Denwol Suffolk Pty Ltd v Byron Shire Council - [2023] NSWLEC 1602

Land and Environment Court

New South Wales

Medium Neutral Citation: Denwol Suffolk Pty Ltd v Byron Shire Council [2023] NSWLEC 1602
Hearing dates: 5- 9 June 2023, written submissions on 7 August 2023
Date of orders: 12 October 2023
Decision date: 12 October 2023
Jurisdiction: Class 1
Before: Dickson C
Decision:
The Court orders that:
(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent thrown away as a result of the amendment of the application as agreed or assessed.
(2)   The appeal is dismissed.
(3)   Development Application 10.2022.137.1 seeking consent for the demolition of existing structures, removal of 36 trees and construction of a two-storey mixed use development across two buildings at 9-13 Clifford Street, Suffolk Park (Lot 1 DP 635305 and Lot 1 DP 853706) is determined by way of refusal.
(4)   Exhibits are returned with the exception of Exhibit 2, A, B and E.

Catchwords:
DEVELOPMENT APPLICATION – demolition of structures, tree removal, construction of a two-storey mixed use development across two buildings – tree removal and management of bushfire risk – impact on endangered ecological community Coastal Cypress Pine Forest –whether the development adequately avoids or minimises impacts upon biodiversity values – whether the proposed development has a serious and irreversible impacts on biodiversity impacts – whether the proposed landscaping of the development is adequate – whether the likely impacts of the development are reasonable – appeal dismissed

Legislation Cited:
Biodiversity Conservation Act 2016, ss 1.3, 1.5, 1.6, Pt 2, Sch 2, Pt 7, ss 6.2, 6.4, 6.12, 6.7, 7.2, 7.4, 7.7, 7.13, 7.16
Biodiversity Conversation Regulation, cll 1.4, 6.5, 6.7, 7.1, 7.2,
Byron Local Environmental Plan 2014
Environmental Planning and Assessment Act 1979, ss 4.17, 8.15, 8.7
Land and Environment Court Act 1979, s 34
Threatened Species Conservation Act 1995, Pt 2, Div 5

Cases Cited:
Blake v Ku ring gai Council [2021] NSWLEC 1461
Planners North v Ballina Shire Council (2021) 251 LGERA 309; [2021] NSWLEC 120
Bulga Milbrodale Progress Association Inc. v Minister for Planning and Infrastructure and Warkworth Mining Ltd(2013) 194 LGERA 347; [2013] NSWLEC 48
Tomasic v Port Stephens Council [2021] NSWLEC 56

Texts Cited:
Byron Shire Development Control Plan 2014
Department of Planning, Infrastructure and Environment, Biodiversity Assessment Method, October 2020
Department of Planning, Industry and Environment, Guidance to assist a decision-maker to determine a serious and irreversible impact
NSW Department of Planning and Environment, Coastal Cypress Pine Forest in the NSW North Coast Bioregion Endangered Ecological Community
NSW Department of Planning and Environment, NSW State Vegetation Type Map
NSW Rural Fire Service, Planning for Bushfire Protection 2019
Standards Australia, AS 4970 2009 Protection of Trees on Development Sites

Category: Principal judgment
Parties: Denwol Suffolk Pty Ltd (Applicant)
Byron Shire Council (Respondent)
Representation:
Counsel:
J Lazarus SC (Applicant)
A Seton (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 2022/269686
Publication restriction: Nil

Judgment

COMMISSIONER: This appeal concerns a development application seeking consent for the demolition of existing structures, removal of existing trees and construction of a two-storey mixed use development across two buildings. The development is proposed at 9 -13 Clifford Street, Suffolk Park (the site). The Applicant filed a Class 1 Application, appealing the actual refusal of the development application pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act).
The matter was listed for conciliation on 3 February 2023 pursuant to s 34 of the Land and Environment Court Act 1979. The conciliation was terminated. The Applicant was granted leave by the Court to amend their development application on 21 March 2023. The Applicant was further granted leave to amend their development application during the hearing in response to the expert evidence of the planning experts. Leave was not opposed by the Respondent and the parties agree that for the purposes of s 8.15(3) of the EPA Act that the amendments are not minor.
As amended the development application seeks consent for two retail spaces, six townhouses and seven apartment units across two buildings as follows:

Building A, fronting Clifford Street

- two retail spaces on ground floor
- residential parking, retail parking and loading zone.
- seven apartments on the first floor

Building B

- six two-storey townhouses
- residential and visitor parking

The Issues

Despite amendments to the development application, the Respondent maintains that the development warrants refusal on the following grounds:

That the proposed development is likely to have a serious and irreversible impact (SAII) on biodiversity values and fails to incorporate sufficient measures to avoid or minimise adverse impacts on biodiversity values.

Because the proposed development provides insufficient asset protection zone (APZ) from the adjoining Council Reserve and the performance solution proposed is not feasible.

That the bulk, scale and density of the development is incompatible with the character of the local area.

That the town houses (in building B) are of a monotonous design with minimal articulation along the 43m of the proposed building.

The proposed development retains an insufficient portion of the existing vegetation which forms part of the Coastal Cypress Pine Forest in the NSW North Coast Bioregion Endangered Ecological Community (Cypress Pine EEC). Further, there is uncertainty of the viability of the trees proposed for retention. The proposed landscaping lacks an integrated approach and lacks provision for canopy trees.

The Building A provides insufficient parking for the commercial development and the allocation of the proposed car parking will impact customers.

Insufficient information has been provided to validate the conclusions of the Applicant’s Traffic and Parking Assessment with respect to the traffic impacts of the development to the intersection of Clifford Street and Broken Head Road.

The Applicant’s proposed Waste Management Strategy lacks contingency as it relies firstly on a single commercial contactor to perform the waste collection function and secondly relies on availability of a single waste collection vehicle from that contractor.

In addition to the above issues, the Applicant also objects to the imposition of the section titled “Footpath and Associated Pedestrian Crossing” in the following proposed condition on the grounds that it is unreasonable and as it would not satisfy the test at s 4.17(1) of the EPA Act and is beyond power. The proposed condition reads:

“14. Consent required for works within the road reserve Prior to the issue of a Construction Certificate, consent from Council must be obtained for works within the road reserve pursuant to Section 138 of the Roads Act 1993. Three (3) copies of engineering construction plans must accompany the application for consent for works within the road reserve. Such plans are to be in accordance with Council’s current Design & Construction Manuals and are to provide for the following works:
Driveway
…
Footpath and Associated Pedestrian Crossing
1.2m wide concrete footpath on the southern side of Clifford Street between the development site and the bus stop west of the site at a crossfall of 1% or 1:100 (maximum 2.5% or 1:40). Footpath in accordance with Northern Rivers Local Government Drawing R-07.
Pedestrian crossing and ramps to be provided in Clifford St connecting the northern and southern footpath adjacent the development site. Pedestrian crossing and ramps are to be designed to Northern Rivers Local Government Drawing R-04, Austroads Guide to Road Design and TfNSW Pedestrian Crossing Guideline 2022.
The provision of pedestrian crossing in Clifford St, subject to the following warrants in Chapter 6.1.2 of TfNSW Pedestrian Crossing Guideline 2022 - TS 00043:1.0: -
• In each of two separate one-hour periods in a typical day, the pedestrian flow per hour (P) crossing the road is, or is expected to be, equal to or greater than 20.
• Children and elderly or mobility impaired pedestrians count as two pedestrians.

…”

Finally, the Applicant also objects to the imposition of the following condition which imposes a restriction on the use of the development for short term rental accommodation:

“97. Use of Dwellings The dwellings within this development are not to be used for short term (less than 3-month duration) rental accommodation, “holiday let” or as tourist and visitor accommodation.”

The site and its context

The subject site comprises Lot 1 DP 635305 and Lot 1 DP 853706, 9-13 Clifford Street, Suffolk Park. The site is currently occupied by nine residential units with carparking. The site has a total area of 4,059.6m², with a southern (front) boundary to Clifford Street of 71.3 metres and a northern (rear) boundary of 57.55 metres.
The Biodiversity Assessment Report (BDAR) submitted with the development application indicates the site contains an endangered ecological community (EEC) listed under the Biodiversity Conservation Act 2016 (BC Act), being the Cypress Pine EEC.
The site is mapped as bushfire prone land – vegetation buffer on the bushfire prone land map.
The site is bounded to the north and north west by a Council Reserve. The site is adjoining by residential land to the east, predominantly comprising dwelling houses, dual occupancies with some medium density developments. To the west of the site is the Suffolk Park business area.
The site is situated within both the R2 Low Density Residential and the B1 Local Neighbourhood zone as nominated in Byron Local Environmental Plan 2014 (LEP 2014). Those zones are indicated in the following figure:

Source: NSW Planning Portal, “NSW Planning Portal Spatial Viewer” accessed 15 September 2023

The site is identified in the following aerial photograph:

Source: access on 15 September 2023

Public Submissions

In determining the development application, the Court is to take into consideration any submissions made during the notification of the development application. The submissions received by Byron Shire Council since the lodgement of the development application were tendered in the proceedings as part of the Respondent’s evidence. I have read and considered those submissions.
The Respondent confirms that the original development application was publicly exhibited in 2022, and the amended development application in 2023, in accordance with the requirements of Byron Shire Development Control Plan 2014. The issues raised by the submissions on the amended development application can be summarised as:

Whilst the amended plans reduce the footprint of Building A, the change to tourist accommodation provides negligible benefit to the community.

The bulk, scale and façade design of the proposed development is incompatible with the character of the locality.

The development represents a threat to the Cypress Pine EEC where native vegetation clearing is nominated as a key threatening process under the Threatened Species Conservation Act 1995 (TSC Act).

The relocation of the APZ onto the site results in the removal of a further 10 trees which is unacceptable.

The modified development remains an overdevelopment of the site.

The previous consent granted for the site (now lapsed) represented a more appropriate scale of development for the site.

The development would increase traffic issues in Clifford Street, and as a result, with the intersection of Clifford Street and Broken Head Road. The existing congestion and risk will be increased.

The submitted traffic study underestimates the impact to the intersection that will arise from the development.

The traffic study is out of date and relies on data from 2013.

The traffic impacts from this development need to be considered with the approved daycare centre in Clifford Street and the significant increase in tourism the area has experienced.

The site sits within the Tallow Creek Flood Plain and may be subject to flooding. The proposed development increase in impervious areas will exacerbate this risk.

The site has a high water table which will affect the management of stormwater on the site.

The proposed development does not respond to the unique village character of Suffolk Park.

The proposed development will result in the demolition of existing affordable housing.

The amended plans unacceptably increase the removal of vegetation that will result from the development. The vegetation removal proposed is unreasonable given the character of the area and the identification of some of the site as Cypress Pine EEC.

The proposed tree removal may impact on Koala habitat, noting that Koalas have been seen in the locality.

The proposed development provides insufficient parking for the retail/commercial uses proposed. This will impact on already constrained street parking.

The stormwater design relies on infiltration from two underground tanks. The lack of pump provision is not the best practice and the infiltration rates relied on are not realistic. The tanks proposed need to be larger and pumps should be provided.

The Applicant’s stormwater modelling contains anomalies that should be addressed.

The proposed development, in particular the tree removal and increased stormwater, will affect the Ti Tree Aboriginal Place located to the south of the site.

The prolonged construction time for the development will impact the amenity of the locality for existing residents.

The project will clear 0.13ha of Cypress Pine EEC and result in significant pruning of other retained Cypress Pine EEC. The extent of impact is excessive.

During the hearing, provision was made for a number of objectors to address the Court directly and give evidence of their concerns in relation to the proposed development. These objections emphasised many of the concerns summarised in the proceeding.
During the notification period for the amended development application, twenty -five submissions in support of the development were received by Council. The key points in those submissions can be summarised as:

The amendments are responsive to the previous concerns raised.

The proposed development will provide additional housing and commercial space, both of which are in demand in the locality.

The development will replace outdated facilities with new building stock.

The amended plans appear compliant with the planning controls and should be approved.

The proposed facilities are needed in the area.

The proposed development represents the evolving character of Suffolk Park and is a positive change.

The development will encourage people to visit and stay in Suffolk Park which will improve business viability.

The Experts

In the proceedings, the Court was assisted by the following experts:

Town Planning: Jeff Mead (Applicant) and Gerard Turisi (Respondent)

Ecology: Dr David Robertson (Applicant) and Dr Christopher McLean (Respondent)

Bushfire: Dan Pedersen (Applicant) and Grahame Douglas (Respondent)

Acoustic: Ben White (Applicant) and Paul Johnson (Respondent)

Stormwater engineering: Dr Daniel Martens (Applicant) and Renan Solatan (Respondent)

Landscape: Mark Perkins (Applicant) and Greg Tesoriero (Respondent)

Traffic: Robert Varga (Applicant) and Renan Solatan (Respondent)

Waste: Craig Helbig (Applicant) and Jenny Hellyer (Respondent)

Each of these groups of experts prepared joint reports which were tendered as evidence in the proceedings. As a result of the joint reporting process, a number of Respondent’s previous contentions were resolved by amendments to the application or the imposition of conditions. These include the potential impact of stormwater on the Ti Tree Lake Aboriginal Place, the previous noncompliance with the floor space ratio (FSR) development standard, the provision of adequate solar access to the proposed development and the management of stormwater from the proposed development.

The Cypress Pine EEC

The parties and their experts agree that that the vegetation on the site is Cypress Pine EEC. Importantly, Cypress Pine EEC is listed as an endangered ecological community in Pt 2 of Sch 2 of the BC Act, which relies on its description in the determination of the Scientific Committee under Div 5 of Pt 2 of the TSC Act (the Final Determination). The following extract of the Final Determination is relevant:

“1. Coastal Cypress Pine Forest in the NSW North Coast Bioregion is the name given to the ecological community dominated by Coastal Cypress Pine, Callitris columellaris, found typically on coastal sand plains, north from the Angourie area on the far north coast of NSW. The community is characterised by the species listed in paragraph 2, and typically has a closed to open canopy of C. columellaris, which may be mixed with eucalypts, wattles, banksias and/or rainforest trees, and an open to sparse understorey of shrubs, sedges and herbs. Structural forms of the community include woodland, open forest and closed forest, although the tree stratum may be very sparse, absent, or comprised only of dead trees in stands affected by partial clearing, tree senescence or fire.
2. Coastal Cypress Pine Forest is characterised by the following assemblage of species:
Abildgaardia vaginata Eragrostis brownii
Acacia aulacocarpa   Eucalyptus pilularis
Acacia disparrima subsp. Eucalyptus resinifera
disparrima subsp. hemilampra
Acacia ulicifolia Eucalyptus signata
Acianthus caudatus Euroschinus falcata
Acianthus exsertus   Halfordia kendack
Acronychia imperforata   Hoya australis subsp.
Acrotriche aggregata   australis
Allocasuarina littoralis Imperata cylindrica var.
Alyxia ruscifolia major
Araucaria cunninghamii Leptospermum
Aristida spp. polygalifolium
Astroloma humifusum   Leucopogon ericoides
Austromyrtus dulcis Leucopogon
Baloskion tetraphyllum   leptospermoides
subsp. meiostachyum   Leucopogon margarodes
Banksia integrifolia subsp. Lomandra longifolia
integrifolia   Monotoca elliptica
Banksia serrata   Notelaea longifolia
Bulboschoenus barbata Oxylobium robustum

Callitris columellaris Paspalidium distans
Chiloglottis sp. Persoonia stradbrokensis
Commelina cyanea Platycerium bifurcatum
Corymbia intermedia Pomax umbellata
Cyclophyllum longipetalum Pteridium esculentum
Cymbopogon refractus var. Pterostylis nutans
refractus Pterostylis pedunculata
Cyperus stradbrokensis Zieria smithii
Dianella caerulea
3. The total species list of the community is considerably larger than that given above, with many species present in only one or two sites or in low abundance. The species composition of a site will be influenced by the size of the site, recent rainfall or drought condition and by its disturbance (including fire) history. The number of species, and the above ground relative abundance of species will change with time since fire, and may also change in response to changes in fire regime (including changes in fire frequency). At any one time, above ground individuals of some species may be absent, but the species may be represented below ground in the soil seed banks or as dormant structures such as bulbs, corms, rhizomes, rootstocks or lignotubers. The list of species given above is of vascular plant species; the community also includes micro-organisms, fungi, cryptogamic plants and a diverse fauna, both vertebrate and invertebrate. These components of the community are poorly documented.
4. Coastal Cypress Pine Forest is dominated by a dense to open canopy of Callitris columellaris (Coastal Cypress Pine), sometimes with Coyrmbia intermedia (Pink Bloodwood), Eucalyptus pilularis (Blackbutt), E. signata (Scribbly Gum), Acacia disparrima subsp. disparrima (Salwood), Allocasuarina littoralis (Black She-oak), Banksia integrifolia subsp. integrifolia (Coast Banksia) or B. serrata (Old Man Banksia). The typically sparse layer of shrubs may include, Acacia ulicifolia (Prickly Moses), Leucopogon ericoides (Pink Beard-heath), L. leptospermoides, Monotoca elliptica (Tree broom-heath) and juveniles of any of the canopy species. The typically sparse groundcover comprises scattered grasses, including Aristida vagans (Three-awn Speargrass), Eragrostis brownii (Brown’s Lovegrass), Imperata cylindrica var. major (Blady Grass) and Paspalidium distans, graminoids such as Baloskion tetraphyllum subsp. meiostachyum (Plume Rush) and Lomandra longifolia (Spiny-headed Mat-rush) and forbs including Dianella caerulea (Blue Flax Lily) and Pomax umbellata or it may also contain a rich orchid flora (Moye in litt. 2008). The community may have a distinctive litter layer with patches of compressed Callitris branchlets, which have a characteristic chemical composition that is high in terpenes, such as limonene and pinene (Ogunwande et al. 2005). Undisturbed stands of the community may have a woodland or forest structure, with C. columellaris dominating the canopy, although larger trees, such as eucalypts may be emergent. Stands of the community that have been partially cleared in the past may be reduced to scattered trees and a few characteristic ground cover species, possibly with other native species represented in a soil seed bank. Fires may also influence the structure of the community, as the dominant tree species, C. columellaris, is generally killed when burnt. Post-fire regeneration of the community may therefore have the structure of shrubland or heathland for many years.
5. A number of threatened flora species have been recorded in Coastal Cypress Pine Forest or associated ecotones. These include Acronychia littoralis (Scented Acronychia), Archidendron hendersonii (White Lace Flower), Geodorum densiflorum (Pink Nodding Orchid, Shepherds Crook Orchid) and Drynaria rigidula (Basket fern).
6. Coastal Cypress Pine Forest typically occurs on the inland side of the coastal sandplain on low rises that represent eroded Pleistocene backbarrier dunes (Morand 1996). A few examples of the community are located on coastal bedrock hills mantled with wind-blown sand or more rarely without a sandy mantle (e.g. Landmark 1999). The community has also been recorded from Holocene sand dunes (Griffith 1999). The sandy soils are generally deep, freely draining podsols, loam or clay soils associated with basalt or, less commonly, fine-grained sedimentary rocks and similar substrates. Currently known occurrences of the community are generally within 35km of the coast and below 100m elevation. Mean annual rainfall varies from approximately 1000 mm up to 1800 mm across the distribution of the community.
7. Coastal Cypress Pine Forest is apparently restricted to the NSW North Coast bioregion. The dominant species, C. columellaris, extends into south-east Queensland as far north as Hervey Bay. Biantoff and Elsol (1989) record C. columellaris in forest on the Sunshine Coast in south-east Queensland, although it is uncertain whether this represents the same community or other communities in which C. columellaris is sub-dominant. However, any occurrence of the community in south-east Queensland is likely to be highly restricted. In NSW, Coastal Cypress Pine Forest is currently known from the local government areas of Tweed, Byron, Ballina, Richmond Valley and Clarence Valley, but may occur elsewhere within the bioregion. Bioregions are defined in Thackway and Cresswell (1995).
8. Coastal Cypress Pine Forest includes ‘Coast Cypress Pine’ (Forest Ecosystem 22) of NPWS (1999) and DEC (2004), ‘Callitris columellaris tall open to closed forest’ (F4) of Pressey and Griffith (1992), the ‘Cypress Pine’ unit of Landmark (1999), ‘Cypress Pine Open Forest to Woodland’ (313) of Kingston et al. (2004), Coast Cypress Pine on Dunes and Ridges’ (Community 33) of Sherringham et al. (unpubl. data) and Coastal Cypress Pine assemblages described by Benwell (1995, 1998). Coastal Cypress Pine Forest belongs to the Coastal Dune Dry Sclerophyll Forests vegetation class of Keith (2004).
9. Based on detailed field inspections, the total distribution of Coastal Cypress Pine Forest covers approximately 150 ha (A. Benwell, unpubl. data), and is certainly less than 200 ha. Coastal Cypress Pine Forest is currently known from 15-20 localities, most of which are patches no larger than 10 ha. Stands of the community have been mapped in Bundjalung, Yuraygir and Broadwater National Parks (Griffith 1983, 1984, 1985) and Billinudgel Nature Reserve (Benwell 1998), accounting for about half of the total known occurrence. The remaining stands occur primarily on private land or road easements. All known occurrences of the community are within a total extent of occurrence of 2500 –3000 km2. These estimates indicate that the community has a highly restricted distribution.
10. Since European settlement, and relative to the longevity of its dominant trees, which live for more than a hundred years, Coastal Cypress Pine Forest has undergone a large reduction in geographic distribution. This reduction has occurred as a result of vegetation clearing for sand mining, agriculture and coastal development. Estimates based on field observations of old remnant trees in cleared land around the remaining stands of the Coastal Cypress Pine Forest suggest that the area occupied by the community may have declined by more than 77% (A. Benwell, unpubl. data). The actual reduction in geographic distribution is likely to be larger than this estimate suggests because stands which may have been totally destroyed could not be included in the calculation. Small-scale clearing continues to threaten the community, primarily as a result of coastal development and associated upgrading of roads. For example, within the past two decades, fragmentation of the community has increased as a result of clearing for tea tree plantations, caravan parks, road construction and associated quarrying (DECC in litt., A. Benwell, pers. comm. August 2006), indicating a continuing decline in the geographic distribution of the community. The remaining area of the community is severely fragmented. The integrity and survival of small, isolated stands of the community is impaired by the small population size of its component species, enhanced risks from environmental stochasticity, disruption to pollination and dispersal of fruits or seeds, and likely reductions in the genetic diversity of isolated populations (Young et al. 1996, Young and Clarke 2000). ‘Clearing of native vegetation’ is listed as a Key Threatening Process under the Threatened Species Conservation Act 1995.
11. Other threats to Coastal Cypress Pine Forest include habitat degradation and weed invasion. Maintenance of service easements and fence construction encroaches on the edges of some stands, while trampling and rubbish dumping occurs where the community is close to towns and recreational sites. Such disturbances accelerate the invasion of weeds, which may form a dense understorey or ground layer, displacing native understorey species and inhibiting recruitment of canopy species. Principal weed species include Asparagus aethiopicus, Bryophyllum delagoense, Chloris gayana, Lantana camara, Ochna serrulata and Schefflera actinophylla. Other weed species recorded in the community include Panicum maximum, Rhaphiolepis indica, Solanum nigrum and S. seaforthianum. The invasion and establishment of exotic species in Coastal Cypress Pine Forest, results in a large reduction in the ecological function of the community. ‘Invasion of native plant communities by exotic perennial grasses’ and ‘Invasion, establishment and spread of Lantana (Lantana camara L. sens. lat)’ are listed as Key Threatening Processes under the Threatened Species Conservation Act 1995.
12. Inappropriate fire regimes also pose a threat to Coastal Cypress Pine Forest. Undisturbed stands of the community typically have a sparse understorey and apparently do not accumulate large quantities of uncompacted litter. These attributes do not favour propagation of fires under common weather conditions. However, the dominant species, C. columellaris, may be killed by crown fires or heavy scorching of the lower trunk. Such effects have been observed in localised patches (A. Benwell, pers. comm.), as incursion of fire may be facilitated by more flammable vegetation that surrounds the small patches of the community. A recent crown fire in Bundjalung National Park killed existing seedlings, saplings and mature trees of C.columellaris and apparently resulted in little post-fire recruitment (S. J. Griffith, pers. comm.). Regeneration of the species appears to rely on seed that is released regularly from non-persistent cones, mainly in the summer months. Seedling recruitment is mainly seen in gaps created by small-scale disturbance (A. Benwell, pers. comm.). Given these characteristics and observations, high-frequency fires are likely to be detrimental to the persistence of the community, although infrequent fires may be necessary to create the gaps apparently required for seedling recruitment to replace senescent trees. Frequent fires are also likely to accelerate the invasion of weeds, since these species are efficient colonisers of open space where there are sources of propagules nearby. Weed invasion is likely to alter the fuel characteristics, making the community more flammable. Increasing human population pressures, such as those occurring on the NSW north coast, typically result in an increase in fire ignitions in bushland that is accessible to urban areas. ‘High frequency fire resulting in disruption of life cycle processes in plants and animals and loss of vegetation structure and composition’ is listed as a Key Threatening Process under the Threatened Species Conservation Act 1995.
13. Coastal Cypress Pine Forest in the NSW North Coast Bioregion is not eligible to be listed as a critically endangered ecological community.
14. Coastal Cypress Pine Forest in the NSW North Coast Bioregion is eligible to be listed as an Endangered Ecological Community as, in the opinion of the Scientific Committee, it is facing a very high risk of extinction in New South Wales in the near future, as determined in accordance with the following criteria as prescribed by the Threatened Species Conservation Regulation 2002:
Clause 25
The ecological community has undergone, is observed, estimated, inferred or reasonably suspected to have undergone, or is likely to undergo within a time span appropriate to the life cycle and habitat characteristics of its component species:
(b) a large reduction in geographic distribution.
Clause 26
The ecological community’s geographic distribution is estimated or inferred to be:
(b) highly restricted,
and the nature of its distribution makes it likely that the action of a threatening process could cause it to decline or degrade in extent or ecological function over a time span appropriate to the life cycle and habitat characteristics of the ecological community’s component species.
Clause 27
The ecological community has undergone, is observed, estimated, inferred or reasonably suspected to have undergone, or is likely to undergo within a time span appropriate to the life cycle and habitat characteristics of its component species:
(b) a large reduction in ecological function,
as indicated by any of the following:
(d) change in community structure
(g) invasion and establishment of exotic species
(h) degradation of habitat
(i) fragmentation of habitat”
(Source: Department of Planning and Environment, accessed 15 September 2023)

Ecology Expert Evidence

The ecology experts participated in joint conference and prepared a joint report that was tendered as Exhibit 5 in the proceedings. The experts disagree in two key areas. Firstly, whether the development is likely to have a SAII on the Coastal Cypress EEC and secondly whether the development has adequately demonstrated the avoidance or minimisation of impacts upon biodiversity values.
In their joint report, Dr Robertson and Dr McLean note their agreement to the following matters:

“…
4. A part of the site is mapped as High Environmental Value vegetation.
5. To the north of the site is a Council-owned reserve that includes native forest vegetation, including examples of endangered ecological communities.
6. The experts discussed the Biodiversity Development Assessment Report (BDAR) and the Vegetation Management Plan (VMP) that were prepared by Cumberland Ecology (2023 a & b).
7. The experts agreed that the BDAR has been suitably prepared from a jurisdictional sense by Cumberland Ecology. Furthermore, they agree that the BDAR has covered the requisite scope of work and is compliant with the requirements of the Biodiversity Conservation Act 2016 (BC Act) provided that the full impacts of storm water from the proposed redevelopment of the site have been considered. This is further explained under the relevant heading below.
8. The experts concur that the subject land has been partially cleared and modified for existing residential development, such that much of the original site vegetation and fauna habitats have been modified. They note that there are now houses, paths, driveways, lawns and garden beds located on the subject site. Notwithstanding that, the site contains trees and some other plant species that are representative of the endangered ecological community (EEC) known as Coastal Cypress Pine Forest in the NSW North Coast Bioregion (hereafter “Coastal Cypress Pine Forest or the EEC”).
9. The experts agree that ideally the proposed redevelopment of the site should be designed to avoid impacts to the Coastal Cypress Pine Forest. However, they also acknowledge that the potential for avoidance is largely prevented by the requirements for the creation and modification of an asset protection zone across the site as stipulated by the bushfire experts. For this reason, although the potential for avoidance has been considered during the preparation of the BDAR, only limited retention of the EEC is possible on site under the current proposed development scheme.
10. The experts noted that the BDAR has appropriately calculated the number of ecosystem credits that are required to offset the residual loss of the EEC from the subject land. They also note that the BDAR proposes trebling the number of credits to be purchased (from two to six) and retired to address the expected loss of tree cover.
…”
(Exhibit 5)

The issues for determination: Ecology

Relevant to these proceedings, the BC Act requires the consent authority to determine a number of matters in addition to the ecology contentions raised by the Respondent, summarised at [4]. They are:

Whether the development is likely to significantly affect threatened species: s 7.2 of the BC Act

Whether the biodiversity offset scheme threshold is exceeded: s 7.4 of the BC Act

Whether a BDAR is required: s 7.7(2) of the BC Act

Whether the impacts of the development are reasonable. In undertaking an overall evaluation of the application against the matters for consideration at s 4.15 of the EPA Act, the consent authority is to take into consideration the likely impact of the proposed development on biodiversity values as assessed in the BDAR, but is not limited to the BDAR in assessing the reasonableness of the likely impacts of the development: s 7.13 of the BC Act

Whether the proposed development will have a SAII on biodiversity values: s 7.16(2) of the BC Act

The test of significance and the biodiversity offset scheme threshold

What are biodiversity values?

The concept of “biodiversity values” is defined at s 1.5(2) of the BC Act as follows:

(2) For the purposes of this Act, biodiversity values are the following biodiversity values—
(a) vegetation integrity—being the degree to which the composition, structure and function of vegetation at a particular site and the surrounding landscape has been altered from a near natural state,
(b) habitat suitability—being the degree to which the habitat needs of threatened species are present at a particular site,
(c) biodiversity values, or biodiversity-related values, prescribed by the regulations.

Additional biodiversity values are prescribed at cl 1.4 of the Biodiversity Conversation Regulation (BC Regulation) as follows:

1.4   Additional biodiversity values (section 1.5 of the Act)
The following are prescribed as additional biodiversity values for the purposes of the Act—
(a)  threatened species abundance—being the occurrence and abundance of threatened species or threatened ecological communities, or their habitat, at a particular site,
(b)  vegetation abundance—being the occurrence and abundance of vegetation at a particular site,
(c) habitat connectivity—being the degree to which a particular site connects different areas of habitat of threatened species to facilitate the movement of those species across their range,
(d)  threatened species movement—being the degree to which a particular site contributes to the movement of threatened species to maintain their lifecycle,
(e)  flight path integrity—being the degree to which the flight paths of protected animals over a particular site are free from interference,
(f)  water sustainability—being the degree to which water quality, water bodies and hydrological processes sustain threatened species and threatened ecological communities at a particular site.

The relevant biodiversity values of the site are agreed by the ecological experts as the Coastal Cypress EEC present: s 1.5(2) of BC Act and cl 1.4(a) and (b) of BC Regulation.
As held by Preston CJ in Planners North v Ballina Shire Council (2021) 251 LGERA 309; [2021] NSWLEC 120 (‘Planners North’) at [91] the precondition at s 7.16 (2) of the BC Act in relation to SAII “is distinct from two other requirements in Part 7 of the BC Act dealing with biodiversity assessment and approval under the EPA Act”, those are:

Firstly, the requirement in s 7.7(2) of the BC Act that if the development is likely to significantly affect threatened species (or threatened ecological communities, the application must be accompanied by a BDAR.

Secondly, the application of s 7.13(2) of the BC Act which states that a consent authority, when determining a development application, is not limited in its consideration of the impacts of the proposed development under s 4.15(1) of the EPA Act to the impacts on biodiversity values articulated in the BDAR.

The test of significance: s 7.2 of the BC Act

Taking the first matter, a development is likely to significantly impact on threatened species if it meets one or more of the criteria at s 7.2(1) of the BC Act, namely:

(1) For the purposes of this Part, development or an activity is likely to significantly affect threatened species if—
(a)  it is likely to significantly affect threatened species or ecological communities, or their habitats, according to the test in section 7.3, or
(b)  the development exceeds the biodiversity offsets scheme threshold if the biodiversity offsets scheme applies to the impacts of the development on biodiversity values, or
(c)  it is carried out in a declared area of outstanding biodiversity value.

In relation to the first requirement, a Flora and Fauna Assessment Report (FFAR) accompanied the Class 1 Application which included an assessment of significance for the Coastal Cypress EEC referable to the development application at that time. The FFAR concluded that the proposed development would not result in a significant impact on any threatened flora or fauna. Notwithstanding the lack of an updated FFAR, a BDAR has been prepared and submitted by the Applicant to support the amended development application as part of Exhibit C. I note the agreement of the ecology experts that the content of the BDAR meets the requirements of s 6.12 of the BC Act, however the expert report does not overtly conclude that the test at s 7.2(1) is met by the development.
The lack of a test of significance was raised by the Court during proceedings. It was the agreed position of the parties that it was open to the Court to conclude, on the evidence, if the test at s 7.2(1) was met. As detailed at [33] this was not necessary as the development meets the criterion at s 7.2(1)(b) of the BC Act, thus obviating the need.
The BDAR, under a section titled ‘Requirement for a BDAR’ states in part:

“…
When considering the relatively small impact the project would have on Coastal Cypress Pine Forest in the context of the local occurrence (impacting less than 1% of the local patch) and the surrounding low density zoning (R2, E2, E3 and RU2) which limits impacts to the surround areas of this TEC, it is considered unlikely that the project would result in a significant impact on this TEC in accordance with Section 7.3 of the BC Act. This is particularly as the occurrence on the subject site is highly modified, due to the land being previously developed. Nonetheless, as Coastal Cypress Pine Forest is listed as an EEC under the BC Act, a BDAR has still been prepared for the project as a precautionary approach.
…”
(Exhibit O)

On this basis, the first criterion at s 7.2(1)(a) of the BC Act mandating the submission of a BDAR is not met.
The second criterion at s 7.2(1)(b) of the BC Act to conclude that the development is likely to significantly impact threatened species is determined by reference to the BC Regulation. The BC Regulation at cl 7.2(2)(a) nominates a clearing threshold which if met means the development exceeds the biodiversity offset scheme, thus meeting the requirement at s 7.2(1)(b) of the BC Act. Clause 7.2 of the BC Regulation states:

7.2   Clearing of area of land that exceeds threshold
(1) Clearing of native vegetation is declared by this clause to exceed the biodiversity offsets scheme threshold if the area proposed to be cleared is the area set out in Column 2 of the Table to this clause opposite the minimum lot size applicable to the land to be cleared in Column 1 of that Table.
Note—
Section 7.4 of the Act provides that any part of development that involves the clearing of native vegetation on category 1-exempt land (within the meaning of Part 5A of the Local Land Services Act 2013) is to be disregarded for the purposes of determining whether proposed development exceeds the threshold.
(2) The minimum lot size applicable to any land being cleared is as follows—
(a)  if an environmental planning instrument under the Environmental Planning and Assessment Act 1979 prescribes a standard minimum lot size in relation to the land on which the proposed development is to be carried out—that minimum lot size,
(b)  in any other case—the actual size of the allotment of land on which the proposed development is to be carried out.

For the purposes of paragraph (a), the standard minimum lot size is the minimum lot size that applies to development generally on the land, and not any different minimum lot size that applies to particular development or in particular circumstances.
(3) In the application of the Table to this clause—
(a)  if the proposed development does not comprise only the clearing of native vegetation—the area of clearing is the total area of proposed clearing irrespective of the number of lots concerned or the ownership of those lots, and
(b)  if the proposed development comprises only the clearing of native vegetation—the area of clearing is the total area of proposed clearing—
(i)  over the lots in the same ownership (unless subparagraph (ii) applies), or
(ii)  over the lots that are worked or operated as a single property (whether or not they are in the same ownership), and

(c) if the land on which the proposed development is to be carried out comprises different areas of land with different minimum lot sizes—the minimum lot size is the smaller or smallest of those minimum lot sizes, and
(d) if the proposed development comprises or involves the clearing of more than one patch of native vegetation—the area of clearing is the total cumulative area cleared.

(4) The Environment Agency Head is to publish a method (which may include computer programs) to be used for the purpose of calculating the total area of clearing for proposed development.

Table

Column 1

Column 2

Minimum lot size of land

Area of clearing

Less than 1 hectare

0.25 hectare or more

Less than 40 hectares but not less than 1 hectare

0.5 hectare or more

Less than 1,000 hectares but not less than 40 hectares

1 hectare or more

1,000 hectares or more

2 hectares or more

The minimum lot size appliable to the land to be cleared is specified in cl 7.2(2) of the BC Regulation as being either the standard minimum lot size prescribed in an environmental planning instrument in relation to the land on which the development is to be carried out or, in any other case, the actual size of the allotment on which the development is to be carried out. For this site, the lot size map under LEP 2014 prescribes a minimum lot size of 400m² for the part of the site zoned B1: Local Centre and 600m² for the part of the site zoned R2 Low Density Residential. The area of clearing set out in Column 2 of the table to cl 7.2 of the BC Regulation opposite the relevant minimum lot size of less than 1ha is 0.25ha or more. The BDAR nominated an area 0.34ha as the area of direct impact from the development, exceeding the threshold.
The area of clearing proposed (0.34ha) , therefore, exceeds the biodiversity offsets scheme threshold (0.25ha) for the purposes of s 7.2(1)(b) of the BC Act.
I note that cl 7.1(1)(b) of the BC Regulation does not apply to the circumstances of this case as the site is not mapped on the Biodiversity Values Map. On this basis that criterion is not met.
If one or more of the criteria in s 7.2(1) of the BC Act are met, the development is taken to be likely to significantly affect threatened species or ecological communities and the development application is required to be accompanied by a BDAR: s 7.7(2) of the BC Act.

The Biodiversity offset scheme threshold

Section 7.4 of the BC Act states:

7.4 Exceeding biodiversity offsets scheme threshold
(1) Proposed development exceeds the biodiversity offsets scheme threshold for the purposes of this Part if it is development of an extent or kind that the regulations declare to be development that exceeds the threshold.
(2) In determining whether proposed development exceeds the biodiversity offsets threshold for the purposes of this Part, any part of the proposed development that involves the clearing of native vegetation on category 1-exempt land (within the meaning of Part 5A of the Local Land Services Act 2013) is to be disregarded.
Note—
See section 6.8(3)—any part of proposed development that involves such clearing of native vegetation is not required to be assessed under the biodiversity assessment method.
(3) A regulation under this section may apply, adopt or incorporate a map published by the Environment Agency Head from time to time.

Clause 7.1(1) of the BC Regulation states:

(1) Proposed development exceeds the biodiversity offsets scheme threshold for the purposes of Part 7 of the Act if it is or involves—
(a) the clearing of native vegetation of an area declared by clause 7.2 as exceeding the threshold, or
(b) the clearing of native vegetation, or other action prescribed by clause 6.1, on land included on the Biodiversity Values Map published under clause 7.3.

In these proceedings, the proposed development exceeds the biodiversity offsets scheme threshold as the clearing proposed meets the criterion at cl 7.1(1)(a) of the BC Regulation.

Are the likely impacts of the development acceptable?

Direct and Indirect impacts

As the development application is required to be accompanied by a BDAR, a second requirement under Pt 7 of the BC Act, in s 7.13, is triggered: s 7.13(1) of the BC Act. Section 7.13(2) requires a consent authority, when determining a development application that is required to be accompanied by a BDAR, to take into consideration under the EPA Act the likely impact of the proposed development on biodiversity values as assessed in the BDAR that relates to that application: Planners North at [104] (Preston CJ).
The subject site contains Coastal Cypress EEC. In relation to the extent of the EEC, in their joint report the ecology experts agree that:

“The experts concur that the subject land has been partially cleared and modified for existing residential development, such that much of the original site vegetation and fauna habitats have been modified. They note that there are now houses, paths, driveways, lawns and garden beds located on the subject site. Notwithstanding that, the site contains trees and some other plant species that are representative of the endangered ecological community (EEC) known as Coastal Cypress Pine Forest in the NSW North Coast Bioregion. “
(Exhibit 5)

The BDAR maps the extent of the Coastal Cypress EEC on the site as 0.19ha and describes the condition of the plant community as moderate. The BDAR makes the following comments about the condition of the EEC on the site:

“Within the subject land scattered trees from this community persist in areas that have not been subject to clearing for building activities. The understorey has been cleared as part of landscaping works and almost no native ground stratum occurs.
Remaining canopy species within the site consist of 25 mature Callitris columellaris, a large Eucalyptus robusta (Swamp Mahogany), and three Melaleuca quinquenervia (Paperbark). The sub canopy is limited to scattered native species such as Archontophoenix cunninghamii (Bangalow Palm) and Cupaniopsis anacardioides (Tuckeroo) and introduced species such as Syagrus romanzoffiana (Cocos Palm) and Scleffera actinophylla (Umbrella Tree). A small number of shrubs are also present including but not limited to the native species Podocarpus elatus (Plum Pine), Glochidion ferdinandi (Cheese tree) and Harpullia pedula (Tulipwood) and the non native Plumeria rubra (Frangipani). The ground cover across is predominately a mown lawn of Cynodon dactylon (Common Couch) with other exotic species such as Callisia repens and Eleusine indica present in small numbers.
…”
(Exhibit O)

The distribution of the Coastal Cypress EEC on the subject site is included in Figure 8 of the BDAR which is extracted below:

The BDAR assesses the vegetation integrity score for the Coastal Cypress EEC as 32.3, composed of a composition score of 15.5, structure score of 34.7 and a function score of 62.6.
Dr McLean notes in his joint report his observation on site of the presence of four vegetation species not nominated in the BDAR, being: oxalis perennans, oplismenus aemulus, microlaena stipoides, and glycine microphylla. (Exhibit 5) Dr McLean argues this omission from the BDAR may underplay the vegetation integrity score determined by it.
Further, in his oral evidence, Dr McLean noted that the vegetation integrity score nominated in the BDAR of 34.7 is significantly above the threshold of 15 from the offsetting requirement applies. His point was that the vegetation on the site is not of poor integrity and may be underestimated in the BDAR.
In the alternative, Dr Robertson’s oral evidence was that the quadrant methodology underpinning the BDAR was correctly applied using the Biodiversity Assessment Method (BAM) and in fact the BDAR in these proceedings provided more quadrants than required by the BAM at Table 3. He argues, that in this case the integrity score is predominately reflective of the presence of canopy trees, but that there are very few understorey or ground cover native species present. Further, he argues that the species nominated by Dr McLean at [45] as observed on site are not identified in the Final Determination as being characteristic of the Cypress Pine EEC.
In the joint report Dr Robertson describes the Cypress Pine EEC on site as:

“…
Within a BDAR, proposed development sites must be assessed using the Biodiversity Assessment Method (BAM). The BAM requires authors of BDARs to recognise and map traces of the original plant communities on site, no matter how degraded.
The occurrences on site are substantially degraded derivatives of the endangered ecological community. Past development and human occupation of the site has removed the majority of the original plant species. The historic development of the site and the context of the site within the suburb of Suffolk Park prevents key natural ecological processes from occurring, including fire, grazing, flooding, nutrient cycling and regeneration of characteristic species of the endangered ecological community.”
(Exhibit 5)

Extent of Coastal Cypress EEC directly impacted

The BDAR concludes that the extent of Coastal Cypress EEC directly impacted by the proposed development will be the complete clearing of 0.13ha with a further 0.06ha of the community to be managed at the completion of the development. In effect the BDAR concludes that the entire 0.19ha of the Coastal Cypress EEC will be removed (direct impact) by the proposed development.
Of the Coastal Cypress Pine (Callitris columellaris) species the development application seeks consent for a total of six trees (trees 9, 10, 13, 16, 17 and 23) within the site boundary are to be removed to facilitate the development.
The BDAR also notes that the site is bushfire prone land and that the bushfire safety requirements of the site arising from the proposed development are that a maximum of 15% tree canopy can remain on the subject site. This requirement remains in perpetuity. The Applicant argues that this constraint means that no new canopy or shrub layer species of the Coastal Cypress EEC can be replanted on the subject site.
Both the required APZ and the determination of the direct impacts on existing trees on the subject site were the subject of expert evidence in the proceedings. That evidence is summarised in the following.

The required APZ

In their joint report, the bushfire experts agree that the site is designated as bushfire prone land under s 10.3 of the EPA Act and that the proposal is to be assessed under Chapter 8 of Planning for Bushfire Protection 2019 (PBP). Section 4.14 of the EPA Act requires that the consent authority be satisfied that the relevant specifications and requirements of the PBP are complied with for development on land mapped as bushfire prone land.
PBP is structured such that a development is required to meet specified bushfire protection measures. That can be achieved by either applying the acceptable solutions identified within each section of PBP, or by preparing a performance based solution. PBP describes performance based solutions as:

“1.4.5 Performance based solutions
Performance based solutions allow flexibility and innovation in responding to site‑specific opportunities and constraints while still meeting the identified performance criteria. They also allow the consideration of a broad range of issues and information, including bush fire risk, community expectations, environmental protection and the application of new science, processes and technologies.
Performance based solutions must provide substantiated evidence and clearly demonstrate how the specific objectives and performance criteria are to be satisfied.
When performance based solutions are proposed, they will be assessed on their merits and individual circumstances. In these circumstances, a Bush Fire Design Brief (BFDB) process can be undertaken which would involve early agreement on the key elements and acceptance criteria from all stakeholders including the NSW RFS.
Performance based solutions may be undertaken for any of the BPMs detailed in Chapter 3 and supported in accordance with the submission requirements in Appendix 2.”

The bushfire safety requirements in dispute are primarily the requirement for an APZ. PBP describes the purpose of an APZ as a buffer zone between a bush fire hazard and buildings. The APZ is managed to minimise fuel loads and reduce potential radiant heat levels, flame, localised smoke and ember attack. In this case, the requirement for an APZ arises from the presence of vegetation on the Council Reserve which adjoins the site to the north and north west of the subject site. The experts disagree as to the correct approach under PBP for the assessment of fire risk arising from the parcel of vegetation on the Council Reserve. The difference in the experts approach results in differing views on the required width of the APZ on the subject site.
Appendix 1 of PBP sets out the methodology to determine the appropriate APZs and Bushfire Attack Level construction levels. The application of the following section of Appendix 1 was the centre of the difference in opinion of the experts:

“A1.11 Assessing remnant bushland and narrow vegetation corridors
The size and shape of small areas of vegetation influences the behaviour of bush fires and the associated risk to the built environment. Small or narrow parcels of vegetation have less opportunity to support fully developed bush fires because of their limited size.
There are two recognized pathways for assessing remnant bushland or narrow vegetated corridors. An assessment can either follow the simplified approach or the short fire run approach. The two approaches should not normally be used simultaneously to assess a patch of vegetation.

A1.11.1 Simplified approach
The simplified approach provides an acceptable method for assessing remnant vegetation. Remnant vegetation is a parcel of vegetation with a size of less than 1 Ha or a shape that provides a potential fire run that could threaten buildings not exceeding 50m. These remnants are considered a low hazard and APZ setbacks and building construction standards for these may be the same as for rainforests.
The effective slope is to be determined under the remnant that provides the most significant bush fire behavior.
…”

The Applicant relies on the simplified approach at A1.11.1 of PBP to argue that the vegetation contained in the Council Reserve is low hazard. Mr Pederson argues the vegetation has an overall size less than 1ha meeting the requirements of the Simplified Approach at A1.11.1. On that basis, applying Table A1.12.3 and the agreed slope of >0-5º, the required APZ in his view is 12m.
In the alternative the Respondent, and their expert Mr Douglas argue that to apply the Simplified Approach at A1.11.1 of PBP the vegetation contained in the Council Reserve needs to meet both criteria, ie. be a size less than 1ha and have a shape that provides a potential fire run that could threaten buildings not exceeding 50m. Mr Douglas argues that this second parameter is not met by the vegetation in the Council Reserve, meaning the Simplified Approach at A1.11.1 is not available to the development application. On that basis, applying Table A1.12.3 and the agreed slope of >0-5º, the required APZ in his view is 25m.

Findings: APZ

I note that the bushfire experts in the proceedings agree the following facts relevant to the consideration of the application of A1.11 in PBP:

That the bushfire hazard is the parcel of vegetation on the Council Reserve located to the north and north west of the subject site and that the vegetation has an area of less that 1ha in size.

That the potential fire run exceeds 50m, being approximately 82m north west.

That the effective slope under the vegetation is between 0-5º downslope.

When reading the provision in context and giving the plain meaning to the text, in particular the use of ‘or’ between the two parameters, I accept the submissions of Mr Lazarus that the text of the Simplified Approach at A1.11.1 of PBP requires that only one of the parameters (size or shape) are met. The provision at A1.11.1 sits under an introductory paragraph which provides context to the Simplified Approach. That introductory paragraph also identifies that ‘small or narrow parcels have less opportunity to support fully developed bush fires because of their limited size’.
I am not persuaded that there is any basis in the text of A1.11.1 of PBP for the conclusion of Dr Douglas that the requirement for vegetation to have an area of less that 1ha in size and be of a shape that provides a potential fire run not exceeding 50m. (Emphasis added.) In my view, there is no ambiguity in the text of the provision.
On the basis of the preceding, a 12m APZ is required by the application of Table A1.12.3 of PBP and is provided by the proposed development.
The creation of the APZ, and the recommendation of the Applicant’s Bushfire Assessment Report for the whole of the site to be managed as an inner protection zone (IPZ), affects existing vegetation on the site and the ability for revegetation.
The Bushfire Assessment Report requires the following to apply to the IPZ:

Tree canopy cover should be less than 15% at maturity;

Trees at maturity should not touch or overhang the building;

Lower limbs should be removed up to a height of 2m above the ground;

Tree canopies should be separated by 2 to 5m;

Preference should be given to smooth bark and evergreen trees;

Large discontinuities or gaps in vegetation should be provided to slow down or break the progress of fire towards buildings;

Shrubs should not be located under trees;

Shrubs should not form more than 10% ground cover;

Clumps of shrubs should be separated from exposed windows and doors by a distance of at least twice the height of the vegetation;

Grass should be kept mown (as a guide grass should be kept to no more than 100mm in height); and

Leaves and vegetation shall be removed.

(Exhibit C)

The requirements of the IPZ were incorporated into the development application along with recommendations of the Arboricultural Impact Assessment (AIA). The proposed tree management is depicted in the following:

Source: Extract of Tree Protection Plan (Exhibit 6)

The viability of the canopy trees nominated to be removed was the subject of arboricultural evidence.

Viability of tree retention proposed

The development application is accompanied by an AIA which summarises the direct impacts of the proposed development generally and on the Coastal Cypress EEC as follows:

“…
4.1.1 A total of one hundred and nine (109) trees have been assessed in the context of the revised design. Twenty six (26) trees are proposed to be removed and eighty three (83) are proposed to be retained. An additional ten (10) unnumbered trees, Trees A-J are also to be removed.
4.1.2 Of the eighty three (83) trees to be retained, forty (40) are located on adjoining properties with no TPXs coinciding with the site boundary. These forty (40) trees have been described as Outside Scope in the Tree Schedule (Attachment A) and shaded grey on the Tree Protection Plan. All forty (40) trees are to be retained.
4.1.3 There are forty three (43) trees within the site or with TPZs coinciding with the site to be retained.
4.1.4 There are thirty four (34) Coast Cypress Pines, Callitris columellaris (CCP) within and with TPZs overlapping the site boundary to be retained (including Three K in the south western corner). Additionally, there are twenty six (26) Outside Scope Coast Cypress Pines, Callitris columellaris being retained on adjoining properties with no TPZ encroachments.
4.1.5 Of the twenty six (26) trees to be removed, six (6) are Coast Cypress Pines Callitris columellaris (Trees 9, 10, 13, 16, 17 and 23).
…”
(Exhibit 6)

The arboricultural evidence centred on the difference of opinion between the two experts as to the viability of the proposed retention of five trees, namely Trees 11, 31, 33, 34, 35. The arboricultural report describes these trees as follows:

(Source, extract of AIA in Exhibit 6)

Mr Tesoriero argues that, in addition to the six Coast Cypress Pines identified in the development application for removal, a further four are not able to be retained when the full extent of the impacts of the proposed design are considered. Further, he argues that the development application proposes removal of three mature Broadleaf Paperbark, one mature Red Mahogany and one Cheese Tree which are all species which form part of the Coastal Cypress EEC. He argues conservatively 11 tree species of the Coastal Cypress EEC will be removed, but that the number is more likely to be 15-16 given the incursions proposed into the tree protection zones (TPZ).

Tree 11

In relation to Tree 11, Mr Tesoriero argues that the full impacts of the development, and the incursion into the TPZ, have not been considered in the AIA. He notes that works within the TPZ of this tree include new concrete hardstand carparking, driveway and building footprints which occupy 46% of the TPZ. Further, he argues that whilst the AIA recommends the driveway being constructed above the existing grade, the required levels for this to occur are not accommodated in architectural plans. In addition, he notes that Tree 11 has a number of aerial roots which would protrude well above the surface area and would be impacted. He assesses the actual impact on the TPZ as approximately 30%. He concludes:

“… approximately 30% of the overall TPZ area will require excavation for pavement subgrades resulting in damage and severance of existing visible tree roots. The cumulative impact of works within the TPZ/SRZ including pavement construction, building footprints on grade and canopy pruning is not sustainable and will render this tree unviable to be retained.”
(Exhibit 6)

In contrast, Mr Castor argues that the retention of Tree 11 is viable on the basis that the car park slab is constructed at the existing grade of Reduced Level (RL) 5.00 and car space 14 is constructed at a higher level given the floor level of the adjacent townhouse is RL 5.250. In his oral evidence, Mr Castor maintained his view that Tree 11 would be viable after the development.
Having reviewed the additional engineering details contained in Exhibit N, Mr Tesoriero’s oral evidence on Tree 11 can be summarised as:

Assuming a 150mm slab for car spaces 13 and 14 and an existing ground level of RL 4.95- 5.20, the under slab of the proposed slab would be at RL 5.05. This would impact on surface roots of Tree 11.

On his analysis of the proposed ‘Option 1’ in Exhibit N, the proposed development will impact 12% of the TPZ of Tree 11 with an overall impact to the TPZ of 34%. Alternatively, if the application was amended to reflect ‘Option 2’ with an upturn beam the development will impact 7% of the TPZ of Tree 11. Option 2 would reduce the overall impact to the TPZ to 29%

In addition, the proposed development requires 15-20% canopy pruning.

In conclusion, Mr Tesoriero argues the cumulative impacts of the intrusion to the TPZ and the crown pruning means that the retention of Tree 11 is unviable. He notes that the proposed TPZ intrusion exceeds the 10% standard in AS 4970 2009 Protection of Trees on Development Sites which in combination with the age and maturity of Tree 11 reduces the tolerance of Tree 11 to development.

Tree 31, 33, 34, 35.

In addition to the AIA, the Applicant has prepared a Structural Design Statement to support the retention of trees 31, 33, 34 and 35. That design statement, tendered as Exhibit N, details the piered driveways and building elements that allow for elevated construction in proximity to the nominated trees, collectively referred to as ‘Option 2’.
In the joint report, Mr Castor argues that the nominated incursions into the TPZs outlined in the AIA are acceptable on the following basis:

The TPZs indicated in the AIA are nominal circles and do not represent the likely actual root spread.

The presence of roots beneath the existing impermeable driveways or existing dwellings is likely to be restricted, limiting the impact arising from new structures in these locations.

The proposed level of the café/retail buildings has been raised to allow for elevated, piered construction to minimise tree impacts.

The stormwater has been rerouted to be beyond the TPZs of all retained trees with the exception of Trees 19 and 21.

That he is of the opinion that Coastal Cypress Pine is of moderate to high tolerance to urban development given the number of remnant specimens observed.

In the joint report, Mr Castor concludes that ‘the impacts of new-for-old development within the TPZs of Trees 31, 31a, 33, 34 and 35 will be acceptable and allow for long term tree retention’. (Exhibit 6)
In his oral evidence, Mr Castor agreed in relation to:

Tree 31

That the existing structures already encroach in the trees’ TPZ and that despite the proposed 30% pruning including the northern secondary leader branch. He maintains that Tree 31 will have reasonable form and that the root system impact is tolerable.

Tree 33

That the 60-70% crown pruning impact nominated by Mr Tesoriero is correct and that it would result in a severe impact. He accepts that Tree 33 should be removed.

Tree 34

The proposed café/ retail mirrors the existing development and the proposed crown pruning is sustainable.

Tree 35

That the car park excavation is likely to be minimal and that visible roots can be retained where they are located beneath existing structures.
That the cafe/ retail structure proposed will have no greater impact than the existing hardstand.
That if the main leader branch is required to be pruned, which he conceded is likely, that would make the retention of the tree unviable.

In contrast, Mr Tesoriero argues that the proposal will result in unacceptable encroachments into the TPZs of trees 11, 31, 33, 34, and 35. He argues the proposed encroachments are defined by the Australian Standard AS 4970-2009 Protection of trees on development sites as ‘major encroachments’ as they are greater than 10% of the area of the TPZ. Further, he argues that the design modification relied on by Mr Castor are not integrated with the architectural plans. Further, he argues that the following matters raise doubt about the conclusion of Mr Castor that the trees will be retained:

Extensive and unsustainable canopy pruning will be required to Trees 31, 33 and 35 to facilitate the construction of the development and to meet compliance with Planning for Bushfire Protection. Tree 31 will require removal of approximately 30% of the live crown and 90% of the northern co-dominant stem. Tree 33 will require removal of approximately 60-70% of the live crown including the central leader due to the tree skew to the north east. Tree 35 will require removal of 60-70% of the live crown.

Without further investigations, there is no certainty that the existing structures have restricted root growth to an extent whereby encroachments into the TPZs can be excluded. Root mapping is required to support the conclusions advanced by the Applicant.

The AIA indicates that tree 11, 33, 34 and 35 are on the late mature age class and vigour which will reduce their tolerance to the proposed major encroachments and extensive canopy pruning.

The existing ground levels in proximity to the TPZ of 31, 33, 34 and 35 when compared to the proposed finished floor level of the café/retail indicate that excavation of up to 450mm will be required to implement the design in the Structural Design Statement. This is in conflict with the evidence of Mr Castor.

Having reviewed the additional engineering details in Exhibit N, Mr Tesoriero’s oral evidence can be summarised as:

Tree 11

Assuming a 150mm concrete slab for car spaces 13 and14 and given an existing ground level of RL 4.95-5.20, the underside of the proposed slab (being RL 5.05) will impact on surface roots.
On his analysis of the proposed ‘Option 1’ in Exhibit N, 12% of the TPZ of Tree 11 would be encroached by the excavation works with an overall impact of 34% to the TPZ.
If the development was amended to reflect ‘Option 2’ in Exhibit N, with an upturn beam, 7% of the TPZ would be impacted by excavation works, reducing the overall impact to the TPZ to 29%.
To facilitate the development, 15-20% of the canopy requires pruning.
In conclusion, Mr Tesoriero argues the cumulative impacts of the intrusion to the TPZ and the crown pruning means that the retention of Tree 11 is unviable. He notes that the TPZ exceedance is greater than the 10% standard in AS 4970 2009: Protection of Trees on Development Sites and that the age and maturity of Tree 11 reduces tolerance to impact.

Tree 31

Having reviewed ‘Option 1’ in Exhibit N for the proposed design of excavation/ foundation/ slab of the café/ retail area and its impact to Tree 31, Mr Tesoriero concluded a 25% impact to the TPZ.
Alternatively, applying ‘Option 2’ the impact of excavation/ foundation/ slab of the café/ retail area would be a 12% impact to the TPZ.
He noted that both of the preceding impacts would be addition to the proposed 30% crown pruning, which includes the removal of the co-dominant leader branch.
In relation to the combined impact to Tree 31 under Option 1, Mr Tesoriero concluded that the cumulative impact would make the retention of Tree 31 unviable.
In relation to Option 2, Mr Tesoriero concluded that whilst the reduced impact to the TPZ may result in a sustainable impact, the development application lacks root mapping information. He concludes that without this information the viability of Tree 31 is uncertain.

Tree 33

Mr Tesoriero’s oral evidence maintained his conclusion that retention of Tree 33 is unviable.
He argues that both the encroachment to the TPZ and the significant crown pruning of 60-70% (including the leader branch) are a severe impact and the tree would need to be removed as a result of the development.

Tree 34

After reviewing the ‘Option 2’ the schematic of excavation/ foundation/ slab, Mr Tesoriero concludes that the structure of retail/ café space No 1 would require a minimum of 130mm of excavation in the TPZ and a minimum of 100mm in relation to retail/ café space No 2. His assessment is that this would result in a total encroachment to the TPZ is 20%.
In addition, the development requires crown pruning of 15-20%.
He concludes that based on these impacts the retention of Tree 34 is unviable.

Tree 35

Whilst Mr Tesoriero disagreed with Mr Castor’s assessment of the impacts of the proposed development to the TPZ of Tree 35, he agrees with the conclusion that the trees retention is unviable. That conclusion is based on the TPZ impact (which he estimates at 38%) combined with the proposed crown pruning of between 60-70% and the loss of the tree’s central leader branch.

Impacts of the development on Coastal Cypress Pine Trees

Whilst the development application in its current form does not propose the alternative construction techniques detailed in Exhibit N as ‘Option 2’, I accept that such requirements could be imposed on a development consent. As such, I have given consideration to the likely impacts that arise under this option.
I accept the criticism of Mr Tesoriero that the lack of root mapping affects the reliability of assertion of Mr Castor that the existing trees would have limited roots under existing pavement or concrete where these areas occur in the TPZ of the relevant trees. This leads to uncertainty as to the impact to the trees and their ongoing viability.
I accept and prefer the evidence of Mr Tesoriero in relation to the likely impacts of the proposed development on the existing Coastal Cypress Pine trees on the subject site. I am satisfied that that the proposed development will make the retention of Tree 11, 31, 33, 34 and 35 unsustainable. In my view, Mr Tesoriero’s evidence was persuasive in its analytical, reasoned approach. He firstly quantified the specific impacts to each tree, secondly analysed the cumulative impacts arising from the development and then assessing those impact against the age, maturity and vigour of the specific tree. Further, I note that the Applicant has not undertaken root mapping to support the ongoing viability for Tree 31. In the absence of this data to support the Applicant’s assertion of restricted root growth in the impacted areas of Tree 31, I accept that viability is uncertain, and it is appropriate to take a cautionary process and consider the impacts to this tree to be unsustainable.
Having accepted and adopted Mr Tesoriero’s evidence and conclusions, the direct impacts arising from the proposed development include the 26 canopy trees nominated in the AIA along with Tree 11, 31, 33, 34 and 35. The impacts of the proposed development include the removal of a total of 31 canopy trees.
By reference to the extract of the Tree Protection Plan at [47] it is plain that the removal of Trees 31, 33, 34, and 35 will add to the existing impact of the removal of the overwhelming majority of canopy trees that add to the existing streetscape of Clifford Street. I have given weight in my consideration of the acceptability of this impact to the submissions from the public that raise concern that the development application has an unacceptable level of tree removal given the character of Suffolk Park and the identification of the Coastal Cypress EEC on the site. I note that Tree 25 and 27, both Cheese Trees that remain in the frontage of the site are not nominated in the Final Determination as part of the Coastal Cypress EEC.

The Vegetation Management Plan and Landscape Plan: Mitigation of impact

Finally, Dr Robertson accepted that the reference to ‘alternative sites and layouts’ in Table 11 of the BDAR could have been supplemented by the inclusion of these preliminary design options within the BDAR.
I note that the following the outline of the avoidance, minimisation and mitigation of impacts undertaken by the Applicant in the BDAR, the development application proposes to offset the residual impacts with the retirement of three times the required biodiversity credits. (Exhibit O) This is explained by Dr Robertson in the joint report as follows:

“…
Although there will be a net loss of trees from the EEC from the subject site if the development is approved the loss is unavoidable if the site is developed due to the bushfire requirements. For this reason, the predicted residual ecological values are proposed to be offset by the purchase and retirement of treble the calculated number of ecosystem credits, which I believe is appropriate.
…”
(Exhibit 5)

SAII as addressed in the BDAR

The BDAR concludes that it is not likely that the proposed development will have any SAII on any threatened species and relevantly the Coastal Cypress EEC on the basis that it is likely to have a very small impact given the size of the patch and its connectivity with other patches of Coastal Cypress EEC in the surrounding area.
The BDAR describes the condition of the existing Coastal Cypress EEC on the site and in the area as follows:

…”
The area where [the] subject land is located the EEC appears to be in the form of mature Cypress Pines and other native trees scattered across the landscape with the understory heavily modified, in residential land zones or private lands. This condition state of EEC is similar to what is mentioned in the Final Determination, where the previous partial clearing has resulted in the occurrence of individual mature Cypress Pine scattered across the neighbourhood with the other elements of the ecosystem along with the regeneration of pines not well represented. The subject land represents a pre-developed, heavily modified and ecologically poorly maintained area.
…”
(Exhibit O)

As required by Section 9.11 of the BAM, the BDAR provides a tabulated consideration of the additional impact assessment provisions for threatened ecological communities at risk of a SAII. This section of the BDAR traverses the varied data on extent and distribution of the Coastal Cypress EEC between the data relied on in the Final Determination, the Statewide Map and the fieldwork done by the Applicant of the local area detailed at [114].
In response the criteria (b): ‘the extent that the proposed impacts are likely to contribute to further environmental degradation or the disruption of biotic processes”, the BDAR states:

(Exhibit O)

Conclusion and Findings

The likely impacts of the development are unacceptable on merit

In undertaking the assessment of impacts of the proposed development pursuant to s 7.13(2) of the BC Act and s 4.15(1) of the EPA Act, the BDAR describes the direct impacts as:

- The BDAR notes at Part 4.1.1 that native vegetation currently occupies some 0.19ha or 55.9% of the subject site.

- the development proposes to clear 0.13ha, or 68% of that native vegetation.

- Further, as extracted at [43], the BDAR notes the presence of 25 mature Coastal Cypress Trees on the subject site. The development will require, or result in, the removal of 11 of these trees, some 44%. Those being Tree 9, 10, 13, 16, 17 and 23 as noted in the AIA and 11, 31, 33, 34 and 35 as addressed in the preceding.

The presence of existing canopy trees, which are a key amenity and character attribute of the subject site, are the most notable existing elements of it. Further, those canopy trees form the dominant part of the Coastal Cypress EEC adding importance their presence. I note that the Final Determination of the scientific committee in relation to the endangered ecological community emphasised its limited geographic distribution. The Coastal Cypress EEC is only noted as only occurring in the NSW North Coast Bioregion with an estimated geographic extent of occurrence of some 2500 – 3000 km². Further, the Final Determination notes that field inspections identify that the total distribution of the EEC as between 150-200ha.
My view is that it is relevant to give weight to these attributes in considering the acceptability of the likely impacts on the existing Coastal Cypress Pine trees arising from the proposed development given they form part of the assemblage of species that are the Coastal Cypress EEC.
The Applicant, as part of their submissions, gave emphasis to the challenge the site represents in terms of bushfire compliance and the management of existing vegetation on the site. They note those challenges include the requirement for a 12m APZ and the maintenance of the remainder of the site as an IPZ with a maximum of 15% canopy cover. Mr Lazarus submitted that the requirement for tree removal arises from the bushfire constraints of the site, not from the proposed development. In support of this submission, the Applicant produced Exhibit J which seeks to quantify the impact to tree cover on the subject site under an alternative design for the site. That alternative design in Exhibit J replicated the proposed development in the portion of the site zoned B1: Local Centre, however proposed only a single dwelling on the remainder of the site. On this alternative design, the percentage tree cover remaining on the subject site was 14.8%, in contrast to the proposed development which retains a maximum 15% canopy cover. On this basis, the Applicant asserts that any redevelopment of the site will have comparable impacts and the Court should give this comparison weight in considering the acceptability of the impacts arising from the development. (Emphasis added.)
The subject site is constrained by bushfire requirements arising from its location and the fact it adjoins the Council Reserve. Those constraints include the extent of the APZ and the requirement to manage the remainder of the site as an IPZ. Further, the site contains Coastal Cypress EEC which whilst an assemblage of species is, on the subject site, predominately Coastal Cypress Pine trees. In my view, the proposed development does not adequately respond to these key constraints in ensuring that the likely impacts arising from the development are acceptable. Whilst the planning controls make certain uses and development types permissible through the use of zoning and development standards, the capacity of certain sites to accommodate those uses is informed by, among other things, its location, ecological sensitivity, physical attributes, outlook and the characteristics of the site itself. In my view, the Applicant has paid insufficient regard to the extent of Coastal Cypress EEC directly impacted by the development.
In his evidence in the joint report, Dr McLean notes the absence of an assessment of any likely impact arising from the development on koala habitat or the indirect impacts on the Coastal Cypress EEC within the adjoining to Council Reserve. I accept that the lack of assessment of the impacts of the proposed development, in particular the creation of the APZ at the northern boundary of the site, on the vegetation integrity score of the Coastal Cypress EEC adjacent the Council Reserve raised by Dr McLean has not been addressed by the Applicant, beyond the tabulation of the general impacts arising from the development in the BDAR. In relation to indirect impacts, the BDAR directs itself to habitat loss and invasion as the likely impacts to the adjoining Council Reserve. The BDAR does not assess or document the steps taken to avoid or minimise the broader impacts raised by Dr McLean and leaves uncertainty as the impacts to this patch of Coastal Cypress EEC arising from the proposed development.
In my view, it is arguable that the extent of Coastal Cypress EEC retained by the development is in effect that which is ‘left over’ after the development footprint is determined. My reasoning for drawing this inference is as follows:

The site analysis plan within the architectural drawings commences from an assumption of an extent of tree removal that is equivalent to that for which consent is sought in the development application. The site analysis plan examines the approach to development of the site predicated on the removal of 26 nominated trees.

Whilst often a site analysis might be informed by an AIA which indicates some existing trees are in poor condition and recommended for removal, which trees are significant, or important in the streetscape etc. That is not the case in this matter. The trees nominated for removal in this site analysis are treated in effect as a given. In analysing the site and as the basis of determining the approach to its redevelopment, they are assumed to be removed.

Despite the constraints of the nomination of the site as bushfire prone land and the presence of Coastal Cypress EEC on the site, the proposed development approaches the near achievement of the maximum FSR applicable on the site. I note the architectural plans nominate the applicable FSR controls and the FSR proposed by the development as follows:

B1 zoned portion of the site:
Control 0.5:1
Proposed 0.49:1
R2 zoned portion of the site:
Control 0.5:1
Proposed 0.44:1
(Exhibit A)

Whilst this is not conclusive, it is a relevant indicia of how the site specific constraints have tempered or constrained development of the site.

A plain reading of the plan for the development (for example, refer to [86]) supports a conclusion that the areas of vegetation retained, or proposed to be managed by the VMP, are adjacent the property boundaries, or are contained within the setback or APZ areas. Areas nominated by the relevant planning controls as setbacks or APZ’s are by their nature generally excluded from development.

Despite the location of nominated TPZ’s of trees sought to be retained, the architectural plans maintain a linearity and regularity of development footprint that does not “adjust” to accommodate these TPZ areas. The buildings are not sited to avoid the TPZ’s. Further, as identified earlier in the judgment the nominated levels of the proposed works and excavation do not minimise impacts to these trees resulting in additional likely tree loss.

As noted at [84] the removal of Trees 31, 33, 34 and 35 will add to the nominated trees for removal in the frontage of the site to Clifford Street. It was observable on the site view that these trees add to the character of the locality and the contribution of the site to the streetscape of Clifford Street. The development application seeks to offset this impact by the design and architectural treatment of the development and the proposed landscaping. I accept that the redevelopment of the site and the inclusion of retail will positively activate the street. However, as I found at [95] the landscape plan and the works proposed provide a minor offset to the loss of canopy trees that currently address Clifford Street. On balance, I find that the proposed development will have a detrimental impact on the streetscape of Clifford Street.
The detrimental impacts arising from the development are unacceptable. Firstly, due to their quantum, in particular the number of Coastal Cypress Pine removed and the overall lack of responsiveness of the design to existing site attributes. Secondly, the significance of the detrimental impacts both ecologically and visually, and finally due to the limited mitigation that the VMP and the landscape plans provide.
I am satisfied that pursuant to s 4.15(1)(b) of the EPA Act the detrimental impact of the tree and vegetation removal on the subject site arising from the development, when balanced against the benefits arising from the proposed VMP and landscape plan remain substantial. These impacts support a conclusion that the refusal of the development application is warranted.

Evaluation and finding on SAII

In these proceedings, the Respondent contends that the proposed development is likely to have a SAII on biodiversity values. As detailed at [26] the relevant biodiversity values are the Coastal Cypress EEC which occurs on the site. That is the relevant community at Step 1 detailed in Planners North.
I note that communities are defined under s 1.6 of the BC Act as follows:

ecological community means an assemblage of species occupying a particular area.

As such an EEC, in this case the Coastal Cypress EEC, is an assemblage of species.
It is appropriate at this point in the judgment to address the additional mapping undertaken by Dr Robertson described at [113] and his evidence that, in his view, the likely distribution of Coastal Cypress EEC is greater than that asserted in the Final Determination. Giving weight to the definition at s 1.6 of the BC Act, I accept and adopt the evidence of Dr McLean as summarised at [118]-[122]. In effect, in my view, I can give the additional mapping undertaken by Dr Robertson little weight as the nomination of individual Coastal Cypress Pine trees cannot be taken to be equivalent to the presence at those locations of the Coastal Cypress EEC. Nor can this mapping form the basis for concluding the distribution or abundance of the EEC is greater than that documented in the Final Determination.
A different finding may have been open to the Court if: firstly, the type of technical data and field survey information identified by Dr McLean had been considered by the experts at joint conference and tested by the parties during the proceedings, and secondly, that evidence formed the basis for concluding distribution or abundance of the EEC is greater than that documented in the Final Determination.
Having identified the EEC likely to be impacted by the development, the next step is to evaluate the likely significance of the impacts that would remain after the measures proposed to avoid or minimise the impact on this EEC have been taken: see s 7.16(1) of the BC Act.

The development application fails to demonstrate adequate avoidance, minimisation and mitigation

I am satisfied that in my assessment, the Applicant has failed to demonstrate in the BDAR sufficient or appropriate measures to avoid, minimise or mitigate impacts on Coastal Cypress EEC that will arise from the proposed development of the subject site. My reasoning is:

I repeat my findings at [157].

As detailed at [128], in the BDAR the Applicant divides the efforts of the project to avoid and minimise impacts into two broad categories: project location and project design. In addition to my comments at [154] and [156], I am not persuaded by the assertion in the BDAR that factually either the project location or design affect a reasonable avoidance or minimisation. I note the concessions made by Dr Robertson in cross examination summarised at [142-145].

The development will result in the removal and further fragmentation of the Coastal Cypress EEC on the site. Whilst the BDAR asserts the proposed development is focused on cleared or built upon areas of the site, the proposed townhouses at the rear of the site actually replace and remove an existing stand of Coastal Cypress EEC that currently sit between existing buildings on the site (refer the mapping extracted at [44]). The assertion in the BDAR that the footprint of the development has been reduced to retain the ecological zone that includes most of the Coastal Cypress EEC is not evidenced in the proposed development.

To the extent that the BDAR asserts that the layout and design minimise impacts, I repeat my findings at [83] and [84] which detail impacts to Coastal Cypress Pines which form part of the Coastal Cypress EEC arising, in part, from a lack of detailed design or a development footprint which extends too far into the TPZ of these trees.

The BDAR relies on the VMP as a measure for avoidance and minimisations, but it is more appropriately a mitigation measure. I adopt my previous comments on these documents.

The Applicant’s reliance on Exhibit J as a means of comparison of the impacts of the proposed development with a hypothetical development is, in my view, not particularly helpful. The BAM requires the assessor to focus on the documentation of reasonable measures taken by the Applicant to avoid or minimise clearing of native vegetation or threatened species habitat arising from the proposed development. The fact that an alternative design that proposed less development on a portion of the site that may, or may not, have less impact on biodiversity values does not establish the acceptability of the measures taken to avoid or minimise impacts for the development under assessment.

The BAM requires the assessor to document and justify actions taken to avoid or minimise impacts through careful location of the proposal, or its components. I am not persuaded that the BDAR details those measures in a way that either reflects the proposed development before the Court nor adequately justifies that the impacts arising from the proposed development are appropriated avoided or minimised in this case.
The biodiversity mitigation hierarchy requires, in order, the avoiding impacts, minimising impacts and then offsetting or compensating for any residual impact that remains after all steps are taken to avoid or minimise these impacts. I am satisfied that pursuant to s 4.15(1)(a) of the EPA Act that the development fails to demonstrate adequate avoidance, minimisation and mitigation of impacts as required by BC Act: see s 1.3(k), s 6.2(d), s 6.4(1) and s 6.12(c) and (d): Tomasic v Port Stephens Council [2021] NSWLEC 56 at [169] (Preston CJ). The inadequacy of avoidance and minimisation results in the proposed development having an unacceptable adverse impact on the Coastal Cypress EEC. The unacceptable adverse impacts arising from the proposed development support a conclusion that the refusal of the development application is warranted.

Evaluation of SAII

As noted at [146], the development application includes the retirement of biodiversity credits to offset any residual impacts of the proposed development application. That offset is in addition to the avoidance, minimisation and mitigation measures identified above and are used to address the impacts that remain: Bulga Milbrodale Progress Association Inc. v Minister for Planning and Infrastructure and Warkworth Mining Ltd (2013) 194 LGERA 347; [2013] NSWLEC 48at [147]. The SAII Guidance document makes no reference to the decision maker considering these offsets in a determination of SAII under the BC Act. This is consistent with s 7.16 of the BC Act which is focused on the determination of SAII after ‘the measures proposed to be taken to avoid or minimise the impact on biodiversity values of the proposed development or activity’.
I am satisfied, applying cl 6.5 of the BC Regulation, that the remaining impacts of the proposed development on Coastal Cypress EEC are serious and irreversible as they are likely to contribute significantly to the risk of Coastal Cypress EEC becoming extinct having regard to both states detailed at subcll 6.7(2)(a) and (b) of the BC Regulation, namely:

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

Relevant to subcll (a) and (b) of 6.7 of the BC Regulation, Coastal Cypress EEC is recognised in the Final Determination as having limited geographic distribution and as having undergone a large reduction in geographic distribution. The Final Determination notes that most patches remaining are of less than 10ha.
The proposed development will further reduce that limited geographic distribution and will remove 0.13ha of the Coastal Cypress EEC. Further, the existing community on the site occurs in a location that is contiguous with the adjoining Council Reserve, also mapped as Coastal Cypress EEC and which the BDAR notes as having good vegetation integrity, see the extract at [149].

I accept and adopt the evidence of Dr McLean at [118] and [119]. For the reasons previously given, in my view, Dr Robertson places too great an emphasis on the addition mapping undertaken in concluding that the proposed development will not have a SAII. For the reasons detailed at [162], I am not persuaded the mapping and nomination of individual Coastal Cypress Pine trees can be taken to be equivalent to the presence of Coastal Cypress EEC at those locations.
On the basis of the proceeding, I have taken a precautionary approach to determining whether the proposed development will have a SAII on Coastal Cypress EEC. I find that the impacts of the proposed development on the Coastal Cypress EEC are to be regarded as serious and irreversible as they are likely to contribute significantly to the risk of the EEC becoming extinct pursuant to the principles at subcll (2)(a) and (c) of cl 6.7 of the BC Regulation.
I am satisfied that the proposed development, by clearing 0.13ha of Coastal Cypress EEC is likely to contribute significantly to the risk of Coastal Cypress EEC becoming extinct by continuing the pattern of clearing for urban development. Clearing of land for urban development is identified in the Final Determination as an ongoing threat to the Coastal Cypress EEC.
I am satisfied that the impact of the proposed development (clearing) will likely contribute significantly to the risk of Coastal Cypress EEC becoming extinct. It will do so it two ways, firstly, as it will further reduce the population size of the EEC that, as detailed in the Final Determination, has a very small population size and secondly, it will impact on an EEC that is estimated to have a very limited geographic distribution: cl 6.7(2)(b) and cl 6.7(2)(c) of the BC Regulation respectively.
Section 7.16(2) of the BC Act establishes a prerequisite to the exercise of power by the consent authority to grant consent to the development application. As the prerequisite is not met, I have no power to grant approval accordingly, pursuant to s 7.16(2) of the BC Act, having made the determination that the proposed development will have a serious and irreversible impacts on biodiversity values, I must refuse consent to the development application.

Conclusion

Pursuant to s 7.16(2) of the BC Act, given the finding that the proposed development is likely to have a serious and irreversible impacts on the Coastal Cypress EEC, the consent authority must refuse consent.
Further, as noted at [159], when considering the impacts biodiversity values in concert with the impacts to the existing canopy trees on the site, I am satisfied that the likely impacts of the development warrant the refusal of the application when the development is evaluated under s 4.15 of the EPA Act.
Finally, I am satisfied that pursuant to s 4.15(1)(a) of the EPA Act that the development fails to demonstrate adequate avoidance, minimisation and mitigation of impacts as required by BC Act: see s 1.3(k), s 6.2(d), s 6.4(1) and s 6.12(c) and (d). These the inadequacies of the proposed avoidance and minimisation means that the proposed development will have an unacceptable adverse impact on the Coastal Cypress EEC. The refusal of the development application is warranted on this ground also.

Orders

The orders of the Court are:

Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent thrown away as a result of the amendment of the application as agreed or assessed.

The appeal is dismissed.

Development Application 10.2022.137.1 seeking consent for the demolition of existing structures, removal of 36 trees and construction of a two-storey mixed use development across two buildings at 9-13 Clifford Street, Suffolk Park (Lot 1 DP 635305 and Lot 1 DP 853706) is determined by way of refusal.

Exhibits are returned with the exception of 2, A, B, and E.

……………………….

D Dickson

Commissioner of the Court

**********

Decision last updated: 12 October 2023

Medium Neutral Citation:	Denwol Suffolk Pty Ltd v Byron Shire Council [2023] NSWLEC 1602
Hearing dates:	5- 9 June 2023, written submissions on 7 August 2023
Date of orders:	12 October 2023
Decision date:	12 October 2023
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders that: (1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent thrown away as a result of the amendment of the application as agreed or assessed. (2) The appeal is dismissed. (3) Development Application 10.2022.137.1 seeking consent for the demolition of existing structures, removal of 36 trees and construction of a two-storey mixed use development across two buildings at 9-13 Clifford Street, Suffolk Park (Lot 1 DP 635305 and Lot 1 DP 853706) is determined by way of refusal. (4) Exhibits are returned with the exception of Exhibit 2, A, B and E.
Catchwords:	DEVELOPMENT APPLICATION – demolition of structures, tree removal, construction of a two-storey mixed use development across two buildings – tree removal and management of bushfire risk – impact on endangered ecological community Coastal Cypress Pine Forest –whether the development adequately avoids or minimises impacts upon biodiversity values – whether the proposed development has a serious and irreversible impacts on biodiversity impacts – whether the proposed landscaping of the development is adequate – whether the likely impacts of the development are reasonable – appeal dismissed
Legislation Cited:	Biodiversity Conservation Act 2016, ss 1.3, 1.5, 1.6, Pt 2, Sch 2, Pt 7, ss 6.2, 6.4, 6.12, 6.7, 7.2, 7.4, 7.7, 7.13, 7.16 Biodiversity Conversation Regulation, cll 1.4, 6.5, 6.7, 7.1, 7.2, Byron Local Environmental Plan 2014 Environmental Planning and Assessment Act 1979, ss 4.17, 8.15, 8.7 Land and Environment Court Act 1979, s 34 Threatened Species Conservation Act 1995, Pt 2, Div 5
Cases Cited:	Blake v Ku ring gai Council [2021] NSWLEC 1461 Planners North v Ballina Shire Council (2021) 251 LGERA 309; [2021] NSWLEC 120 Bulga Milbrodale Progress Association Inc. v Minister for Planning and Infrastructure and Warkworth Mining Ltd(2013) 194 LGERA 347; [2013] NSWLEC 48 Tomasic v Port Stephens Council [2021] NSWLEC 56
Texts Cited:	Byron Shire Development Control Plan 2014 Department of Planning, Infrastructure and Environment, Biodiversity Assessment Method, October 2020 Department of Planning, Industry and Environment, Guidance to assist a decision-maker to determine a serious and irreversible impact NSW Department of Planning and Environment, Coastal Cypress Pine Forest in the NSW North Coast Bioregion Endangered Ecological Community NSW Department of Planning and Environment, NSW State Vegetation Type Map NSW Rural Fire Service, Planning for Bushfire Protection 2019 Standards Australia, AS 4970 2009 Protection of Trees on Development Sites
Category:	Principal judgment
Parties:	Denwol Suffolk Pty Ltd (Applicant) Byron Shire Council (Respondent)
Representation:	Counsel: J Lazarus SC (Applicant) A Seton (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Marsdens Law Group (Respondent)
File Number(s):	2022/269686
Publication restriction:	Nil

Column 1	Column 2
Minimum lot size of land	Area of clearing
Less than 1 hectare	0.25 hectare or more
Less than 40 hectares but not less than 1 hectare	0.5 hectare or more
Less than 1,000 hectares but not less than 40 hectares	1 hectare or more
1,000 hectares or more	2 hectares or more