be designed with a corridor width of 1.2 metres and the doors to Bedroom 1 (from the corridor and the ensuite) are to have width of 0.9 metres.”

125. Secondly, although winders are discouraged by Part 6C.6 of the KDCP 2020, they nevertheless comply with the Building Code of Australia and the proposed development includes lifts in each unit in the event that winders are difficult for residents or visitors to manage.

126. Thirdly, Mr Clark has agreed to a condition for a back-up generator to be installed “that serves as a failsafe to ensure operation of the lifts in the event that there is a power outage”. This will allow there to be an uninterrupted power supply in the event that there is a power failure that would otherwise prevent the operation of the lifts that provide access to the bedroom on the upper floors of dwellings TH9 and TH10, and that provide alternatives to using the winders.

Development consent should be granted

127. For the reasons that are set out above, I am satisfied that the proposed development does not have an adverse impact on the BGHF community, and that none of the other matters raised by the Council or by the resident objectors warrant refusal of the development application. I am satisfied that the proposed development is appropriate for the site, and provides an appropriate scale and presentation to transition between the higher density residential development to the north and the low density residential development in the E3 zone to the south west. Additionally, I am satisfied that the following preconditions to the exercise of the Court’s jurisdiction have been satisfied:

• Development consent can be granted notwithstanding the contravention of the height development standard, consistent with cl 4.6(2) of the KLEP 2015 (see [34]-[44]).

• The proposed development complies with the remaining applicable development standards in the KLEP 2015.

• The amended development application is accompanied by a BASIX Certificate in accordance with the requirements of Sch 1 of the Environmental Planning and Assessment Regulation 2000.

• Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. As the site has a history of use for the purposes of a residential dwelling, it is unlikely to be contaminated.

128. Development consent should therefore be granted, subject to the conditions of consent as agreed between the parties. I note that this includes a condition requiring the retirement of credits or the payment to the Biodiversity Conservation Fund, based on the assessment in the BDAR that this will offset any residual loss of BGHF in accordance with the requirements of the Biodiversity Offset Scheme.

129. The Court orders that:

1. Leave is granted to the applicant to rely on the amended Clause 4.6 Variation Request dated 28 July 2021.

2. The appeal is upheld.

3. Development consent is granted for the construction of a multi dwelling housing development comprising 12 dwellings, basement parking and associated works at 5-7 Duff Street, Turramurra, subject to the conditions of consent in Annexure A.

4. Exhibits 1, 2, 3, 5, 6, 8, E and F are returned.

………………………..

J Gray

Commissioner of the Court

Annexure A (503440, pdf)

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Decision last updated: 13 August 2021