David DeBattista v Shoalhaven City Council

[2017] NSWLEC 1251

Land and Environment Court

New South Wales

Medium Neutral Citation:

David DeBattista v Shoalhaven City Council [2017] NSWLEC 1251

Hearing dates:

19 April 2017

Date of orders:

25 May 2017

Decision date:

25 May 2017

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders:

 (1) The appeal is dismissed.
(2) The application to modify conditions of consent for DA SF 10011, issued by Shoalhaven City Council 30 May 2011, is refused.
(3) The exhibits are returned, with the exception of Exhibits 1, A and B.

Catchwords:

Application to modify development consent: appeal under s96(1A) of EPA Act; whether the modification has minimal environmental impact; impact on threatened species, Melalueca biconvexa.

Legislation Cited:

Shoalhaven City Local Environment Plan 2015
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Threatened Species Conservation Act 1995

Cases Cited:

nil

Texts Cited:

Threatened Species Assessment Guidelines: The assessment of significance. NSW Department of Environment and Climate Change, August 2007

Category:

Principal judgment

Parties:

David DeBattista (Applicant)
Shoalhaven City Council (Respondent)

Representation:

Counsel:

 

M. Mantei (Applicant)
A. Bradbury (Respondent)

 

Solicitors:

  Michael Mantei Planning Law Solutions
Bradley Allen Love Lawyers

File Number(s):

2016/357554

Publication restriction:

Nil

Judgment

Background

1. COMMISSIONER: This is an appeal against Shoalhaven City Council’s refusal of a modification application made by Mr David De Battista (the Applicant). The appeal is made pursuant to s97AA of the EPA Act.

2. The application, made under s96(1A) of the Environmental Planning and Assessment Act 1979 (EPA Act), seeks to modify certain conditions of consent attached to development consent SF 10011, issued by Shoalhaven City Council on 30 May 2011.

3. The consent was for the subdivision of Lots 1 and 6 of DP 1082382, both located at the southern end of Anson St, St Georges Basin.

4. The modification application concerns the occurrence on Lot 6 of DP 1082382 (the ‘Subject Site’) of a stand of Melaleuca biconvexa plants and the consent conditions issued by Shoalhaven City Council for the retention and protection of these plants.

5. The modification application seeks to amend or delete the following conditions of consent pertaining to the protection and management of the Melaleuca biconvexa plants on the Subject Site:

1. Condition 2, that specifies that a revised subdivision plan must be provided which shows the location of the Melaleuca biconvexa and associated buffer zone. Modification Application DS 16/1286 seeks the deletion of this condition.

2. Condition 9, that details the manner in which the Melaleuca biconvexa buffer zone is to be maintained. Modification Application DS 16/1286 seeks the deletion of this condition.

3. Condition 10 that relates to the management of trees outside the buffer zone referred to in conditions 2 and 9. Modification Application DS 16/1286 seeks the modification of this condition by deleting all reference to the buffer zone and Melaleuca biconvexa.

4. Conditions 11 to 14, each of which pertains to the protection of the Melaleuca biconvexa. Modification Application DS 16/1286 seeks the deletion of these conditions.

5. Condition 27, that pertains to information that must be supplied with the landscaping plan. Conditions 27(a), (b), (c) and (d) all relate to the protection measures for the Melaleuca biconvexa. Modification Application DS 16/1286 seeks the deletion of conditions 27(a), (b), (c) and (d).

6. Condition 48, that relates to the removal of vegetation within the road reserve. Condition 48(d) requires vegetation removal within the vicinity of proposed Lot 24 within the subdivision to be undertaken so as to minimise impacts on the Melaleuca biconvexa and its associated buffer. Modification Application DS 16/1286 seeks the deletion of condition 48(d).

7. Condition 62, that details restrictions that are to be created as restrictions-as-to-user under Section 88B of the Conveyancing Act. Condition 62(e) imposes a restriction dealing with the on-going management of the Melaleuca biconvexa and its associated buffer zone. Modification Application DS 16/1286 seeks the deletion of condition 62(e).

Planning context

6. The appeal relates to a modification application made under Section 96(1A) of the EPA Act which reads:

‘(1A) Modifications involving minimal environmental impact A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:

(a) it is satisfied that the proposed modification is of minimal environmental impact, and

(b) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and

(c) it has notified the application in accordance with:

(i) the regulations, if the regulations so require, or

(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be’.

7. These clauses of s96(1A) are preconditions to the consideration of an application for modification of a consent under that section of the EPA Act.

8. Further, s96 of the EPA Act requires that, for an application for modification of a consent that meets the preconditions set out in s96(1A):

1. subsections (1), (2) and (5) [of s96 of the EPA Act] do not apply to such a modification.

2. the following two additional subsections of s96 do apply to such a modification:

‘(3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 79C (1) as are of relevance to the development the subject of the application.’

‘(4) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified’.

Does the modification application meet the preconditions of s96(1A)?

Is the proposed modification application of minimal environmental impact?

9. To modify the conditions of consent, the consent authority, or the Court on appeal, must be satisfied that the proposed modification is of minimal environmental impact.

10. The modification application seeks to amend or delete the conditions pertaining to the retention and protection of the Melaleuca biconvexa plants on the Subject Site.

11. Melaleuca biconvexa is listed as a threatened species under Schedule 2 of the Threatened Species Conservation Act 1995 (TSC Act).

12. The effect of granting consent to the modification application would be to remove conditions requiring the retention and protection of Melaleuca biconvexa plants on the Subject Site, and so would facilitate the removal of those plants.

13. To modify the consent the Court must be satisfied that, inter alia, the removal of the Melaleuca biconvexa plants on Lot 6 is of ‘minimal environmental impact’.

14. The potential impact of the removal of the Melaleuca biconvexa plants on the Subject Site was the subject of expert ecology evidence during the hearing by Dr Kevin Mills for the Applicant and Mr Michael Smith for the Respondent.

15. The ecology experts, in their joint expert report, agreed that:

1. the modification application if successful would result in the removal of all the Melaleuca biconvexa plants on the Subject Site;

2. the closest Melaleuca biconvexa plants to those on the Subject Site are located on several properties ranging in distance between 680m and 1800m from the Subject Site.

16. However, the experts were not in agreement as to whether the action of removing the Melaleuca biconvexa plants on the Subject Site would constitute minimal environmental impact. This difference of views was based on differing assessments of the significance of impacts undertaken by the experts under the requirements of s5A of the EPA Act.

17. In particular, the experts noted that, under s5A(2)(a) of the EPA Act, a determination as to whether an action will have a significant effect on threatened species, populations or ecological communities, or their habitats, must take into account the following:

“in the case of any threatened species, whether the action proposed is likely to have an adverse effect on the life cycle of the species such that a viable local population of the species is likely to be placed at risk of extinction”.

18. Mr Smith’s opinion was that the plants represented a viable local population of Melaleuca biconvexa, and that the loss of this population would have the consequence that:

1. a viable local population of the species would be placed at risk of extinction, and

2. the action would result in a significant impact in terms of an assessment undertaken in accordance with s5A of the EPA Act.

19. Dr Mills was of a differing opinion, saying that the plants formed part of a larger local population and their loss would not be such that a viable local population of the species would be placed at risk of extinction. He said that the plants on the Subject Site, in his opinion, represented only a small proportion of a local population of Melaluca biconvexa that he considered extended for a radius of at least 2 km from the Subject Site.

20. The Respondent tendered as evidence a document entitled “Threatened Species Assessment Guidelines: The assessment of significance” published by the NSW Department of Environment and Climate Change in August 2007, and drew the experts’ attention to the relevant parts of the definitions of the ‘study area’, ‘local population’ and ‘viable’ contained therein.

21. Those definitions are:

1. Study area means the subject site and any additional areas which are likely to be affected by the proposal, either directly or indirectly. The study area should extend as far as is necessary to take all potential impacts into account.

2. Local population: the population that occurs in the study area. The assessment of the local population may be extended to include individuals beyond the study area if it can be clearly demonstrated that contiguous or interconnecting parts of the population continue beyond the study area, according to the following definitions.

1. The local population of a threatened plant species comprises those individuals occurring in the study area or the cluster of individuals that extend into habitat adjoining and contiguous with the study area that could reasonably be expected to be cross pollinating with those in the study area.

3. Viable: the capacity to successfully complete each stage of the life cycle under normal conditions.

What is the study area?

22. The experts were asked by Respondent whether, for the purpose of an assessment undertaken under s5A of the EPA Act, and in relation to the modification application, the Study Area for the assessment would be the Subject Site. The experts agreed that this was the case, and I accept their agreed opinion.

Does the stand of Melaleuca biconvexa on the Subject Site constitute a local population?

23. The Respondent further asked the experts whether other areas of Melaleuca biconvexa habitat occurred in areas that were adjoining and contiguous with the study area.

24. Mr Smith responded that, in his opinion, the population of Melaleaca boiconvexa plants on the Subject Site was an isolated occurrence with no individuals recorded on land adjoining and contiguous with the study area. He concluded that the plants constitute a local population of this species.

25. Dr Mills conceded that, notwithstanding his view that that the local population of Melaleuca biconvexa extended beyond the Subject Site, there were no other areas of Melaleuca biconvexa habitat on land that adjoined or was contiguous with the Subject Site.

26. Having considered the evidence of the experts, I am satisfied that the lands that are adjoining to, and contiguous with, the Subject Site do not contain Melaleuca biconvexa habitat. Consequently, I accept the position of Mr Smith that the cluster of Melaleuca biconvexa individuals on the Subject Site does constitute a local population of this threatened species as defined in the “Threatened Species Assessment Guidelines: The assessment of significance” published by the NSW DECC.

Is the stand of Melaleuca biconvexa on the Subject Site viable?

27. The ecology experts agreed that the location of the Melaleuca biconvexa plants on the subject site was atypical, but differed in their opinion as to the viability of the population.

28. Dr Mills said that in his opinion, while the Melaleuca biconvexa plants had been on the site for at least 11 years they may not have flowered in that time and may not flower in the future. He said that in his opinion the plants were struggling.

29. Mr Smith said that, while the location of the plants on the Subject Site was atypical for the species, the fact that the plants had been on the Subject Site for at least 11 years, and were in good condition, indicated that the population was viable.

30. In response to a question from the Respondent, Mr Smith said that, in his opinion, it was possible to design any future development on the Subject Site so as to take account of the presence of the Melaleuca biconvexa plants and enhance the viability of the population.

31. In support of that opinion, Mr Smith noted that, during a site inspection undertaken prior to the hearing, the Parties had viewed a development on Meriton St, St Georges Basin, which had incorporated a stand of Melaleuca biconvexa plants into its landscaping to facilitate the protection and management of the Melaleuca biconvexa plants in that stand. Mr Smith said that, in his opinion, a similar scheme could be adopted for the Melaleuca biconvexa plants on the Subject Site.

32. Having given consideration to the evidence of the experts, I am satisfied that:

1. the stand of Melaleuca biconvexa on the Subject Site has been present for at least 11 years, and remains present;

2. the design of future developments, including landscaping plans, could take account of the presence of the Melaleuca biconvexa plants, so as to facilitate the viability of the population,

3. the example of the landscaping viewed at Meriton St, St Georges Basin demonstrates the feasibility of integrating a stand of Melaleuca biconvexa plants successfully into the landscaping of any future development on the Subject Site;

33. The experts were unable to confirm whether the Melaleuca biconvexa plants had flowered on the Subject Site. However, the precautionary principle, requires that should there be threats of serious or irreversible environmental damage, such as would be the case if the population were removed from the Subject Site, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

34. While no evidence was adduced to confirm flowering of the Melaleuca biconvexa plants on the Subject Site, I am of the view that this lack of evidence is insufficient for me to conclude that this stage of the life cycle would not be completed.

35. Consequently, I am of the view that it is possible for the Melaleuca biconvexa plants on the Subject Site to complete their life cycle.

36. I am, therefore, satisfied that the population of Melaleuca biconvexa plants on the Subject Site should be considered viable.

Whether the proposed modification application of is minimal environmental impact

37. Based on the above considerations, I am satisfied that:

1. The individuals of Melaleuca biconvexa on the Subject Site represent a viable local population of the species as defined within the “Threatened Species Assessment Guidelines: The assessment of significance” published by the NSW Department of Environment and Climate Change in August 2007;

2. The proposed modification application would result in the removal of a viable local population of the threatened species Melaleuca biconvexa, and this would constitute an adverse effect on the life cycle of that species such that the local population would be placed at risk of extinction;

3. The proposed modification application is likely to have a significant impact on a threatened plant species listed under Schedule 2 of the TSC Act;

4. The proposed modification application would not have minimal environmental impact if it received consent.

Conclusion

38. I conclude that because the modification application would not have minimal environmental impact it does not fall within the jurisdiction of s96(1A) of the EPA Act and is unable to be determined by me in these proceedings.

39. As a consequence, I am not required to consider other matters in relation to this modification application made under s96(1A).

40. While not required to make further findings on this application, I observe that, in my view, and for the reasons provided in this judgement, should any further application be made to modify the conditions of consent that are the subject of the current application:

1. such an application is likely to result in a significant impact on a viable local population of a threatened species;

2. such an application should be accompanied by an Species Impact Statement, prepared in accordance with the requirements of the TSC Act 1995.

Orders

41. The Court orders that:

1. The appeal is dismissed.

2. The application to modify conditions of consent SF 10011, issued by Shoalhaven City Council 30 May 2011, is refused.

3. The exhibits are returned with the exception of Exhibits 1, A and B.

………………………….

Michael Chilcott

Commissioner

Decision last updated: 25 May 2017