BTG Planning v Blacktown City Council

[2008] NSWLEC 1500

Land and Environment Court

of New South Wales

CITATION:	BTG Planning v Blacktown City Council [2008] NSWLEC 1500
PARTIES:	Applicant: BTG Planning Respondent: Blacktown City Council
FILE NUMBER(S):	10579 of 2008
CORAM:	Roseth SC - Taylor C
KEY ISSUES:	Development Application :- endangered ecological community; threatened species; Cumberland Plain Woodland; Cumberland Plain Land Snail
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979; Threatened Species Conservation Act 1995; and Protection of the Environment Administration Act 1991
CASES CITED:	Goldsmith v Blacktown City Council [2007] NSWLEC 229
DATES OF HEARING:	24/11/2008, 25/11/2008 and 26/11/2008
DATE OF JUDGMENT:	24 December 2008
LEGAL REPRESENTATIVES:	Applicant: Ms H Irish, barrister instructed by Mr B Goldsmith, town planner Respondent: Mr J Ayling SC instructed by Mrs M Taylor, solicitor of Bartier Perry solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC
Taylor C

24 December 2008

10579 of 2008 BTG Planning v Blacktown City Council

JUDGMENT

1 Senior Commissioner and Commissioner: This is an appeal against the deemed refusal of a development application to subdivide lot 101 DP 863828, Hampton Crescent, Prospect under Community Title into 26 residential lots, a community lot for roads and a further lot for conservation to be dedicated to the council.

The site

2 The site is at the western end of Hampton Crescent and adjoins the rear of properties on the western side of Chapel Circuit. Its area is 4.2ha. A ridge runs through it in a north-south direction, from which the land falls to the east and west. Adjoining to the west is the Timbertop Reserve, which has an area of 2.9ha and is zoned Open Space. To the south the site adjoins the Great Western Highway. To the north it adjoins a drainage reserve and an easement for a transmission line.

3 The site is vacant and the predominant vegetation is Cumberland Plain Woodlands (CPW), comprising tall trees, understorey and native herbs and grasses. This is a plant community that occurs on soils derived from shale. The CPW on the site is part of a 7ha patch that extends also over the Timbertop Reserve. The patch is not contiguous with any other areas of CPW.

4 The Cumberland Plain Land Snail (the Snail) has been found on the site.

The proposal and its history

5 The applicant proposes to subdivide the site under Community title into 26 residential allotment, an allotment for a cul-de-sac serving the allotments, and an allotment of approximately 1.5ha set aside for conservation, which is to be rehabilitated and, following rehabilitation, dedicated to the council in order to be added to the Timbertop Reserve.

6 The application includes also the translocation of the Snail, the re-afforestation of 10-12 ha of land within the Western Sydney Parklands and the offer of a planning agreement under which the applicant would carry out bush regeneration works within the adjoining Timbertop Reserve including the improvement of the Snail habitat.

7 The current site was part of a larger holding (lot 100), of which the council compulsorily acquired a part in 1994 in order to conserve the vegetation. This part is zoned Open Space and called the Timbertop Reserve. Lot 101 remained in the applicant’s ownership and is zoned Residential.

8 The site comes before the Court as a planning appeal for the second time. In 2007 Commissioner Tuor refused an application to subdivide the land into 29 allotments (Goldsmith v Blacktown City Council [2007] NSWLEC 229). That application also included offsets for the CPW and the translocation of the Snail. Commissioner Tuor was satisfied with the translocation; however she found that the offsets were inadequate and some of the allotments were inappropriate. She included the following comment in her judgment:

In this case the experts all agree that residential development can occur but disagreed on the number of lots. The evidence does not suggest that subdivision with any less than 29 residential lots will be economically unviable. While the reduction to 11 proposed by Mr Morison or 13 proposed by DEC may be too restrictive, a number somewhere in between, carefully located to conserve more of the CPW, may be possible. For example, the removal of lot 24, 25 and lot 14, the reduction in size of lot 15 and the consequent adjustment to the access road would enable a greater area of CPW with “high quality understorey” to be retained. This would involve the relocation of the APZ further to the east, which would require further loss or adjustment of lots to include part of the APZ.

9 The applicant lodged the application now before the Court in July 2007. The application included a Species Impact Statement (SIS) in respect of the CPW and the Snail. Following notification, the council received 21 submissions, all of them objecting to the proposal. The council referred the SIS to the Department of Environment and Climate Change (DECC) and received a response in October 2007. The letter indicates that, if the DECC to issue concurrence, it would not have done so. The applicant lodged the appeal against deemed refusal in June 2008. The council has not determined the application.

The statutory framework

10 The Environmental Planning and Assessment Act 1979 (the EPA Act) contains the framework of the planning regime in NSW. Section 5 contains the Act’s objectives. Among the ten objectives, three are particularly relevant to this case, namely

(ii) the promotion and co-ordination of the orderly and economic use and development of land;
(vi) the protection of the environment, including the protection and conservation of native animals and plants, including threatened species, populations and ecological communities and their habitats; and
(vii) ecologically sustainable development.

11 Section 5A of the EPA Act deals with significant effects on threatened species, populations or ecological communities. It sets a seven-part test to assess whether a proposal is likely to have significant effect and, if yes, requires a Species Impact Statement (SIS) to be prepared. Section 79B provides that the concurrence of the Director of National Parks is required for the SIS accompanying such a development application. However, under s39(6) of the Land and Environment Court Act 1979 the Court has the power to assume the Director’s concurrence.

12 The Threatened Species Conservation Act 1995 (the TSC Act), among other things, establishes the Scientific Committee charged with the Schedule of threatened species and endangered ecological communities.

13 The Protection of the Environment Administration Act 1991 (the PEA Act), which defines ecologically sustainable development.

Ecologically sustainable development requires the effective integration of economic and environmental considerations in decision-making processes. Ecologically sustainable development can be achieved through the implementation of the following principles and programs:
(a) the precautionary principle—namely, that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
In the application of the precautionary principle, public and private decisions should be guided by:
(i) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and
(ii) an assessment of the risk-weighted consequences of various options,
(b) inter-generational equity—namely, that the present generation should ensure that the health, diversity and productivity of the environment are maintained or enhanced for the benefit of future generations,
(c) conservation of biological diversity and ecological integrity—namely, that conservation of biological diversity and ecological integrity should be a fundamental consideration,
(d) improved valuation, pricing and incentive mechanisms—namely, that environmental factors should be included in the valuation of assets and services, such as:
(i) polluter pays—that is, those who generate pollution and waste should bear the cost of containment, avoidance or abatement,
(ii) the users of goods and services should pay prices based on the full life cycle of costs of providing goods and services, including the use of natural resources and assets and the ultimate disposal of any waste,
(iii) environmental goals, having been established, should be pursued in the most cost effective way, by establishing incentive structures, including market mechanisms, that enable those best placed to maximise benefits or minimise costs to develop their own solutions and responses to environmental problems.

14 State Environmental Planning Policy 19 – Bushland in Urban Areas protects bushland from the edge effect of development adjacent to it. It was common ground that in this appeal, if the matters in contention are satisfied, so are the provisions of this Policy.

15 Blacktown Local Environmental Plan 1988 zones the site Residential 2(a).

Matters in contention

16 The council’s Statement of Contentions lists six matters, of which it presses four. At the commencement of the hearing, the council’s advocate Mr J Ayling, expressed them in this way:

• The proposal does not adequately preserve the CPW on the site.
• The proposal does not adequately preserve the Snail on the site.
• Measures to mitigate adverse impacts on the CPW and the Snail are inadequate.
• The “offsets” offered are inadequate and inappropriate.

The objectors’ concerns

17 The Court heard the evidence of nine objectors on the site. Mr N Jackson, who lives at 24 Hampton Crescent, said that he wanted the site preserved as woodlands. Mr M Torrisi, who lives at 42 Hampton Crescent and whose property’s rear adjoins the site, said that he would move if the site were subdivided. Ms S Nuttgens, who lives at 161 Ida Place, Blacktown, gave five reasons for preserving the site as woodlands. First, the CPW should be protected. Second, providing offsets would not contribute to biodiversity. Third, the site is a rare oasis of nature in a sea of development. Fourth, the Blacktown Environmental Group supports the council’s efforts to save the site from development. Fifth, the site provides an opportunity for educating children about flora and fauna.

18 M W Olling, who lives at 265 Prospect Highway, Seven Hills and is a member of the Western Sydney Conservation Alliance, said that the translocation of the CPLS would not be successful. The offsets offered in relation to the CPW do not comply with guidelines for offsets. Mr B French, who lives 24 Wendover Street, Doonside and is a member of the Prospect Heritage Trust, the Blacktown Historical Society and the Friends of St Bartholomews, said that his concern was with conserving the area’s heritage. The site was one of the few vestiges of the CPW. Mr M O’Reilly, who lives at 1/24 Upway, Prospect, and is a member of the Blacktown District Environment Group, said that the community is passionate about preserving the CPW. Ms C Gauci, who lives at 108A Harvey Road, Prospect, said the ownership of land is just as risky as owning shares. The applicant should accept refusal of the application as it would if it were a poor investment in shares. Ms S Benson, who lives at 13 Norman Street, Prospect, asked rhetorically how we can encourage people to plant seedlings, when we allow the cutting down of mature trees. Mr R Carr, who lives at 44 Chapel Circuit, Prospect and is the secretary of the Timbertop Reserve Protection Group, said that his group has looked after the public reserve, which is now in a much better condition than it was before.

19 It is clear that there is strong community feeling about the conservation of the site’s natural environment. At the same time, there appeared to be no recognition that keeping the site in its natural state may be in conflict with its residential zoning. The best example of this was Ms Gauci’s comment that the applicant should consider the refusal of this application as if it were a loss on the stock exchange. We do not think that this is a valid analogy. The use of land is subject to town planning. The stock market is not subject to any form of planning. One of the purposes of town planning is to introduce order and certainty into urban development and to avoid the volatility that characterises the stock market.

Impact on the CPW and compensatory measures

20 It is common ground that the vegetation on the site is CPW, which is an endangered ecological community listed under Part 3 of Schedule 1 of the TSC Act. The final determination of the listing raises the following points:

8. Only 6% of the original extent of the community remained in 1988 (Benson, D. & Howell, J. 1990 Proc. Ecol. Soc. Aust. 16, 115-127) in the form of small and fragmented stands. Although some areas occur within conservation reserves, this in itself is not sufficient to ensure the long-term conservation of the Community unless the factors threatening the integrity and survival of the Community are ameliorated.
9. Threats to the survival of the community include clearance for agriculture, grazing, hobby and poultry farms, housing and other developments, invasion by exotic plants, and increased nutrient loads due to fertiliser run off from gardens and farmland, dumped refuse or sewer discharge.
10. In view of the substantial reduction in the area occupied by the Community, its fragmentation and the numerous threats to the integrity of the Community, the Scientific Committee is of the opinion that the Cumberland Plain Woodland is likely to become extinct in nature in New South Wales unless the factors threatening its survival cease to operate.

21 On 21 November 2008 the NSW Scientific Committee published a preliminary determination, recommending that CPW be listed as a critically endangered ecological community. The principal reason for the heightened listing was that the area of CPW has decreased since it was first declared endangered.

22 The whole site is approximately 7 ha in area. The proposal would lead to the loss of about 36% of the extant CPW vegetation on the site. The applicant offers four methods of compensating for the loss of CPW:

• to retain some of the CPW trees within the developed area;
• to restore and dedicate to the council an area of CPW of 1.5 ha of the western part of the site, immediately adjacent to the Timbertop Reserve.
• to accept a condition of consent requiring a contribution to the management and regeneration of the Timbertop Reserve.
• to undertake an offset proposal by replanting some 10-12 ha of CPW within the Western Sydney Parklands, principally on former pastureland. The applicant tendered a letter from the Department of Planning, dated 7 July 2008, agreeing to the applicant undertaking revegetation works within Western Sydney Parklands.

23 The council’s expert on ecology was Mr A Morison. Mr D Williams, an expert on bush regeneration, and Dr K Mills, an ecologist, gave evidence in the applicant’s case.

24 Mr Morison said that only 5% of the original CPW now remained. The patch on the subject site was the most easterly remnant of CPW on the Cumberland Plain, the best patches being west towards Penrith. He had three major criticisms of the proposal: inadequate protection; inadequate management and the uncertainty that the offset proposal would succeed in establishing CPW within Western Sydney Parklands. He considered the loss of CPW due to the 26-lot subdivision unacceptable, though he would accept a smaller development consisting only of those allotments that adjoin directly the rear of existing lots in Chapel Circuit. In effect, this would be an 11-lot proposal.

25 Dr Mills, who had assessed the condition of CPW over the whole site suggested that the woodland had poor to moderate fauna diversity, but was characteristic of urban remnants. His field assessment identified a lack of older trees and associated hollows, a disturbed landscape and a colony of noisy miners, which harass other birds, drive them away and have dietary habits that contribute to the deterioration in woodland condition.

26 Dr Mills assessed the relative condition of CPW over the site and presented it in map form. This shows that most of the “good quality” CPW is removed by the 11-lot proposal, ie to that part of the proposal that is supported by all three experts. Mr Williams agreed with Dr Mills’ assessment of CPW quality. Mr Morison did not agree. Relying on the categories used in the DECC’s Biobanking method (which he considered the only reliable method to assess the condition of bushland), he described the patch as being in good to moderate condition. This led him to conclude that the patch of CPW was a significant remnant in the landscape. He argued that the development proposal should ‘improve or maintain’ the condition of CPW.

27 Dr Mills, who has undertaken work at the site over the last 13 years stated that he has noticed a gradual deterioration in its condition over that period. He had not applied the Biobanking method but utilised similar indices.

28 Mr Williams, who had negotiated the revegetation offset proposal at the Western Sydney Parklands with the Department of Planning on behalf of the applicant, said that CPW could be regenerated on grasslands. He considered that the proposal as a whole (ie including conservation, dedication, contribution and offset) was sufficient replacement for the CPW that would be lost due to the development.

29 The adequacy of the offset package was the cause for much debate. Mr Morison maintained that conservation of the CPW should embrace the principles of protection; mitigation and, as a last resort, offsetting the remaining impacts. The applicant drew the Court’s attention to the DECC publication “Recovering bushland on the Cumberland Plain”, in particular at page 3:

Bushland conservation on the Cumberland Plain cannot be achieved solely by the creation of national parks and other protected areas. The resources to acquire and manage reserves that will conserve viable examples of all the different ecological communities and the species they contain across their full range are beyond the budgets of organisations such as DEC.
Since it is not economically possible to retain all of the bushland communities in conservation reserves, the long term viability of these remnants is dependent on the restoration of some areas of currently cleared land and the provision of linkages that enable the remnants to be managed as a bushland network across the landscape.

30 The same document, however, also contains the following:

A recent study by Wilkins et al. (2003) developed scientific approaches to measuring the ecological success of restoration projects.
The study showed that progress in restoring sites towards a state resembling remnant sites is very slow. The time required for restored sites to match the target state of a remnant community may be many decades with a risk that the desired end point may never be reached (Wilkins et al. 2003). The findings indicate that a much higher premium needs to be placed on retaining native ecosystems wherever possible, as these bushland communities are not easily replaced.
In most circumstances, the biodiversity benefits of protecting and enhancing existing native vegetation far outweigh those of establishing new vegetation in previously cleared areas. For instance, the habitat resources associated with older trees that contain hollows for nesting and breeding, sites for roosting and large amounts of bark for feeding by insectivorous birds will not be available in revegetation works until they are well established and possibly hundreds of years old.

There appears to be a contradiction in the publication. What we take from it is that conserving existing CPW is preferable to removing it and replanting it elsewhere; however, if removal is justified on other grounds, it is better to attempt to re-establish new vegetation elsewhere than to do nothing.

31 Dr Mills had considered alternatives to the proposal in his Statement of Environment Effects, noting the following:

Given that this is private land, it is not likely to be managed for its conservation values; indeed private landowners in this situation could not be expected to put resources into conservation management without some return. Without any management input, the woodland will continue to be degraded and will never reach its full conservation potential. This is the dilemma of conserving many of the small, fragmented and isolated stands of Cumberland Plain Woodland. In the absence of a firm government policy on either purchasing these remnants or compensatory mechanisms to conserve this woodland, the private developer is left with few alternatives to progressing their development.

32 The Court asked the experts to summarise their evidence by stating which of the two options would be the best long-term outcome for CPW: development, dedication, management and offset on the one hand; or no development, no dedication, no management and no offset, on the other. Mr Morison said that no development would be the best outcome. Dr Mills and Mr Williams said that development with dedication, management and offset would be the best outcome.

33 Mr Morison said that, if the proposal were to go ahead, the proposed regeneration in Western Sydney Parklands should not be on pasturelands but within areas containing remnant CPW, since this would be more likely to succeed. He agreed that this could be achieved by a condition of consent.

Impact on the Snail and compensatory measures

34 The Cumberland Plain Land Snail is listed as an endangered species under Part 1 of Schedule 1 of the TSC Act. The final determination of the listing includes the following points:

1. Meridolum corneovirens is a large land snail, found on the Cumberland Plain in remnant pockets of urban bushland, in areas associated with Wianamatta Shale and old Nepean river gravels.
2. Meridolum corneovirens occurs in eucalypt woodland under logs and debris and around bases of trees or clumps of grass, burrowing into loose soil.
3. Collections in the Australian and Queensland Museum indicate that the species was formerly common throughout the Cumberland Plain, but recent records indicate that only small remnant disjunct populations remain.
5. The habitat of Meridolum corneovirens has been drastically reduced with clearing of bush and is subjected to major current development pressures, which further threaten the remaining populations.
6. In view of 3, 4 and 5 above, the Scientific Committee is of the opinion that the numbers of i have been reduced to such a critical level and its habitats have been so drastically reduced that it is in immediate danger of extinction and that M. corneovirens is likely to become extinct in nature in New South Wales unless the circumstances and factors threatening its survival cease to operate.

35 In a letter dated 28 September 2007, the DECC stated that it was not aware of any successful translocation programs for the Snail.

36 The applicant’s snail experts were Mr D. Ryan and Dr Mills, while the council’s was Mr Morison. Dr Mills and Mr Morison had undertaken surveys of the whole patch of CPW at Lot 101 and Timbertop Reserve for the presence of the Snail at the site. In total five live snails were located from these searches and Dr Mills found a live specimen during the site visit. (We do not know whether this is a sixth Snail or one that was found before.) Mr Morison also collected a number of shells using a grid survey of the site.

37 The applicant tendered a Translocation Plan of Management for the Snail. The Plan proposes that, before works begin, the site would be searched for the Snail and those found would be relocated (or translocated) within Lot 101 to the area proposed to be dedicated to the council and contiguous with Timbertop Reserve. In addition to relocation, the Plan of Management includes the re-creation of suitable habitat for the Snail and monitoring the translocation sites to ensure that appropriate habitat is maintained and to measure the effectiveness of the translocation program. The Planning Agreement that the applicant volunteered includes bush regeneration and the improvement of habitat within the Timbertop Reserve.

38 The experts noted the statement in the Threatened Species Assessment Guidelines (August 2007):

Demonstrating that a population is not viable would require considerable effort and study. Therefore any known or presumed local population should be assumed viable unless the contrary can be conclusively demonstrated through analysis of local ecological information, records, references and knowledge of species’ behaviour and habitat or through a comprehensive on-site ecological study.

39 Notwithstanding the above, Mr Ryan suggested that the 7ha patch was possibly too small to allow the Snail to survive in the long term. He contended that the current Snail density is very low and Snail viability depends on future management practices, whether or not the proposal goes ahead. Mr Morison believes that the proposal would result in irreversible harm to the Snail population. Dr Mills thinks that the proposal, including translocation, will allow the population to survive and be viable.

40 Mr Ryan was asked if he was aware of any successful Snail translocation programs. Mr Ryan said that he was aware of one program; however, had no authority to divulge details. The experts agreed that there was insufficient evidence to show that Snail translocation works, or that it does not.

41 Dr Mills considered that the Translocation Plan and the proposed bush care and habitat management on the remaining area would adequately protect the Snail. All the experts agreed that it was important to improve habitat quality in the area to be dedicated and preferably throughout the whole patch in order to provide the best chances for the Snail.

42 The Snail Translocation Management Plan was revised overnight, and on the last day of hearing Mr Morison agreed that it was as good as it could be, though he considered that the other Management Plans should be made consistent with it.

43 The Court asked the experts to state what in their opinion would be the best outcome for the Snail: development with maintenance and management of the dedicated area or no development and no maintenance. Mr Morison and Mr Ryan said that the best outcome for the Snail was no development, while Dr Mills responded to the contrary.

The precautionary principle

44 As in all planning decisions (and in this decision probably more than in most), we must take into consideration the principles of ecologically sustainable development. As the PEA Act states, ecologically sustainable development requires the effective integration of economic and environmental considerations in decision-making processes.

45 Ecologically sustainable development can be achieved through the implementation of the precautionary principle, the consideration of intergenerational equity and the conservation of biological diversity. The Precautionary Principle requires that, if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. Intergenerational equity requires that the present generation should ensure that the health, diversity and productivity of the environment are maintained or enhanced for the benefit of future generations. Conservation of biological diversity and ecological integrity is, of course, what these proceedings are about.

46 The Precautionary Principle applies by virtue of the uncertainties mentioned in the evidence of Mr Morison, Dr Mills, Mr Williams and Mr Ryan. In particular two matters remain uncertain: the success of the revegetation offset in the Western Sydney Parklands compensating for the loss of CPW, and the success of the translocation of the Snail. The application of the Precautionary Principle requires that we do not approve the proposal merely in the hope that the revegetation offset and the translocation of the Snail will succeed. However, if we conclude that approval would be justified (after balancing environmental against other considerations) even in the certain knowledge that the revegetation offset and the translocation of the Snail will not be successful, then such approval is consistent with the Precautionary Principle. This does not mean that revegetation and translocation should not be required as a condition of consent. Although we are not certain of their success, to try and fail is better than to never try at all.

Findings

47 The evidence leads to conclusions some of which support refusal of the application and some of which support approval. The decision depends on the weight given to each.

48 The following conclusions support refusal:

• The CPW is an endangered ecological community and likely soon to be critically endangered.
• It is likely that the Snail has survived in situ at the site for several decades. There is no evidence to show it will not survive if there is no development, although the experts acknowledged there are several significant environmental pressures from the adjoining urban area.
• The Snail is a threatened species and it is uncertain whether translocating it will save it. DECC’s letter to the Court dated October 2007 noted that there is no evidence to show that snail translocation programs work. Even with the best effort, it is unlikely that all live Snails on the development site will be found. While intuitively one feels that moving the Snails 50m to the west will not kill them, the evidence of the experts is that the success of translocation is uncertain.
• The area to be dedicated to council for conservation and to be regenerated intersects with the more degraded areas of the 7 ha patch of bushland. (However, it is the logical area to dedicate since it adjoins the Timbertop Reserve.)
• The NSW Scientific Committee Preliminary Determination reported research results arising from more than 10 years of study that examined areas replanted with CPW species at the Western Sydney Parklands. The research shows that there is no evidence of ecological convergence in species composition with nearby CPW and that regeneration on sites with a history of soil disturbance will be extremely slow to recover characteristics of Cumberland Plain Woodland.
  

49 The following conclusions support approval:

• Neither party maintains that the site should remain undeveloped; the only matter in dispute is the extent of development, and therefore the extent of the land to be dedicated and added to Timbertop Reserve. The applicant wants to develop 26 lots, while the council agrees to the creation of 11 lots (lots 1 and 17-26). We reason from this that the council has allowed considerations of zoning and fairness to influence its position.
• The building footprints on lots 2-16 (ie those lots that are in dispute) are not on “Good Quality CPW” as identified in Exhibit B, but on land identified either as “highly disturbed (lantana, kikuyu, exotic weeds etc)” or as “track bare patches and bush fire clearance areas”.
• The applicant is offering more than a third of the site to be dedicated to the council and added to the Timbertop Reserve. It is also offering to regenerate the bushland on those parts of the area to be dedicated that are in poor condition. While the existing patch will be reduced from its approximate size of 7ha, the resultant patch will be in excess of 4ha, which appears to be a critical size in some of the publications of the DECC.
• The applicant is offering to regenerate bushland on about 10ha within Western Sydney Parklands and it has the agreement of the Department of Planning, which is the administering body for the park. While Mr Morison considered that the regeneration should occur in some other part of the park than that stipulated by the applicant, and agreed to by the Department, a change of location is possible under the terms of the conditions of consent.
• The applicant is offering a planning agreement that obliges it to regenerate bushland within the Timbertop Reserve. Therefore a reduction in the area of CPW will be accompanied by an improvement in its quality.
• The applicant is offering to translocate the Snail to the area to be dedicated and to improve snail habitat both on that area and within the Timbertop Reserve. While the experts did not agree that this would necessarily save the Snail, they did agree that it was better to translocate than not to. Mr Morison agreed that the Translocation Management Plan was as effective as it could be (though he also said that it would not be successful).
• The site has been zoned residential for the last twenty years. A consent, now expired, was issued for subdividing it into more than fifty allotments without any dedication. While we accept that legislation protecting threatened species and endangered communities must be superimposed on planning legislation, in the ordinary course of events residential zoning indicates that the land can be developed for housing. On balance, we do not think that this case has circumstances that are exceptional enough to justify the sterilisation of residentially zoned land for which there is little chance of being acquired by a public authority. (We note that the applicant has asked the council to acquire the land without success.)
• In 1994 the council acquired part of the site. The acquisition of part of the site has an implication (though not a legal implication) that the part that is not acquired can be developed.
• A refusal of the application would carry with it as many environmental uncertainties as does its approval. This is because the applicant is unlikely to be able or willing to maintain the CPW and Snail habitat on the site. Preserving the bushland only to lose it to neglect would be a Pyrrhic victory for the environment.
• A decision by this Court only a little more than a year ago implied that, with the deletion of three allotments, the shrinking of a fourth and the provision of better compensatory measures, the proposal could go ahead. The applicant has complied with those suggestions. We accept that we have no obligation to be in comity with the earlier judgment. However, we believe that there is public interest in consistency of Court decisions.
  

50 In our opinion the factors in support of approval outweigh those against it and therefore the appeal is upheld.

Orders

1. The appeal is upheld.

2. Development application to subdivide lot 101 DP 863828, Hampton Crescent, Prospect under Community Title into 26 residential lots, a community lot for roads and a further lot for conservation to be dedicated to the council is determined by the granting of consent subject to the conditions in annexure A.

3. The exhibits are returned except Exhibits 8, B, D and EE.

___________________ __________________
Dr John Roseth Dr Mark Taylor
Senior Commissioner Commissioner of the Court