Commercial & Industrial Property Pty Ltd v Holroyd City Council

[2013] NSWLEC 1000

Land and Environment Court

New South Wales

Medium Neutral Citation:	Commercial & Industrial Property Pty Ltd v Holroyd City Council [2013] NSWLEC 1000
Hearing dates:	19, 20 December 2012
Decision date:	04 January 2013
Jurisdiction:	Class 1
Before:	Adam AC, Fakes C
Decision:	Appeal dismissed
Catchwords:	DEVELOPMENT APPLICATION: impacts on a Critically Endangered Ecological Community; is an SIS required
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environment Protection and Biodiversity Conservation Act 1999 Greater Metropolitan Regional Environmental Plan No 2 - Georges River Catchment Holroyd Local Environmental Plan 1991 Threatened Species Conservation Act 1995
Cases Cited:	BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 Commonwealth of Australia v Randwick City Council (2001) NSWLEC 79 Cooper v Wollondilly Shire Council [2004] NSWLEC 145 Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited 2010 NSWLEC 48 Timbarra Protection Coalition Inc v Ross Mining NL & Ors [1999] NSWCA 8 VAW (Kurri Kurri) Pty Ltd v Scientific Committee (established under s127 of the Threatened Species Conservation Act (1995)) [2003] NSWCA
Category:	Principal judgment
Parties:	Commercial & Industrial Property Pty Ltd (Applicant) Holroyd City Council (Respondent)
Representation:	Applicant: Mr J Robson SC Respondent: Mr A Seton (Solicitor) Applicant: Ashurst Australia Respondent: Marsdens Law Group
File Number(s):	11057 of 2012

Judgment

1. COMMISSIONERS: This is an appeal against Holroyd City Council's deemed refusal of a development application 2012/262/1 for site establishment works on Lot 101 DP 794292 at 15 Long Street, Smithfield. The appeal is made pursuant to s 97(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

The site and its locality

1. The site is situated on the north-eastern corner of Long Street and Britton Street, Smithfield. It has an area of approximately 11.8 ha. The site slopes from the rear northern corner to the south-east. There is a watercourse draining the site from the northern boundary to the eastern boundary.

1. The site is vacant with the exception of four steel pylons and associated structures, supporting high voltage powerlines which run in a generally east-west direction.

1. Relevantly, the council contends that the site contains Cumberland Plain Woodland (CPW), predominantly in the northern portion. Cumberland Plain Woodland in the Sydney Basin Bioregion is listed in Schedule 1A of the Threatened Species Conservation Act 1995 (TSC Act). Cumberland Plain Shale Woodland and Shale-Gravel Transition Forest is listed as a critically endangered community in the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).

1. The surrounding built character is industrial developments of a range of sizes. Prospect Creek is to the south and south-west of the site. There are a number of parks and reserves that follow the creek; the remnant native vegetation along the creek is generally River-Flat Eucalypt Forest on Coastal Floodplain (also an Endangered Ecological Community).

The proposal and relevant background

1. The proposed works are described in the application form as "Levelling and grading of building platforms, construction of service roads and installation of required services". The Statement of Environmental Effects (SEE) accompanying the application describes the proposal more fully as:

• Site establishment works to create building platforms for future development. These works include:

• Vegetation clearing;
• Earthworks and basic services infrastructure;
• Stormwater management; and
• Installation of service roads.

1. The physical works are detailed as:

• Construction of service roads 1 and 2;
• The installation of required allotment services 1.e. electricity and water; and
• Levelling and grading of the proposed building platforms.

1. Plans submitted with the DA include a "Masterplan" indicating four warehouse lots with associated car parks and landscaping as well as access roads to the site; however, the application before the council, and now before the Court, is not for this "Masterplan" (which in our view is a concept plan and not a 'Masterplan' typically prepared for large scale staged projects).

1. Relevantly, the DA included two flora reports prepared by Anne Clements & Associates Pty Limited.

1. Council assessed the DA in the usual way, and further information on a number of matters was sought, including a request for a Fauna report. Council sought guidance from the Office of Environment and Heritage (OEH).

1. Following a review of the Clements' reports against OEH guidelines, council concluded that the proposed development would have direct and indirect impacts on CPW. On these grounds, council advised the applicant to substantially modify the proposal otherwise refusal was likely.

Contentions

1. Council's principal contention is that the proposal will remove almost 5 ha, and not 0.2 ha of CPW and as such will have a significant effect on that Critically Endangered Ecological Community. Therefore in accordance with s 78A(8)(b) of the Act, a Species Impact Statement (SIS) must be submitted and prepared in accordance with Division 2 of Part 6 of the TSC Act.

1. The other main contention is that the development is inconsistent with cl 6.4 of the Draft Holroyd Local Environmental Plan 2011 (Draft HLEP).

The assessment framework

1. Greater Metropolitan Regional Environmental Plan No 2 - Georges River Catchment (GMREP) applies to Holroyd City and to this development application. Clause 5(1) provides the aims and objectives; cl 8 covers the general principles that must be taken into account. Clause 9(5) is a specific planning principle related to land degradation. Clause 9(5)(d) states that land degradation processes such as significant loss of native vegetation must be avoided where possible, and minimised where avoidance is not possible.

1. The site is zoned 4(a) Industrial General Zone in Holroyd Local Environmental Plan 1991 (HLEP). The use is permissible with consent.

1. The Draft HLEP 2011 is in the Standard Instrument format; the site would be zoned IN1 General Industrial. Clause 6.4 in DHLEP is found in Part 6: Additional Local Provisions - Division 1 Protection and Management of the Natural Environment. This clause states:

6.4 Biodiversity

(1) The objective of this clause is to conserve biodiversity through:

(a) ensuring the conservation of remnant native vegetation communities, and

(b) protecting native flora and fauna species and their habitats, and

(c) protecting the ecological processes necessary for ecosystem health.

(2) This clause applies to land identified on the Biodiversity Map.

(3) Exempt or complying development must not be carried out on land to which this clause applies.

(4) Before determining an application for development on land to which this clause applies, the consent authority must consider whether the development would have any adverse impacts on:

(a) the condition, extent or long-term viability of any remnant of a native vegetation community,

(b) native flora or fauna, its habitat, its life cycle, or the long-term viability of a population,

(c) the integrity or functioning of any wildlife corridor, or

(d) the functioning of any ecosystem.

(5) The consent authority shall not consent to any development on land to which this clause applies where it is considered that the development may result in any of the impacts identified in subsection (4)(a).

(6) Before granting consent to development on land to which this clause applies, the consent authority must be satisfied that:

(a) the development is sited, designed and managed to avoid the adverse impacts identified in subsection (4).

(b) where an impact cannot be avoided, it is minimised through the incorporation of effective mitigation measures including the restoration of any existing disturbed areas on the site to a condition that is consistent with their former natural condition.

Is a Species Impact Statement required?

1. The principal contention pressed by the council is that a Species Impact Statement (SIS) in respect of CPW is required. Following a joint conference between the parties' experts and preparation of the joint report a number of other ecological issues were no longer contested.

1. A requirement for a SIS is founded in s78A(8)(b) of the EPA Act which states:

(8) A development application (other than an application in respect of State significant development) must be accompanied by:

(b) if the application is in respect of development on land that is, or is a part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats-a species impact statement prepared in accordance with Division 2 of Part 6 of the Threatened Species ConservationAct 1995 .

1. In Timbarra Protection Coalition Inc v Ross Mining NL & Ors [1999] NSWCA 8 Spigelman CJ held, at [73], that whether or not a SIS was required was a jurisdictional fact (or condition precedent), which, if the validity of a development application was challenged for the lack of a SIS then the issue was to be determined by the Court. If a SIS was required but the development application was not accompanied by one, then the Court cannot grant consent. Deciding whether a Species Impact Statement is required is therefore the threshold issue.

1. In Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited 2010 NSWLEC 48 (NHVSS) Preston CJ made a number of points relevant to what is required by s78A(8)(b).

82 A number of points may be made about this requirement. First, s 78A(8)(b) focuses on the development proposed in the development application; the inquiry is whether the "development" in respect of which application is made is likely to significantly affect threatened species, populations or ecological communities or their habitats. An application can, of course, be amended after it is initially lodged. The development proposed, therefore, may be amended. The relevant time for the inquiry is immediately prior to the determination of the application; it is the development as it then stands that is to be evaluated for its likely impact on threatened species, populations or ecological communities or their habitats: Corowa v Geographe Point Pty Ltd at [50], [51]. In this case, therefore, the inquiry must focus on the development as it finally stood at the conclusion of the hearing of the appeal.

83 Secondly, the description of the development the subject of the development application is not restricted to the nature, extent and other features of the development but can also include ameliorative measures to prevent, mitigate, remedy or offset impacts of the development. However, in order to be able to be considered in answering the inquiry of likely impact, the ameliorative measures must be proposed as part of the development application. Ameliorative measures not proposed as part of the development application, but which are imposed afterwards, as conditions of consent or restrictions in construction certificates, are not able to be considered in answering the inquiry as to likely impact. This is because the inquiry required by s 78A(8)(b) focuses on the development and its likely impact before the determination of the application and not afterwards: see Drummoyne Municipal Council v Maritime Services Board(1991) 72 LGRA 186 at 192; Smyth v Nambucca Shire Council[1999] NSWLEC 226; (1999) 105 LGERA 65 at [11]- [13]; Corowa v Geographe Point Pty Ltd at [57].

1. In this case there was dispute between the parties as to the scope of the development application. This will be discussed later in this judgement.

1. In order to decide whether or not a SIS is required a number of issues must be addressed

• Is there Cumberland Plain Woodland (CPW), a Critically Endangered Ecological Community, on the site?
• If there is, where on the site does it occur?
• If there is CPW on the site is it likely to be significantly affected by the proposed development?

1. Detailed investigation of the flora and vegetation of the site was undertaken on behalf of the applicant by Anne Clements and Associates. Fieldwork for this study was conducted in March 2012. Two reports were produced, both dated 15 June 2012, a Flora Assessment and an Assessment of Significance on threatened flora species, populations and ecological communities of lot 101 in DP 794292, 15 Long Street, Smithfield 2164. These reports accompanied the development application, and were also included in addendum 'B' of the Statement of Evidence - ecological issues prepared by Mr Fanning.

1. Mr Fanning provided expert evidence to the Court for the applicant and Dr Wotherspoon for the council. Each produced a statement of evidence and participated in a joint conference leading to a joint statement of evidence, and both gave concurrent evidence in Court. The two experts provided assistance to the Court on the view of the site that was held at the start of the proceedings.

1. Dr Clements did not provide a statement of evidence nor did she appear in Court. The two experts who did appear carried out reviews and assessments of Dr Clements' work, augmented in both cases by further fieldwork.

Is there CPW on the site, and if so where is it?

1. There is no disagreement between the parties that, on the basis of location, topography and soils, the pre-European vegetation of the site was most likely to have been CPW.

1. There is a long history of agricultural use of the site which continued until 1951. A series of aerial photographs of the site dating back to 1943 was reproduced in Clements' report. These show the conversion of what was, in 1943, a predominantly agricultural landscape into one where large areas have been developed for residential, industrial and commercial purposes. However, throughout this period the site remained undeveloped except for the installation of the electricity pylons.

1. The aerial photographs clearly show that while the majority of the site was open grassland there were a number of trees particularly in the northern part of the site which can be identified in all the photographs through to the present day.

1. It is the part of the site where these trees occur which has been the focus of attention. It was agreed that the southern part of the site is dominated by introduced pasture grasses and is not CPW, notwithstanding the occurrence in the pasture of groundcover species that are characteristic of CPW and the presence of a few trees.

1. The trees in this northern area of the site comprise a number of species of Eucalyptus with, as subcanopy trees, Acacia decurrens and Melaleuca decora. The shrub Bursaria spinosa, a characteristic shrub layer species within CPW, is present in this area.

1. The Clements' study of the site included the recording of floristic data from 8 x 0.04 ha quadrats (5 x 20×20 m and 3 x 10×40 m), two 10 x 50 m transects and 9 x 10 m radius spot locations. Additional data were collected offsite adjacent to Long Street and Prospect Creek.

1. The thoroughness and accuracy of the floristic recording was not challenged, indeed it was praised. Dr Wotherspoon in his report identified additional species, including a number characteristic of CPW, but this is not unexpected particularly as his recording was undertaken at a different season.

1. Dr Clements undertook a comparison between the data for her quadrats individually and the Final Determination of the Scientific Committee for the listing of CPW as a Critically Endangered Ecological Community (particularly in relation to paragraph 6 of the Determination). On this basis she determined that the sampled patches represented by quadrats 2,4 and 6 met the criteria for identification as CPW, with a total area of CPW of about 0.21 ha.

1. Dr Wotherspoon took a different approach, defining (at least in his mind) a polygon that he characterised as an area of CPW circumscribing most of the trees in the northern part of the site. This polygon was said to encompass just under 5 ha. Unfortunately Dr Wotherspoon was unable to point to a figure or diagram in his evidence which accurately depicted this polygon. While giving concurrent evidence Dr Wotherspoon expressed an opinion that his polygon should be enlarged and extended further to the north-east.

1. Mr Fanning's view of the extent of CPW changed during the course of the proceedings.

1. In his Statement of Evidence and in the Joint Report he essentially adopted Dr Clements' conclusions.

1. On the site view he volunteered the opinion that an area of grassland dominated by Themeda australis was derived native grassland as defined in paragraph 6 of the Final Determination and hence could be regarded as part of the CPW on the site. He supported this assessment during the early stages of concurrent evidence but at the conclusion of concurrent evidence he withdrew from his previous stance, coming to the final opinion that there was no CPW on the site.

1. The Court was thus presented with three contrasting opinions - that there was no CPW on the site (Mr Fanning); that there was about 0.21 ha, albeit in a degraded and possibly non-viable condition (Dr Clements) and that there was about 5 ha of CPW (Dr Wotherspoon).

1. Paragraph 6 of the Final Determination states:

6. The structure of the community varies depending on past and current disturbances, particularly clearing, fire and grazing. Contemporary tree-dominated stands of the community are largely relics or regrowth of originally taller forests or woodlands, which are likely to have had scattered shrubs and a largely continuous grassy groundcover. At some sites, mature trees may exceed 30m tall, although regrowth stands may be shorter than 10m tall. After total or partial clearing, the tree canopy may remain sparse or may regrow to form dense stands of saplings and small trees, which are typically associated with a ground layer of reduced cover and diversity. Either or both of the upper-storey and mid-storey may be absent from the community. Native grasslands derived from clearing of the woodland and forest are also part of this community if they contain characteristic non-woody species listed in paragraph 3.

1. The assessment of whether or not a particular area falls within the description of a particular EEC is one which requires evaluation and expert judgement. It is not one where arbitrary, predetermined numerical criteria are often useful. Thus, for example, in Commonwealth of Australia v Randwick City Council (2001) NSWLEC 79, Talbot J decided at [103 - 104] that a defined proportion of species given as characteristic in Final Determinations was not required for a given patch of vegetation to be allocated to an EEC, a view which was also expressed by Spigelman CJ in VAW (Kurri Kurri) Pty Ltd v Scientific Committee (established under s127 of the Threatened Species Conservation Act (1995)) [2003] NSWCA 297(VAW Kurri Kurri) at [7]. More generally it was recognised that the nature of spatial and temporal variation in natural communities was such as to preclude absolute definitional specificity (VAW (Kurri Kurri) at [231 - 233] per Hodgson JA). For a stand to qualify as being part of the EEC, it must conform with the Final Determination but a narrow over-interpretation of the criteria is unhelpful.

1. A reductionist approach of attempting to apply the community definition to individual quadrats, without taking into account the context within which each quadrat is set may lead to misleading conclusions. In NHVSS one of the issues debated by the experts was the interpretation of the statement 'shrubs are generally sparse or absent, though they may be locally common ' in paragraph 2 of the Final Determination for White Box Yellow Box Blakeley's Red Gum Woodland. Preston CJ observed at 57:

57 If floristic composition was being assessed by use of quadrats then, depending on the size of the quadrat, the location of the quadrats and the size of the patch of shrubs, at the individual quadrat level, the data could suggest shrub dominance. However, the single quadrat would be unrepresentative of the vegetation of the stand, although illustrative of part of the range of variation in structure and composition of the stand.

1. Dr Wotherspoon in his statement of evidence discusses the definition of the term woodland in Australia and referred to a number of standard texts. He demonstrated that there was variation in the basis of definition (including as to whether the canopy was defined by crown cover, projected canopy cover, or projective foliage cover) but woodland however defined encompassed a wide range of density or sparseness of cover. Dr Wotherspoon's approach was at the stand level seeking to delineate an area within the part of the site where trees occurred which, at that scale, would fall within a definition of woodland, rather than the more restricted approach of Clements with the stand partitioned into the patches of trees and intervening areas with each of these assessed separately.

1. The difficulty for the Court is in the absence of sufficient detail in Dr Wotherspoon's evidence to precisely define the area of CPW. On the basis of the experience we bring to the Court, and our observations on the view, we are of the opinion that an area could be delineated on the site which is larger than the sum of the patches recognised by Clements, but which would still satisfy the criteria of the final determination. However, we are not in a position to endorse the almost 5 ha area advanced by Dr Wotherspoon.

1. We are also of the opinion (based on our observations on the site and by paragraph 6 of the Final Determination) that the Themeda grassland (centred on point 19 in the map entitled 'Detailed mapping of additional patches of vegetation checked by SLR Ecology ' in Mr Fanning's Statement of Evidence) is derived native grassland and hence part of the Critically Endangered Ecological Community.

1. The inability, on the basis of the evidence before us, to determine the extent of CPW on the site imposes major limitations on the ability to properly assess the significance of the impact of the proposal.

1. Mr Fanning (based on the work of Dr Clements and his own studies) expressed the view that there would be no significant effects of the proposal. Dr Wotherspoon was of the opinion that there was likely to be a significant impact and that for further assessment a SIS was required.

1. The starting point in deciding whether there are likely to be significant effects are the factors in s5A of the EPA Act (NHVSS at [85] and [86 ] and citations therein). This section includes (in subsection (2)) what is colloquially referred to as the '7-part test'. It is important to recognise that the 7-part test differs from its predecessor 8-part test in having a local rather than regional context. Early cases that addressed the requirement for a SIS were under the 8-part test regime, and this needs to be borne in mind when considering the outcomes of those cases.

1. In determining whether there is likely to be a significant effect on a threatened ecological community as a consequence of a proposed development, s 5A(1) of the EPA Act requires us to consider the relevant matters in s 5A(2) and apply the assessment guidelines prepared by the (then) Department of Environment and Climate Change in 2007.

1. The terminology '7-part test' is misleading in that it would be only under exceptional circumstances that all parts arise in relation to a single site, and for each particular species, population or community under assessment only certain parts are relevant. In the case of an EEC the parts of s 5 A (2) which are applicable are parts (c) (d) and (g).

1. Section 5 A(2)(c) states

(c) in the case of an endangered ecological community or critically endangered ecological community, whether the action proposed:

(i) is likely to have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction, or

(ii) is likely to substantially and adversely modify the composition of the ecological community such that its local occurrence is likely to be placed at risk of extinction,

1. As the proposal is for the complete clearance of the site subparagraph (1) must be answered in the affirmative.

1. Section 5A (2) (d) deals with affects on habitat and states:

(d) in relation to the habitat of a threatened species, population or ecological community:

(i) the extent to which habitat is likely to be removed or modified as a result of the action proposed, and

(ii) whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed action, and

(iii) the importance of the habitat to be removed, modified, fragmented or isolated to the long-term survival of the species, population or ecological community in the locality,

1. As the whole site is to be cleared and levelled the total area of CPW (whatever its extent) will be removed.

1. Whether there are ecological linkages between the site and other ' areas of habitat' was the subject of discussion during concurrent evidence. It was agreed that the CPW on the site was not contiguous with any area of CPW offsite. Nevertheless it was also agreed that they were likely to be organisms (such as birds, bats and many insects) which would move between the site and other areas, and that there could be gene flow (in the form of pollen or seeds) between the site and other stands of CPW. To Mr Fanning this implied that the site should not be considered as an isolated local occurrence as the 'locality' covered a much larger area (although this interpretation of locality is at variance with that provided in the Guidelines).

1. As the habitat on the site will be totally removed it will not be fragmented or isolated from other areas. However, in respect of other areas, the loss of habitat on the site may result in the loss of one of the islands of habitat utilised by mobile species.

1. Mr Robson for the applicant argued that the area to be removed was of low quality and low viability. However, the large number of CPW species observed on the view scattered across the site indicates that ecosystem processes associated with regeneration were still occurring. Mr Seton drew attention to the following paragraph in the Cumberland Plain Recovery Plan to argue that while the Plan might, in terms of actions by government departments, give priority to higher quality sites this did not preclude local government measures to protect other sites which while in poorer condition were nevertheless of value.

The identification of regional conservation priorities within this Plan should not be misinterpreted as underrating the significance of remnant vegetation outside the priority conservation lands. This plan simply attempts to provide a practical, realistic conservation focus for DECCW and others. While resources at a regional level should be strategically focussed on the PCLs [Primary Conservation Lands], implementation of best practice management on areas of local conservation significance will contribute to the long-term viability of biodiversity and will continue to be encouraged by DECCW. Important work is being undertaken by other agencies, local governments and communities to protect and restore land outside the PCLs that is of local conservation significance. This work in coordination with appropriate planning controls, will provide a valuable compliment to the PCLs and will assist in conserving biodiversity more generally.

1. Dr Clements argued in her report that, within the powerline easement, there was no possibility of maintaining or re-establishing CPW because of the obligations on TransGrid to maintain the integrity of the electricity supply. She pointed particularly to the prohibition on occurrence of any vegetation more than 4 m high. Dr Wotherspoon argued that the slashing and mowing regime which had been applied to some years had not precluded the survival and regeneration of CPW species and that a modified form of CPW would be compatible with continuing prudent management of the easement.

1. Section 5A (2) (g) refers to threatening processes:

(g) whether the action proposed constitutes or is part of a key threatening process or is likely to result in the operation of, or increase the impact of, a key threatening process.

1. Clearing of native vegetation is a Key Threatening Process on Schedule 3 of the TSC Act .The proposal involves the complete clearing vegetation, native or otherwise, on the site.

1. Thus, for all relevant parts of s 5A (2) there are responses that indicate a positive (affirmative) answer to the question of whether there are likely to be significant effects. However, the outcome of the s 5A(2) consideration is only one input into the determination of the question (NHVSS at [113]). Other factors can be taken into account where relevant.

1. One of the factors which could be taken into account is whether ameliorative measures are proposed that would reduce that significance of the impacts (NHVSS at [115]). This is a matter which has arisen in a number of cases, each of which has been determined on its own facts - it is not simply a matter of any ameliorative proposals being sufficient to eliminate significant effects.

1. Whether or not ameliorative measures are part of the proposal depends on the nature of the proposal before the Court. The proposal, as we believe it to be, is described in paragraphs 6 and 7 of this judgment. Mr Seton argued that the development application was purely for the earthworks and infrastructure, and did not include ameliorative measures. Mr Robson on the other hand pointed to the inclusion within the development application of other plans and reports, including that of Dr Clements which proposed compensation planting, and to the reference in the without prejudice draft conditions of consent to these plans and reports. In addition the draft conditions include general measures to protect aspects of biodiversity.

1. The council's bundle of documents includes copies of email exchanges between council officers and the applicant which indicate that council officers had assumed some other plans to be part of the application, whereas the applicant intended them to be merely indicative illustrations - details of individual buildings and the layout and size of, for example, offices would be matters subject to separate, future, DAs. Although a number of the plans are labelled "master plan", there does not appear to have been a formal masterplan approval.

1. Dr Clements' Assessment of Significance report included as Figure 4 what is said to be the 'Current master plan and proposed conservation and tree planting areas'. This figure does not appear to show the proposed detention basins shown on other plans within the application, and which would appear to fall within the proposed conservation areas.

1. Given that we have determined that the area of CPW on the site is likely to be greater than the 0.21 ha suggested by Dr Clements the adequacy of the current proposed conservation measures would in any case need to be revisited.

Conclusions regarding likely significant effects

1. Given the uncertainty as to the area of CPW on the site we consider that whether there are likely to be significant effects of the proposal should be examined through the SIS process. In this regard we are of similar mind to Talbot J in Cooper v Wollondilly ShireCouncil [2004] NSWLEC 145. This was a case involving a proposal for a caravan park, where there was disagreement between experts as to whether a SIS was required in relation to possible impact on an EEC (Shale Sandstone Transition Forest or SSTF). Talbot J concluded that noise issues were fatal to the proposal but in relation to the EEC issue said (at [27-29])

27 The fact that the SSTF on the site is small and on the margin of the areas of occurrence does not diminish its significance and is not inconsistent with the description in the Scientific Committee determination.

28 Dr Mills considers the potential link to other communities to be tenuous. On the other hand, Mr Lembit says that the development involves the removal of an area of SSTF which is proximal to other areas of SSTF and would result in an adverse effect on gene flow and the ability to sustain viable populations of the plants which comprise SSTF in the vicinity.

29 On the balance of probabilities, but without the benefit of oral evidence or cross-examination, the Court tends to favour the view expressed by Mr Lembit that there is likely to be a significant effect on the SSTF community in the circumstances of the case. The purpose of requiring an SIS would be to resolve the conflict between the respective experts neither of whom has been discredited or shown to have fallen into error. Until the disagreement is resolved the Court, acting as the consent authority within the meaning of s 5A of the EP&A Act is entitled to conclude that there is a real chance that there is to be a significant effect on the threatened species. It is appropriate to err on the side of caution in making the initial determination dictated by s 5A and s 78A(8)(b) as to whether an SIS is required. This view is reinforced by the agreement between the experts that "All vegetation on the site will effectively be removed or modified so that the integrity of the SSTF as a community will not survive".

1. Similarly in the present matter the experts have not been 'discredited or shown to have fallen into error'. Given that unlike the situation in Cooper the present case involves a Critically Endangered Ecological Community then the approach adopted by Talbot J is even more appropriate, and we conclude that a SIS is required and that, in its absence, the application must be dismissed.

1. In reaching this conclusion we are not suggesting that no development can occur on the site. Our decision relates to the proposal as it currently stands and the present state of knowledge of CPW on the site.

1. The observations of McClellan CJ in BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 at [117-118] are relevant.

117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects (Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened.

118 In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts.

1. The site has been, and continues to be, zoned for industrial use and there is therefore a reasonable expectation that some form of development for industrial purposes could be permitted. However, the occurrence of CPW is clearly a matter which needs to be assessed in relation to any application.

1. The conclusion applies to the proposal as it was before the Court; in order for the proposal to proceed to assessment against the criteria in s 79(C) we have determined that it must be accompanied by a SIS. This is not to have concluded that a modified proposal could not be formulated which would not trigger the requirements for a SIS.

The Draft Holroyd LEP(DHLEP)

1. Council contends that this application is not compatible with cl 6.4 in the Draft Holroyd LEP.

1. Given that we have decided that the application cannot proceed in the absence of a SIS it is not necessary for us to discuss this contention in detail.

1. The DHLEP has been subject to public consultation and been approved by council for referral to the Minister. It is therefore a matter which would need to be considered in assessing an application against the requirements of s 79C(1)(a)(ii).

1. The weight which could be placed the on the DHLEP depends on whether finalisation of the Plan is 'imminent and certain'. The DHLEP incorporates a number of matters proposed by Council in addition to those matters which form part of the standard template. Proposed cl 6.4 is one of the additions developed by Council.

1. The Court was advised from the bar table that while the finalisation of DHLEP might be 'imminent', the form in which it would be finalised was currently not 'certain'.

1. We note that proposed cl 6.4 calls up a vegetation map. In relation to the site, the mapping of vegetation depicts an area different in detail from other maps of the area. At a fine local scale, variation in mapping is not unexpected, but this has implications for mapping which is to play a crucial role in the implementation of planning policy.

1. If we were required to consider cl 6.4 of the DHLEP then at its highest we would conclude that it evinces a commitment by council to the conservation of biodiversity, but that we could not be confident that it would he finalised in its current form.

Orders.

(1)   The appeal is dismissed.

(2)   Development application No 2012/262/1 for the levelling and grading of building platforms, construction of service roads and installation of required services on Lot 101 DP 794292, 15 Long Street, Smithfield, is refused.

(3)   All exhibits except exhibit 1 are returned.

__________________________               ___________________________

Paul Adam   Judy Fakes

Acting Commissioner of the Court         Commissioner of the Court

Decision last updated: 04 January 2013