Fife Capital Pty Ltd v Cumberland Council

[2017] NSWLEC 1354

Land and Environment Court

New South Wales

Medium Neutral Citation:	Fife Capital Pty Ltd v Cumberland Council [2017] NSWLEC 1354
Hearing dates:	7 – 8 June 2017
Date of orders:	06 July 2017
Decision date:	06 July 2017
Jurisdiction:	Class 1
Before:	Dickson, C
Decision:	Directions [par. 111]
Catchwords:	DEVELOPMENT APPEAL: consent sought for bulk earthworks – impact on endangered ecological community – whether a species impact statement is required – required buffer to Prospect Creek – required buffer to vegetation community – land zoned for industrial and environmental purposes.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Threatened Species Conservation Act 1995 Water Management Act 2000 State Environmental Planning Policy 55- Remediation of Land Greater Metropolitan Regional Environmental Plan No. 2 – Georges River Catchment
Cases Cited:	Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited 2010 NSWLEC 48 Timbarra Protection Coalition Inc v Ross Mining NL &Ors [1999] NSWCA 8 Commercial and Industrial Property Pty Ltd v Holroyd City Council [2013] NSWLEC 1000 BGP Properties Pty Ltd v Macquarie City Council 138 LGERA 237; [2004] NSWLEC 399
Texts Cited:	Threatened Species Assessment Guidelines, Department of Environment and Climate Change 2004
Category:	Principal judgment
Parties:	Fife Capital Pty Ltd (Applicant) Cumberland Council (Respondent)
Representation:	Counsel: M Staunton (Applicant) A, Seton, Marsdens Law Group (Respondent)   Solicitors: Mills Oakley (Applicant)
File Number(s):	2016/ 00310627
Publication restriction:	No

Judgment

1. COMMISSIONER: This appeal was lodged against the deemed refusal by Cumberland Council of development application 2016/327/1. The applicant seeks approval for bulk earthworks, including excavation and movement of soil to provide 28,000m² of fill, on land at 7 Dursley Road, Yennora (the Site).

2. The following works are also proposed:

1. Demolition of existing office buildings fronting Dursley Road;

2. Removal of trees within the work area; and

3. Construction of sediment fencing, sediment basins and emergency overflow weirs to manage stormwater flows.

3. Council contends that the application should be refused as:

1. There is a likelihood of a significant impact on the identified Endangered Ecological Community (EEC) as a result of the development, and therefore a species impact statement is required before determination of the application; and

2. The development application does not satisfactorily address the requirements of the Greater Metropolitan Regional Environmental Plan No. 2 – Georges River Catchment (REP 2) in particular in relation to the provision of an appropriate buffer to the remnant vegetation and Prospect Creek.

4. It is agreed between the parties that the development proposed does not involve the removal of any vegetation that is classified as part of the EEC.

5. In hearing the appeal the role of the Court (cl 39 of the Land and Environment Court Act 1979 (LEC Act)) is to assess and determine the development application based on the evidence in the proceedings and the amended plans.

Summary

6. Following consideration of the evidence, and the requirements of the relevant planning legislation; I find that a Species Impact Statement (SIS) is not required. However in accordance with s 79C(1)(b), I find that it is appropriate to provide an increase in the buffer to the River-Flat Eucalypt Forest on Coastal Floodplains of the New South Wales North Coast, Sydney Basin and South East Corner bioregions (RFEF), where the current community is at its narrowest, and for the applicant to prepare a vegetation management plan for the Court to consider prior to determination of the application.

The site and its context

7. The subject site is legally described as Lot 3 in DP 231327, and Lot 12 in DP 1048988. The property has a street address of 7 Dursley Road, and 63 Pine Road, Yennora. The site has a total area of 12.58 hectares.

8. The site was previously used for industrial purposes, and has been the subject of a previous consent for the purposes of remediation. The site contains scatted vegetation, with the southern portion of the site containing vegetation that forms part of the riparian corridor to Prospect Creek.

9. It is agreed between the parties that the site contains RFEF. This is the relevant EEC in the proceedings. The ecology experts are agreed that the community occurs within the southern portion of the site, adjacent Prospect Creek. The extent of the community is indicated in green shading in the following site plan:

Planning Controls:

10. Section 79C(1)(a) of the Environmental Planning and Assessment Act 1979 (the Act) requires the consent authority, in this case the Court, to consider a number of provisions of any environmental planning instrument, any development control plan, any planning agreement, relevant regulations, and any coastal management plan that may apply to the land to which the development application relates. Amongst other things, s 79C also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.

11. The development application is classified as ‘integrated development’ under Section 91 of the Act due to the need to obtain an approval under the Water Management Act 2000. General Terms of Approval were provided by the NSW Office of Water on 21 April 2017.

12. The site contains RFEF , which is identified as part of an EEC protected under the Threatened Species Conservation Act 1995 (TSC Act) (Part 3, Schedule 1). The objects of the TSC Act, at s 3, are as follows:

(a) to conserve biological diversity and promote ecologically sustainable development, and

(b) to prevent the extinction and promote the recovery of threatened species, populations and ecological communities, and

(c) to protect the critical habitat of those threatened species, populations and ecological communities that are endangered, and

(d) to eliminate or manage certain processes that threaten the survival or evolutionary development of threatened species, populations and ecological communities, and

(e) to ensure that the impact of any action affecting threatened species, populations and ecological communities is properly assessed, and

(f) to encourage the conservation of threatened species, populations and ecological communities by the adoption of measures involving co-operative management.

13. Part 1 of Sch. 1 of the Environmental Planning and Assessment Regulation 2000 specifies what a development application must contain (in cl 1) and the documents that must accompany a development application (in cl 2). Amongst the information that a development application must contain is:

1(1)(e)   an indication as to whether the development is likely to significantly affect threatened species, populations or ecological communities, or their habitats, unless the development is taken to be development that is not likely to have that effect, because it is biologically compliant development.

14. Critically Part 5A of the Act applies to the development application. At (1) it details the factors that must be taken into account in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats. They are at (a) the factors listed in subsection 2, and those in any assessment guidelines.

(2) The following factors must be taken into account in making a determination under this section:

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

(b) in the case of an endangered population, whether the action proposed is likely to have an adverse effect on the life cycle of the species that constitutes the endangered population such that a viable local population of the species is likely to be placed at risk of extinction,

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

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

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

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

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

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

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

(e) whether the action proposed is likely to have an adverse effect on critical habitat (either directly or indirectly),

(f) whether the action proposed is consistent with the objectives or actions of a recovery plan or threat abatement plan,

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

The relevant assessment guidelines are the Threatened Species Assessment Guidelines, Department of Environment and Climate Change 2004 (the Guidelines).

15. Whether there is likelihood that the development proposed will have a significant impact on the EEC is in contention between the parties. Section 78A(8)(b) of the Act states an species impact statement must accompany a development application if the application is in respect of development on land that is, or is part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats.

16. Where threatened species, or an EEC, is assessed as being significantly impacted, a SIS is required The content of a SIS is detailed and is relevantly prescribed in s 110 of the TSC Act:

110 Content of species impact statement

(1)    A species impact statement must include a full description of the action proposed, including its nature, extent, location, timing and layout and, to the fullest extent reasonably practicable, the information referred to in this section.

(2)    A species impact statement must include the following information as to threatened species and populations:

(a) a general description of the threatened species or populations known or likely to be present in the area that is the subject of the action and in any area that is likely to be affected by the action,

(b)    an assessment of which threatened species or populations known or likely to be present in the area are likely to be affected by the action,

(c)    for each species or population likely to be affected, details of its local, regional and State-wide conservation status, the key threatening processes generally affecting it, its habitat requirements and any recovery plan or threat abatement plan applying to it,

(d)    an estimate of the local and regional abundance of those species or populations,

(e) an assessment of whether those species or populations are adequately represented in conservation reserves (or other similar protected areas) in the region,

(e1)    an assessment of whether any of those species or populations is at the limit of its known distribution,

(f)    a full description of the type, location, size and condition of the habitat (including critical habitat) of those species and populations and details of the distribution and condition of similar habitats in the region,

(g)    a full assessment of the likely effect of the action on those species and populations, including, if possible, the quantitative effect of local populations in the cumulative effect in the region,

(h)    a description of any feasible alternatives to the action that are likely to be of lesser effect and the reasons justifying the carrying out of the action in the manner proposed, having regard to the biophysical, economic and social considerations and the principles of ecologically sustainable development,

(i)    a full description and justification of the measures proposed to mitigate any adverse effect of the action on the species and populations, including a compilation (in a single section of the statement) of those measures,

(j)    a list of any approvals that must be obtained under any other Act or law before the action may be lawfully carried out, including details of the conditions of any existing approvals that are relevant to the species or population.

17. The Greater Metropolitan Regional Environmental Plan No. 2 – Georges River Catchment (REP 2) applies to the site. At clause (3) the plan states that if REP 2 is inconsistent with a local environmental plan, then REP 2 prevails to the extent of the inconsistency.

18. The aims of the plan relevant to the proceedings are:

(a) to maintain and improve the water quality and river flows of the Georges River and its tributaries and ensure that development is managed in a manner that is in keeping with the national, State, regional and local significance of the Catchment,

(b) to protect and enhance the environmental quality of the Catchment for the benefit of all users through the management and use of the resources in the Catchment in an ecologically sustainable …

2.

Environmental protection and water quality and river flows

(a) to preserve and protect and to encourage the restoration or rehabilitation of regionally significant sensitive natural environments such as wetlands (including mangroves, saltmarsh and seagrass areas), bushland and open space corridors within the Catchment, by identifying environmentally sensitive areas and providing for appropriate land use planning and development controls,

(b) to preserve, enhance and protect the freshwater and estuarine ecosystems within the Catchment by providing appropriate development,

(c) to ensure that development achieves the environmental objectives for the Catchment.

Regional role and land use

(a)  to identify land uses in the Catchment which have the potential to impact adversely on the water quality and river flows in the Georges River and its tributaries and to provide appropriate planning controls aimed at reducing adverse impacts on the water quality and river flows,

…

19. Part 2 of REP 2 provides planning principles that, in accordance with clause 7(a), apply when a consent authority determines a development application. The relevant principles are contained in:

1. Clause 8: General Principles

2. Clause 9(5) in relation to land degradation;

3. Clause 9(9) in relation to urban stormwater management; and

4. Clause 9(11) in relation to vegetated buffers.

20. Part 3 of REP 2 contains specific planning requirements. Clause 21 provides controls, and matters for consideration, for development in vegetated buffer areas. These controls apply to the proposed development. The specific matters for consideration, relevant to the proceedings are:

…

Whether the proposed vegetated buffer will act as a buffer between developed land and environmentally sensitive areas, including adjacent waterways.

Whether the following specifications have been satisfied for the proposed vegetated buffer area:

…

(b) 40 metre minimum buffer width from the edge of the gorge or the top of the banks of the Georges River and its tributaries on freehold land that has not been previously developed or cleared,

…

(d) 40 metre minimum buffer width from other environmentally sensitive areas, including remnant vegetation and steep slopes, identified on maps prepared by and available from the National Parks and Wildlife Service.

…

The need to filter runoff from developed areas to improve water quality within the Georges River and its tributaries.

The need to reduce the loss of riparian vegetation and to remove invasive weed species.

The need to minimise damage to river banks and channels so as to reduce bank erosion.

The need to increase or maintain terrestrial and aquatic biological diversity and to provide fauna habitat and corridors.

21. Holroyd Local Environmental Plan 2013 (LEP 2013) applies to the site. Pursuant to LEP 2013 the site is zoned both E2: Environmental Conservation, and IN1 General Industrial. The objectives of the relevant zones are as follows:

Zone IN1 General Industrial

1 Objectives of zone

• To provide a wide range of industrial and warehouse land uses.

• To encourage employment opportunities.

• To minimise any adverse effect of industry on other land uses.

• To support and protect industrial land for industrial uses.

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

Zone E2 Environmental Conservation

1 Objectives of zone

• To protect, manage and restore areas of high ecological, scientific, cultural or aesthetic values.

• To prevent development that could destroy, damage or otherwise have an adverse effect on those values.

• To promote cultural interpretation and scientific study of the natural environment.

22. The portion of the riparian corridor within the site is predominately within the area zoned E2 – Environmental Conservation.

23. The proposal is defined as earthworks and is permissible, with consent, in both zones.

24. Clause 5.9 of LEP 2013 applies and at (3) mandates that all vegetation removal requires consent.

25. Clause 6.2 Earthworks provides at (3) the following factors of consideration prior to consent:

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

(b) the effect of the development on the likely future use or redevelopment of the land,

(c) the quality of the fill or the soil to be excavated, or both,

(d) the effect of the development on the existing and likely amenity of adjoining properties,

(e) the source of any fill material and the destination of any excavated material,

(f) the likelihood of disturbing relics,

(g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area,

(h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

26. As the application seeks consent for works in the riparian zone, clause 6.6 at (3) requires the consent authority to consider the following factors prior to determination of an application:

(a) whether or not the development is likely to have any adverse impact on the following:

(i) the water quality and flows within the watercourse,

(ii) aquatic and riparian species, habitats and ecosystems of the watercourse,

(iii) the stability of the bed and banks of the watercourse,

(iv) the free passage of fish and other aquatic organisms within or along the watercourse,

(v) any future rehabilitation of the watercourse and riparian areas, and

(b) whether or not the development is likely to increase water extraction from the watercourse, and

(c) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

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

(a) the development is designed, sited and will be managed to avoid any adverse environmental impact, or

(b) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or

(c) if that impact cannot be minimised—the development will be managed to mitigate that impact.

27. The Holroyd Development Control Plan 2013, (DCP 2013) applies to the proposal. The clauses of DCP 2013 relevant to the appeal are in:

1. Part A: Section 4: Tree and Landscape Works

2. Part A: Section 6: Soil Management, and in particular:

1. 6.1: Cut and Fill; and

2. 6.3 Erosion and Sediment Control.

3. Part A: Section 7: Stormwater Management

4. Part D: Section 7: Prospect Creek

Public submissions

28. The assessment of the original and the amended development application involved public notification to the surrounding neighbourhood in accordance with the DCP 2013. No submissions were received.

Expert Evidence

29. The Court heard expert ecological evidence from Dr Robertson, for the applicant, and Ms James for the Council. The experts participated in a joint conferencing process prior to the hearing, which sought to address the issues in contention. Following the conferencing process they prepared a joint expert report which was tendered as Exhibit 4.

Is there a likelihood of a significant impact on EEC as a result of the development?

30. It is agreed between the parties that the EEC is listed in Part 3 Schedule 1 of the TSC Act. The Council contends that the application must be refused because the applicant has provided insufficient evidence to demonstrate that the works will not have a significant effect on the EEC RFEF. Council contends that a SIS is required pursuant to s78A(8)(b) of the Act.

31. Councils principle arguments can be summarised as follows:

1. The proposed works will extend up to the riparian corridor containing the RFEF, and the RFEF will be subject to edge effects and indirect impacts. These impacts should be assessed, together with the subject site as part of a larger study area. As this work has not been completed Council argues that uncertainty exists as to the impacts of the development.

2. Given the reasonable doubt surrounding the likely indirect impacts of the development, a species impact statement should be prepared prior to determination.

3. The cumulative impacts of earlier site works with the subject land and on the adjoining lot (Lot 4/ DP 1045391 Fairfield Road), dam remediation, and general impacts from development upstream are not adequately described or assessed.

4. There is uncertainty regarding the resilience of the RFEF community to rehabilitation. The uncertainty centres on whether the indirect impacts from the works will result in the community becoming degraded to a point that is irreversible.

5. The corridor is known to support a varied fauna assemblage including threatened micro-bats and the Grey-headed Flying Fox as well as many species of regional significance. Council argues that given the highly urbanised context remnant vegetation is largely restricted to the corridor adjacent Prospect Creek, and no there is no other comparable corridor route.

32. In the alternative, the applicant, based on assessments of significance completed by Dr Robertson, argues that no significant impact is likely upon the RFEF as a result of the proposal. No Species Impact Statement is warranted (Exhibit 4, Appendix E).

33. The Court has held that whether or not an SIS is required is a jurisdictional fact, or condition precedent (Timbarra Protection Coalition Inc v Ross Mining NL &Ors [1999] NSWCA 8 at [94]). If it is determined that an SIS is required, and the consent authority does not have one, then consent cannot be granted.

34. In Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited 2010 NSWLEC 48 at [81] Preston CJ outlines the following in relation the requirement for an SIS:

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

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

84 Thirdly, the word “likely” means “a real chance or possibility” and “significantly” means “important”, “notable”, “weighty” or “more than ordinary”: Oshlack v Richmond River Shire Council (1993) 82 LGERA 222 at 233 and cases therein cited; Plumb v Penrith City Council [2002] NSWLEC 223 at [22(1)]; Corowa v Geographe Point Pty Ltd at [52]; Nambucca Valley Conservation Association v Nambucca Shire Council at [82].

85 Fourthly, in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats, the consent authority and the Court on appeal must take the factors in s 5A of the EPA Act into account and in particular the factors in the now seven part test in s 5A(2). However, the consent authority is not limited to consideration of these factors; there may be facts and circumstances relevant to the inquiry which are not specifically contained in any of the factors in the seven part test: Plumb v Penrith City Council at [37]; BT Goldsmith Planning Services Pty Ltd v Blacktown City Council [2005] NSWLEC 210 at [12]; and Corowa v Geographe Point Pty Ltd at [52].

86 Fifthly, a positive answer to any one or more of the seven factors does not mandate an affirmative answer to the question of whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats but equally does not preclude a negative answer to the question: Carstens v Pittwater Council [1999] NSWLEC 249; (1999) 111 LGERA 1 at [61]; Masterbuilt Pty Ltd v Hornsby Shire Council [2002] NSWLEC 170 at [11]; Plumb v Penrith City Council at [36]; Nambucca Valley Conservation Association v Nambucca Shire Council at [83].

35. The factors from the Guidelines relevant for these proceedings are (c), (d), (f) and (g) as follows:

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

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

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

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

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

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

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

(f) whether the action is consistent with the objectives or actions of a recovery plan or threat abatement plan.

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

36. In order to decide whether or not a SIS is required a number of issues must be addressed (Commercial and Industrial Property Pty Ltd v Holroyd City Council [2013] NSWLEC 1000 at [22]):

1. Is the EEC present on the site?

2. If there is EEC, where does it occur?

3. If there is EEC on the site, is it likely to be significantly affected by the proposed development.

37. In this matter, the parties are agreed on the presence, and location of the RFEF. The contentions are focused on the remaining question of the potential impact of the proposed works on the community.

38. Both experts have prepared Assessments of Significance, utilising the Guidelines. The key distinctions between the ecology experts are:

1. The state of the RFEF, and whether its degradation affects its sensitivity to indirect impacts, or acts to diminish the effect of the impacts;

2. The role of the existing stand of trees adjacent to the RFEF and its relationship to the EEC;

3. Whether the indirect impacts from the development are significant, or are manageable; and

4. Ultimately, whether the potential impacts from the development are significant and trigger the requirement for an SIS.

39. In order to address Council’s contentions additional ecology fieldwork and analysis was completed by Cumberland Ecology, under direction from Dr Robertson. This fieldwork, mapping and reporting is appended to the joint report, and formed part of the joint conferencing. Relying on this material Dr Robertson concludes that the portion of the riparian corridor within the site that contains the RFEF is quite degraded and weed infested.

40. In his oral evidence, Dr Robertson referred to Table 3 in Appendix C of the joint report to support his conclusion. This table provides a summary of the flora found in four quadrat locations within the location of the EEC. It is Dr Robertson’s conclusions that in the four quadrats weeds occupy 97-100% of the ground cover, 50-100% of shrubs, 20-100% of small trees and 0-30% of trees. From this field work Dr Robertson makes the following comments in his Assessment of Significance:

Based upon the Cumberland Ecology Flora and Fauna Habitat Assessment data that is presented in Appendix C, and upon the current condition of the creek corridor, as demonstrated in the photographs in Appendix D, it is assumed that the RFEF is in a disturbed state. It comprises an overstorey of largely mature trees, with some smaller trees and shrubs, but has a limited number of native ground stratum and understorey plants. It is also heavily infested with vines such as Balloon Vine, which are major threats to its integrity in the long term.

The creek corridor along Prospect Creek is polluted and weed infested as a result of extensive development in its catchment, including industrial and urban development. RFEF extends along the creek corridor upstream and downstream of the subject land. The occurrence on the subject site is part pf a much more extensive corridor of the community (Exhibit 4).

41. Dr Roberton’s assessment of significance estimates a total area of RFEF within the Prospect Creek corridor of over 20ha. It is his conclusion that apart from a very minor area along the perimeter of the RFEF, the EEC will not be directly modified or altered as part of this proposal. The reasoning for his conclusion is as follows:

There is potential for causing indirect impacts via erosion, altered runoff, weed invasion (in runoff and in disturbed soil) and by influencing the microclimate of the vegetation within the corridor. However, the existing creek line vegetation is highly modified with extensive weed cover and limited understorey. The creek receives large flows of stormwater from upstream and these carry dissolved and suspended pollutants and nutrients, trash, seed propagules from weeds such as Ballon Vine. The proposal, even without substantial mitigation measures is unlikely to significantly, further degrade the ground stratum of the RFEF. However, the mitigation measures proposed are likely to reduce the input into the riparian corridor and the RFEF.

The proposed layout has been designed to reduce the impact of the potential run-off into the EEC in the western portion of the subject site.

Therefore the proposal will not substantially modify the composition of the EEC such that it would place the local occurrence (the RFEF on site and further upstream and downstream from the site) at risk of extinction (Exhibit 4).

42. In oral evidence, Dr Robertson provided further elaboration of his reasoning. He concludes that the community is more tolerant to change due to its current weed infestation. He draws this conclusion on the basis that the stratum of the community most impacted by competition from weeds, the ground stratum, is not present. It is his conclusion that the potential indirect impacts from the development, of increased erosion and run off will be unlikely to impact the trees within the community. Therefore, given that 97% of shrubs and 99% of the ground stratum are lost it is Dr Robertson’s conclusion that any impact is a temporary threat, and is able to be managed.

43. Ms James’ evidence was that the fieldwork undertaken by Dr Robertson provides a single snapshot. It is her view that it would not account for plants that may be present hidden below weeds or persist as root stock or seeds in the soil, thus potentially under representing the diversity present. In addition, her evidence is that, as the data is not integrated into a comprehensive ecological assessment it lacks context (Exhibit 4, pg. 6).

44. Ms James’ other area of principal divergence of opinion is in relation to the current state of the vegetation community, and how that is considered as part of the assessment of significance. In contrast to the views of Dr Robertson [refer par 38], Ms James argues that the RFEF is not more tolerant due to its level of weed infestation. It is her view that the RFEF is more sensitive because of the condition that it’s in, which is the result of cumulative impacts from upstream and from adjoining the site over quite a long period of time, including clearing and run-off pollution into the creek line (transcript pg. 33). The other factors that contribute to her conclusion are: the size of the corridor; its extensive perimeter; and the uncertainty of the communities remaining resilience to rehabilitation. Her reasoning is detailed below:

The corridor has been pretty much that size for a long time, since about 1930s. So it’s always been constrained by a fairly narrow width and, therefore, it’s not as resilient as a really big remnant. It has extensive perimeter to area ration, which is where you’re going to get a lot of edge effects. So because it has suffered a lot already it is actually - so ecologically we talk about change along a continuum. So you can have your pristine condition river-flat forest and, as disturbance increases and becomes more degraded, it comes to right at the other end, maybe it’s not river-flat forest any more.

So where are we along this continuum at the moment and to just say, “Oh, well, it’s weedy, so it’s going to be tolerant”, I don't believe that is ecologically sound. (transcript pg. 33).

45. In her oral evidence, Ms James provided evidence that in her view the quadrats chosen could influence the conclusion of high weed infestation due to their locations. She argues that quadrat four is adjacent to a stormwater channel, which increases the likelihood of weed infestation, quadrat two is located at the edge of the RFEF and that quadrat one is not located within the RFEF itself. In addition it is her evidence that the determination of the Scientific Committee when listing the RFEF includes a statement that weediness is a characteristic of the community, as follows:

The composition and structure of the understorey is influenced by grazing and fire history, changes to hydrology and soil salinity and other disturbance, and may have a substantial component of exotic shrubs, grasses, vines and forbs.

…

Very few examples of River-flat Eucalypt Forest remain unaffected by weeds.

(Extract: River-Flat Eucalypt Forest on Coastal Floodplains of the NSW North Coast, Sydney Basin and South East Corner bioregions Determination)

46. It is her view that the level of ‘weediness’ may obscure or camouflage the presence of other native species in the mid storey. In her oral evidence, Ms James concluded that the regeneration potential of the RFEF, and riparian habitat on the subject site, has not been investigated and is currently unknown. In the joint report, at Appendix H, Ms James included detail of a regeneration project at the rear of Fairfield High School (in proximity to the site) which she concludes indicates some recovery capacity may occur despite dense weed cover in parts. It is her uncontested evidence that the RFEF community at the rear of Fairfield High School is responding well to bush regeneration / weed control despite former dense weed infestation (Exhibit 4).

47. A vegetation management plan (VMP) is not proposed by the applicant as part of the application, however is required as part of the agreed conditions of any consent.

48. Dr Robertson maintains that irrespective of the absence a VMP, there would not be a significant impact as a result of the creation of the earthworks on the site. However he acknowledges that a VMP would assist in managing key threats, particularly those that pertain to weeds and weed invasion. It is his conclusion that a VMP would address a key threat to the community, but that threat doesn’t come from the proposal. It comes from just the existing condition of the community (Transcript pg. 12).

49. Ms James agrees with Dr Robertson that indirect impacts will occur along the new interface between development and the RFEF through edge effects, including altered run off, water infiltration, erosion, increased exposure to winds and dust, weed propagules, pathogens and noise, and weed invasion (Appendix G, Exhibit 4). The ecological assessment prepared by the applicant assumes edge effects on the RFEF over a distance of 10m. It is Ms James’ opinion that, whilst this equates to 0.235 ha, it is an underestimation of the potential amount of the community affected by the development. It is the conclusion of her Assessment of Significance that current research and her field experience and knowledge support the extension of these affects beyond a 10m zone (Appendix G, Exhibit 4).

It is my opinion that 10m is a significant underestimate of the likely extent of edge effects based on current research & field knowledge/ experience. Although this area is highly modified through weed invasion, it is likely that some native species persist and may be hidden by the weeds or only represented as seed or storage organs in the soil.

Resilience or recovery capacity declines, however, with increasing levels of disturbance. Vegetation can become particularly vulnerable or sensitive to additional or new impacts and if a critical threshold is passed is likely to move into a more degraded state that is irreversible i.e removal of that disturbance may not result in the system returning to its previous state. Such a loss of recovery capacity is a serious concern. (Appendix G, Exhibit 4).

50. In her oral evidence Ms James focussed on four main areas of indirect impact that, in her opinion, would result in changes to the RFEF as they would occur in proximity to it:

1. The removal of the mound and trees on the northern side of the former dam A (as noted on the plans). This stand of vegetation is nominated in purple in the extract of the site plan, refer par [9];

1. the altering of the surface flows of water run-off immediately adjoining the RFEF;

2. potential also for increased erosion due to the batters that have now been created immediately adjoining the RFEF; and

It was agreed between the experts by reference to the plans that the batter creates average two metre drop, over about five metres of length.

4. increase to the height of the land, and battering of the land down to and immediately adjoining the RFEF will alter surface flows.

51. The experts agreed, by reference to the plans that the fill depths immediately adjoining the RFEF range between 1.2 and 1.5 metres.

52. In her Assessment of Significance Ms James identifies that the proposal has the potential to affect the corridor and the local occurrence more generally through the alteration of hydrological regimes, and loss of ecological function. She identifies the four factors, at par. [51], as contributing to this alteration and loss. It is her evidence that these changes are in addition to the cumulative impacts that are already in existence from development. Her assessment states that the effect of these changes as follows:

The hydrological regime has been significantly altered. The most likely consequence of these impacts is the loss of water in the RFEF habitat due to less frequent smaller flooding events, reduced subsurface drainage and channel incision. The main canopy trees with deeper roots are surviving at present but low native species diversity in the mid-storey and ground cover could be at least partly due to this loss. Continued incision of the channel and erosion of banks will threaten mature canopy trees that are integral to the structure, composition and function of the community. The cumulative impacts and threshold limits are unknown. (Appendix G, Exhibit 4).

53. It is the conclusion of Ms James that the proposal has the potential to adversely modify the environment, composition and function of the RFEF by the indirect impacts arising from edge effects, changes in hydrological regimes, loss of buffer protection and disruption of ecological processes. It is her conclusion that these adverse impacts lead to the conclusion that the proposed development is likely to have a significant impact on the RFEF, and an SIS is required.

54. In relation to the disruption to ecological function Ms James argues not that the fauna themselves will be threatened by the proposed development, but rather that the development will remove their habitat, and may result in these species not undertaking their important role in the RFEF. Her evidence is that:

Fauna are responsible for important ecological processes within communities and along corridors including pollination (maintaining genetic diversity) and dispersal of seeds. There is evidence to indicate that the Upper Prospect Creek corridor provides habitat for and is used by a range of fauna including bats, and the Grey-headed Flying Fix. The corridor will be reduced to less than 20m wide on the Cumberland Council side as a result of the proposal for significant sections. The science generally agrees that wider riparian/ vegetated corridors provide for more foraging habitats, increases the likelihood of fauna migration and improved condition and sustainability of remnant vegetation (Exhibit 4).

55. It is Dr Robertson’s evidence that the ecological assessment does not assume edge effects will occur, but that there is the potential for edge effects of up to 10m. In relation to any impact on ecological processes, it is his evidence that the ecological processes will continue given that the corridor contains approximately 30 hectares of RFEF, and the fauna will equally forage in other proximate vegetation that’s closely related. Dr Robertson concludes that he doesn’t foresee that the corridor will lose its function. (Transcript pg. 18)

56. In oral evidence Dr Robertson agreed that the proposal would alter of the surface flows of water run-off immediately adjoining the EEC, and that there a potential also for increased erosion due to the batters created immediately adjoining the RFEF. In cross-examination, Mr Seton who submits that there is at least a potential for those changes and works to have an impact on the river-flat eucalypt forest, which is on and adjoins the subject land, put the cumulative effect of four changes [par. 51] to Dr Robertson.

57. In response, Dr Robertson maintains that whilst he could not say with any certainty that there won’t an impact of sorts he put to the Court that he would be very surprised if there was a significant impact such that these earthworks caused a major detrimental impact to the trees in the corridor (Transcript pg. 18) . His reasoning is as follows:

…a lot of that river-flat eucalypt forest, if not all of it, in the subject site is essentially river-flat eucalypt forest trees. There are other species there and we’ve recorded them quite appropriate in the preceding list, but for all intents and purposes within the plots you’ve got, you know, the shrub covers 98% exotic shrubs. The ground stratum is 99% exotic herbaceous weeds. The tree cover, as I said before, is about 27% native tree cover, with 3 or 4% on average of exotic trees. So what that boils down is that you’ve got some native tree cover adjacent to the site.

So the ground stratum, which is most at risk from erosion and from changed run-off along the batters, the ground stratum is almost like the who’s who of serious environmental weeds in the Sydney region so - and I’m not sort of being facetious, but quite literally if you look at page 45 of 81 of the joint statement, photograph 2, you will see the sort of embankment that we’re talking about that is going to be immediately adjacent to the works proposed, that style of embankment.

So it’s already sloping. The slopes are densely covered with like sort of a carpet of vines and weeds and they’re relatively stable and the other thing that’s quite relevant to that too is that, when you look at other buildings, such the development immediately to the west of the subject site, that is actually shown on photograph 6, immediately to the west of the site in question now, on page 48 of 81 you can see there’s a container storage area built up in close proximity, hard up against the edge of the river-flat eucalypt forest which, as I’ve explained before, is essentially like an amalgam of weedy shrubs, weedy vines and it’s got some native trees.

I’m not saying for one moment that’s not an endangered community and I’m not saying for one moment that it’s something we should be down-playing, but the composition of that vegetation is very relevant when you’re looking at the potential for damage from something like a bit of erosion coming off a temporarily destabilised or recreated sort of batter area.

So in a worst case scenario, if that was unmitigated and the erosion ran straight into the slopes of the river-flat eucalypt forest, I believe that I wouldn’t cause catastrophic damage, that it would eventually stabilise and probably stabilise quite quickly as a result of weed cover and regrowth of the ground stratum and that in a worst case such damage could be rectified by simply moving some of the eroded fill back off the site and replanting it.

So I don’t advocate that there’s no - I don’t advocate a lack of erosion control and I’m not completely down-playing this as a potential risk, but I’ve assumed that it has in this situation a limited potential to damage the river-flat eucalypt forest and that that potential damage can be mitigated by erosion control measures and also addressed later on if the E2 lands are subject to a vegetation management plan. (Transcript pg. 10).

58. Mr Robertson in his Assessment of Significance does not rely on the ameliorative measure of a vegetation management plan to conclude that the development will not have a significant impact. He does however agree that such an approach will reduce the key threats to the community. Importantly it is his evidence that the key threats identified are an existing condition, and do not come from the proposal. His reasoning is detailed below:

Same point down below, if a VMP is implemented on the E2 area, a number of these key threats mentioned above will be addressed. Now those key threats come particularly from things like invasion by exotic vines and scramblers, which are quite rampant on the site. That threat to the river-flat eucalypt forest continues regardless of whether or not there’s a development on the subject site, whether or not there’s any work done on the soils of the subject site, as proposed. So that’s - it’s a comment that it is - it’s a relevant step to take. It would address a key threat to the community, but that threat doesn’t come from the proposal. It comes from just the existing condition of the community. (Transcript pg. 12).

59. Mr Staunton submits that the jurisdictional test is met, and that the Court has adequate evidence from Dr Robertson to conclude that there is not likely to be a significant impact on EEC from the development. He argues that the Court should rely on the very detailed assessment completed and the scientific data gathered from the field work. Mr Staunton argues that this scientific analysis should be given weight over the concerns raised by Ms James of the potential indirect impacts of the development.

60. In the alternative, Mr Seton argues that fundamentally the experts have different opinions. Mr Seton urges the Court to take a precautionary approach and come to the view that there is a likely impact (and an SIS is required), or alternatively that there is insufficient information to suggest that it is unlikely for there to be a significant effect on the RFEF. He submits that the Court should form the view that the application is unable to be approved in the absence of an SIS.

Findings

61. Following consideration of the proposal, the legislation and the evidence of the experts, I find that the adverse indirect impacts from the proposed development are not such that the local occurrence of RFEF is likely to be placed at risk of extinction (s5A(2)(a) of the Act). In reaching this conclusion I have considered that:

1. The proposal involves no direct removal of the EEC community;

2. The experts agree that the total area of RFEF within the Prospect Creek corridor is over 20ha. The experts do not agree to the magnitude of the area of the RFEF that has the potential to be impacted by edge effects. Dr Robertson’s evidence is a 10m width of vegetation may be affected, a total of 0.235ha. Ms James references a report that provides a 50m width as the area affected by indirect impacts. If this measure were applied this would equate to 1.2ha. Within the joint report, Ms James concludes that indirect impacts could extend up to 1 ha. Based on the evidence, at its worse the area of indirect impact represents 6% of the total area of RFEF in the local occurrence. I am satisfied that there is no evidence to substantiate that the impacts would directly result in the likely loss of the local occurrence of RFEF;

3. I accept the evidence of Dr Robinson that the local occurrence is appropriately defined as the RFEF on site and further upstream and downstream from the site; and

4. I accept the evidence of Dr Robinson the fieldwork conducted was sufficient to confirm the existence of a modified form of RFEF, where canopy trees and some shrubs occur, but weeds dominate the understorey.

62. I am satisfied that the works are not likely to have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction. Or, on the other hand, that the works are likely to substantially and adversely modify the composition of the ecological community such that its occurrence is likely to be placed at risk of extinction. I am not satisfied that the evidence establishes Council’s argument that the uncertainty in relation to the resilience of the community, and the impact from the works, will result in the community being degraded to a point of irreversibility.

63. I acknowledge the risk of ongoing impacts that arise from the development, as detailed by Ms James, and the agreement of the experts that the current state of the RFEF is degraded. I note that the Scientific Committee Determination states: 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. As such, pursuant to s79C(1)(b), I find that it is appropriate for the consent authority to consider, as part of the merit assessment of the application, the proposed vegetation management plan prior to determination.

64. In relation to the impact of the proposal on the habitat of the ecological community, I find that there is uncertainty as to whether the effect of the filling proposed will alter the hydrological environment of the RFEF and therefore indirectly impact its habitat.

65. In reaching this conclusion, I have considered that it is agreed between the experts that the proposed earth works will alter of the surface flows of water run-off immediately adjoining the EEC, and that there a potential also for increased erosion due to the batters created immediately adjoining the RFEF. However I conclude that this impact, in and of itself, would not be the basis for an overall conclusion of significant impact such as to require the completion of an SIS.

66. I am satisfied that the erosion and sediment controls proposed by the applicant will be appropriate, if diligently implemented. However, I find that the vegetation management plan referenced at [par. 64] should address the staging of the filling works; the management of stabilisation; and the appropriate choice of material to reseed the filled areas and the banks adjacent to the RFEF, to minimise the potential indirect impacts identified by the experts.

67. I am satisfied that this potential indirect impact, in and of itself, would not be the basis for an overall conclusion of significant impact such as to require the completion of an SIS. However, such a potential impact may warrant further ameliorative measures in any consent if the determination is to uphold the appeal. These conditions will need to be considered in finalisation of the proceedings.

68. The Scientific Committee Determination identifies the following as Key Threatening Processes for the RFEF:

Clearing of native vegetation; Alteration to the natural flow regimes of rivers, streams, floodplains and wetlands; Invasion of native plant communities by exotic perennial grasses; Predation, habitat destruction, competition and disease transmission by feral pigs; Anthropogenic climate change; High frequency fire; and Removal of dead wood and dead trees

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

70. In relation to this factor, I accept the evidence of Dr Robertson that the proposal will not significantly exacerbate these threats; however, I find that it is likely that some increase in impacts to the RFEF from these processes will occur as a result of the development. I conclude that this in and of itself would not be the basis for an overall conclusion of significant impact such as to require the completion of an SIS.

71. However, such a potential impact may warrant further ameliorative measures in any consent if the determination is to uphold the appeal. At [par. 64] I concluded that such an ameliorative measure is the preparation of a VMP to ensure protective and ameliorative measure during the development phase and on an ongoing basis.

72. Application of the seven-part test methodology under the TSC Act has concluded some adverse impacts are likely to arise from the proposal. However, as noted in the Guidelines, the seven part test is not the only input in determining whether the proposal is likely to have a significant impact, and therefore whether an SIS is required (Newcastle and Hunter Valley Speleological Society v Upper Hunter Shire Council at [113]). In this matter I have considered the evidence of Dr Robertson [at par 56], and my first hand evidence of the site visit and I am satisfied it is likely that the RFEF is experiencing indirect impacts from the current site.

73. In Nambucca Valley Conservation Association v Nambucca Shire Council Biscoe, J considered the ameliorative measures proposed in determining the effects of the development on the EEC concerned. This approach was also adopted in Newcastle and Hunter Valley Speleological Society v Upper Hunter Shire Council.

74. In this matter, it is also necessary to consider other relevant factors such as the environmental assessment, the development application documents and the procedures proposed by the applicant where they involve management of the site to ensure the enhancement and maintenance of the community. (Newcastle and Hunter Valley Speleological Society v Upper Hunter Shire Council at [114]).

75. Following those considerations, I find that the proposal is not likely to significantly affect the RFEF. As a result, following consideration of the factors must be taken into account under 5A of the Act, an SIS is not required [s78A(8)(b) of the Act].

76. Whilst the environmental assessment, conditions and the evidence provide sufficient assurance that, the adverse impacts of the proposal will be ameliorated, to ensure that the VMP prepared is practical, enforceable and effective I find that it should be provided prior to determination. This is particularly pertinent given the provisions of clause 6.6 of LEP 2013. I accept the evidence of Ms James [at par. 44] that there may remain seed stock, and plants under the invasive climbers. The objective of the VMP should be to improve the diversity of the RFEF and address the identified edge effects detailed in the preceding.

Does the development satisfy the requirements of REP 2 to provide a buffer?

77. The second issue in contention between the parties is whether the development satisfies the requirements of REP 2. Specifically the Council contends that the application should be refused as the development fails to provide a vegetated buffer of 40m, as required by clause 21 of REP 2:

1. from the top of bank of Prospect Creek (sub cl (b)) ; and

2. from the remnant vegetation (sub cl (d))

78. In applying the General Principles in Clause 8 the consent authority is required to take into account:

(a) the aims, objectives and planning principles of this plan,

(b) the likely effect of the proposed plan, development or activity on adjacent or downstream local government areas,

(c) the cumulative impact of the proposed development or activity on the Georges River or its tributaries,

(d) any relevant plans of management including any River and Water Management Plans approved by the Minister for Environment and the Minister for Land and Water Conservation and best practice guidelines approved by the Department of Urban Affairs and Planning (all of which are available from the respective offices of those Departments),

(e) the Georges River Catchment Regional Planning Strategy (prepared by, and available from the offices of, the Department of Urban Affairs and Planning),

(f) all relevant State Government policies, manuals and guidelines of which the council, consent authority, public authority or person has notice,

(g) whether there are any feasible alternatives to the development or other proposal concerned.

79. As detailed in the following extract of the proposed site plan, the proposal provides a variable buffer from the top of bank of Prospect Creek. The applicant argues that the neither offset apples and the proposed buffer is sufficient.

80. It is agreed between that the parties the requirement for the 40m buffer is a matter to be taken into account in the assessment, and is not a prohibition or a development standard.

80. Mr Seton argues that it is clear that subclause (d) applies on the basis that the RFEF falls within the definition of environmentally sensitive areas, and within that definition - remnant vegetation. It is his submission that it has been accepted and confirmed by the experts that the application provides no buffer provided from the development to the remnant vegetation, and that the Court should give significant weight to the requirements of this provision of REP 2 in the exercise of planning discretion in respect of the development application.

81. In the alternative, Mr Staunton places emphasis on the requirement in REP 2 for its application during the planning making process of the LEP. He states:

There has been no evidence put before you to suggest that the council ignored that or there was some alleged invalidity. You should assume it has been validly made and all the necessary preconditions have been followed. In other words, the council knew about it. They did not seek to protect 40 metres beyond the E2 zone. They only sought to protect effectively the riparian corridor, so the 40 metres up to the E2 zone (transcript pg. 86).

83. It is Mr Staunton’s submission that the clear intent in the clause is to retain a buffer as means of improving surface run-off entering the Georges River or its tributaries. He relies on the evidence of the experts that the erosion and sediment controls proposed are appropriate, and that Council raises no contention in relation to the design or performance of these measures.

84. It is Mr Staunton’s submission that the buffer required by Cl. 11(21) sub cl (b) does not apply to the proposed development because the site is freehold land has been previously developed or cleared, and therefore falls outside the requirement. In relation to sub cl (d) which refers to a 40 metre minimum buffer width from other environmentally sensitive areas, it is Mr Staunton’s submission that:

1. environmentally sensitive areas is not a defined term within the instrument.

2. The closest definition is “environmentally sensitive natural areas.”

“Environmentally sensitive natural areas" are areas where environmental characteristics mean that the potential impacts of land use are greater than elsewhere in the Catchment. Environmentally sensitive natural areas in the Catchment are the river, vegetated buffer areas (riparian land), escarpments, national parks and nature reserves, wetlands, other significant floral and faunal habitats and corridors and localities containing acid sulfate soils.

3. There is no map locating “environmentally sensitive natural areas”.

85. It is Mr Staunton’s conclusion that neither buffer applies to the development.

86. Further Mr Staunton argues that the Council’s pattern of approvals has been to not require the 40m buffer (reference Exhibit D). He submits that the consideration of the precedent of these approvals is relevant to the assessment of this proposal. He argues that, properly understood, the impacts on the developments immediately to the west and east are consistent with those from the current proposal (Goldin v Minister for Transport (2002) 121 LGERA 101)

87. In conclusion, Mr Staunton argues that the Court should give appropriate weight to the permissibility to carry out the use on the land: BGP Properties Pty Ltd v Macquarie City Council 138 LGERA 237; [2004] NSWLEC 399 per McClellan CJ at [117]. He argues:

In 2013 the council, fully aware of all of those matters, including the ecological constraints, including SREP 9 and the requirement or the matter for consideration of buffers, went on and said, “No. We’re drawing the line here, E2. The other side of it is industrial development”, and they have applied that with respect to a very recent example on the site next door, which you have the evidence of (transcript).

88. In the alternative, it is Mr Seton’s submission that the buffer detailed in cl. 11(21) sub cl. (b) does apply because the boundaries of the relevant freehold land extend to the bank of Prospect Creek, and therefore clearly includes areas that had not been cleared and have not been developed. In relation to cl. 11(21) sub cl. (d) he relies on remnant vegetation:

(d) 40 metre minimum buffer width from other environmentally sensitive areas, including remnant vegetation and steep slopes, identified on maps prepared by and available from the National Parks and Wildlife Service [emphasis added].

89. Remnant vegetation is defined in REP 2 as:

"Remnant vegetation" means vegetation within the Catchment identified and recorded as remnant in a document available from the National Parks and Wildlife Service.

NOT IMPLEMENTED: support for w:pict - without v:imagedata

NOT IMPLEMENTED: support for w:pict - without v:imagedata

NOT IMPLEMENTED: support for w:pict - without v:imagedata

90. Mr Seton argues that such a document is Interpretation Guidelines for the Native Vegetation Maps of the Cumberland Plan, Western Sydney, final edition, produced by NSW National Parks and Wildlife Service, along with a copy of Map 7. It is his submission that in these maps the vegetation located on the site is identified as remnant vegetation.

91. Following is an extract of the relevant map:

NB 32 references: Upper Georges River Sandstone Woodland

92. By reference to the Interpretation Guidelines, Mr Seton argues that the vegetation communities identified are all remnant vegetation, within the extent of the maps. Therefore, as this vegetation is identified as remnant in a document available from the National Parks and Wildlife Service sub cl. (d) applies to the development.

93. Exhibit 6, extracted below, was prepared by Dr Robertson and indicates, by the red line, the extent of the buffer that Council argues is generated by the application of sub cl. (d):

94. Dr Robertson’s evidence is that the proposal will clear some small areas within 40m of the creek, but will also provide areas where more than 40m is available for vegetation management and retention. It is his evidence that that this provision provides for substantial and viable retained area of RFEF and wildlife habitat totalling more than 90m wide (Exhibit 4).

95. In the alternative it is Ms James evidence that the corridor width on the Cumberland Council side of the creek is variable and currently approx.. 30-100m wide. The proposal will result in a reduction of the width within sections B-Y and C-Z of mostly 15-40m. Ms James includes in the corridor the stand of trees on the planted embankment and the former dam. In oral evidence, Ms James accepted that the vegetation contained within the embankment was regrowth and not RFEF (transcript pg. 39).

96. In the joint report, both experts refer to a paper titled: Ives, et al (2005) How wide is enough? The relationship between riparian buffer width, condition and biodiversity: an assessment of urban creek systems in the Ku ring gai LGA in Khanna et al (eds.) Environmental Change: Making it happen: 9th Annual Research Conference, Hobart Tasmania. One of the conclusions of this study is:

Results contained within this study indicate that an increase in buffer width will have a greater influence on the diversity of native woody plants, especially within areas that presently have smaller buffers compared with those with existing larger buffers. A high diversity of native woody plants is also achievable with a small buffer width. However, due to the considerable influence of edge effects such as weed encroachment, pollutants, noise and urban runoff exerted on small, thin buffers, a high degree of maintenance would be required to keep such an area in a natural state (9, 12).

97. It is Ms James’ evidence that the planted mound that occurs within the buffer to the remnant vegetation provides the function of being both a foraging habitat, as well facilitating the movement of animals up and down that corridor as well as their ecological function of bringing about pollination and seed dispersal. In addition, it is her evidence that the planted mound has the effect of creating localised conditions that are more compatible with RFEF.

At present there is a buffer zone for the RFEF along section Z (figure 4 of ERM 2017) comprising a mounded embankment 20-25m wide with RFEF plantings and a remediated dam area. Accidental damage, movement of dust, noise etc is reduced by its presence. The entire buffer zone, inclusive of the former dam is mostly 30-70m wide. In addition to providing a buffer for RFEF the plantings also contain known foraging habitat for the endangered micro bats.

…

Retention of this embankment is strongly recommended to prevent impacts on RFEF resulting from the proposed earthworks right up to its edge (Exhibit 4).

98. It is Dr Robertson’s evidence that the existing planted mound does not contribute measurably as a buffer to the RFEF. In relation to the key threatening processes for the community (urbanised catchment, altered water flows, weed infestation) it is his conclusion that the current state of the RFEF indicates that vegetation on the mound does not provide any meaningful benefit. However, in oral evidence he did agree that the planted mound does redirect water flows on the site.

99. It is Mr Seton’s submission is that there is no buffer provided to the remnant vegetation from the development that is proposed on this site, and that the Council requests that the Court would give significant weight to this omission in the exercise of planning discretion in respect of this development application.

100. Mr Seton submits that the Court should also give weight in the assessment of the application to the conditions of the site’s previous consent. This consent (DA 2015/439/1) has been commenced. The consent for rehabilitation included the following condition:

9. A landscape plan prepared by a qualified landscape architect/designer shall be provided for approval of the Principal Certifying Authority addressing the following:

- tree replacements are to be provided at a ration of two (2) for every one (1) tree removed, and planted throughout the entire remediation areas so as to re-establish a tree canopy where dams existed; (emphasis added)

- areas noted on plans as being “Vegetated (spray grass or similar)” shall be vegetated using local seeded or seedling planted, and detailed within the planting schedule of the landscape plan. The exact species composition shall be specified by the Consulting Arborist and shall be consistent with the Scientific Communities Final Determination species list for “River- Flat Eucalypt Forest on Coastal Floodplains of the NSW North Coast, Sydney Basin and South East Corner Bioregions”, and compliment the required tree planting as outlined above.

Exhibit 3 includes a copy of the approved plan that was certified by Cumberland Council, with the inclusion of additional semi advanced canopy species trees at between 5-8m intervals.

101. It is Mr Staunton’ primary submission that in making the LEP in 2013 the Council applied the relevant provisions of the REP, including the buffers, in defining the boundary between the IN2 zone and the E2 zone. He also argues that the Council in approving developments adjacent the site, and in the vicinity, have been satisfied that no additional buffer than that provided by LEP 2013 is required. He argues that the Court should give weight to these approvals and their precedent in the determination of the application.

Findings

102. REP 2 at cl. 7(b) requires the Consent authority to apply the planning principles when determining a development application. In applying the planning principles REP 2 requires the following to be taken into account:

(a)  the aims, objectives and planning principles of this plan,

(b)  the likely effect of the proposed plan, development or activity on adjacent or downstream local government areas,

(c)  the cumulative impact of the proposed development or activity on the Georges River or its tributaries,

(d)  any relevant plans of management including any River and Water Management Plans approved by the Minister for Environment and the Minister for Land and Water Conservation and best practice guidelines approved by the Department of Urban Affairs and Planning (all of which are available from the respective offices of those Departments),

(e)  the Georges River Catchment Regional Planning Strategy (prepared by, and available from the offices of, the Department of Urban Affairs and Planning),

(f)  all relevant State Government policies, manuals and guidelines of which the council, consent authority, public authority or person has notice,

(g)  whether there are any feasible alternatives to the development or other proposal concerned.

103. In consideration of the above factors, and cl. 21 of REP 2, I find that the proposed vegetated buffer will act as a buffer between developed land and environmentally sensitive areas, including adjacent waterways. I have given weight to the need to reduce the loss of riparian vegetation and to remove invasive weed species which is also a specific matter for consideration under REP 2.

104. I accept Mr Seton’s submission that the buffer detailed in cl. 11(21) sub cl. (b) does apply because the boundaries of the relevant freehold land extend to the bank of Prospect creek, and on the basis of the evidence [par. 89] includes areas that had not been cleared or have not been developed. I also accept that the vegetation within the site meets the definition of remnant vegetation at sub cl. (d) and is mapped accordingly.

105. I am satisfied on the evidence of the experts that the width of the corridor is a factor in the viability of the RFEF community. In considering the different evidence from the experts and with the benefit of a site inspection, I am not satisfied that the proposed development is acceptable in the form presented to the Court. That is not to say that bulk earthworks in some form, is not capable of being undertaken on the site. In BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399, McClelland CJ relevantly states (at par 117):

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

NOT IMPLEMENTED: support for w:pict - without v:imagedata

NOT IMPLEMENTED: support for w:pict - without v:imagedata

106. Based on the evidence, I find that in accordance with s 79C(1)(b) that it is appropriate to provide an increase in the buffer to the RFEF, where the current community is at its narrowest. By reference to Exhibit 6 [par 94] the proposed development shall be amended as follows, with bulk earthworks excluded from area of the increased buffer generally in accordance with the following:

107. Relevantly this area correlates with part of the area of the site covered by the revegetation (landscape planting plan) required by condition 9 of DA 2015/439/1. Consistent with that approval this area shall be vegetated using local seeded or seedling planted of species consistent with RFEF, and this shall be detailed in the VMP.

108. I have formed this view on the basis of the following:

1. I accept the evidence of Ms James that the development will result in an exacerbation of the indirect impacts on the community, and that this impact arises from the proximity of the works to the RFEF;

2. I have given weight to the provisions of the existing consent (DA 2015/439/1) and its purpose in revegetating the area of the previous dam, and increasing the width of the corridor at its narrowest with canopy trees of the same species as the RFEF;

3. I have considered the previous approvals of the Council, and I note the submission of Mr Staunton that I should give weight to the precedent established by the approvals on the adjoining land. However I find following an assessment under s79C of the Act, on the evidence before the Court, that a greater buffer is warranted that was applied by the Council in those applications;

4. In applying the planning principles in REP 2 I have concluded the full buffer is not required in the circumstances of this case, and that weight should be given to the designation of this portion of the site as industrial (IN2) under LEP 2013.

5. I note that the scientific determination of RFEF that the Scientific Committee concludes:

In view of the above the Scientific Committee is of the opinion that River-Flat Eucalypt Forest on Coastal Floodplains of the NSW North Coast, Sydney Basin and South East Corner bioregions is likely to become extinct in nature in New South Wales unless the circumstances and factors threatening its survival or evolutionary development cease to operate.

109. I find that it is appropriate to provide further buffer to the RFEF as practical and feasible means of mitigating the likely environmental impacts of the development (s79C1(b) of the Act).

110. It is a matter for the applicant if they wish to proceed with the application in an amended form in accordance with the directions. If the applicant does not wish to provide additional documentation and amend their proposal in accordance with the Directions; the appeal will be dismissed.

Directions

111. The Court directs that:

1. As detailed in [par. 64] the applicant is to prepare a Vegetation Management Plan for the proposal to address the management both the earthworks and ongoing phases of the proposal. The VMP is at minimum to:

1. Detail how the earthworks are to be staged, and how areas of exposed soil at any one time are to be minimised;

2. What ongoing works will be required, following the completion of the bulk earthworks;

3. address the findings within this judgement and;

4. the key threatening processes identified by the Scientific Committee determination [refer par. 69].

2. As detailed in [par. 106] the applicant is to amend the proposal to reflect the increased buffer, and exclude bulk earthworks from the hatched location of the site.

3. An agreed timetable for the applicant to file and serve the amended plans, and the respondent to file the amended conditions of consent, is to be submitted to the Court by 13 July 2017.

4. Liberty to restore on 2 days’ notice. 

5. Subject to the Court being satisfied by the amended documentation, a final determination on the Orders will be made in chambers.

…………….

D M Dickson

Commissioner of the Court

Decision last updated: 06 July 2017