Ingham Planning Pty Ltd v Ku-ring-gai Council - [2010] NSWLEC 1222

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Ingham Planning Pty Ltd v Ku-Ring-Gai Council [2010] NSWLEC 1222

PARTIES:
APPLICANT
Ingham Planning Pty Ltd
RESPONDENT
Ku-Ring-Gai Council

FILE NUMBER(S): 10908 of 2009

CORAM: Fakes C - Morris C

KEY ISSUES: DEVELOPMENT APPLICATION - THREATENED SPECIES :- Adequacy of Species Impact Statement
Blue Gum High Forest
Critically Endangered Ecological Community
Bias

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Threatened Species Conservation Act 1995
Threatened Species Conservation Regulation 2002
Commonwealth Environment Protection and Biodiversity Conservation Act 1999
State Environmental Planning Policy 19 - Bushland in Urban Areas
Ku-Ring-Gai Planning Scheme Ordinance

CASES CITED: Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited [2010] NSWLEC 48
Parrott v Kiama [2004] NSWLEC 77 revised – 16/03/2004

TEXTS CITED: DECCW (2009) – Draft Vegetation mapping for the Sydney Metropolitan CMA Region
Ku-ring-gai Council (2009) Draft Vegetation Mapping of Blue Gum High Forest and Sydney Turpentine Ironbark Forest
Tozer M (2003) The native vegetation of the Cumberland Plains, western Sydney: systematic classification and field identification of communities. Cunninghamia Volume 8(1) 1-75

DATES OF HEARING: 29-30 June 2010

DATE OF JUDGMENT:
16 August 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr P J McEwan SC
instructed by Mr C Munten, Makinson & d'Apice Lawyers
RESPONDENT
Mr J Robson SC
instructed by Mr A Hudson, Wilshire Webb Staunton & Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C
Morris C

16 August 2010

10908 of 2009 Ingham Planning Pty Ltd v Ku-ring-gai Council
JUDGMENT

1 COMMISSIONERS: This is an appeal made under s 97(1) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Ku-ring-gai Council (the council) to grant consent to Development Application DA 038/09 for the subdivision of 1 lot into 6 lots at 35-41 Billyard Avenue Wahroonga (the site).

2 The main issue between the parties is whether the subdivision and associated works will have an adverse impact on a remnant of the critically endangered ecological community Blue Gum High Forest.

The proposal

3 The application proposes to subdivide Lot 2 DP 735609 into 6 lots, one of which is to retain the Presbytery of the Holy Name Catholic Church and the other 5 lots are intended to be used for residential purposes as dwelling house lots. Two access roads, one from Billyard Avenue and the other from Chilton Parade, form part of the application.

4 The plans for the proposed subdivision show the lot layout, the position of the access roads, the indicative locations of hydraulic services (stormwater, sewer and road access), existing trees and structures, indicative layouts and locations of dwellings/building platforms and driveways, and the location of the proposed Blue Gum High Forest (BGHF) conservation area and planting area.

5 The indicative driveways and building platforms do not form part of this application.

6 The total area of the site is 12,553m2. The area of each lot is given with the proposed building platform area, excluding the access handle for each lot, in brackets. Lot 1 - 2076m2 (1880m2), Lot 2 – 1637m2 (1352m2), Lot 3 – 1765m2 (1390m2), Lot 4 – 1683m2 (1473m2), Lot 5 – 2176m2 (1983m2) and Lot 6 (the Presbytery) – 3216m2 (2785m2)

7 Proposed access road A is located between Nos 45 and 47 Billyard Ave. It is 12.8 m in width and the proposed road is approximately 94 m in length. Access road B is proposed from the south-eastern corner on Chilton Parade between No 29 Chilton Parade and the heritage listed property ‘Amberley’ at 35 Chilton Parade. This access way is 6.1 m wide and the proposed road is approximately 92 m long.

8 The stormwater concept plan and the Statement of Environmental Effects (SEE) indicate that the existing stormwater system would be upgraded and proposed Lots 3 and 4 would be drained through an easement to be negotiated with an adjoining neighbour with eventual connection to the council stormwater easement in 49 Billyard Avenue.

9 It is proposed to drain the stormwater from Lots 1, 2, 5 and 6 (approximately 60% of the site) through a new installation between proposed lots 1 and 2 and then beneath access road B to Chilton Parade.

10 The water supply is proposed to be located in service corridors in the access roads.

11 The plans show a Blue Gum High Forest conservation area to include access way A and portions of Lots 3, 4 and 5. It is proposed that this area be protected through a ‘restriction on use’.

12 Whilst not forming part of the original development application, demolition of a small building located within proposed Lot 4 was included in the proposal before the Court and now forms part of the application.

Background

13 In June 2009, on behalf of the Catholic Diocese of Broken Bay, the applicant lodged a development application with council to subdivide Lot 2 DP 735609 into 6 lots.

14 A letter to the applicant from council dated 13 August 2009 (exhibit E) advised that after a preliminary assessment there were a number of deficiencies in the application and that a number of areas were unsatisfactory. These included landscaping, details relating to pruning and construction, and in particular, ecological assessment.

15 Specific recommendations were made in this letter regarding further information to be provided especially with respect to ecological issues. These included recommendations to:

Map area of BGHF including all associated habitat (based on soils and native groundcover grasses and herbs)…a full species listing to be provided;
Revise impact assessment to included consideration of all direct, indirect and cumulative impacts…provide an assessment of the impacts on the local environment.
Provide appropriate conservation and buffer zones to protect BGHF from development activities.

In the absence of further information and on the basis of this proposal it is likely that a Species Impact Statement (SIS) will be triggered in relation to BGHF. Although about 10 smaller BGHF trees are likely to [be] removed, it is the likely indirect impacts and associated loss of habitat (soils, soil seed-bank and groundcover) that most threatens this local occurrence of a critically endangered community. Long-term protection of this local occurrence will require establishment of a conservation area with appropriate buffer zones centred on the concentration of habitat in the northern part of the site. No access roads or building footprints should form part of this area. To achieve this clearly a major re-design of the subdivision is required….

16 In response, on 27 August 2009, the applicant provided additional information including site photographs, a supplementary ecological assessment and amended flora and fauna impact statement, a response on heritage issues, waste management plan and a road access plan. In this a conservation area was proposed as well as a covenant for a restriction on use.

17 On 9 September, the council again wrote to the applicant indicating that the supplementary information supplied by the applicant was still unsatisfactory, especially the ecological component. The applicant responded with further information on 17 September 2009.

18 On 24 September 2009, after assessment by council, DA0381/09 was refused. The reasons given for the refusal relate substantially to the unacceptable impacts of the proposal on Blue Gum High Forest and other significant trees and to the lack of information and reports on a number of matters.

19 In November 2009, the applicant lodged an application with council for a s 82A review of the determination of the development application.

20 On 5 January 2010, notice was given of the refusal of the s 82A review. The reasons given were the same as those given for the initial refusal of the DA as well as an additional reason relating to the likely loss of amenity for future residents.

21 The appeal before the Court was filed in December 2009.

22 The council’s amended Statement of Facts and Contentions (SF&C) raises the following contentions that, in its view, warrant the refusal of the application.

Threatened Species Conservation Act 1995

23 The particulars of all of the contentions, apart from contention 6, are discussed in the relevant evidence as are the applicant’s view of these contentions. Contention 6 was not addressed during the proceedings as it relates more to the next stage of the proposed development.

24 There were no resident submissions to DA0381/09 however there were three submissions in response to council’s notification letter for the s 82A review. The matters raised in the submissions are summarised in council’s SF&C as:

The proposed tree loss is unsatisfactory
The existing BGHF should be retained
Access should be limited to one driveway
There should be suitable drainage for the site
Screen plantings should be provided along the driveways

The site

25 The subject allotment is primarily an internal, mostly vacant lot between Billyard Avenue and Chilton Parade. Access is provided along three handles, one off Billyard Avenue and two narrow frontages from Chilton Parade. One of the frontages to Chilton Parade is the existing driveway to the Presbytery.

26 Total area of the site is 12,553m2 including those handles. The land generally falls from west to east however the access handles to Chilton Parade provide fall from the land to the street in a southerly direction. The Billyard Avenue handle falls away from that street.

27 The site currently contains the Presbytery of the Holy Name Catholic Church to the south-west of the site and a small derelict brick structure (a former garage) towards the north-western corner.

28 The site is heavily vegetated and contains areas of Blue Gum High Forest species, along with a number of mature planted native and exotic trees, garden shrubs, woody and other weeds and levelled grassed areas.

29 A local heritage item, ‘Amberley’, No 35 Chilton Parade, and listed within Schedule 7 to the Ku-ring-gai Planning Scheme Ordinance is located on land immediately adjoining the site. This item is to the south of the allotment and adjacent to the eastern access road and proposed Lot 1. Five significant trees within the curtilage of the item overhang the proposed access road.

30 Another heritage item, ‘Berith Park’ is located on land to the west of the Church. Views of treetops across the proposed development site are considered to be important elements of the original curtilage of the ‘Berith Park’ estate.

31 The land is zoned Residential 2(c) under the Ku-ring-gai Planning Scheme Ordinance (KPSO). The general aims of this plan are

Specific objectives for the zone are to ensure that -

It is noted that the last provision is now redundant and reference should be made to Section 79(c) of the Environmental Planning and Assessment Act.

32 Clause (3)(d) to Part VII of the KPSO provides that the minimum area on which a dwelling house can be erected on a hatchet-shaped allotment is 1,300 square metres exclusive of the area of the access corridor, which shall have a width of not less than 4.6 metres.

33 The proposed lot sizes and width of access roads comply with cl 3(d) Part VII.

34 There were no submissions from either party with respect to permissibility of the proposed subdivision under the KPSO.

35 Apart from the Environmental Planning and Assessment Act 1979 (the EPA Act) other relevant legislation cited by the council in its amended SF&C includes the Threatened Species Conservation Act 1995 (TSC Act), Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), State Environmental Planning Policy 19 – Bushland in Urban Areas. It should be noted that the Court was not taken to particular parts of any legislation however under sections 5A and 79C of the EPA Act these are matters that must be taken into consideration. Relevant sections of the legislation are addressed throughout the judgement.

Site view

36 The hearing commenced with an inspection of the site. Two resident objectors gave evidence. Neither resident was opposed to development on the site as such. Their main concerns were potential loss of amenity and wildlife associated with any impact on the BGHF. Both were concerned about drainage issues.

37 On site to assist the Court were the ecology experts Ms James for the council and Dr Robertson (Cumberland Ecology) for the applicant; the arborists – Mr Castor (Tree Wise Men) for the applicant and Mr Paroissien for the council. Other expert witnesses also provided information on site.

38 The inspection of the proposed development site commenced at the entrance to proposed access road A off Billyard Avenue. Impacts of the road, water meters and services on trees 203 (Sydney Blue Gum) and 204 (Himalayan Cedar) were discussed. The use of pier and beam construction was canvassed as a method of minimising the impact on the root zones of these trees as was the possibility of incorporating the water and electrical services into the concrete driveway or substrate onto which it would be constructed.

39 It should be noted that the site had been closely mown in the days prior to the site inspection.

40 Ms James pointed out tree 199 – noted in Mr Castor’s report as Acacia sp growing beneath a large Sydney Blue Gum. According to Ms James this is probably Acacia parramattensis a BGHF characteristic species. Her concern was that this tree was not identified by the applicant’s two environmental experts. In reply Dr Robertson highlighted the extent of the exotic weed infestation in this area at all levels from groundcover, shrub layer to canopy trees.

41 We proceeded south along the route of proposed access road A and then turned east along the proposed driveway for Lot 4. A row of mature Liquidambars is planted along the northern boundary fence. We were advised that most of these trees were marked for removal due to the impact of the proposed driveway and building platform for Lot 4.

42 Lot 4 includes a disused brick garage. Ms James pointed out seedlings of regenerating Angophora floribunda (Rough-barked Apple) and Pittosporum revolutum, both BGHF species, growing in unmown areas in amongst weed species adjacent to this building. She also indicated an open grassy area in which she had surveyed a 10m x 10m quadrat in January 2010 and in which she had identified numerous native ground covers and grasses belonging to the BGHF community.

43 Dr Robertson considered that the grassy areas were dominated by exotic species and that the native species were hardy species also commonly found in gardens.

44 Mr Castor pointed out several mature Angophora floribunda and indicated that the proposed building footprint for Lot 4 had been designed around these trees. The eastern portion of Lot 4 was observed to be mown grasses.

45 We returned to access road A and walked through what is proposed to be the central core of the planned BGHF conservation area. This area encompasses the western portions of lots 3 and 4 and the northern portion of lot 5. It is roughly bisected by access road A. Dr Robertson pointed out abundant weeds including Camphor Laurel, Broad-leafed Privet and vines such as Balloon Vines. Some of the BGHF tree species to be removed were identified.

46 The arborists discussed the impacts of the proposed road on the root zones of the BGHF trees to be retained, especially an Angophora floribunda in close proximity to the road and the proposed driveway for Lot 5. The use of pier and beam construction was discussed for the access road and the driveway. Mr Paroissien considered that even with this method of construction the tree was unlikely to survive.

47 We moved to the eastern portion of proposed Lot 3. The majority of this portion supports a mixture of planted exotic and native species. We saw a row of over-mature pines below which were growing a mixture of Pittosporum undulatum (Native Daphne) and Broad-leafed Privet. Ms James pointed out Pittosporum regrowth. Within this area is a large and healthy specimen of Brush Box marked on the plans as a tree to be removed due to its location with respect to the proposed building footprint.

48 Ms James indicated the site of the second of the quadrats she investigated in January 2010. This is another grassy area that had been closely mown. She indicated that she had found a relatively high percentage of BGHF groundcover species in this area. Dr Robertson did not deny their existence and again expressed his opinion that the majority of the site is covered in exotic grasses and weeds and those natives that are present are common, hardy species.

49 We then moved to proposed lot 2 and inspected tree 99, a Eucalyptus pilularis (Blackbutt), and the largest BGHF tree on the site. This tree is proposed to be retained but would be impacted by proposed access road B, the installation of the new stormwater system and potentially by the driveway and building footprint of lot 2.

50 Mr Castor considers that the impact can be minimised by pier and beam construction of all roads and driveways and by the use of thrust boring to install the storm water and other underground services. Mr Paroissien agreed that these may help but he noted that this tree had what he considered to be a structural defect and some recent branch failures. He was concerned that introducing ‘targets’ would lessen its chance of long-term retention.

51 We walked the length of access road B. It was pointed out that the majority of trees growing along this access road are in adjoining properties and that a number of these trees, in particular those in ‘Amberley’, could be impacted on by the construction of the road. The impacts would not only be to the root zones but vehicle access would require the crown lifting of trees to at least 4 m above ground. The arborists agreed that, should the adjoining owners grant permission, the pruning would not have an unacceptable impact on the trees’ health or appearance. The impact of the works on the trees in the ‘Amberley’ property is discussed later.

52 Pier and beam construction was discussed for the majority of access road B. It was indicated on site that in order to connect with Chilton Parade, the southern end of access road B would necessitate excavation with potential risks to trees 89E, a Liquidambar growing on the south-western corner of 29 Chilton Parade, and 89D a Himalayan Cedar growing on the south-eastern corner of ‘Amberley’ 35 Chilton Parade.

53 We observed that a substantial proportion of proposed Lot 1 is mown grass and the trees are planted exotics and natives. The trees include a row of mostly Brush Box planted along the southern boundary of the site.

54 The western portion of this Lot contains several significant native trees to the south of a level grassed area that may have been a former tennis court. We viewed tree 72, identified as Acmena australis in Mr Castor’s report but subsequently confirmed as Syzygium paniculatum (Magenta Lillypilly). There was debate between the ecologists as to whether this is a remnant of what may have been a patch of rainforest or whether it is a planted specimen. The relevance of this debate is covered elsewhere in this judgment.

55 The site inspection was concluded without a viewing of the existing driveway access from Chilton Parade to the Presbytery.

Arboricultural evidence

56 Mr Castor clarified that the total number of trees assessed is 183 rather than 182 indicated in the report however, the total number of BGHF species has not changed.

57 Of the trees assessed, 58 are proposed for removal and are marked as such on the Revised Arboricultural Impact Plan (Rev. G) attached to his statement of evidence. It is noted from Mr Castor’s report that he considers the majority of these trees are weed species or trees in poor condition. Four BGHF trees are proposed for removal. Also included in this number are approximately 10 planted native and exotic trees that Mr Castor identifies as Category A and B trees (i.e. according to his explanatory notes, that should or could be retained). It appears that they are indicated for removal on the basis of the proposed driveways and building footprints for each lot. The identification of these trees for removal would seem premature, as they are associated with proposed structures that are not within the scope of the appeal before the Court.

58 Of relevance to the arboricultural evidence and the likely impacts of the proposal on trees to be retained are the plans for the access roads prepared by Birzulis Associates Pty Ltd. The plans submitted to council and then subsequently to the Court were issue ‘C’. It would appear from Mr Castor’s statement of evidence that these plans showed soil batters with cut and fill and that in response to council’s statement of facts and contentions, a revised set of plans, issue ‘E’ was provided to Mr Castor for comment. These plans show the access roads to be elevated above the existing ground level. Leave was granted by the Court to substitute issue ‘C’ with issue ‘E’ as these formed the basis of the joint report of the arboricultural experts. There is an amended/additional note on drawing C.03 that indicates “Areas of soft, yielding material shall be bridged using 300 dia. bored or grout injected piers at a maximum of 3000 cts”.

59 In the joint report, Mr Paroissien expressed concern that the ‘Typical Concrete Access Road Section’ and associated specifications show compaction and excavations for ‘downturns’ – both of which could cause damage to tree roots. Mr Castor suggested that the down turn edges could be discontinuous or of pier and beam construction as per the note on drawing C.03E.

60 It would appear that after discussions with Mr Fimmano, the applicant’s expert engineer, and in anticipation of the hearing, Mr Castor marked up a plan of the access roads indicating the sections where he considered pier and beam construction would minimise impacts on the trees to be retained. This plan was viewed on site and later tendered in evidence (exhibit T). It is noted that this plan was not part of the development application and therefore council did not have the opportunity to consider it. This plan was marked during the hearing to extend an area of access road B that should be pier and beam. It was also marked to reflect the actual extent of excavation at the southern end of access road B.

61 In oral evidence, Mr Paroissien agreed that pier and beam construction would reduce the impact of the access roads on some of the trees to be retained however he reiterated his concerns that an elevated driveway could still have a detrimental impact on others especially given the proximity of the road to some of the trees. He restated his concerns that the construction of an elevated road would still require the use of heavy machinery and that the tree protection measures proposed are inadequate.

62 Mr Paroissien also raised his concerns about the installation of sediment control fencing shown on the ‘Sediment Control Plan’ attached to the Construction Management Plan prepared by Whipps-Wood Consulting on 28 June 2010. The diagram on the plan shows an excavation of 200 mm for installation of filter fabric. It was agreed that an alternative method of securing it should be used.

63 In oral evidence, Mr Castor confirmed that in his opinion, the engineered solution of pier and beam construction in association with appropriate trunk protection and hand digging where necessary would have an insignificant impact on trees to be retained. He agreed that a detailed tree protection plan would need to be prepared.

64 Both arborists agreed that, depending on the location of launch pits, the use of thrust boring for the installation of storm water and sewer services would significantly reduce the impacts on trees to be retained.

65 During the arboricultural evidence, the question was raised as to the impact of any pedestrian access/ footpath would have on the trees. This could not be determined as there are no plans showing pedestrian access.

Engineering evidence

66 Mr Fimmano, a civil and structural engineer gave evidence on behalf of the applicant. Mr Fimmano’s office produced the plans for the access roads. His statement of evidence includes issue ‘E’ of those plans. Ms Hawken, council’s civil engineer was also sworn in despite not being involved in a joint expert conference.

67 In response to questions and comments arising from the arboricultural evidence and the likely impacts from pier and beam construction, Mr Fimmano produced a sketch plan showing a typical layout of and section through a suspended concrete road. The sketch shows 300 mm diameter bored piers at a maximum of 3 m centres. The base-course on grade is shown to be sufficiently compacted to act as temporary formwork or alternatively, cardboard or polystyrene formwork is suggested. He also produced photographs to illustrate the type and size of equipment that could be used to bore the piers.

68 Mr Fimmano considered a suspended road to be a standard engineering solution and that the pressure on the topsoil could be reduced to the weight of the wet concrete when it was poured. He stated that whilst the explanatory note he had written on the sketch plans stated that the piers should be founded on weathered rock, he said that the piers could be designed to rely on friction with the surrounding soil if rock was not found. He confirmed that no geotechnical investigations had been carried out on the site.

69 Ms Hawken stated that she had no objection to the drawing and that it was a suitable method of construction.

70 The engineers agreed that communication and electrical services could be installed beneath the road or cast into the concrete.

71 Mr Whipps, a hydraulic engineer prepared the hydraulic services plan for the applicant. His statement of evidence was prepared in response to council’s Statement of Facts and Contentions. His company, Whipps-Wood Consulting, also produced the Construction Management Plan that had been omitted from the DA.

72 Mr Whipps stated that as a result of the arboricultural evidence he had sought advice from two sources as to the size of the launch pits that would be required if the sewer and stormwater services were to be installed using thrust boring. The advice was that the pit (or bore shaft) would need to be 6m long, 2 m wide and at least 1 m deep. Access would be required for a container truck with gantry with the dimensions of 11m long x 4 m high.

73 Mr Whipps was asked to indicate on exhibit T the likely location of the launch pits. He marked the launch pit for the services to run beneath access road B in the vicinity of trees 94A and 94B two Illawarra Flame trees marked for removal in Mr Castor’s report. He stated that other excavations for connections would be hand dug under the supervision of an arborist.

Ecological evidence

74 The council’s primary submission is that the applicant has underestimated both the extent of the Blue Gum High Forest endangered ecological community and the level of impact of the proposed development on that community. These are the key differences between the ecologists. The council also contends that the ameliorative measures proposed by the applicant are not commensurate with the critically endangered status of the BGHF community.

Background of assessment

75 The following section outlines the various ecological reports undertaken by the applicant’s consultants. This should be considered in conjunction paragraphs 13-21 of this judgement that summarise the progress of the development application. Paragraph 15 includes some of the early specific recommendations made by council. The council’s amended contentions are listed in para 22.

76 The Statement of Environmental Effects submitted with the DA included a Flora and Fauna Impact Assessment by Ecotone Ecological Consultants Pty Ltd. This assessment was carried out in accordance with the requirements of s 5A of the Act to determine whether the proposed development is likely to have a significant effect on threatened species, populations or ecological communities, or their habitats. The assessment of significant impact is commonly referred to as the ‘7-part test’.

77 The report states that comprehensive flora field surveys were carried out on 22 June 2004 and that several further tree surveys have been carried out by Tree Wise Men and Ecotone Ecological Consultants. Ecotone also relied on a flora report undertaken on the site by P & J Smith Ecological Consultants in 2008. The flora field survey methodology comprised a ‘general traverse of every part of the study area using the meander method’, a limited targeted search for threatened species and a tree survey to confirm the species, location and dimensions of the tree species. The report does not indicate that any detailed survey using quadrats was undertaken.

78 The conclusions from the 7-part test for the BGHF component of the site are recorded in the report as follows:

Substantial retention of the remnant characteristic BGHF trees and other trees of conservation value (due to their size) is planned as part of the planned subdivision. The current subdivision proposal, including access roads to each lot and generous building envelopes would require the removal of only 6 remnant trees characteristic of BGHF, which are smaller trees. This represents a retention rate of 88%. Therefore there is not likely to be a significant effect on this vegetation community in the area. Furthermore, there is the potential to work with Ku-ring-gai Council and DECC to restore parts of proposed Lots 4 and 5 to a more natural BGHF condition. A significant adverse effect on BGHF is therefore not expected to result from the subdivision at this site and therefore the preparation of a Species Impact Statement should not be required.

79 Relevant paragraphs in the conclusion of the ‘Flora and Fauna Impact Assessment’ report dated 18 June 2009 state that:

Blue Gum High Forest

By the very careful location and design of the access road and careful location of specific building envelopes for the 5 proposed residential lots, only 6 of the 51 characteristic BGHF trees are expected to be removed and these are mostly small or unhealthy trees. Therefore it is considered unlikely that there will be an adverse effect on the BGHF ecological community.

80 In response to preliminary advice from council, on 27 August 2009, the applicant supplied additional material in response to the issues raised by council. Included in this was a ‘Supplementary Report and Amended Flora & Fauna Impact Assessment Report’ prepared by Ecotone Ecological Consultants Pty Ltd.

81 In this report, the consultants substantially stand by their first report however add this statement in their conclusions after the paragraphs quoted above.

Recognising the importance of restoring the missing strata and rehabilitating the main area of BGHF trees, the proposal includes the nomination of a BGHF Conservation Zone in the northern end of the site. A vegetation management plan to protect and enhance this area will be prepared and other measures taken to protect the area from potential indirect impacts.

82 In the council’s bundle of documents, the delegated report outlining the reasons for refusal shows that council’s ecological assessment officer did not support the report for a number of reasons including the lack of currency of the field data, the failure of the impact assessment to satisfy the requirements of the s5A assessment and the failure to recognise the presence of groundcover species.

83 The council also engaged Ms James as its botanical consultant to review the relevant reports submitted with the development application. These included the original and the supplementary Ecotone reports. With respect to the original report Ms James found the flora survey to be out of date and noted the report’s failure to include shrub and groundcover species found in the Smith and Smith survey or seen by Ms James when she visited the site briefly on 20 July 2009. Her report details the inadequacies of the report and indicates where additional information is required. It appears from her review of the supplementary report that the issues she had raised in relation to the original report had not been adequately addressed and that she could not determine that the proposed subdivision would not have a significant impact on BGHF.

84 The DA was subsequently refused on a number of grounds as was the s 82A review and the appeal was lodged with the Court.

85 In the original Statement of Facts and Contentions filed by council on 2 February 2010, contention 6(b) reads as follows:

6. The proposed development should not be approved, as there is insufficient information to assess the application.

Particulars

(b) Based on the information provided, it is likely that the development would have a significant impact on the local occurrence of BGHF. Consequently a species impact statement should be prepared and submitted with the application pursuant to section 5A of the EP&A Act.

86 In response to this contention, the applicant engaged Cumberland Ecology to prepare a Species Impact Statement. The final report is dated April 2010 and according to the report was prepared in accordance with Division 2 of the TSC Act and addresses the Director-General’s Requirements (DGR) of the Department of Environment, Climate Change and Water (DECCW). It was also prepared to assess threatened flora and fauna listed by the Commonwealth Environment Protection Biodiversity Conservation Act 1999 (EPBC Act).

87 In addition to reviewing the Ecotone and other reports, Cumberland ecology conducted flora surveys of two 400m2 quadrats as well as targeted searches for threatened flora and random meander surveys. One quadrat was in an area adjacent to BGHF canopy trees and the other within BGHF.

88 The SIS includes Figure 4.2 : BGHF recorded on the subject site. This shows areas of BGHF in association with a dominant tree species and from 1-7 characteristic BGHF species. Page 4.11 of the SIS indicates “of the 53 characteristic species listed in the final determination for BGHF, 10 have been recorded on the subject site”. On pages 4.14 and 4.15 -

The native ground cover species that have been recorded in the lawn area are common to many native vegetation communities in the Sydney Basin Bioregion and beyond. They are not explicitly indicative of BGHF and many of these species also commonly occur in disturbed habitats such as lawns. Lawn areas contained 2-4 characteristic BGHF understorey species. Given the absence of characteristic canopy trees, dominance of the exotic species and low number of understorey species characteristic of BGHF, these areas are not considered to be BGHF.

89 The conclusion in the executive summary of the SIS summarises the condition of the community, the extent of the impact of the proposed development and the recommended amelioration works.

The subject site is partly vegetated with modified eucalypt forest representative of the CEEC Blue Gum High Forest. This community is highly disturbed and largely lacks the native species that would typically occur within the understorey of this community in a natural state. Under the current management regime, the example of the community is not likely to be viable in the long term because trees are not regenerating.

The proposed subdivision and construction of access roads requires the removal of 229m2 of BGHF including 6 characteristic tree species. The area to be removed from the subject site represents 7% of the BGHF on the subject site. If development were to occur within the proposed house footprints and driveways, the total removed would be 359m2, which represents 11% of the subject site. The proposal will also involve the clearance of known habitat for the Grey-headed Flying-fox and Eastern Bentwing-bat, as well as potential habitat for the Gang-gang Cockatoo, Barking Owl, Powerful Owl, Yellow-bellied Sheathtail-bat, Eastern Freetail-bat and Large-eared Pied Bat [species listed in the Schedules of the TSC Act].

There will be an area 2,821m2 in size to be managed as the BGHF Conservation Zone. Three of the lots will contain a BGHF Conservation Zone which will be managed via a VMP [vegetation management plan] and protected through a Restriction as to User mechanism. The VMP is to concentrate on weed control and planting of local native species. The VMP will be implemented by the developer initially to cover site establishment works and the subsequent lot owners will be responsible for the maintenance phase on each of their lots. Habitat will be maintained for these species in the BGHF Conservation Zone and more extensive habitats will remain in the wider locality.

The current degraded condition of the vegetation is such that the vegetation clearance will not have a significant impact on the survival of this CEEC within the locality. Management of the retained BGHF on the subject site will improve the viability of the patch in the long-term.

90 Before considering the ecological evidence of the expert witnesses heard in Court and described in their individual and joint reports, it is appropriate to include the relevant sections of the Final Determination of the Scientific Committee. Section 24(4) of the Threatened Species Conservation Act 1995 (TSC Act), states that:

(4) The validity of a final determination cannot be questioned in any legal proceedings except those commenced in court by any person within 6 months of the date of publication in the Gazette of notice of the making of the final determination.

91 In 2007, the Scientific Committee, established by the TSC Act made a Final Determination to list the Blue Gum High Forest in the Sydney Basin Bioregion as a critically endangered ecological community in Part 2 of Schedule 1A of the TSC Act. Prior to this, the community was listed in Part 3 of Schedule 1 of the TSC Act as an endangered ecological community.

92 In paragraph 13 of the Final Determination, the Scientific Committee states:

Threatened Species Conservation Regulation

Clause 25

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 of the ecological community’s component species

93 Paragraph 8 lists the local government areas within the Sydney Basin Bioregion in which BGHF occurs. According to the council’s amended Statement of Facts and Contentions, over 70% of the remaining BGHF in NSW occurs within the Ku-ring-gai LGA.

94 Paragraph 2 of the Final Determination lists the assemblage of species that characterise BGHF in the Sydney Basin Bioregion. Paragraphs 3 and 4 of the Final Determination provide a general description of the community.

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.

Eucalyptus pilularis

E. saligna

Angophora costata

A. floribunda

Eucalyptus paniculata

Pittosporum undulatum

Elaeocarpus reticulatus

Allocasuarina torulosa

Breynia oblongifolia

Pittosporum revolutum

Clerodendrum tomentosum

Notelaea longifolia

longifolia

Maytenus sylvestris

Polyscias sambucifolia

Rapanea variabilis

Persoonia linearis

Leucopogon juniperinum

Adiantum aethiopicum, Entolasia marginata

Lomandra longifolia

Calochlaena dubia

Dianella caerulea

Pseuderanthemum variabile

Tylophora barbata

Eustrephus latifolia

Clematis aristata

Pandorea pandorana

95 Paragraphs 9, 10 and 11 describe the extent and the changes that have occurred.

9. Blue Gum High Forest has a very highly restricted geographic distribution, and is currently estimated to cover an extant area of less than 200 ha (Tozer 2003). The distribution comprises a series of small remnant patches, the largest of which is less than 20ha. Highly modified relics of the community also persist as small clumps of trees without a native understorey. All remnants of the community are now surrounded by urban development. Consequently, the distribution of Blue Gum High Forest is severely fragmented. Fragmentation of habitat contributes to a very large reduction in the ecological function of the community.

Threatened Species Conservation Act

11. Changes in structure of Blue Gum High Forest have occurred as a consequence of the extensive removal of large old trees. A number of stands of Blue Gum Forests have highly modified understories, in which the native woody component has been largely replaced by woody exotic species or by increased abundance of native and exotic grasses. Continued underscrubbing, frequent burning and mowing may maintain the understorey in an artificially open state and prevent recruitment of species with the community. The loss of large trees removes essential habitat for a range of tree-dependent fauna (Gibbons and Lindenmeyer 1996). The reduction of understorey complexity, through the reduction of native shrub cover, degrades habitat for a range of bird and mammal species (Catling 1991). These processes contribute to a very large reduction in the ecological function of the community.

96 Of relevance to the site subject to this appeal, the site is surrounded by urban development and had been subject to frequent disturbance by mowing and by the incursion of exotic species. The Final Determination recognises the highly modified state of many remnant patches of BGHF.

97 Many of the weed species listed in paragraph 12 of the Final Determination were observed on site and recorded by the ecologists. These include Bridal Creeper, Camphor laurel, Large-leafed Privet, Small-leafed Privet and Tradescantia fluminensis (Trad).

The differences between the experts

98 As previously mentioned, Ms T James gave expert evidence on behalf of the council and Dr D Robertson gave expert advice on behalf of the applicant.

99 Mr McEwan, counsel for the applicant suggested to us that we should give less weight to Ms James’ evidence on the basis of bias. Mr McEwan put to us that Ms James’ c.v. indicated that she had not been engaged by developers as an expert, also she had been engaged by Ku-ring-gai Council in an exercise to map BGHF as well as being engaged to comment on the proposed development application. This, and her particular interest in BGHF, he said would inevitably sway her opinion to that of arguing against any development in BGHF.

100 In response Ms James stated that she had not been approached by developers for court-related matters but had been a court-appointed expert on several occasions. She also stated it was not her role to approve development but to assess the facts within her area of expertise. She stated that she was fully aware of her duty to the Court.

101 On reviewing Ms James’ statement of evidence we see no reason why we should give Ms James’ evidence any less weight than that of Dr Robertson and we are not swayed by Mr McEwan’s arguments. Her comprehensive c.v. indicates her experience across a very wide range of plant communities for a broad range of clients. We consider an expert with detailed and documented experience in a particular plant community to be of assistance to the Court.

102 Both experts agree in principle with the following particulars of the council’s contentions (these are given in brackets):

the loss and degradation of critically endangered communities at a local level will result in long term loss of biodiversity at all levels (1(a))

over 70% of the remaining BGHF in NSW occurs within the Ku-ring-gai LGA highlighting the importance of protection in Ku-ring-gai (1(b))

the site is not at the NW limit of the regional extent of the distribution of BGHF; it is within an urban corridor comprising patches of BGHF and isolated trees; that patches of high quality BGHF as identified in the EPBC Act listing occur within the above corridor (parts of 1(e))

the expertise of the arborists should be accepted to ensure the adequacy of measures to ensure long-term survival of significant trees (2(b))

no buffer zones are proposed between areas of BGHF and developed areas within proposed conservation zones (2(d))

the expertise of the arborists should be accepted as to the whether there will be a significant impact on tree 99; agreement that the death of this tree would be a regrettable loss in relation to BGHF and fauna habitat (5(b))

the condition of the BGHF is not atypical of BGHF on private land generally and that conservation/ recovery of BGHF depends on protecting remnants on private lands (part of 7(iv))

103 There was partial agreement on the following particulars:

There are areas outside of the SIS mapped extent of BGHF where natives occur (part of 1(c))
The proposal will result in both direct and indirect impacts on the local occurrence of BGHF (part of 1(d))
The presence of Angophora floribunda is indicative of the drier form of BGHF (part of 1(e))
The location of a major access road and associated services through the centre of the proposed conservation area and the encroachment of proposed lots 3,4, and 5 within this area are inconsistent with a conservation objective and appropriate outcomes. This is not the best outcome and it would be better not to have this level of encroachment. (part 2(a)).

104 There were many points of disagreement between the experts, which are covered in detail. Many of the areas of disagreement relate to the significance or importance of an impact, the extent of the BGHF on the site and compliance or otherwise with the Director General’s requirements.

105 Dr Robertson contends that the BGHF on the site has been accurately mapped and is shown on Figure 4.2 of the SIS. He states that the mown grassland areas contain some scattered and hardy native grasses and herbs but the mix is predominantly exotic. He considers that as there are no native trees and shrubs left in the grassland areas there is not likely to be a seed bank in the soil that would enable recovery of the community should mowing cease. As a result, he contends that there is no need to map these areas. He maintains that the 7-part test and the SIS do consider the size and condition of vegetation on site relative to surrounding areas of BGHF. He states that the SIS concludes that the vegetation of the site is small and highly degraded, but notwithstanding that, it is worthy of a degree of protection and conservation management as provided for in the draft Vegetation Management Plan (VMP). The draft VMP is discussed later in this judgment.

106 Dr Robertson maintains that the impact of the proposed development will be minimal and that the maintenance of the current “do nothing” approach will lead to further degradation of what BGHF remains. He contends that the proposal will result in the protection and enhancement of BGHF on the site through the establishment of a conservation area and the implementation of a VMP that incorporated the “Best Practice Guidelines for Blue Gum High Forest” (produced by DECCW).

107 Ms James contends that the 7-part test and the SIS failed to map the extent of the BGHF on the site and, in adequate detail, on adjoining land, contrary to the DG’s requirements and therefore the impact will be significant. She states that the DG requirement 4.3 specifically requires mapping and assessment of all areas on site that retain some potential (natural or assisted) to regenerate. She further states that this is in line with paragraph 11 of the Final Determination that identifies BGHF understorey can be highly modified including open conditions and increased abundance of native and exotic grasses, maintained by mowing etc and that this has not been done.

108 She considers that the information in the 7-part test and the SIS on similar remnants of BGGHF on private land is inadequate to enable a determination of relative significance. She states that the SIS is largely restricted to remnants within managed reserves and does not adequately deal with nearby remnants on private land. She is also concerned that the cumulative impacts of loss and modification of BGHF within the local area are not identified and quantified. As a result, the impacts at a broader scale and on the corridor of which the site is a part, cannot adequately be determined.

109 With respect to the likely impacts of the development, Ms James maintains that the entire site and the BHGF will be affected both directly and indirectly. Specifically, areas of BGHF species found in the open grassland areas and not mapped will be directly affected. Due to the small size of the proposed conservation area, the encroachment of roads and services and the close proximity of building footprints, she contend that the indirect impacts will persist after development irrespective of management. Her position is that the impacts will be greater than present levels and that the risk of extinction over time is high.

110 With respect to the proposed measures, Ms James was unable to comment on the draft VMP as it was not available at the time of the joint conference on 22 June and there was insufficient time for her to review the document when it became available on 24 June. She does however question the practicality of maintaining the proposed conservation area given the likely activities associated with the normal use of private yards.

111 The single specimen of Syzygium paniculatum was discussed. This is listed as an endangered species in Schedule 1 of the TSC Act.

112 Ms James considers that there is no evidence to assume that this is not a natural occurrence and that, in her experience of mapping vegetation in the Ku-ring-gai LGA, and the poor knowledge of its original distribution, the precautionary principle should be applied and the tree should be protected.

113 Dr Robertson maintains that this is a widely planted tree not known to occur naturally in BGHF but rather in rainforests on sand dunes near the coast. It appears to be implied from this that this tree should have no special protection because, as he writes in his statement of evidence, “a planted tree cannot be included as part of an endangered species”.

Individual reports, oral evidence and cross-examination

114 Much of the cross-examination went to the differences in the areas of BGHF mapped by the two experts and the proposed conservation area.

115 Dr Robertson relies on his map shown as Figure 4.2 in the SIS. As described in para 88 of this judgment, this map shows BGHF canopy tress in conjunction with other characteristic species. The proposed conservation area has also been discussed elsewhere in this judgment however it appears that, in large measure, the plan before the Court was put to Dr Robertson by the applicant and that he had no early involvement in its design. Dr Robertson stated that he could make no radical changes to the lot layout but did make suggestions to extend the conservation area.

116 Ms James’ maps, tendered as exhibit 11, show the area she considers to be BGHF to be a much greater proportion of the site as she includes recruitment shrubs and small trees and areas of groundcover species. Figure 3 in exhibit 11 shows the area she considers to be the primary conservation area on the site. This is considerably more extensive than the conservation area proposed by the applicant and includes the eastern portion of Lot 2 including tree 99 and the majority of Lot 3.

117 Ms James supports her larger primary conservation area on her observations of the recruitment small trees and shrubs identified on her plan and pointed out to us on site. One of these species is Pittosporum revolutum a characteristic species not identified in the SIS.

118 The major difference between the experts is the inclusion, by Ms James, of native grasses and groundcover species that she observed on site and recorded in two 10m x 10m quadrats surveys in January 2010 of open grassy areas (one with no BGHF canopy and the other at the edge of the BGHF canopy). The results of these are included in her statement of evidence (exhibit 3).

119 Attachments 3 and 4 in her statement of evidence list the native species recorded on site and give a comparison of BGHF at the site with the Final Determination (FD) as assessed by Cumberland Ecology and Ms James. In this attachment she refers to paragraph 3 of the FD that states, “ the total species list of the community is considerably larger than (the list that is provided in the FD)”. She then lists the additional species recorded on the site including Acacia parramattensis, Homalanthus polulifolius, Dichondra repens, Geranium homeanum, Veronica plebeian, Cyperus gracilus, Rumex brownie, Commelina cyanea, Austrodanthonia racemosa, Desodium varians and Gylcine macrophylla. These species, she says, have been recorded from BGHF in a variety of sources including DECCW (2009) – Draft Vegetation mapping for the Sydney Metropolitan CMA Region, Ku-ring-gai Council (2009) Draft Vegetation Mapping of Blue Gum High Forest and Sydney Turpentine Ironbark Forest, and Tozer M (2003) The native vegetation of the Cumberland Plains, western Sydney: systematic classification and field identification of communities. Cunninghamia Volume 8(1) 1-75. The last reference is one cited by the Scientific Committee in its Final Determination. The other references are referred to in the DG’s requirements for the preparation of the SIS.

120 Six species listed in these sources were identified by Ms James but not in the SIS. The SIS lists another 3 species not identified by Ms James. It is of relevance that despite numerous BGHF groundcover and grass species being listed in the SIS as occurring on site, they are not included in the mapping.

121 Dr Robertson agrees that there are a number of native grasses and ground covers on the site but considers that the grassland areas are dominated by exotic species and that the native species present are commonly found in other communities and in gardens. In his opinion they do not constitute BGHF.

122 In his statement of evidence with reference to the open grassy areas, he states that:

Oplismenus aemulus, Oplismenus imbecillis, Oxalis perennans, Pratia purpurascens.

123 He goes on to say that some of these species are classed as weeds. He states that such species will almost inevitably survive in the proposed conservation area even without active management.

124 The issue of the soil seed bank was put to the ecologists, as this is a matter considered in the DECC/SMCMA 2008 ‘Best Practice Guidelines for Blue Gum High forest’. Mr Robertson does not consider the seed bank viable due to the extent of mowing and the history of disturbance on the site. In his opinion, if the mowing stopped it would be unlikely that the BGHF would regenerate. Ms James does not agree and cites the evidence of regenerating seedlings and her experience with the BGHF community. She acknowledged that the site had been disturbed but maintained that the seed bank on the site would be viable.

125 In terms of the impact of the proposed development, Dr Robertson reiterated his position that without intervention, the current ‘do nothing’ approach would reduce the long-term viability of the remnant. In his opinion, the development would be an opportunity to improve its viability. Ms James contends that the proposal removes areas of regenerating shrubs and does not make use of the natural resources of the broader range of native species on the site.

126 In conclusion, the opinion of Dr Robertson is that he is content that the proposed Conservation Area and the draft VMP will ensure that the BGHF community on the site will be retained in perpetuity and therefore is not at risk of extinction. Ms James consistently maintains that Dr Robertson’s mapping of the BGHF in the SIS is inaccurate and should include the native ground covers and grasses. She also contends that the proposed conservation area does not provide adequate protection for the range of species that constitute BGHF. She questions the practicality of the proposed ameliorative measure and as a result considers that there is a risk of extinction of the BGHF on the site.

127 Apart from BGHF, the SIS addresses other species listed in the Schedules of the TSC Act including several fauna species and the Syzygium paniculatum. Two threatened fauna species were recorded on the site during the surveys undertaken for the SIS. The Grey-headed Flying-fox (Pteropus poliocephalus) was recorded flying over the site and the Eastern Bentwing-bat (Miniopterus schreibersii) was recorded foraging on the site. With respect to the fauna, the SIS concludes that:

The proposal will remove only a small area of potential habitat for the known and potentially occurring threatened fauna species in relation to the habitat available within the locality. Clearance of habitat from the subject site is not considered significant in a local context as the subject site is likely to only provide foraging habitat for the majority of species. Significant areas of remnant bushland exist within Ku-ring-gai LGA. These areas are more likely to provide foraging and potentially nesting habitat for these species.

The draft Vegetation Management Plan.

128 The draft Vegetation Management Plan (VMP) was produced by Cumberland Ecology and flows from the recommendations made in the SIS. It is dated 24 June and was not produced in time for the ecologists’ joint conference. It was tendered as exhibit P. There was some cross-examination of the witnesses on its merits.

129 In the ‘Project description’ it states that:

The proposal includes the provision of a BGHF Conservation Zone within proposed Lots 3, 4 and 5 within which significant vegetation will be retained and improved. The BGHF Conservation area will be protected on these lots through the implementation of a Restriction on Use mechanism.

130 The stated aim of the VMP is to “provide a working document for the long-term protection and rehabilitation of the BGHF vegetation to be retained within the site in perpetuity, and to outline the methods needed for rehabilitation of the vegetation”. The scope of the VMP is the proposed conservation area that is to be retained and replanted as BGHF.

131 It was not clear from the document as to who was to engage and pay for both the bushland management consultant and the bush regeneration contractor mentioned in the draft VMP. Dr Robertson advised that this was to be undertaken by the applicant. The draft VMP is also unclear about the operation of the initial 3-year maintenance contract but it appears that this would be undertaken by the bush regeneration contractor and checked by the bushland management consultant.

132 After the first three years, the VMP envisages the bushland management consultant and bush regeneration consultant co-ordinating with landowners and the council to determine appropriate arrangements for supervision of residents/volunteers following occupation of the estate and completion of the contract. It also states that the involvement of local schools will be sought.

133 The draft VMP at page 5.11 states

No plants known to be invasive or which become invasive will be allowed on private lots and material consistent with the local gene pool should be seen as convenient, being affordable and readily available. Plants used in the landscaping associated with built areas within the subject site will be consistent with the local vegetation community. The dumping of garden waste and unwanted plant material is prohibited within the conservation area.

134 Questions were raised during the proceedings relating to the relevance of the photographs taken in the draft VMP as they did not appear to be taken on the site and could be misleading. Similarly, Mr Robson questioned the adequacy of the draft VMP with respect to the ‘Best Practice Guidelines for BGHF’ and specifically to guidelines to promote natural regeneration from the soil seed bank, the use of plant material for the site and the measures to be implemented to minimise the risk of soil pathogens such as Phytophthora. Dr Robertson answered that in his experience, a draft VMP is only the start with the final VMP to be prepared in accordance with council requirements and then only implemented once council has approved it.

Impact on adjoining property ‘Amberley’

135 Whilst not a specific contention in the proceedings, the council has cited the lack of information in relation to impacts on trees on adjoining properties as one of the reasons for its refusal of the application. It became apparent during the site inspection that considerable pruning works would be required to facilitate access to the site along proposed road B. This involved trees on both sides of the access handle and includes the heritage item, ‘Amberley’ at No 35 Chilton Parade. Further, it is likely that root pruning of trees on the property No 29 Chilton Parade would be required to achieve the design levels of road B. The applicant was unable to quantify the extent of the works on either property, nor assess the impact of that work on the adjacent heritage item or provide evidence from the owners of either property that they would support the works proposed.

136 We note that clause 61E of the KPSO stipulates that development consent cannot be granted to carry out development on land in the vicinity of a heritage item unless an assessment of the effect the carrying out of that development will have on the heritage significance of the item and its setting has been made.

137 The Heritage Branch of the Department of Planning provides details of the listing of ‘Amberley’ and in the Statement of Significance gives the reasons for listing as being ‘cultural, architectural, state significance Note: important garden and grounds.’

138 In view of the importance of the gardens and grounds, we cannot ascertain the effect of the pruning of trees within those grounds that is required by the development due to the lack of detail provided to the Court. Further, as the consent of either owner of the adjacent lands has not been provided, we are unable to consider any development that would involve works on the adjoining lands.

Conclusions and Findings
Ecological and arboricultural issues

139 The arboricultural and ecological issues are very much intertwined. There is no dispute that the site contains the Critically Endangered Ecological Community – Blue Gum High Forest. The difference between the parties is the extent of the CEEC and the significance of the impact of the proposed development on that community.

140 The Commonwealth includes Blue Gum High Forest of the Sydney Basin Bioregion in the critically endangered category in the list of threatened ecological communities under s 181 of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). However, we find, as does the SIS, that the fragment of BGHF on the site does not meet the criteria for listing under the EPBC Act as it is less than one hectare in size.

141 We find that the production of a Species Impact Statement was an appropriate course of action. Whilst the SIS was not produced for consideration by council, it has since been produced in evidence and must be a focal point for our determination of this matter. Similarly, the draft Vegetation Management Plan is the document before the Court that we must take into account in considering the ameliorative measures proposed by the applicant.

142 We find that whilst the SIS is informative, there are a number of deficiencies and contradictions. For example, it does not contain the recent mapping undertaken by Ku-ring-gai Council in 2009 but relies on the map produced by the National Parks and Wildlife Service (NPWS) in 2002 (reproduced as Figure 2.4 in the SIS). It would appear to us that there are likely to have been changes in the extent of the BGHF in the locality since the NPWS map was produced and therefore the impact of the proposed development on the BGHF in the locality may be underestimated. Contrary to DG requirement 6.2.2 regarding a discussion of other occurrences of threatened ecological community populations in the locality, there is limited detail in the SIS regarding these occurrences and even less detail relating to what is defined in the SIS as the ‘study site’ being vegetated land to the north, east and west of the site. Consideration of the local occurrence is a critical element of s 5A(2)(c) of the EPA Act.

143 The SIS also appears to be somewhat contradictory. For example, in 6.2.3, the section concludes as follows:

Given the critically endangered status of the community, any remaining patch has some long-term viability for the community as a whole. The vegetation on the subject site is in a degraded and weed infested condition, however some native groundcover vegetation does occur. Vegetation on the subject site forms a fragmented link between larger patches, and together this fragment forms a stepping stone link between vegetation on the western side of the Pacific Highway and the vegetation on the north-eastern parts of the plateau. As such, the vegetation of the subject site is important for the viability of the community as a whole as it facilitates genetic exchange between individual fragments.

Based on the poor condition of proximate BGHF and the relatively long distance of more useful occurrences, it is concluded that other BGHF will have little beneficial impact on the community at the subject site in terms of species and genetic transfer. For the same reasons, there is little likelihood of benefit to other areas of BGHF from indigenous vegetation at the subject site.

144 The findings of the SIS are based on the assumed limited extent of the BGHF on the site and its assumed lack of resilience. This is contrary to what we observed on site. As a consequence of these limitations and contradictions, we find that the SIS does not provide sufficient clarity for us to determine that the proposed development will not have a significant long-term impact on this fragment of BGHF and therefore on the cumulative impacts on the BGHF in the locality.

145 The Final Determination recognises the fragmented, disturbed and limited extent of BGHF and the fact that all remnants are surrounded by urban development. The reasons for listing the community as critically endangered are that in the time frame of the life cycle of its characteristic species it faces a very high risk of extinction. This is through a very large decrease in geographic distribution and, relevantly in this matter, a large reduction in ecological function through changes in species composition, weed invasion and fragmentation. The Final Determination also recognises threats posed by clearing for residential subdivision.

146 In our view, the Final Determination does not assume that the typically disturbed and fragmented remnants are capable of natural regeneration and the absence or limited extent of natural regeneration does not devalue its importance.

147 With respect to the ecological evidence including the SIS, we prefer the evidence of Ms James as we consider it reflects the findings of the Scientific Committee in its Final Determination. We concur with the summary of her evidence given in paras 107-109 of this judgment.

148 DG requirement 6.21 for the preparation of a SIS, in part requires -

Maps, consistent with the descriptions provided, showing the extent and condition of the community.

149 We find that the map of the BGHF produced in the SIS (Figure 4.2), and relied upon in locating the conservation area, does not represent the actual extent of BGHF species on the site. We find on the facts before us, including the evidence seen on site, that the grassy areas and other areas away from the immediate influence of BGHF canopy trees, do contain mid storey, groundcover and grass species consistent with BGHF. We consider there was an obligation for these to be mapped despite the ecologist’s opinion that they were common and hardy species of little importance for retention.

150 Whilst the proposed conservation area contains an area of BGHF considered by both ecologists to be an important part of the remnant community, it does not sufficiently protect the range of species on the site. It would also seem to us, from Dr Robertson’s evidence, that the location of the proposed conservation area was imposed on Dr Robertson on the basis of the ‘best fit’ for the number of proposed lots rather than the extent of the BGHF forming the basis of its location. We consider that the extent of the conservation area lies beyond that proposed by Dr Robertson but is not as extensive as suggested by Ms James.

151 Figure 4.2 does include Tree 99, the largest BGHF canopy tree on the site and one of the few Eucalyptus pilularis. Section 4.2.3.i.a of the SIS states in part

The NSW Scientific Committee’s final determination of BGHF includes scattered remnant native trees and although much of the are shown in Figure 2.4 is urbanised, it demonstrates that scattered trees are important in contributing to the overall distribution of the community because the intact remains of the community are very small and restricted in distribution.

152 However, due to the limited extent of the proposed conservation area, there is no particular protection planned for this tree. Based on the ecological and arboricultural evidence we consider this tree to be a priority for retention and that the proposed protection measures and setbacks are inadequate to ensure its long term retention in the context of what would become a more intensively used site.

153 With respect to the Syzygium paniculatum, regardless of its provenance, we consider it is a specimen worthy of retention and measures for its long-term retention should be incorporated into any plan for sub-division.

154 The SIS relies heavily on the production of a VMP to address the measures required to manage the key threatening process of weed invasion and to assist the recovery of the remnant to at least a modified form of BGHF. We acknowledge that the current level of weed infestation on the site poses an ongoing risk to the long-term viability of the BGHF on the site. However, as the draft VMP for the proposed conservation area is based on the maps and assumptions in the SIS, we find that it does not adequately address the range of species and lacks important details as discussed earlier in this judgment. However, the weed control and revegetation measures it contains are valid for the area to which it is currently intended to apply.

155 Director-General’s requirement 7.1 – Description of ameliorative measures reads in part

Ameliorative or compensatory measures proposed to reduce or offset the level of impact should only be considered where it can be shown that they have been successfully applied elsewhere. The likely efficacy of such measures with respect to the current proposal should be assessed in detail.

156 There is little detail in the SIS in response to this requirement and no examples of where the measures have been successfully applied elsewhere. The SIS relies on the preparation of a VMP that, in part, will cover

157 The draft VMP proposes a ‘Restriction on Use’ mechanism to be imposed on three of the six proposed Lots. However, there are no details of how this mechanism is to be formulated, implemented, monitored or enforced. There are no examples of where such a mechanism, in the form proposed, has been successfully applied. It is reasonably foreseeable that, notwithstanding such a covenant, anyone purchasing a residential lot in this subdivision would have an expectation of using their private open space for a range of activities. These activities are likely to include key threatening processes such as clearing of native vegetation by mowing and potential further weed invasion through garden escapes. The mechanism relies on the co-operation of three individual landholders without any fixed schedule, funding source or management procedure to carry out works across these three lots. Therefore, we are unconvinced of the practicality of this mechanism, and of the draft VMP, to ensure the long-term viability of the BGHF that these devices set out to protect and preserve in perpetuity.

158 We agree that, despite the lack of detail provided by the applicant’s engineering experts, the protection measures proposed by the arborists and the engineers, that is the use of pier and beam construction, thrust boring and hand digging, do go a long way in mitigating the impacts of the proposed development on trees and vegetation to be retained. However, due to the location of the indicative building footprints and access roads on areas of BGHF not mapped or accounted for in the SIS and the draft VMP; the inevitability of the impacts associated with construction of the access roads, installation of services, eventual construction of dwellings and the normal activities associated with residential activities, we are of the opinion that the proposed subdivision is likely to have an adverse effect on the extent and composition of the BGHF on the site to an unacceptable extent.

159 We also find that the activities listed above are also likely to have an adverse impact on a number of significant native but non-indigenous species as well as some exotic species.

160 Whilst this site is one of several patches of BGHF in the immediate locality, our concern is that the plan and the proposed ameliorative measures before us do not sufficiently address the critically endangered status of this community. In our opinion, this will lead to further loss and fragmentation.

161 The Court must take the factors in S5A of the Act into account, and in particular for this matter, the factors in S5A(2)(c), (d) and (g) as these relate to endangered ecological communities.

162 Section 5A(2)(c) states:

163 The applicant contends that the proposal for a subdivision and associated access roads will result in a direct loss of 4 of the surveyed BGHF trees. This, in itself, is unlikely to lead to the extinction of the local occurrence of the BGHF CEEC. However, we consider this contention to be based on a fatally flawed interpretation of the Final Determination and of the Director-General’s requirements in that it considers only tree loss and not the loss of the broader range of other BGHF species found on the site.

164 Both parties took us to the decision by Preston CJ in Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited [2010] NSWLEC 48 (NHVSS). The applicant takes comfort from the lengthy and detailed discussions of the ‘likely risk of extinction of the local occurrence of the endangered ecological community’ and the ‘precautionary measures to be taken to prevent environmental damage’. However, we find that whilst the principles discussed are valid considerations when assessing the impact of a proposed development on any EEC, or in the matter before us, a CEEC, the circumstances of the NHVSS matter and the findings of Preston CJ, are substantially different to those in the matter before us. We have considered the merits of the proposed subdivision and its likely impacts on the CEEC BGHF and find that on the evidence before us there is such a degree of uncertainty as to the long-term impact of the proposed development on the BGHF on the site we are unable to approve the subdivision in its current form.

Other issues

165 Apart from the ecological issues, we are also of the opinion that other elements of the proposal pose an unacceptable level of uncertainty. Many aspects lack sufficient detail despite the early and specific advice from council.

166 The applicant’s documented approach to supplying this important information gives us no comfort that allowing the development subject to deferred commencement conditions would guarantee the long term preservation of the CEEC.

167 Throughout the proceedings, the applicant submitted amended plans and documents to the Court that had been prepared on an ad hoc basis. In particular, we are not convinced that adequate consideration has been given to, or detailed information provided on, the following

Design, location and impact of access road construction.
Provision of pedestrian access (not raised by council as a contention but raised in the hearing) and the impacts of that access on BGHF.
Access road from Chilton Parade – requirement for crown lifting of neighbours’ trees and in particular, the impact of that work on the heritage item ‘Amberley’, the lack of concurrence from the owners of those properties in relation to any of that work.
Geotechnical conditions across the site in relation to methods of construction said to ameliorate the impact of the works on the important vegetation.
Clarification of practicality of access for equipment for thrust boring as well as the size and location of launch pits.
The mechanism of ensuring the long-term maintenance of the proposed conservation area.

168 In meeting our obligations under s 79C of the EPA Act, we find that notwithstanding the numerical compliance of the lot sizes and road widths with the relevant clauses of the KPSO, we are not satisfied that the proposed lot and road layout recognises the critically endangered status of the BGHF and that the development, as proposed, will not place the CEEC at an increased risk of extinction. We accept that parts of the site are suitable for development. However, we are of the opinion that there is too much uncertainty with respect to too many of the elements of this proposal that to approve the development in its current form would not be in the public interest.

Future Considerations

169 Consistent with Parrott v Kiama [2004] NSWLEC 77 revised – 16/03/2004, any future subdivision plan should provide more detail with respect to building design so that the full impact of the proposal can be more accurately determined.

170 We accept that the site has development potential however do not consider the design of the subdivision proposed is appropriate due to the adverse impact the works and use for five further residential properties will have on the CEEC – Blue Gum High Forest.

171 With respect to any future proposal for subdivision of the site, one option could be the implementation of a community title subdivision whereby the responsibility for a better defined and representative conservation area sits with a community association. A detailed VMP must support any future application to ensure the continued viability of the CEEC. The lot and dwelling layout should reflect the need to provide an appropriate conservation area that is consistent with the Scientific Committee’s final determination of BGHF.

172 Alternate access including the use of the existing access road to the presbytery would also reduce the impact of the development on the CEEC, other important vegetation and the adjacent heritage item.

1. The appeal is dismissed.

2. DA No. 038/09 for a six-lot subdivision at Lot 2 DP 735609 Nos 35-41 Billiard Avenue, Wahroonga, is determined by refusal of development consent.

3. The exhibits, other than exhibits 11 and P.

__________________________________

Judy Fakes
Commissioner of the Court

__________________________________

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Citations

Ingham Planning Pty Ltd v Ku-ring-gai Council [2010] NSWLEC 1222

Most Recent Citation

Peter Campton v Parramatta City Council [2011] NSWLEC 1360

Cases Citing This Decision

4

Sandy Outlook Pty Ltd as the trustee for Sandy Outlook Trust v Ku-ring-gai Council [2021] NSWLEC 1519

Blake v Ku-ring-gai Council [2021] NSWLEC 1461

Mackenzie Architects International Pty Limited v Ku-ring-gai Council [2015] NSWLEC 1353

Cases Cited

2

Statutory Material Cited

6

Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited [2010] NSWLEC 48

Parrott v Kiama [2004] NSWLEC 77

CITATION:	Ingham Planning Pty Ltd v Ku-Ring-Gai Council [2010] NSWLEC 1222
PARTIES:	APPLICANT Ingham Planning Pty Ltd RESPONDENT Ku-Ring-Gai Council
FILE NUMBER(S):	10908 of 2009
CORAM:	Fakes C - Morris C
KEY ISSUES:	DEVELOPMENT APPLICATION - THREATENED SPECIES :- Adequacy of Species Impact Statement Blue Gum High Forest Critically Endangered Ecological Community Bias
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Threatened Species Conservation Act 1995 Threatened Species Conservation Regulation 2002 Commonwealth Environment Protection and Biodiversity Conservation Act 1999 State Environmental Planning Policy 19 - Bushland in Urban Areas Ku-Ring-Gai Planning Scheme Ordinance
CASES CITED:	Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited [2010] NSWLEC 48 Parrott v Kiama [2004] NSWLEC 77 revised – 16/03/2004
TEXTS CITED:	DECCW (2009) – Draft Vegetation mapping for the Sydney Metropolitan CMA Region Ku-ring-gai Council (2009) Draft Vegetation Mapping of Blue Gum High Forest and Sydney Turpentine Ironbark Forest Tozer M (2003) The native vegetation of the Cumberland Plains, western Sydney: systematic classification and field identification of communities. Cunninghamia Volume 8(1) 1-75
DATES OF HEARING:	29-30 June 2010
DATE OF JUDGMENT:	16 August 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr P J McEwan SC instructed by Mr C Munten, Makinson & d'Apice Lawyers RESPONDENT Mr J Robson SC instructed by Mr A Hudson, Wilshire Webb Staunton & Beattie