Denning Tweed Heads Pty Ltd v Tweed Shire Council No. 2

[2018] NSWLEC 1186

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Denning Tweed Heads Pty Ltd v Tweed Shire Council No. 2 [2018] NSWLEC 1186
Hearing dates:	12-15 December 2017
Date of orders:	19 April 2018
Decision date:	19 April 2018
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1. The appeal is upheld. 2. Development Application No. 16/0355 for the subdivision of one lot into 55 lots, including 54 residential lots and new roads and servicing infrastructure, and one residual lot, at 26 Tringa Street, Tweed Heads West, is approved, subject to the conditions of consent at Annexure A. 3. The exhibits, other than exhibits 6, A and C, are returned.
Catchwords:	DEVELOPMENT APPLICATION: Subdivision for 59 residential allotments and one residual allotment; proximity to the Gold Coast Airport and impact of aircraft noise; impact on endangered ecological communities; stormwater.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Threatened Species Conservation Act 1995
Cases Cited:	BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237 Denning Tweed Heads Pty Ltd v Tweed Shire Council [2018] NSWLEC 1108 Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101 House of Peace Pty Ltd and Anor v Bankstown City Council (2000) 48 NSWLR 498 Huachong Development Pty Ltd v Western Australian Planning Commission [2008] WASAT 188 Ryan v Port Stephens Council [2008] NSWLEC 66 Terrace Tower Holdings Pty Limited v Sutherland Council (2003) 129 LGERA 195
Category:	Principal judgment
Parties:	Denning Tweed Heads Pty Ltd (Applicant) Tweed Shire Council (Respondent)
Representation:	Counsel: Ms S. Duggan SC (Applicant) Mr D. Miller SC, Mr H. Grace (Respondent)   Solicitors: Mills Oakley (Applicant) Maddocks Lawyers (Respondent)
File Number(s):	2017/72393
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 16/0355 for the subdivision of one lot into 60 lots, including 59 residential lots and new roads and servicing infrastructure, and one residual lot (the proposal), at 26 Tringa Street, Tweed Heads West (the site), by Tweed Council (the Council).

2. The appeal was subject to mandatory conciliation on 19 July 2017, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act.

3. Leave was granted by the Court on 8 September 2017 and on 28 November 2017 for the applicant to rely on amended proposals. Leave was granted by the Court during the hearing for the applicant to rely on an amended stormwater proposal (exhibit A, tab 19) on the agreed basis that the applicant pay the Council’s costs of $6000 + GST thrown away as a result of the amendment, pursuant to s 97B of the EPA Act.

4. The parties jointly requested that the Court to make findings on the contested issues and, if the proposal is to be granted consent, the parties be given an opportunity to agree on conditions of consent that reflect those findings.

Issues

5. The Council’s three principal contentions can be summarised as:

• The proposal does not adequately address its impact on the Endangered Ecological Communities (EECs) on the site and the proposal fails to adequately provide special protection and suitable habitat for the recovery of the Tweed Coast Koala.

• The proposal is a noise sensitive development and it is not appropriate for the site as it is located near the Gold Coast Airport (GCA) and under its flight paths. The GCA is Australia’s fifth busiest airport, with significant growth in flight and passenger numbers projected over the next 20 years, inevitably leading to a corresponding significant increase in exposure of the site to aircraft noise over time. Given the level of aircraft noise affectation, the site should not be subdivided and developed for a residential use in a way that seeks to maximise the yield.

• The level of the site has to be raised to address flood planning requirements and the gradients of the proposed stormwater infrastructure are at a minimum. The stormwater design is merely conceptual at this stage such that there can be no satisfaction that the site can be adequately drained.

6. The Council’s contentions include the following concerns:

• There are multiple conflicting surrounding land uses that are incompatible with a large scale low density residential development, and the proposal is inconsistent with the identified direction for the broader locality within both Council’s and the NSW Government’s longer term strategic plans;

• The Tweed Heads Wastewater Treatment Plant is located immediately to the north of the site and approximately half of the site falls within the recommended 400m buffer to sewerage treatment works (as defined in Council’s DCP A5 Subdivision Manual section A5.E.8 (Appendix E)). The property immediately to the north-west of the site is zoned for industrial use and a subdivision is approved on that site and works have legally commenced.

The site and its context

7. The site is legally described as Lot 1 DP 779976 and is comprised of an irregularly shaped allotment with an area of 5.504 hectares (ha). The site is accessed via Tringa Street on the western side and Marian Street in the south-eastern corner.

8. The site is mostly cleared with multiple remnant stands of vegetation remaining.

9. The site directly adjoins, to the north, the Tweed Council’s Tweed Heads Wastewater Treatment Plant. An industrial subdivision is approved for the property to the north-west of the site and works have commenced.

10. The site is surrounded on the eastern, southern and western sides by residential development, including single dwellings and multi-dwelling development, on lots typically 600 - 700m2 in area.

11. The southern end of the GCA runway is located approximately 900m to the north of the site. The site is situated within the Australian Noise Exposure Forecast (ANEF) 25-30 and 30-35 contour zones, as the 30 ANEF contour passes across the site in a north-west to south-east direction, so a greater proportion of the site is located between the 30 and 35 ANEF contours and the south-western portion of the site is located between the 25 and 30 ANEF contours.

12. Terranora Creek is 250m to the south of the site and Cobaki Creek is 450m to the west. Both areas drain into the wider Cobaki and Terranora Broadwater.

The proposal

13. The development application was lodged with Council on 28 April 2016.

14. The proposal is to subdivide the site into 60 lots, comprising 59 residential lots ranging in area from 450m2 to 740m2 and one residual allotment across the northern side of the site for a stormwater basin, community park and revegetated area.

15. The proposal includes clearing all existing site vegetation, major earthworks, filling and retaining walls, construction of drainage and stormwater treatment infrastructure, installation of underground electricity and telecommunications infrastructure and construction of an internal road network and external road connections to Tringa and Marian Streets.

16. The future development of each subdivided residential lot would require development consent.

Planning framework

17. Both Terranora and Cobaki Creek areas are mapped as environmentally sensitive Coastal Wetlands under State Environmental Planning Policy No 14 Coastal Wetlands (SEPP 14).

18. The site is zoned R2 Low Density Residential under the Tweed Local Environmental Plan 2014 (LEP 2014) and the proposal is permissible with consent. The relevant aims of LEP 2014 are:

(a) to give effect to the desired outcomes, strategic principles, policies and actions contained in the Council’s adopted strategic planning documents, including, but not limited to, consistency with local indigenous cultural values, and the national and international significance of the Tweed Caldera,

(c) to promote the responsible sustainable management and conservation of Tweed’s natural and environmentally sensitive areas and waterways, visual amenity and scenic routes, built environment, and cultural heritage,

(d) to promote development that is consistent with the principles of ecologically sustainable development and to implement appropriate action on climate change,

(g) to conserve or enhance the biological diversity, scenic quality and geological and ecological integrity of Tweed,

(j) to provide special protection and suitable habitat for the recovery of the Tweed coastal Koala.

19. The zone objectives, to which regard must be had at cl 2.3(2) of LEP 2014, are:

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

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

20. The minimum subdivision lot size at cl 4.1 of LEP 2014 is 450sqm (Lot Size Map Sheet LSZ_014 LEP 2014).

21. Clause 5.5 of LEP 2014 ‘Development within the coastal zone’ includes the following:

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

(b) to implement the principles in the NSW Coastal Policy, and in particular to:

(i) protect, enhance, maintain and restore the coastal environment, its associated ecosystems, ecological processes and biological diversity and its water quality, and

(vii) protect and preserve native coastal vegetation, and

(ix) ensure that the type, bulk, scale and size of development is appropriate for the location and protects and improves the natural scenic quality of the surrounding area,

(2) Development consent must not be granted to development on land that is wholly or partly within the coastal zone unless the consent authority has considered:

(e) how biodiversity and ecosystems, including:

(i) native coastal vegetation and existing wildlife corridors

22. Clause 5.9 of LEP 2014, ‘Preservation of trees or vegetation’ includes the following:

(1) The objective of this clause is to preserve the amenity of the area, including biodiversity values, through the preservation of trees and other vegetation.

(2) This clause applies to species or kinds of trees or other vegetation that are prescribed for the purposes of this clause by a development control plan made by the Council.

Note. A development control plan may prescribe the trees or other vegetation to which this clause applies by reference to species, size, location or other manner.

23. Clause 7.2(3) of LEP 2014 includes the following requirement in relation to the stormwater and drainage works proposed:

(3) Before granting development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the following matters:

(a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development,

24. Clause 7.6 of LEP 2014, ‘Stormwater management’ includes the following:

7.6 Stormwater management

(1) The objective of this clause is to minimise the impacts of urban stormwater on land to which this clause applies and on adjoining properties, native bushland and receiving waters.

(3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development:

(c) avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact.

25. Clause 7.9 of LEP 2014 is in the following terms (ANEF = Australian Noise Exposure Forecast):

7.9 Development in areas subject to aircraft noise

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

(a) to prevent certain noise sensitive developments from being located near the Gold Coast Airport and its flight paths,

(b) to assist in minimising the impact of aircraft noise from that airport and its flight paths by requiring appropriate noise attenuation measures in noise sensitive buildings,

(c) to ensure that land use and development in the vicinity of that airport do not hinder or have any other adverse impacts on the ongoing, safe and efficient operation of that airport.

(2) This clause applies to development that:

(a) is on land that:

(i) is near the Gold Coast Airport, and

(ii) is in an ANEF contour of 20 or greater, and

(b) the consent authority considers is likely to be adversely affected by aircraft noise.

(3) Before determining a development application for development to which this clause applies, the consent authority:

(a) must consider whether the development will result in an increase in the number of dwellings or people affected by aircraft noise, and

(b) must consider the location of the development in relation to the criteria set out in Table 2.1 (Building Site Acceptability Based on ANEF Zones) in AS 2021:2015, and

(c) must be satisfied the development will meet the indoor design sound levels shown in Table 3.3 (Indoor Design Sound Levels for Determination of Aircraft Noise Reduction) in AS 2021:2015.

(4) In this clause:

ANEF contour means a noise exposure contour shown as an ANEF contour on the Noise Exposure Forecast Contour Map for the Gold Coast Airport prepared by the Department of the Commonwealth responsible for airports.

AS 2021:2015 means AS 2021:2015, Acoustics—Aircraft noise intrusion—Building siting and construction.

26. Clause 7.10 of LEP 2014 requires that development consent not be granted unless the consent authority is satisfied that stormwater drainage, as an essential service for the development, is available.

27. The site is mapped as Bushfire Prone Land under LEP 2014.

Public submissions

28. A local resident attended the on-site hearing and he stated that he is not disturbed by the aircraft noise. The local resident confirmed that he had submitted an application for the subdivision of his own property, which had been refused on the basis of the impact of aircraft noise.

29. An email from a resident objector, who was unable to attend the on-site hearing, was tendered (exhibit 12). The concerns of the resident objector can be summarised as:

• The allotment should be used as another road access from Kennedy Drive through to the highway;

• The requirement to build up the land will exacerbate flooding issues in the area; and

• The proposal will result in an increase in traffic.

30. The General Manager of Operations for GCA gave evidence at the commencement of the hearing on-site. His concerns regarding the proposal, on behalf of the GCA, are:

• The proposal is an inappropriate land use owing to severe aircraft noise;

• The inevitable outcome is that new residents will complain about the aircraft noise to GCA and agitate to have flight paths changed;

• GCA is aware of the residential zoning of the site and the GCA had made a submission during the exhibition of LEP 2014 supporting the minimisation of the number of dwellings in the Tweed West area.

Expert evidence

31. The applicant relied on the expert evidence of Dr David Robertson (ecology), Mr Steven Cooper (acoustic), Mr Andrew Norris (civil engineering) and Mr Jeff Mead (planning).

32. The Council relied on the expert evidence of Mr Peter Parker (ecology), Dr Robert Bullen (acoustic), Mr Chris Thomas (civil engineering) and Ms Louise Bennett (planning).

Proximity to the Gold Coast Airport and impact of aircraft noise

Residential subdivisions in the vicinity of the site

33. Ms Bennett prepared a diagram showing the historic periods of the subdivision into residential lots surrounding the subject site (exhibit 23), which according to Ms Bennett is intended to show the pattern of subdivision and timing of subdivisions in the locality of the site. The Council submits that exhibit 23 shows that the pattern of residential development in the vicinity of the site occurred at a time when the airport was a relatively small regional airport.

34. Exhibit 23 shows that the majority of the residential subdivisions in the vicinity of the site occurred during the 1970s and 1980s and prior to 2001. Mr Mead agreed this is the case. I accept the agreed evidence that there have not been any large residential subdivisions in the vicinity of the site since 2001. Exhibit 23 does not have any particular bearing on this appeal because it merely demonstrates the historic effect of the prohibition clause, sub-cl 32(3) of the Tweed Local Environmental Plan 2000 (LEP 2000) for residential subdivisions on land within the 20 or higher ANEF contour.

Clause 7.9 of LEP 2014 and Australian Standard 2021:2015 Acoustics – Aircraft noise intrusion – Building siting and construction

35. Clause 7.9 of LEP 2014 applies to the proposal at sub-cl 7.9(2)(a), as the site is near the GCA and is in an ANEF contour of 20 or greater. Before determining the development application, the consent authority must consider whether the development will result in an increase in the number of dwellings or people affected by aircraft noise, at sub-cl 7.9(3)(a); must consider the location of the development in relation to the criteria set out in Table 2.1 of AS 2021:2015, at sub-cl 7.9(3)(b); and must be satisfied that the development will meet the indoor design sounds levels shown in Table 3.3 of AS 2021:2015.

Sub-clause 7.9(3)(a) of LEP 2014

36. The development will result in an increase in the number of dwellings or people affected by aircraft noise. I accept the Council’s submission that the impact of aircraft noise has major implications for the site’s amenity and affordability. This is not, however, considered alone, determinative, although, I accept the Council’s submission that the consideration required under cl 7.9 of LEP 2014 must be genuine and holistic.

Sub-clause 7.9(3)(b) of LEP 2014

37. This provision requires consideration of the location of the development in relation to the criteria set out in Table 2.1 of AS 2021:2015, as follows:

38. The building type is ‘house’, being dwelling houses in a low density residential subdivision, in an ANEF zone greater than 25 which is classified as unacceptable in Table 2.1. I have assumed that the word “criteria” in the provision refers to the categories in the table of acceptable, conditionally acceptable or unacceptable.

39. Table 2.1 of AS 2021:2015 includes the following text in ‘Notes’ below the table:

4. This Standard does not recommend development in unacceptable areas. However, where the relevant planning authority determines that any development may be necessary within existing built-up areas designated as unacceptable, it is recommended that such development should achieve the required ANR determined according to Clause 3.2. For residences, schools, etc, the effect of aircraft noise on outdoor areas associated with the building should be considered.

5. In no case should new development take place in greenfield sites deemed unacceptable because such development may impact airport operations.

40. I note that sub-cl 7.9(3)(b) of LEP 2014 does not specifically refer to the notes below the table, the provision specifically requires consideration of the applicable criterion, being “unacceptable” for a house on this site; however, I accept the Council’s submission that it is appropriate to include the notes to the table as part of my consideration under sub-cl 7.9(3) of LEP 2014.

41. AS 2021:2015 (“the Standard”) is fundamentally directed to a land use planning exercise and then once that is complete, any unacceptable development deemed necessary by the land use planning exercise should achieve the appropriate indoor design sound levels listed in the Standard. This is demonstrated in the Foreword of the Standard, which states that the Standard has been developed to assist in building construction and land use planning in the vicinity of airports [italics added]. The difficulty in construing cl 7.9 of LEP 2014 in relation to this application, particularly sub-cl 7.9(3)(b) requiring the consent authority to consider the location of the development in relation to the criteria in Table 2.1 of the Standard, is that the proposal for the subdivision of the site is neither building construction nor land use planning.

40. Table 2.1 of the Standard identifies uses that remain acceptable in increasing ANEF contours, for example, houses, hospitals, nursing homes and public buildings are only acceptable beyond the 20 ANEF contour; but hotel, motels, hostels and commercial buildings are acceptable beyond the 25 ANEF contour and light industrial uses are acceptable beyond the 30 ANEF contour. The intention is that permissible uses correspond to the ANEF contours and reflect the diminishing range of uses acceptable as one gets closer to the airport and its flight paths. This is a concept that is fundamentally directed to the land use planning of local government areas (“LGA”).

41. Table 2.1, including Note 4, is a matter for consideration specifically at the land use planning stage, when the zoning of the land is being considered or reconsidered. If the planning authority has considered the recommendation in Table 2.1 at the land use planning stage and determined that, despite the recommendation, the land should be zoned for permissible uses that are deemed unacceptable for the ANEF zone of the site, then the terms of Note 4, that the planning authority has determined that the development is necessary within the existing built up area, have been met.

42. The land use planning for this site, as reflected in the zoning, is for a low density residential use. According to Ms Bennett, low density residential development in the form of dwelling houses has been a permissible use on this site since 1987 and residential development has been a permissible use on this site since 1964. The objectives of the R2 low density residential zone are to provide for the housing needs of the community within a low density residential environment that is compatible with the neighbourhood. The Council has had numerous opportunities in the making of its environmental planning instruments over the years to reconsider the appropriateness of the low density residential zoning for this site.

43. The planning authority, the Council, determines the availability of land for residential development by zoning land for this purpose, as a technique of land use planning. As the bulk of land in a LGA suitable for residential development is privately owned, the Council must inevitably create an oversupply of land zoned for residential use in order to meet the land supply requirements determined by strategic studies, because it is not possible to precisely predict what land will be developed for what permissible purpose under the zone. By zoning the site for low density residential development, the Council has designated it as part of the pool of land within the LGA available for low density residential development; therefore, the Council has already determined that residential development on this land may be necessary to fulfil the requirements determined by the relevant strategic studies. Furthermore, the presumption is that development which is permissible in the zone will be permitted, provided that the proposal results in acceptable environmental impacts with reference to the matters for consideration under s 79C of the EPA Act (BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237 [117]-[118]).

44. The Council submits that the proposal is not “necessary”, within the meaning of Note 4 of Table 2.1, as the land is not required for a housing land supply purpose or a housing stock supply purpose in the Tweed Local Government Area (LGA). Although this submission is contrary to my interpretation that Table 2.1, including Note 4, is directed to the land use planning of the LGA, I will deal with it specifically because sub-cl 7.9(3)(b) of LEP 2014 requires consideration of the location of the development in relation to the criteria in Table 2.1 of the Standard.

45. The Tweed Shire Urban Release Strategy prepared in 2009 (exhibit 4, tab 25 “Tweed Urban Release Strategy”) quotes the NSW Department of Planning population projections as predicting a 35,000 person population increase in the Tweed Shire up until 2031. The Tweed Urban Release Strategy adopts the assumption that 65% of this increase in population will live in dwelling houses, which results in a requirement for 9,480 new dwellings to be constructed in the area. Depending on the density of residential development, 9,480 new dwellings will require between 593 ha and 1,580 ha of residential zoned land (exhibit 4, tab 25, f 1306).

46. The Tweed Urban Release Strategy examines land and dwelling supply projections using tables for residential zoned land with approval for subdivision and residential zoned land yet to be subdivided. According to Tables 7.2 and 7.3 of the Tweed Urban Release Strategy, there is currently 436 ha of undeveloped residential zoned land in the Tweed Shire with subdivision approval and 1,477 ha of land without subdivision approval.

47. It is Ms Bennett’s evidence that, by a process of eliminating the options under Urban Release Area in Table 7.2, the site must be included in the “other lands” category of Table 7.2 Residential Zoned Land yet to be Subdivided, which accounts for 71 ha of land zoned residential that is anticipated to remain vacant (exhibit 4, tab 25, f 1313). The Tweed Urban Release Strategy states the following in relation to the 71ha of land that purportedly includes the site,

“Much of this land is unlikely to be developed to any significant level due to physical site constraints such as aircraft noise, flooding, poor drainage and steepness…”

50. The publicly exhibited draft version of LEP 2014 included a prohibition clause almost identical to sub-cl 32(3) in LEP 2000, as follows (exhibit D, tab 20), which was deleted in the gazetted version of LEP 2014.

7.6 Development in areas subject to airport noise [local]

(3) Development consent must not be granted for development for the purpose of a caravan park, child care centre, hospital or educational establishment or for residential development (including subdivision for residential purposes, but not including the erection or use of a dwelling house) in the 25 or higher ANER contour.

not included in the gazetted version

51. Taking Ms Bennett’s evidence at its highest and assuming that the site was indeed included in the 71 ha of land anticipated to remain vacant; I note that it was included in this category in 2009, during the period that residential subdivision of the site was prohibited under cl 32(3) of LEP 2000. The making of LEP 2014, without the prohibition clause proposed in the draft LEP, undermines the conclusion of the Tweed Urban Release Strategy that land included in the 71 ha of land zoned residential in Table 7.2 is anticipated to remain vacant.

52. The Council submits that the Tweed Urban Release Strategy demonstrates that there is not a shortage of land for residential development in the Tweed Shire, because preliminary estimates show that the existing residential zoned land not currently being used for residential use, either with subdivision approval or without subdivision approval after discounting (which excludes the 71 ha of residential zoned land anticipated to remain vacant), exceeds the 2031 requirement for new dwellings. This means, according to the Council’s submission, that the residential subdivision of the site is not necessary for a housing land supply purpose or a housing stock supply purpose.

53. The North Coast Regional Plan 2036 prepared by the Department of Planning & Environment 2017 (“North Coast Regional Plan”) gives a projected number of additional dwellings required by 2036 in the Tweed Shire of 11,600 (exhibit 3, tab 14, f 601). It is Mr Mead’s evidence that this more recent report makes clear that there is a huge demand and need for additional housing stock in the Tweed Shire, as its target requires, on average, 644 new dwellings per year to be constructed, of which 60% are to be single dwellings and 40% multi-dwelling housing (exhibit 3, tab 14, f 602). According to Mr Mead, dwelling numbers, as opposed to hectare requirements for new dwellings, is the typical way of assessing housing targets in metropolitan planning. The average annual target of 386 new detached dwellings per year in the Tweed LGA is not being reached according to Mr Mead, as evidenced by the Far North Coast Housing and Land Monitor 2016 prepared by the Department of Planning and Environment (exhibit H, p 21), which documents the total number of new detached houses commenced each year in the Tweed LGA between 2009 and 2014 as ranging between 159 to 290.

54. I prefer and accept Mr Mead’s evidence that there is a need for additional housing stock in the Tweed LGA, because the North Coast Regional Plan is more recent than the Tweed Urban Release Strategy and Mr Mead was able to point to contemporary documentary evidence that the annual target of new detached dwellings per year in the Tweed LGA has not been met since 2009. The Council’s submission that the proposal is not necessary within the terms of Note 4 of Table 2.1 of the Standard is not made out by the evidence.

55. The recommendation contained in Note 4 of Table 2.1 that the development achieves the required aircraft noise reduction (ANR) contained in cl 3.2 of the Standard is captured by sub-cl 7.9(3)(c) of LEP 2014. In addition, Note 4 recommends that the effect of aircraft noise on outdoor areas associated with the buildings should be considered.

56. I accept the applicant’s submission that the site is not a greenfield site within the meaning of Note 5 of Table 2.1 of AS 2021:2015, as the site is surrounded on three sides by residential development; and it is within a suburban environment; and it is a single lot located amongst other developed land; and it has been zoned for low density residential use for a long time. It is the combination of those characteristics of the site that make it an infill site and not a greenfield site. This finding is consistent with Commissioner Brown’s reasoning in Ryan v Port Stephens Council [2008] NSWLEC 66 [33] referred to in Huachong Development Pty Ltd v Western Australian Planning Commission [2008] WASAT 188 (“Huachong”) [54] – [59].

57. A greenfield site is a blank slate of farmland made available to create a new community. It is related to the planning concept of an urban boundary, where land is allocated through mechanisms such as zoning to separate urban and rural land uses, and boundaries arise from the change in the land use category, with a ‘green belt’ or agricultural land forming a barrier to urban expansion. The greenfield site is conceptually the blank slate area made available for urban development beyond the former urban boundary. It is a term used in planning parlance, so the ordinary meaning obtained from the dictionary definition referred to in Huachong [51] is not particularly helpful (House of Peace Pty Ltd and Anor v Bankstown City Council [2000] 48 NSWLR 498 [28]).

Clause 7.9(3)(c) of LEP 2014

58. Sub-clause 7.9(3)(c) of LEP 2014 requires that the consent authority must be satisfied the development will meet the indoor design sound levels shown in Table 3.3 (Indoor Design Sound Levels for Determination of Aircraft Noise Reduction in AS 2021:2015). An extract of Table 3.3 Indoor Design Sound Levels for Determination of Aircraft Noise Reduction is as follows:

Building type and activity

Indoor design sound level*, dB(A)

Houses

Sleeping areas, dedicated lounges

Other habitable spaces

Bathrooms, toilets, laundries

50

55

60

• *These indoor design sound levels are not intended to be used for measurement of adequacy of construction.

59. Table 3.3 includes the following note:

1. The indoor design sound levels in Column 2 are hypothesized values based on Australian experience. A design sound level is the maximum level (dB(A)) from an aircraft flyover which, when heard inside a building by the average listener, will be judged as not intrusive or annoying by that listener while carrying out the specified activity. Owing to the variability of subjective responses to aircraft noise, these figures will not provide sufficiently low interior noise levels for occupants who have a particular sensitivity to aircraft noise.

60. I accept the agreement of the acoustic experts that the maximum external aircraft noise level for the loudest typical aircraft movement at the worst location on the site is 89 or 90 dB(A).

61. I accept the agreed evidence of the acoustic experts that attenuation works to future dwellings to achieve the indoor design sound levels recommended by Table 3.3 are feasible, but would require skilled tradesmen to ensure that the acoustic integrity of the construction is achieved. I accept Mr Cooper’s evidence that a standard form of construction for a residential dwelling will not achieve the recommended indoor design sound levels.

62. I accept the agreed evidence of the acoustic experts that the indoor design sound levels recommended by Table 3.3 can only be achieved with the appropriate architectural detailing of dwellings in conjunction with keeping windows and doors closed and using mechanical ventilation or air-conditioning. I accept their agreement that it is only necessary to keep windows and doors closed to achieve the recommended indoor design sound levels, as residents have the option of opening windows and door with the consequence of not achieving the recommended indoor design sound levels. I accept Mr Cooper’s evidence that there will be times when the recommended indoor design sound levels can be achieved with windows and doors open, depending on the orientation of the dwelling in relation to the noise source and the operation of the airport, including during the airport’s night time curfew.

63. I am satisfied that the future dwellings on the subdivided lots can reasonably be designed and constructed to meet the indoor design sound levels shown in Table 3.3. The parties agreed submission is that this can be imposed by condition on each title requiring the dwelling to meet the indoor design sound levels recommended by Table 3.3 of the Standard.

Outdoor areas associated with future dwellings

64. In Dr Bullen’s opinion, the maximum noise levels in outdoor areas would be up to 90 dB(A) with approximately 50 events per day with maximum noise levels exceeding 70 dB(A). According to Mr Bullen, a noise level of 60 dB(A) is sufficient to disturb a conversation.

65. I have considered the effect of aircraft on outdoor areas associated with the future dwellings and I accept Mr Mead’s evidence that the impact of noise can be sufficiently ameliorated by the siting and orientation of dwellings and by incorporating covering structures.

GCA Master Plan 2017 (exhibit 2, f 52)

66. GCA Master Plan 2017 predicts a future increase in passenger numbers (exhibit 2, tab 52, f 663). The parties agree that the GCA Masterplan predictions for ANEF contours in 2031 and 2047 (exhibit 2, tab 52, f 697) mean that the site will remain within the 20 or higher ANEF contour.

67. I accept the agreement of the acoustic experts that the proposed relocation of the GCA runway landing threshold by 300m to the south will be likely to result in only a very minor change in noise levels at the site. I accept their agreement that the projected noise exposure at the site is likely to decrease slightly in the future due to the likelihood of reduced noise emissions resulting from improvements in the design of aircraft, even if the quantity of flights is increased.

68. I am satisfied that the proposal will not hinder or have any other adverse impacts on the ongoing, safe and efficient operation of the GCA.

Objectives of cl 7.9 of LEP 2014

69. I am satisfied that the objectives of cl 7.9 of LEP 2014 are met by the proposal for the reasons given above.

Precedent

70. I am satisfied that the grant of development consent for this proposal does not set an unwarranted or unacceptable planning precedent, because future development applications for residential subdivisions and increased population densities on land subject to high levels of aircraft noise must be assessed on their own merits (Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101 [34]).

Stormwater

71. Council’s contentions regarding stormwater management are raised as contentions that may be capable of resolution by the provision of additional information prior to the determination of the application (exhibit 6). In response to the contentions raised regarding stormwater management, an amended proposal was granted leave and tendered as exhibit A, tab 19 at the commencement of the hearing in court. Mr Miller submits that the stormwater management aspect of the proposal may be capable of being an “amber light” approval. I accept the Council’s submission that the contentions raised in relation to stormwater management are not necessarily determinative.

Direct connection to the drainage channel

72. The proposal includes an alternative direct connection to the drainage channel (exhibit A, tab 19, Drawing No PS01-E100 Rev G) in response to the Council’s contention 17(b)(iii), as follows:

Direct connection of the basin outlet(s) to the open drain on Council’s Wastewater Treatment Plant Site (Lot 2 DP 1011625) should be considered as an alternative design.

73. As the applicant is willing to include this alternative as part of the proposed stormwater management proposal, the Council is to inform the applicant whether it is to be included in the proposal or imposed by condition. If it is to be included in the proposal or imposed by condition, the parties are to agree on an appropriate process for doing so as it involves works beyond the site.

Trees on the embankment batter

74. According to Mr Norris, the proposed basin has a maximum retained water depth of 1.56m in the 100 yr ARI storm and 1.03 m in the 5 yr ARI storm. For the majority of the time, the basin will be dry by design. The embankment retaining this shallow water is very broad as a result of the gentle outside batters. In Mr Thomas’ view, there would be an advantage in having the embankment covered in grass to help prevent any localised scour when the basin overtops. The embankment is, however, proposed as an ecological offset area and is proposed to be planted with eucalypts (one eucalypt per 10m2).

75. I accept Mr Thomas’ evidence that if the embankment is to be planted, then regular maintenance of the embankment, by removing leaf litter, would reduce the risk of blockage of the outlet pipes. This is satisfactorily addressed by condition 11 (exhibit 13) requiring a detailed Stormwater Management Plan, including an operational manual for all stormwater quality devices, to be provided as part of the Construction Certificate application for subdivision works.

76. In response to Mr Thomas’ concern that the pipes within the embankment may be vulnerable to root infiltration, Mr Norris opined the pipes within the embankment could be positioned at a considerable depth and appropriate materials could be used to resist tree root infiltration, including possibly encasing the pipes in concrete. Alternatively, the lining of the basin could, in Mr Norris’ view, prevent root ingress into the basin. Mr Thomas described this proposal as a control pond.

77. I accept Mr Norris’ evidence that the proposed slope of the embankment is not going to be highly prone to erosion, even in storm events, because the proposal does not include dense ground level cover and the batter slope of the embankment is gentle at 1V:7.5H.

78. The civil engineering experts agreed that the inclusion of a structural concrete element in the section through the OSD and bio-retention basin, as shown in a sketch prepared by Mr Norris in the experts’ joint report (exhibit 11, p 10) and described by Mr Norris as a buried concrete wall to 2.65-70m AHD which would have soil around it to allow revegetation independently of the basin hydraulic function, would control the height of the spillway and act to alienate the down slope embankment from the actual function of the basis so the embankment can operate only as a landscaped mound.

74. According to Mr Thomas, the inclusion of the structural concrete element would address his concerns regarding the stormwater proposal (provided that the structural concrete element remains the high point), including the risk of piping failure, the risk of the failure of the batter associated with the infiltration of roots and the risk that the landscape mound would reduce in height over time. I accept the agreement of the experts and the structural concrete element designed by Mr Norris is to be shown on amended stormwater drawings.

Raising of the site on the southern side by 500mm to provide adequate longitudinal grade for drainage

80. Mr Thomas was concerned about the shallow grades of pipes in the northern area of the site (exhibit 21). In response to Mr Thomas’ concern, the civil engineering experts agreed that the fall across the site could be increased by raising the site 500mm on the southern side to increase the fall across the site towards the north, as this would allow the pipes on the northern side of the site to have a steeper grade.

81. I accept the agreed evidence of the planning experts that the proposal to raise the site 500mm on the southern side to increase the fall across the site towards the north does not impact on the amenity of adjoining development in terms of visual privacy or overshadowing.

82. I accept the agreed evidence of the planning experts that the raising of the site on the southern side may impact on the extent of level area on some individual allotments, because the eastern and western perimeter drains are at the rear of allotments adjoining the eastern and western boundaries. According to Ms Bennett, the lots most significantly affected by the proposal to raise the site on the southern side are the allotments towards the southern end of the western and eastern sides of the site, because those allotments will be required to accommodate the greatest change in level so it will be necessary to batter an embankment between the rear yards of those future dwellings and the drain at the rear of those allotments. I accept the agreed evidence of the planning experts that the length of backyards is approximately 11.5m, with 4.5m of that length on those sites most affected by the raising of the site on the southern side required to accommodate a batter to the perimeter drain (based on a front setback at 4.5m and dwelling depth of 20m).

83. It is Ms Bennett’s evidence that the impact of the imposition of an embankment at the rear of the allotments most affected by the proposed raising of the site on the southern side may be solved by providing a larger site area for those allotments required to accommodate an embankment. It is Mr Mead’s evidence that it is possible for a future development application for a dwelling on the proposed allotments to meet the requirements of the planning regime.

84. I accept Ms Bennett’s evidence that any impact on the level area of backyards of those allotments most affected by the proposal to raise the site on the southern side in order to increase the fall across the site can be ameliorated by increasing the total site area of each of those affected allotments. The applicant is to demonstrate with an amended proposal that the allotments adjoining the eastern and western boundaries have a minimum useable level site area of 450m2, excluding the area occupied by the perimeter drain and the embankment between the level site and the drain. Once this amendment has been made to the proposal, I am satisfied that the raising of the site at the southern end to increase the fall across the site towards the north will not have an unreasonable impact on either adjoining development or the future spatial planning and amenity of the individual allotments required to accommodate the 4.5m embankment for the change in levels.

85. I accept Mr Norris’ evidence that the stormwater design demonstrates the adequacy of the proposed stormwater basin for stormwater quality control and stormwater detention and that the proposal is appropriately not a detailed design for construction. I accept Mr Thomas’ evidence that he is content that the proposal is an acceptable concept for the management of stormwater on the site, if the site is raised by 500mm on the southern side to allow the pipes on the northern side of the site to have a steeper grade, with some clarification to documentation for the bio-retention basin to ensure the inlet pipe is beneath the surface of the system to be consistent with the Water by Design Bioretention Technical Design Guidelines (exhibit 16).

Flooding impact

86. The site is flood prone. In response to the flood risk, the level of the site is to be raised using fill (exhibit A, tab 19).

87. According to Mr Thomas, filling of the site will not materially impact on peak flood levels in the nearby creek and river system. However, Mr Thomas is concerned that the proposal would effectively block the overland flow path across the site, which could cause properties near the south-eastern corner of the site to experience increased depth of flooding and increased duration of inundation during local catchment storms.

88. According to Mr Norris, the site is not freely drained. The site has a low-lying area on the southern side near Lot 33 where a large puddle forms. The puddle has a levy which cuts across the site east-west at a level of 1.5m AHD, so the puddle fills and the water then backs up onto surrounding properties. The proposal instead includes concrete lined drains with an outlet at 1m AHD and steeper grades than exist currently on the site.

89. I accept Mr Norris’ evidence that the proposed perimeter drains will provide a more hydraulically superior and efficient drainage solution for the off-site catchment, compared to the current ponded water trapped on the site, because the combination of smooth concrete drains, dedicated drainage channels with capacity to convey the 100 year flow and outlets at levels up to 0.5m lower than the likely site ponding in major rainfall episodes, will ensure that the catchment does not experience any worse inundation conditions in terms of depth or duration of inundation, than are presently experienced. In Mr Norris’ opinion, the proposed drains provide capacity well in excess of the requirements, however, the perimeter drains may need to be increased in size to accommodate run-off from the catchment to the south-east of the site or alternatively the excess capacity in the drains may be sufficient to accommodate run-off from this catchment. The applicant is to demonstrate that the perimeter drains will not adversely impact on predicted peak flood levels or the duration of flooding on adjoining properties.

90. On the basis of the evidence before me, I am satisfied that the stormwater proposal is compatible with the flood hazard of the land and will not significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties; that it incorporates appropriate measures to manage risk to life from flood; that it will not significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses; and that it is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding.

Ecology

Koala habitat on the site

91. The Council contends that the proposal fails to adequately address the aims of LEP 2014 to provide special protection and suitable habitat for the recovery of the Tweed Coastal Koala, because the proposal does not comply with the adopted strategy of the Tweed Coast Comprehensive Koala Plan of Management dated January 2015 (“KPOM”) for offset provisions.

KPOM

92. I accept the agreed submission of the parties that the KPOM (exhibit 4, tab 27) has no effect pursuant to cl 13 of State Environmental Planning Policy 44 – Koala Habitat Protection (SEPP 44) as it has not been approved by the Director-General of National Parks and Wildlife. Mr Miller submits that the KPOM is, nevertheless, a Council policy and as such, a matter for consideration (Terrace Tower Holdings Pty Limited v Sutherland Council (2003) 129 LGERA 195 [80]-[81]).

93. The Council submits that although the site is within the area identified in Figure 1 of the KPOM as the Koala Management Area (KMA), the site is not identified as a Koala Activity Precinct (KAP) or a Koala Linkage Precinct (KLP), because there are no koalas present on the site. Table 2 of the KPOM provides offset ratios for development outside of a KAP or KLP. The ecology experts agreed there are 17 Eucalyptus tereticornis (Forest Red Gums), which are prime koala habitat trees and there are secondary koala habitat trees present on the site. The offset ratio for trees with a diameter at breast height of greater than 250mm is 1:16. The Council submits that the applicant is not offsetting the removal of preferred koala food trees

94. I accept the agreed evidence of the experts that, despite the presence of some koala feed trees on the site, particularly the prime feed trees, Forest Red Gum, it is very unlikely that koalas are present on the site or would be able to access the site. According to Dr Robertson, the most recent koala sightings in 2014 and 2016 occurred at least 1km from the site and those locations are separated from the site by significant barriers such as the Pacific Motorway and Cobaki Creek. It is his evidence that a koala would have to negotiate a mangrove swamp, swim across the Cobaki Creek and walk through the suburbs along several roads in order to access some scattered trees on the site and while that is not impossible, it is very unlikely to occur. According to Dr Robertson, there is no current usage of the site by koalas and there have been no occurrences of koalas in the vicinity of the site. Furthermore, there is an abundance of koala habitat on the opposite side of Cobaki Creek.

95. I accept Dr Robertson’s evidence that the site is extensively cleared, as this was evident on the site view, and that the vegetation on the site is degraded and fragmented such that the value of the site for koalas has been all but extinguished. Notwithstanding this finding, I agree with the parties that is appropriate to offset the prime koala habitat of 17 Forest Red Gums to be removed from the site at the ratio recommended by the KPOM in order to achieve the objectives of the KPOM and because doing so goes some way to maintaining the native flora and habitat for fauna of the region.

Replanting on the embankment at the northern area of the site

96. I accept the agreement of the ecology experts that the proposed 640 trees per ha could be planted on the embankment and based on the species of trees, self-thinning of trees would occur over time as those trees matured. In Mr Parker view it would be better to plant 400 trees per ha and not rely on self-thinning and Dr Robertson favours the proposed 640 trees per ha and allowing them to self-thin to become a lower density.

97. Dr Robertson’s EIA includes the following commitments on behalf of the applicant for on-site revegetation:

The subdivision of the subject site includes a 6404m2 along the northern part of the subject site. The areas will be replanted with native species diagnostic of SCFF with a focus on replanting of koala food trees.

Although the only koala food tree recorded within the subject site is Eucalyptus tereticornis (Forest Red Gum), it is recommended that individuals of Eucalyptus robusta (Swamp Mahogany) are also included in the replanting as this species comprises both a koala food tree and a diagnostic canopy species of SCFF.

Canopy trees, namely Eucalyptus tereticornis and Eucalyptus robusta will be planted at a density 1 unit/10m2 to allow for regeneration to an open forest growth form. Mid-storey and ground cover species diagnostic of SCFF will also be planted at densities of 1/10m2 and 3/m2 respectively to allow for appropriate revegetation to SCFF.

These planting densities allow for the planting of approximately 640 trees, giving an offset ratio of approximately 37.5:1 for the removal of the 17 koala food trees.

98. I am satisfied that the on-site revegetation proposed satisfies the offset pathway recommended by the KPOM and amply achieves the objectives of the KPOM.

Impact of the proposal on Endangered Ecological Communities

99. I accept the uncontested submission of the applicant that the now repealed Threatened Species Conservation Act 1995 (TSCA), in force at the time this application was made, is saved for the purposes of biodiversity banking under the provisions of Part 7A of the TSCA. The proposal does not include an application for a biobanking statement under the TSCA and consequently the applicant does not have the benefit of sub-s 127ZO(5) of the TSCA and I must consider the likely impact of the development on biodiversity values under sub-s 79C(1)(b) of the EPA Act.

100. The proposal involves the removal of all vegetation on the site to enable filling of the site, including vegetation representative of Endangered Ecological Communities (EEC) listed under the TSCA. The Council contends that the proposal does not comply with the Office of Environment and Heritage (OEH) policy for offsetting impacts on biodiversity, because the proposal has not been accompanied by a biobanking statement or other impact mitigation proposal consistent with the objectives of LEP 2014 or the OEH offsetting policy.

Spatial extent of the EEC on the site

101. According to Dr Robertson, the vegetation on the subject site is “Subtropical coastal floodplain forest of the NSW North Coast bioregion” (SCFF), an endangered ecological community listed by the Threatened Species Conservation Act 1995. Mr Parker recognised both SCFF and another endangered ecological community (EEC) called “Swamp sclerophyll forest on coastal floodplains of the NSW north coast, Sydney basin and south eastern corner bioregions” (SSF). In Dr Robertson’s view, these EECs are closely related and often occur intermingled on coastal floodplains and either classification could be applied to the SSF, due to the vegetation composition and the highly modified nature of the subject site.

102. The ecology experts disagreed on the spatial extent of those EECs on the site. According to Dr Robertson, there is 0.96 ha of SCFF on the site and according to Mr Parker, there is 1.6 ha of EECs on the site.

103. According to Dr Robertson, the original vegetation of this site, some sort of forest, has been heavily cleared and modified, which has resulted in the alteration of the soils. There is a layer of grass remaining on the site, because the clearing process has removed the trees, leaving grassland. The site was not originally grassed, instead the grasses formed an understorey to the original forest and the site has been converted to grassland by the clearing process and the alteration of soils. The vegetation communities remaining on the site have been mapped by Dr Robertson (exhibit D, tab 12 “Figure 3.1”). In Dr Robertson’s view, the EEC on the site is a regenerated, highly modified example of SCFF.

104. The vegetation communities remaining on the site have also been mapped by Mr Parker (exhibit 9, Fig 1 p 13). Mr Parker said he determined the extend of EEC on the site by using a species of the EEC, principally Kangaroo Grass for the SSF, combined with the tree canopies and tree protection zones which he described as 12 times the diameter of the tree.

105. Dr Robertson disagreed with using tree protection zones as a component in determining the boundary of an EEC because tree protection zones are a concept used by arborists for protecting trees. In his experience, the most appropriate method to map EECs is to interpret aerial photographs followed by ground-truthing.

106. The two maps demonstrate that the ecology experts broadly agreed on the 0.94 ha of EEC identified by Dr Robertson, but Mr Parker included additional areas as EEC that link the isolated pockets of SCFF identified by Dr Robertson. In Dr Robertson’s view, the additional areas mapped by Mr Parker do not comprise EEC and are instead areas of highly modified mown grassland, cleared tracks, and two smaller patches with only characteristic species of SCFF. According to Dr Robertson, the SCFF listing does not include a recognised native grassland form remaining after clearing, although some endangered forests and woodland EECs do. In his view, even if derived native grassland did exist for the two EEC communities, it would not apply to the grassland on the site because although there are some native species within some areas of grassland on the site, including the Kangaroo Grass cited by Mr Parker, those native species occur with many weed species and are in areas where soils and drainage patterns have been altered by past land uses. In Dr Robertson’s view, the grassland areas of the site included by Mr Parker in his EEC map on the site are not properly representative of the final determinations for either the EECs SSF or SCFF.

107. The difference between Dr Robertson’s spatial map identifying 0.94 ha of EEC and Mr Parker’s spatial map identifying 1.6 ha of EECs is that Mr Parker’s 1.6 ha would require roughly double the credits required to be retired under the BioBanking Biodiversity and Offsets Scheme when compared to Dr Robertson’s 0.94 ha. I accept and prefer Dr Robertson’s reasoning and identification of 0.94 ha of EEC on the site and I accept his evidence that the grasslands on the site, identified by Mr Parker as being EEC, do not have the structural characteristics or the floristics representative of the EECs. I accept that there should not be a requirement imposed on the consent to offset areas of highly modified grassland which include Kangaroo Grass.

Biobanking proposal

108. The proposal includes a biobanking credit report (exhibit A, tab 16, f 236) with the following ecosystem credits summary, based on the Biobanking Assessment Methodology (BBAM) (exhibit 19):

Plant Community type	Area (ha)	Credits required	Red flag
Swamp Mahogany swamp forest on coastal lowlands of the NSW North Coast Bioregion and northern Sydney Basin Bioregion	0.40	8.48	No
Swamp Mahogany swamp forest on coastal lowlands of the NSW North Coast Bioregion and northern Sydney Basin Bioregion	0.54	22.00	Yes
Total	0.94	30

109. The BBAM provides a consistent rule based approach for determining offsets, so no issue was raised by the Council regarding the numeric calculation that 0.94 ha of EEC translates to a requirement to purchase and retire 30 credit points. The Council’s contention is that the applicant is seeking to have the requirement for the purchase and retirement of those credits imposed on the consent by way of condition, which is an informal process that avoids the “red flag” determination by the Chief Executive of the OEH required for a biobanking statement to be issued for a red flag area.

110. An area of land is regarded as a red flag area under the BBAM if it contains a landscape feature, native vegetation or threatened species and populations listed in section 9.2.2 of the BBAM. Where the site includes a red flag area and the development will have an adverse impact on that area, the development is not to be regarded as improving or maintaining biodiversity values unless the Chief Executive of OEH makes all of the relevant determinations set out in sections 9.2.4.1(b), 9.2.5, 9.2.6 and 9.2.7, including that where the red flag area contains native vegetation and the proposal will have an adverse impact on that vegetation, that the viability of biodiversity values in the red flag area is low or not viable. The viability of biodiversity values in an area depends on the condition of the vegetation, the size of the area of biodiversity values and its isolation, the current or proposed tenure and zoning under any relevant planning instrument, current and proposed surrounding land use, and whether mechanisms and funds are available to manage low viability sites such that their viability is improved over time.

109. It is Dr Robertson’s evidence that it is only necessary for the Chief Executive of OEH to make a red flag determination if an applicant is seeking a biobanking statement. According to Dr Robertson, the applicant went through a formal process of assessing the impacts of the development on the ecological values on the site by preparing a report which assessed the current condition of the vegetation on the site and considered its viability and the implications for clearing that vegetation on the site. The applicant has put forward a proposal to offset the removal of vegetation on the site even though the assessment showed that removing the vegetation will not significantly affect the biodiversity values of the region. In Mr Parker’s opinion, the approach the applicant has taken not to obtain a biobanking statement is completely inappropriate, because it avoids the red flag determination by OEH.

110. In Dr Robertson’s opinion, the EEC vegetation on the site is identified as a red flag area because it is connected to an area of vegetation of 4 hectares or more that is identified as endangered, even though the vegetation on the site is separated from the larger area by small gaps, it is regarded as connected for the purposes of biobanking. It is his evidence that the majority of the site is cleared to grass and it is regularly mown and the site has rock and soil stockpiles on it and there are a maximum of five to seven tree hollows across the whole site which is a miniscule number for a site like this.

111. I accept Dr Robertson’s evidence that the site has been substantially cleared and there remains on the site, following past clearing, landfilling and earthworks, highly fragmented and degraded vegetation which includes species representative of EECs. I am satisfied by all of the evidence before me, particularly the context of the site surrounded on three sides by suburban residential development, that the contribution of the areas on the site identified as EECs to the regional biodiversity is low, and that the proposal is consistent with the guidelines for the avoidance and minimisation of impacts to biodiversity values for the site selection and planning phase described in the BBAM at 8.3.2.

112. I am satisfied that the proposal to revegetate the residual allotment along the northern edge of the site with native species diagnostic of SCFF, with a focus on replanting of koala food trees, and to purchase and retire 30 biobanking credit points, represents an appropriate mitigation strategy to the loss of any biodiversity on the site, and I am satisfied that it is acceptable to impose these requirements on the consent for subdivision by condition.

Conclusion

115. On the basis of all of the evidence before me, I am satisfied of the following:

• The proposal can be granted development consent once the amendments listed in the Directions below have been made to the proposal.

• The proposal is consistent with the strategic planning for the Tweed area and the objectives of the R2 Low Density Residential zone under LEP 2014.

• The impact of noise affectation from the operations of the GCA can be adequately dealt with by requiring the construction of each future dwelling to meet the indoor design sound levels recommended by Table 3.3 of AS 2021:2015.

• The proposal will not impact the recovery of the Tweed Coast Koala.

• The proposal to revegetate the residual allotment along the northern edge of the site with native species diagnostic of SCFF and to purchase and retire 30 biobanking credit points, represents an appropriate mitigation strategy to the loss of any biodiversity on the site.

• The proposal adequately addresses the flood planning requirements for the site and the increase in the gradient of the stormwater infrastructure responds to Council’s concerns regarding the stormwater design.

• The proposal is compatible with surrounding land uses.

Directions

116. Directions were handed down on 6 March 2018 (Denning Tweed Heads Pty Ltd v Tweed Shire Council [2018] NSWLEC 1108), as follows:

• The applicant is to file and serve by 30 March 2018 settled documentation to reflect my determinations, including the following:

• The southern end of the site is to be raised by 500mm to increase the batter crest position and the gradient of the fall across the site towards the north, consistent with the sketch in exhibit G;

• The structural concrete element designed by Mr Norris and shown in the civil engineers joint report, exhibit 11 at page 10, is to be added to the stormwater documentation;

• Mr Norris is to determine the appropriate pipe positions and materials for pipes located in the embankment in order to avoid tree root infiltration of those pipes and this information is to be added to the stormwater documentation;

• The maximum width required to accommodate the perimeter drains is to be determined by Mr Norris and indicated on the stormwater documentation and the extent and slope of batters is to be consistently shown on all documentation;

• Lots 1-9 and 51-59 are to each have a minimum level site area of 450m2, excluding the area of the perimeter drain (as determined by Mr Norris) and excluding the area of the embankment adjacent to the drain which accommodates the change in level between the raised site and the perimeter drain. If it is necessary to reduce the yield of the proposal to achieve this requirement, then the applicant is to do so;

• The development consent documentation is to be consistent.

• The Council is to inform the applicant whether or not it has a preference for direct connection of the basin outlet(s) to the open drain on Council’s Wastewater Treatment Plant Site (Lot 2 DP 1011625) and the proposal is to be amended accordingly. If the Council is required to give owner’s consent for works required outside the site boundary, the parties are to agree on an appropriate process for these works.

• The respondent is to file and serve, by 13 April 2018, settled conditions of consent to reflect my determinations and is to include the following condition:

• A requirement imposed on each of the residential lots titles that the future dwelling is to meet the indoor design sound levels recommended by Table 3.3 of AS 2021:2015.

117. The applicant filed the amended proposal on 3 and 4 April 2018 and the Council filed the agreed conditions of consent on 17 April 2018.

Orders

118. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 16/0355 for the subdivision of one lot into 55 lots, including 54 residential lots and new roads and servicing infrastructure, and one residual lot, at 26 Tringa Street, Tweed Heads West, is approved, subject to the conditions of consent at Annexure A.

3. The exhibits, other than exhibits 6, A and C, are returned.

____________

Susan O’Neill

Commissioner of the Court

72393.17 Annexure A (C)

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Amendments

19 April 2018 - 1) Correction to filing date of agreed conditions of consent at [117].

2) Correction to image format to display images correctly.

Decision last updated: 19 April 2018