Kate Singleton Pty Ltd ACN 106 774 001 and S J Connelly CCP Pty Ltd ACN 125 970 783 (trading as Planners North ABN 56 291 496 553) v Ballina Shire Council

[2018] NSWLEC 1306

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Kate Singleton Pty Ltd ACN 106 774 001 and S J Connelly CCP Pty Ltd ACN 125 970 783 (trading as Planners North ABN 56 291 496 553) v Ballina Shire Council [2018] NSWLEC 1306
Hearing dates:	12, 14, 21, 28 February 2018, 6 March 2018, and 15 May 2018
Date of orders:	22 June 2018
Decision date:	22 June 2018
Jurisdiction:	Class 1
Before:	Brown C
Decision:	1. The appeal is upheld. 2. Development Application 2016/184 for the staged residential development of land around Mitchell Close, Albert Sheather Lane, Sandy Flat Road, Ballina Heights Drive and Tamarind Drive, Cumbalum is approved subject to the conditions in Annexure A. 3. The exhibits are returned. 4. The applicant is to pay the costs of the respondent, under s 8.15 of the Environmental Planning and Assessment Act 1979, as agreed or as assessed.
Catchwords:	DEVELOPMENT APPLICATION: staged residential development; contentions largely addressed by additional information provided by applicant; hearing on remaining dispute dealing with two conditions of consent
Legislation Cited:	Ballina Local Environmental Plan 2012 Biodiversity Conservation Act 2016 Biodiversity Conservation (Savings and Transitional) Regulation 2017 Environmental Planning and Assessment Act 1979 Threatened Species Conservation Act 1995
Category:	Principal judgment
Parties:	Kate Singleton Pty Ltd ACN 106 774 001 and S J Connelly CCP Pty Ltd ACN 125 970 783 (trading as Planners North ABN 56 291 496 553) (Applicant)   Ballina Shire Council (First Respondent) Northern Region Joint Planning Panel (Second Respondent)
Representation:	Counsel: Mr C McEwen SC (Applicant) Mr P Clay SC and Ms J Reid (First and Second Respondents)   Solicitors: Holding Redlich (Applicant) Allens (First Respondent) Department of Planning and Environment (Second Respondent)
File Number(s):	2017/27368
Publication restriction:	No

Judgment

1. This is an appeal against the refusal of Development Application 2016/184 for the staged residential development and ancillary works at land around Mitchell Close, Albert Sheather Lane, Sandy Flat Road, Ballina Heights Drive and Tamarind Drive, Cumbalum (the site).

2. The development provides for;

• 457 residential lots;

• three residual rural lots;

• four reserve lots;

• nine key site (future development) lots;

• six open space/public reserve lots;

• community facilities;

• landscaping;

• road construction;

• earthworks;

• stormwater management;

• infrastructure works;

• vegetation removal; and

• other associated subdivisional works.

3. The Statement of Facts and Contentions identified the following general areas that the council maintained that the application should be refused:

• lack of owners authority;

• absence of a Species Impact Statement;

• inadequate lot sizes for part of the subdivision;

• insufficient information;

• non-compliance with development control plan subdivision layout;

• site contamination;

• inadequate stormwater design and treatment;

• negative impact on existing endangered ecological communities and groundwater dependant ecosystems;

• inadequate road design and layout, including design of retaining walls;

• inadequate vegetation rehabilitation and management plan;

• inadequacy of proposed offsets;

• unacceptable bushfire impacts;

• inadequate retention of existing vegetation; and

• poor design of proposed areas of public open space.

4. The 5-day hearing commenced on site on 12 February 2018 and a number of objectors to the development provided evidence on site; following which an inspection of the site was undertaken with the parties and respective experts. Following the site inspection, the parties and their experts considered a range of additional information provided by the applicant to address the contentions raised by the council. During the day, the parties advised the Court that the additional information appeared to largely address the councils concerns however greater investigation would be required given the amount of new information. It was agreed that the time set aside for the hearing would be more efficiently used in the assessment of the new information and on this basis the proceedings were adjourned. It was also agreed that the hearing should be converted to a s 34 Conference where the finalisation of the appeal could, all matters being addressed, be undertaken through a s 34 Agreement.

5. The s 34 Conference was held on 28 February 2018 and was adjourned as no agreement had been reached on a number of matters. A further s 34 Conference was held on 6 March 2018 where the s 34 Conference was terminated as there were still contentions remaining between the parties.

6. A hearing was set down before me on 15 May 2012 to deal with any outstanding matters, which were ultimately dealt with as a dispute over two conditions of consent. The applicant agreed at the hearing to an order under s97B of the Land and Environment Court Act 1979 for costs, as agreed or assessed.

The site

7. The site comprises ten allotments with a total area of around 215ha and are described as:

• Lot 32 DP 1223594, 33 Mitchell Close, Cumbalum (area of 21.99ha);

• Lot 20 DP 1022777, 52 Albert Sheather Lane Cumbalum (area of 35.63ha);

• Lots 2 (area of 354.1sqm) and 3 DP 823662 (area of 23.72ha), Lot 3 DP 517149 (area of 7.517 ha), Lots 150 (area of 16.19ha) and 333 DP 755684 (area of 40.06ha), Sandy Flat Road and 88 Sandy Flat Road Cumbalum; and

• Lots 30 (area of 16.96ha) and 31 DP 1223594 (area of 47.43ha), Lot 2 DP 1213872 (area of 5.43ha), Ballina Heights Drive and 658 Tamarind Drive Cumbalum.

8. The site is located between the Ballina Heights Estate (along its southern boundary) and Sandy Flat Road (along its northern boundary). The site adjoins the southern section of Cumbalum Urban Release Area - Precinct B. The eastern boundary of the site adjoins private rural properties and the Ballina Nature Reserve and the western boundary adjoins, and is proximate to, the Pacific Motorway and Emigrant Creek.

9. The elevations of the site vary from approximately RL 1 m AHD to RL 85m AHD. An elevated ridgeline extends from the southern boundary of the site and branches east and west to form a second prominent ridge across the site. Steep slopes and valleys extend to the north and east, where they connect to broad low lying areas. Portions of the northern and eastern areas of the site have slopes over 40%.

Relevant planning controls

10. The site forms part of a planned residential land release at Cumbalum near Ballina on the north coast. The site is within Zones RU1, RU2, R2 and R3 under Ballina Local Environmental Plan 2012 (BLEP 2012). Subdivision is permissible with council consent. The general minimum area of subdivision specified for the RU1 and RU2 zones is 40ha; for the R3 zone it is 450sqm; and for the R2 Zone, the minimum area is 600sqm. Based on the additional information; no contentions are now raised over permissibility.

11. A number of state environmental planning policies, acts, provisions of environmental planning instruments and development control plans apply and given the limited areas of dispute, references are made to these documents when relevant.

The conditions in dispute

Condition 39

12. The council seeks the imposition of the following condition 39:

39. Prior to the issue of a Construction Certificate for the 150th lot (including those lots approved via DA 2016/576), positive covenants pursuant to section 88E of the Conveyancing Act 1919 are to be registered on the titles of the land within the Proposed Management Zones shown in Figure 1 of the Plan of Management, as amended in accordance with condition 36, requiring the implementation of the approved Plan of Management and relevant Vegetation Management Plan for that land in perpetuity. The covenants are to be released:

a) from the titles of any residential lots subdivided from the land, upon the subdivision of those lots; and

b).from the remainder of the land in the event that the owners of that land enter into biodiversity stewardship agreements in accordance with condition 121.

13. The applicant seeks the imposition of the following condition 39:

39. Prior to the issue of a Construction Certificate for the 150th lot (including those lots approved via DA 2016/576), a positive covenants pursuant to section 88E of the Conveyancing Act 1919 are to be registered on the titles of the land within the Proposed Management Zones shown in Figure 1 of the Plan of Management, as amended in accordance with condition 36, requiring the implementation of the approved Plan of Management and relevant Vegetation Management Plan. The covenants are to be released:

a) from the titles of any residential lots subdivided from the land, upon the subdivision of those lots.

Condition 122

14. The council seeks to impose condition 122; which states:

122. Within five years of the issue of the first Construction Certificate, the owner of the land is to make an application to enter into a biodiversity stewardship agreement within the meaning of the Biodiversity Conservation Act 2016 in relation to each of Residual Lots 1, 2 and 3. The biodiversity stewardship agreements are to provide for the management and conservation in perpetuity of the vegetation that has been planted in accordance with the PoM and Vegetation Management Plans, as revised in accordance with conditions 36 and 37. If the relevant authority agrees to enter into the biodiversity stewardship agreement, or a lesser agreement, the owner of the land is required to enter into the agreement.

The Council notes that any credits issued as a result of entering into the BSA would be available to be sold by the developer.

If a BSA is entered into, the requirement to comply with the terms of the POM or VMP that relates to the land subject of the agreement is extinguished.

15. The applicant seeks the deletion of condition 122.

The submissions

16. Mr McEwen SC, for the applicant, submits that the condition should be deleted as the council incorrectly interprets the comments of the ecologists in their Addendum Joint Expert Report (at p 16) where it was suggested that a Biodiversity Stewardship Agreement (BSA) should be entered into (Agreement 8). Mr McEwen submits that there was no agreement that this was required, and certainly no contemplation of this beyond any offset that might be required for Hairy Joint Grass (Agreement 7) because there is no requirement for an offset under the Ballina Development Control Plan 2012 (BDCP 2012), LEP 2012 and the Threatened Species Conservation Act 1995 (TSC Act) for this development to offset the impacts via a Biobanking Agreement.

17. Importantly, the appeal was lodged prior to the commencement of the Biodiversity Conservation Act 2016 (BC Act), which commenced on 25 August 2017. Part 1, Sch 9 of the BC Act provided that regulations may contain provisions of a savings or transitional nature consequent on the enactment of the BC Act, and that any such provisions shall prevail despite anything contrary to that schedule. Part 7 of the Biodiversity Conservation (Savings and Transitional) Regulation 2017 (BC Savings Regulation) provides the savings and transitional provisions relate to biodiversity assessment and approvals under Environmental Planning and Assessment Act 1979 (EP&A Act). Clause 28 of the BC Savings Regulation provides, inter alia, that the former planning provisions continue to apply to the determination of a pending or interim planning application. This application falls within the definition of cl 27(1)(a) of the BC Savings Regulation as “a pending or interim planning application”. As a result, the BC Act does not apply and should not be the subject of any conditions requiring that a BCA be entered into.

18. Under the Threatened Species Conservation Act 1995 (TSC Act) Biobanking Agreements were entered into between the landowner and the responsible Minister. These Biobanking Agreements were voluntary (p 16 of the Ecologists addendum Joint Expert Report).

19. Mr McEwen submits that apart from the fact that the applicant is not required to create a BSA to offset impacts of the development under the BC Act, the obligation to make an application to enter into a biodiversity stewardship agreement is unreasonable, unprecedented, unwarranted and problematic.

20. Ms Reid, for the respondents, submits that condition 122 should be retained. In her submission, condition 122 provides the “best practice” to protect the three lots in question. If the BC Savings Regulation save the application from the provisions of the BC Act then alternatively, the TSC Act provides the opportunity to offset the impacts via a Biobanking Agreement for residual Lots 1, 2 and 3. The estimated cost is around $13,000/year.

21. Ms Reid concludes by stating that condition 122 can reasonably be complied with and provides certainty for the future protection of the residual lots and should be retained.

Findings

22. The ecological experts, Mr Steven House, for the applicant and Dr David Robertson provided a number of reports on ecological matters associated with the proposed development. Their most recent report “Addendum Joint Expert Report – Ecology” (Exhibit C) addressed the conditions in dispute. On condition 39, the experts agreed that the applicant’s version of this condition is acceptable and on this basis, I accept that it is the appropriate condition.

23. Condition 122 was the subject of much agreement between Mr House and Dr Robertson. The experts agreed that;

• the proposed 10 year Plan of Management (POM) and Vegetation Management Plans (VMP’s) provide for rehabilitation, embellishment and long term management on the remnant vegetation and planting areas of the site;

• a BSA is the strongest form of in-perpetuity protection and management currently available for private land. It provides a funded management mechanism in perpetuity, with a management plan determined by the Office of Environment and Heritage (OEH);

• BSA's are a voluntary mechanism that generate biodiversity credits that may be sold and provides a funding mechanism for management and entering into a BSA is not required for compliance with the DCP; impact assessment under the TSC Act or any offsetting obligations,

• the OEH may not agree to enter into a BSA on the site within 5 years of the first construction certificate due to the extensive areas of pasture on the site and early stages of revegetation; and

• if the developer enters into a BSA this should then extinguish any obligations under this consent to implement, monitor or audit the POM or VMPs as these would be superseded by the BSA management plan and monitoring/auditing procedures and that any credits issued as a result of entering into a BSA should be available to be sold by the developer. A condition or note within the consent relating to the potential for credit sales and the extinguishment of POM and VMP obligations is appropriate.

24. Dr Robertson, individually, believes that BSA's represent current best practice and so the condition should be retained for native vegetation and, if approved by OEH, the plantings.

25. Based on the expert evidence and the submissions, I accept the conclusions of the applicant for a number of reasons. Importantly, the appeal was lodged prior to the commencement of the BC Act. Part 7 of the BC Savings Regulation provides that the former planning provisions continue to apply to the determination of a pending or interim planning application. As a result, the BC Act does not apply. This was not a conclusion that Ms Reid disputed.

26. Also, and agreed by Mr House and Dr Robertson, a BSA is a voluntary mechanism and entering into a BSA is not required for compliance with the DCP, impact assessment under the TSC Act or any offsetting obligations.

27. Mr House and Dr Robertson also accept that there is some doubt that the OEH may agree to enter into a BSA on the site (even if it was available). It would seem that greater certainty would be required if the condition sought to be imposed by the council was included in any approval.

28. The orders of the Court are:

1. The appeal is upheld.

2. Development Application 2016/184 for the staged residential development of land around Mitchell Close, Albert Sheather Lane, Sandy Flat Road, Ballina Heights Drive and Tamarind Drive, Cumbalum is approved subject to the conditions in Annexure A.

3. The exhibits are returned.

4. The applicant is to pay the costs of the respondent, under s 8.15 of the Environmental Planning and Assessment Act 1979, as agreed or as assessed.

_____________

G Brown

Commissioner of the Court

Annexure A (1.82 MB, pdf)

Amendments

13 September 2018 - Corrections made to Cover Sheet - Change of Hearing dates; Change of Representation

Decision last updated: 13 September 2018