Kingshill Development No 1 Pty Ltd and Kingshill No 2 Pty Ltd v Port Stephens Council and Hunter and Central Coast Regional Planning Panel

[2023] NSWLEC 1478

Land and Environment Court

New South Wales

Medium Neutral Citation:

Kingshill Development No 1 Pty Ltd and Kingshill No 2 Pty Ltd v Port Stephens Council and Hunter and Central Coast Regional Planning Panel [2023] NSWLEC 1478

Hearing dates:

20 February to 2 March 2023, 10 March 2023, 14 to 17 March 2023, 27 to 28 March 2023

Date of orders:

23 August 2023

Decision date:

23 August 2023

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders:

(1) Leave is granted to rely on amended plans and documents that amend Development Application 16-2018-772-1, as described in Exhibits P, Q and R, and parts of Exhibits A, B and D.

(2) The appeal is dismissed.

(3) Development Application 16-2018-772-1, relating to a concept proposal to define areas for residential precincts and conservation, and Stage 1 works to establish a conservation area and clear precinct areas for future development, on Lot 41 Deposited Plan 1037411, also known as 3221 Pacific Highway, Kings Hill, and Lot 4821 Deposited Plan 852073, also known as 35 Six Mile Road, Kings Hill is refused.

(4) The exhibits are retained.

Catchwords:

DEVELOPMENT APPLICATION – staged development with concept proposal and first stage works – concept plan – establish a conservation area and future development footprint – assessed potential ecological and hydrological impact – threatened species impact assessment – insufficient satisfactory arrangements for designated State public infrastructure

Legislation Cited:

Biodiversity Conservation Act 2016, Sch 9

Biodiversity Conservation (Savings and Transition) Regulation 2017, Pt 7, cll 27, 28, 31

Environmental Planning and Assessment Act 1979, ss 4.5, 4.14, 4.15, 4.16, 4.22, 4.47, 5A, 5.16, 6.2, 8.7, 8.15, 78A, 79B, Pt 5

Environmental Planning and Assessment Regulation 2000, cll 49, 55

Fisheries Management Act 1994

Hunter Water Act 1991, s 51

Land and Environment Court Act 1979, s 39

Port Stephens Local Environmental Plan 2000, cll 9, 12, 13

Port Stephens Local Environmental Plan 2013, cll 2.3, 4.1, 5.10, 5.21, 6.1, 6.2, 6.3, 6.5, 6.6, 7.1, 7.2, 7.4, 7.6, 7.8, 7.9, 7.11

Rural Fires Act 1997, s100B

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 3.6, 3.7, 3.8, 3.9, 3.15

State Environmental Planning Policy (Planning Systems) 2021, s 20, Sch 6 s 2

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.7, 2.8, 2.10, 2.11, 4.6

State Environmental Planning Policy (Transport and infrastructure) 2021, ss 2.119, 2.120

Threatened Species Conservation Act 1995, ss 109, 110, 111, 112, Schs 1, 2, 3

Water Management Act 2000, s 91

Cases Cited:

Mison v Randwick Municipal Council (1991) 23 NSWLR 734

Mullaley Gas and Pipeline Accord Inc v Santos NSW (Eastern) Pty Ltd (2021) 252 LGERA 221; [2021] NSWLEC 110

Ryan v Northern Regional Planning Panel (no 4) [2020] NSWLEC 55

The Uniting Church in Australia Property Trust (NSW) v Parramatta City Council [2018] NSWLEC 158

Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 117

Texts Cited:

Land and Environment Court Practice Note – Class 1 Development Appeals

NSW Department of Primary Industries, Threatened species assessment guidelines, February 2008

NSW Rural Fire Services, Planning for Bushfire Protection, November 2019

Port Stephens Communication and Engagement Strategy 2022 to 2027

Port Stephens Council Comprehensive Koala Plan of Management 2002

Port Stephens Development Control Plan 2014

Sydney Catchment Authority, Neutral or Beneficial Effect on Water Quality Assessment Guideline, January 2011

Category:

Principal judgment

Parties:

Kingshill Development No 1 Pty Ltd (First Applicant)
Kingshill No 2 Pty Ltd (Second Applicant)
Port Stephens Council (First Respondent)
Hunter and Central Coast Regional Planning Panel (Second Respondent)

Representation:

Counsel:
T F Robertson SC with T To (First and Second Applicants)
M Caban (Solicitor) (First Respondent)
J Reid with L Nurpuri (Second Respondent)

Solicitors:
Colin Biggers & Paisley (First and Second Applicants)
Local Government Legal (First Respondent)
Department of Planning and Environment (Second Respondent)

File Number(s):

2021/354079

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of (Concept) Development Application 16-2018-772-1 (the application) by Hunter and Central Coast Regional Planning Panel (the Panel), relating to a concept proposal to define areas for residential development (precincts) and conservation, and Stage 1 works to establish the conservation area and clear the precinct areas to create the development footprint. The proposed development is located on Lot 41 Deposited Plan (DP) 1037411 (the southern lot), also known as 3221 Pacific Highway, Kings Hill and Lot 4821 DP 852073 (the northern lot), also known as 35 Six Mile Road, Kings Hill (which together are known as the ‘site’).

2. For the reasons explained below, I am not satisfied that the application, as amended, addresses the relevant jurisdictional and merit assessment requirements for the Court to determine to grant consent.

Background to application and overview of proceedings

3. The site forms part of the Kings Hill Urban Release Area (KHURA), which was rezoned for residential and other purposes in 2010 by the Port Stephens Council (the Council). The rezoning of the KHURA has resulted in the creation of several planning zones that relate to residential, retail and commercial development, and for conservation.

4. The site forms a significant portion of the KHURA, making up to 94% of its total area, and is essentially a ‘greenfield site’ with respect to residential subdivision and urban development. It is understood that the rezoning of the site to form the KHURA was informed by numerous studies and assessments commissioned by the Council, some of which are provided in evidence.

5. Also in evidence, is a letter submitted to Council on 18 May 2010 by the Department of Climate Change and Water (DECCW) who advise that it would have been preferable to address all matters of (particularly ecological) significance prior to the rezoning of the KHURA. This would have achieved an ‘improved/maintained outcome’, that would streamline and simplify future development applications. It was the opinion of the DECCW however that this preferred strategic planning outcome was not delivered at the rezoning stage of the KHURA, and therefore must be addressed in subsequent future development applications.

6. On the 27 July 2018, the proposal for development of the site was referred to the Chief Executive of the Office of Environment and Heritage (OEH), seeking the Chief Executive’s Requirements (CER’s) for a Species Impact Statement (SIS) to assist in preparation of the application. On 9 September 2018, the OEH issued the CER’s relevant to the proposal and site, which were adopted in the preparation of the application.

7. The application was submitted to Council on 23 November 2018, pursuant to s 4.22(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). After submission of the original application to Council, and prior to refusal, the application was amended by the applicants, as agreed by the respondents, pursuant to cl 55 of the Environmental Planning and Assessment Act 2000 (EPA Reg).

8. In addition to being internally reviewed by Council and the Panel, the application was notified to residents for their consideration, consistent with the Port Stephens Communication and Engagement Strategy 2022 to 2027, and the Port Stephens Development Control Plan 2014.

9. The application (original and amended) was referred to relevant authorities, pursuant to s 4.47 of the EPA Act, including: OEH; NSW Rural Fire Service (RFS); NSW Department of Primary Industries (DPI); the Natural Resources Access Regulator (NRAR); Ausgrid; Hunter Water Corporation (HWC); and Transport for NSW (TfNSW).

10. Further to these referrals, on 9 November 2021, the application was referred to the Coordinator-General of the Environment, Energy and Science Group of the Department of Planning, Industry and Environment (DPIE), pursuant to (former) s 79B(3) of the EPA Act. The DPIE, through the renamed Biodiversity and Conservation Division, wrote to the applicants on 8 December 2021 and refused to grant concurrence to the application, with reasons outlined in documents tendered in Exhibit 5. A review of this decision was sought by the applicants, which after consideration, DPIE reaffirmed their position to refuse concurrence on 21 December 2022.

11. The development is declared as regionally significant, pursuant to s 4.5(b) of the EPA Act, with the Panel being the relevant consent authority. Despite the Council’s advice to the Panel recommending approval of the application with conditions, consistent with an assessment report, dated 14 December 2020, after seeking additional information and advice from relevant concurrence authorities, the Panel ultimately refused to grant consent to the application in a determination dated 4 February 2022.

12. The applicants appealed against the refusal of the application, pursuant to s 8.7(1) of the EPA Act.

13. The hearing of the appeal commenced by request of the parties in Court, and after opening submissions of the parties and oral submission of residents/interest groups, the hearing proceeded to a site view, then returned back to Court for expert evidence and further submissions of Counsel.

Notice of Motion’s seeking to amend the application

14. Prior to the hearing, the Court granted leave to the applicants Notice of Motion (NoM) seeking to amend the application on 26 October 2022, by agreement of the respondents, and pursuant to cl 55 of the EPA Reg. The relevant amendments to the application are described in Exhibit B.

15. The applicants also filed with the Court, during the hearing, three separate (written) NoM’s, and made an oral submission to further amend the application, to primarily correct errors in documents already filed, address issues raised in joint expert conference and clarify areas of uncertainty. Below, I provide my determination made in the hearing for each of the applicants’ submissions seeking to amend the application.

16. The Land and Environment Court’s Practice Note for Class 1 Development Appeals (the LEC Practice Note) guides the Court in assessing the reasonableness of an application to amend, as described at [12]. Paragraph [89] of the LEC Practice Note, explains that multiple requests to amend an application should be avoided, where possible. It is recognised that there is complexity in the application under appeal. An application to amend must be considered on its merits.

Notice of Motion dated 14 March 2023

17. This NoM sought to amend the application, as described in Exhibits XA and XB. In oral submission, Mr To agreed that the amendments sought were not ‘minor’, pursuant to s 8.15(3) of the EPA Act.

18. The Panel, by submission of Ms Reid (Exhibit X1), opposed the amendments as sought due to the likely need to adjourn proceedings beyond the hearing dates already set down to allow their experts to review and for Council to undertake renotification of the amended application. This would result in a substantial delay in the proceedings, with additional hearing dates required. Further to this, the amendments were not as agreed by the experts or deemed to contribute to an improved understanding of the application.

19. The Council made no submission on the amendments sought.

20. The NoM was made on day 11 of the hearing, after the experts relating to stormwater engineering, ecological buffers, orchids, and wetland had completed their oral evidence, with the Phascogale and Koala expert oral evidence being part heard. These relevant experts would be required to review the amendments being sought.

21. After consideration of the submissions of the parties, I determined to refuse to grant leave to amend the application as sought in Exhibits XA and XB, for the reasons provided below.

22. The parties agreed that the changes described in Exhibits XA and XB, would require further joint expert conferencing and the recalling of relevant experts, including the stormwater engineers, some species experts, ecological buffer ecologists and traffic engineers. In addition, the amendments would require further referral to the RFS, pursuant to cl 55(3)(b) of the EPA Reg. The requirement to notify residents of the amended application, remained unresolved as Council had not had an opportunity to review the amendments being sought due to their late notice during the hearing.

23. Consistent with [92] of the LEC Practice Note, leave should not be granted to amendments of an application particularly where it results in a substantial (delay) adjournment of the hearing.

24. The relevant expert evidence required to review the amendments when the NoM was filed was substantially complete in oral submission. There is substantiveness and complexity of the amendments sought, requiring multidisciplinary expert assessments, that would have resulted in a substantial delay (adjournment) of the hearing and additional cost to the parties. The changes could not have been addressed appropriately by other means such as by conditions of consent.

25. I therefore determined that there was no reasonable basis to grant leave to the amendments sought that would facilitate the just, quick and cheap resolution of the proceedings.

Notice of Motion’s dated 16 and 17 March

26. The NoM’s filed on 16 March 2023 and 17 March 2023, provided in Exhibits XC and XD, respectively, and the oral submission made by Mr To, were heard together, although are determined separately below.

27. With regards to the amendments described in Exhibit XC and XD, the Panel, as submitted by Ms Reid, did not oppose these amendments as they are generally minor, correct grammatical and/or plan related errors, update references, and reflect the agreement of the experts. No further expert conferencing would be required to assess these amendments or cause delay to the proceedings. No costs were sought as the changes are deemed ‘minor’, pursuant to s 8.15(3) of the EPA Act.

28. In consideration of the submission of the parties and amendments sought, I granted leave to rely on the amended documents, which were tendered (after accepting further agreed track changes) as Exhibits P (amended Biodiversity Management Plan (BMP)), Q (amended Vegetation Management Plan (VMP)) and R (amended Biodiversity Management Strategy (BMS)).

29. The oral submission of Mr To related to further amendments to plans described in Exhibits XC and XD, to address errors and inconsistency. The Panel, in submission of Ms Reid, did not oppose these amendments, as they improved the accuracy of documents before the Court in assessment of the application. The amendments were deemed minor, reflected the agreement of the experts and would not cause any delay to the proceedings. No costs were sought, pursuant to s 8.15(3) of the EPA Act.

30. After hearing the NoM and oral submissions, I granted leave to rely on the amendments sought to the application, as described in Exhibits XC and XD. The relevant plans replace the inaccurate plans in Exhibits A, B and D.

31. It was later identified that some of the amended documents tendered in Exhibits P, Q and R had inaccuracies, which were subsequently corrected and refiled with the Court on 31 March 2023. These replace the relevant parts of the tenders, by agreement of the parties.

The Site

32. The general description of the site and surrounding area is based on consideration of the application and site view observations, as summarised below:

1. The site is a regular triangular shape, bounded by the Pacific Highway (east) and Newline Road (west). Six Mile Road forms the northern boundary and the southern boundary adjoins lands associated with the Irrawang Swamp.

2. The site has a total area of 517.13 hectare (ha), with the ‘northern lot’ comprising an area of 113.4 ha and the ‘southern lot’ having an area of 407.6 ha. These lots are separated by land owned by a separate holding.

3. The Grahamstown Dam, a major water supply infrastructure managed by the HWC, is located east of the site, separated from the site by the Pacific Highway and vegetated land.

4. The Tilligerry State Conservation Area is located to the east of the site. The Medowie State Conservation Area and Karuah National Park are located to the north of the site.

5. A former Council landfill that accepted putrescible waste, is located to the southwest of the site, and was capped in 2020, whilst a current landfill accepting dry waste (the Raymond Terrace Advanced Resource Recovery Centre) is operated by Suez, and located to the south of the site.

6. The site is topographically constrained, with a northeast-southwest trending ridgeline extending generally through the centre, with the highest elevation in the north, and sloping, in parts steeply, to the east and west.

7. The site is divided by a number of hydraulic catchments and subcatchments, dissected by ephemeral creeks that trend towards the east (into Grahamstown Dam), west to the Williams River and Wetland 803, and south towards Wetland 804 (also known as Irrawang Swamp).

8. The site is predominantly covered by dense vegetation (native and weeds) across its upper to mid reaches and around the wetland areas, with cleared patches and scattered trees occurring on the lower slopes. The site is surrounded and occupied by extensive areas of native vegetation.

9. To the north of the site is emerging rural residential developments, that are currently covered in dense vegetation.

10. A former quarry is located on the north-eastern boundary of the site towards Six Mile Road. The quarry presents as an area of excavation, unrehabilitated, surrounded by (illegal) dumping of waste.

11. Across the site are unsealed tracks that allow vehicular access through the heavily vegetated areas.

12. The main access to the site is currently via an unsealed road from the Pacific Highway, located in the southern portion. This access is also used, by agreement, by the Riding for Disabled Association (RDA).

13. There is also a poorly formed access track to Newline Road around Wetland 804.

33. The site has historically been used for logging, quarrying, and grazing, that has resulted in the clearing of some areas of native vegetation on the lower slopes, extensive weed growth across the site, and a crisscross of poorly formed/maintained tracks that dissect the site.

34. The site has identified areas of cultural significance, as described in the Aboriginal cultural heritage assessments by Myall Coast Archaeological Services (and Constraints Management Plan), dated July 2003 and October 2022. Culturally significant areas that are identified on the site include caves, ceremonial areas and probable songlines.

Overview and description of the amended application

35. The amended application, as described to the Court, has two key components, fundamentally being:

1. A concept plan/proposal that outlines seven precinct areas, creating a development footprint for future residential subdivision/development, with associated access (hereafter the impact area); and a Conservation Area (hereafter the CA); and

2. Stage 1 works relating to the establishment of the CA and clearing of the impact area (for future development).

Concept proposal

36. The concept proposal is shown in the proposed precinct plan, DA-08-C2.00 Revision 4 (dated 17 March 2023) as Figure 1 below:

Figure 1

37. The amended concept proposal is described to the Court as being for:

1. Definition of seven (development) precincts, ringed by a ‘Koala’ fence, an asset protection zone (APZ) and perimeter roads, that are connected by roads/paths (some elevated above riparian corridors), with ‘indicative’ internal road layouts;

2. Within the precincts are areas of defined and indicative use, including for residential, business/commercial, town centre (precinct 3), a café (in precinct 6), local/district parks, a school (in precinct 4), stormwater devices and community/educational centre/work depot;

1. Definition of the east-west collector road (the E-W road), extending from the Pacific Highway to Newline Road, as well as an indicative alignment of the north-south collector road;

2. Definition of a CA; and

3. Within the CA are areas outlined for water supply storage/reservoir and access tracks/roads to support the future development of the precincts.

38. The application does not specifically seek subdivision, however the issue of whether subdivision of the land is a component of the application, due to the effect of creating a CA and precincts, remains in dispute between the parties. This issue is addressed later in the judgement.

39. The defined precinct and CA areas were explained to the Court as being designed generally consistent with the (planning) zones applicable to the site, as described in cl 2.3 of the Port Stephens Local Environmental Plan 2013 (PSLEP), and Section D14 of the Port Stephens Development Control Plan 2014 (PSDCP), albeit with some changes to the conservation area boundaries that reflect more recent ecological considerations.

40. The CA is primarily located across the elevated topographic areas of the site, although also includes Wetland 803 and the riparian creeklines, which are generally on mid to lower slopes. The CA extends generally in an east-west direction, up to the northern boundary of the site. The areal extent of the CA is intended to provide connectivity of habitat corridors to aid the movement of native fauna.

41. The precincts and access paths/roads are generally located on the mid to lower slopes of the site, extending to the eastern boundary with the Pacific Highway and western boundary to Newline Road.

42. It is understood that the proposed precinct and CA boundaries seek to connect and correlate with future development on adjoining lots that also form part of the KHURA, including the lots between precincts 1, 2 and 3, referred to as the ‘Gwynville land’ and the lot north of precinct 7 and the CA, known as the ‘McCloy land’.

43. As shown in Figure 1, the seven precincts are separated by riparian/fauna habitat corridors, that form part of the CA, and which generally follow the creek lines. These habitat corridors include areas beneath (precinct) connecting roads, such as the E-W road and pedestrian/cycle links. Although the proposed precinct plan is shown as two-dimensional, it must be appreciated that the proposal is actually three-dimensional, with the CA extending beneath the elevated roads/paths connecting the precincts, and containing the riparian corridors. This is an important element in understanding the function and connectivity of the CA described in the concept proposal, because it is intended that native fauna are able to move beneath these structures and that the CA has direct connectivity across its full extent.

44. The seven precincts vary in size and physiographic condition (and future potential lot yield). Based on the amended proposed precinct plan relied on by the application, each precinct is dimensioned as follows:

• Precinct 1 – development area of 14.2ha

• Precinct 2 –development area of 33.5ha

• Precinct 3 – development area of 32.3ha

• Precinct 4 –development area of 78.3ha

• Precinct 5 – development area of 44.3ha

• Precinct 6 – development area of 24.6ha

• Precinct 7 – development area of 16.5ha

45. It was explained that the seven precincts are theoretically capable, after (future) residential subdivision, of providing up to 1900 residential lots within the KHURA, noting that the subdivision within each individual precinct is to be determined in future development applications. The actual lot yield for each precinct will be determined after more detailed assessment of the engineering constraints (slope and stormwater), and actual location/design of non-residential uses. Although shown in the proposed precinct plan, the actual location of some of some specified purposes such as the school and parks, will require consideration by concurrence and consent authorities as part of future development applications.

46. Future subdivision for residential development of the site will require the upgrade and provision of public infrastructure including roads, sewer and water supply/disposal, that will support both the site and the greater area of the KHURA. Parts of this public infrastructure are to be constructed by Council/State Authorities under separate approvals, not part of this application.

47. As described to the Court, consistent with the PSDCP for the Kingshill area (Section D14 of the PSDCP), future residents on the site will ultimately have entry and egress via a new interchange at the Pacific Highway (the PH interchange), to be built under agreement by TfNSW.

48. The precincts will be interconnected by the E-W road, extending from the Pacific Highway to Newline Road, and indicatively (conceptually) by a north-south collector road, connecting the E-W road to Six Mile Road (including through the Gwynville land). There is a recognised need, as described in the PSDCP for an intersection at Six Mile Road, connecting to the north-south collector road, although this is not explored in the application.

49. There is another north-south collector road that is described in Figure DAB in Section D14 of the PSDCP (through proposed precinct 7), however this road is not shown on the proposed precinct plan, nor explored in the application. It is understood that instead of this road, it is intended that residents will rely on a new interchange at Newline Road (NR interchange), to be constructed by Council and which connects to the E-W road.

50. The application initially relied on future subdivision of the first 250 lots to have access via Newline Road, and that no further lots would be subdivided until the PH interchange was completed. However, after evidence of relevant experts, the application now seeks, by condition (12) in Exhibit L, that no subdivision certificates are to be issued until the PH interchange is constructed. As agreed by the parties, the application is assessed on this basis.

51. The future development of the precincts, consistent with the concept proposal, relies on the provision of water and sewer services to the site, as described in a consent for water and sewage lead-in mains, granted by the Panel on 29 September 2020 (Exhibit 5). It was explained to the Court that the rationale behind the likely subdivision of the first 250 lots being in the eastern precincts of the site is based on accessibility to these lead-in works.

52. Future development of the eastern precincts (specifically precincts 1, 2 and 3) also relies on the construction of a north-south aligned stormwater drainage channel, to be constructed by way of a third-party agreement involving the NSW government. The actual location of this infrastructure is not yet confirmed, although it is explained that the concept proposal relies on these works being located on the eastern side of the Pacific Highway, being on HWC land. This is assessed later in the judgement as it remains in contention.

53. Water storage reservoirs that will service the precincts are shown dedicated in the CA, and are to be accessed by established (and to be reformed) tracks. Indicative locations of (internal) stormwater infrastructure within each of the precinct areas are described in the concept proposal, although it is understood that these locations will be further refined in future development applications for each precinct.

Stage 1 works

54. The Stage 1 works component of the application is described to the Court as being for:

1. Establishment of 244.25 ha as a CA (of which 231.19 ha is retained native vegetation and 13.06 ha is rehabilitated formerly cleared land), and which includes enhancement works undertaken over a nominal 5-year period; and

2. Clearing of up to 272.91 ha, the impact area, in three phases (with three steps) over a minimum 8-year period, forming part of the initial site preparation works to create the development footprint for the precincts, E-W road and tracks in the CA.

55. The Stage 1 works seek to establish and maintain the CA (before handover to Council), prior to and coincident with the staged clearing of the impact area.

56. In consideration of the amended application, the area shown as the impact area is to be fully cleared as part of the Stage 1 works. It is understood that this is the basis on which consent is sought. In submission, however, Mr Robertson SC acknowledged that the extensive clearing of the impact area sought by the application is a worst-case scenario, whereby it is possible that future development applications relating to subdivision of each of the precincts may, after more detailed assessment, result in a reduced area of clearing.

57. Mr Robertson SC also confirmed that the ‘buffers’ proposed around the perimeter of the precincts, including the APZ, are included in the area to be clearing.

The contentions and jurisdictional issues for consideration of the (amended) application

58. The Panel’s objection to the amended application is described in the Amended Statement of Facts and Contentions (ASoFC), dated 24 November 2022 (Exhibit 1). The ASOFC is based on the amendments to the application made to this date.

59. At the commencement of the hearing Ms Reid identified the primary contentions that remain are as follows:

• disorderly and uneconomic use in the development of the land, due to the (‘wholesale’) extent of (native) vegetation to be cleared as part of the Stage 1 works, without reliance on an appropriately detailed subdivision plan for the precincts;

• unacceptable impacts to threatened species, because the development is not informed by an adequate assessment to address significant effect to threatened species and the clearing is undertaken prior to assessment of the development footprint in each precinct;

• incompatible with the proposed voluntary planning agreement with Council, having regard to in-perpetuity arrangements, security and funding for the proposed CA,

• inconsistent with proposed mixed use and commercially zoned land, based on the conceptual location of road/stormwater infrastructure;

• potential land use conflicts due to topographic, physiographic, ecological, bushfire and hydrological constraints across the site;

• not demonstrated satisfactory arrangements have been made for the provision of designated State public infrastructure before the subdivision of land in an urban release area;

• potential impact to wetland habitats due to water quality and quantity changes associated with servicing of the future subdivision;

• no concurrence of DPIE to address potential impacts to threatened species;

• potential for acoustic impacts to future residential dwellings along the Pacific Highway; and

• consequently, not being in the public interest.

60. The parties agree that the application, made pursuant to s 4.22(1) of the EPA Act, is an appropriate approach to stage development of the site. It is accepted that the concept proposal seeks to outline residential development areas and a conservation area on the site, and there is a reliance on future development applications to detail residential lot subdivision and associated works within each precinct. This approach is consistent with the advice given by Council to the applicants during the application process.

61. Fundamentally, the parties disagree whether the application has appropriately considered and evaluated the likelihood of impact resulting from the application, pursuant to s 4.22(5) of the EPA Act. The parties do not agree that the concept proposal provides sufficient detail nor certainty to assess potential adverse impacts, or that the Stage 1 works are appropriate to satisfy the matters for consideration in s 4.15(1) of the EPA Act and relevant biodiversity legislation.

62. I understand that the application does not include the creation of roads, installation of services, stormwater devices, or precinct lot subdivision works. These have not been assessed for this application.

63. In assessment of the application, where there are jurisdictional considerations, the Court must form its own opinion of satisfaction, based on the evidence, as explained by Preston CJ in Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 117 (Toga judgment).

64. In consideration of s 4.15(1) of the EPA Act, I posed the following overarching questions to the parties during the hearing, which they accepted as reasonable in assessment of the issues remaining in consideration of the amended application:

• Is there a significant effect to threatened species, populations and ecological communities?

• Is appropriate flood immunity available to future residents of the site via Newline Road and the Pacific Highway?

• Is there potential to adversely impact coastal wetlands associated with the site?

• Are there adverse impacts from the concept proposal and Stage 1 works?

• Have the relevant requirements for the provision of state infrastructure been addressed?

65. The issue of the relevant considerations for a concept development application are, made pursuant to s 4.22(1) of the EPA Act, was raised frequently during the hearing.

66. In consideration of the application, I adopt an approach consistent with the decision of Chief Justice Preston in The Uniting Church in Australia Property Trust (NSW) v Parramatta City Council [2018] NSWLEC 158, described at [55] below:

“[55] The legislative amendment of s 83B(5) (now s 4.22(5) of the EPA Act), in response to the Court of Appeal’s decision in Bay Simmer, supports this conclusion. The consent authority, when considering under s 4.15 of the EPA Act the likely impact of the development the subject of a concept development application, need only consider the likely impact of the concept proposals for the development of the site and does not need to consider the likely impact of carrying out the development that may be the subject of subsequent development applications. Applied to cl 7.10(4) of PLEP, the consent authority, when considering whether the development the subject of a concept development application exhibits design excellence, need consider only the likely impacts of the development the subject of the concept development application and does not need to consider the likely impacts of the carrying out of the development that may be the subject of subsequent development applications.”

67. Therefore, pursuant to ss 4.15(1) and 4.22(5) of the EPA Act, I am required to consider the likely impact that relates to the concept proposal and Stage 1 works as relied on by the application.

68. In response to an enquiry of the Court, Mr Robertson SC submitted that should the Court determine it appropriate, a partial consent for the concept proposal and part of the Stage 1 works relating to the establishment of the CA would be acceptable, pursuant to s 4.16(4) of the EPA Act. The Panel however opposes a partial consent on the grounds of this creating the potential for uncertainty in the establishment of the CA, which is interconnected in time and space with the clearing of the impact area, as described in the application.

69. In consideration of the submission of the parties, I form the opinion that a determination for partial consent would not be appropriate for this application, pursuant to s 4.16(4) of the EPA Act. The concept proposal and Stage 1 works are interrelated in space, time and action, which I find must be assessed holistically as described and relied on by the application. I cannot reasonably separate out and consider parts of the Stage 1 works that relate only to the CA or to the precincts. There are areas and works that relate to the precincts located within the CA, such as the clearing for the access tracks that extend into the CA. There are parts of the precincts that conceptually extend over and above the CA in the third dimension, and which the ecological assessments have relied on. There are actions such as weeding and log retrieval in the impact areas that supplement and coordinates in time with management activities in the CA.

Does the application seek subdivision of the land?

70. The question as to whether subdivision of the land is a component of the application remains in dispute between the parties. The parties do not agree whether the concept proposal effectively subdivides the land into a conservation area and (7) precincts. I resolve this issue forthwith as it informs my merit and jurisdictional assessment of the application.

71. It was explained by submission of Mr Robertson SC, that the concept proposal does not seek the actual ‘subdivision of land’, because this will be addressed in future development applications, by the registration on title of the CA to benefit Council and the subdivision of residential lots within the precincts. He considers that neither a ‘use’ nor separate occupation of the land is sought by the application. He accepts that the land is ‘defined’ into precincts and a conservation area as part of the concept proposal, however the adaptation of the land for separate occupation or use will occur at the later stage of the future development applications.

72. Ms Reid, in the alternative, submits that the concept proposal does effectively seek the subdivision of land, being into a CA and (7) precincts with associated infrastructure, as shown in the proposed precinct plan (and consistent with other plans). She considers the subdivision of the land as a fundamental component of the application, despite it not being specifically referenced in the application description. The proposed subdivision is consistent within the meaning of s 6.2(1)(b) of the EPA Act.

73. It is an undisputed fact that the application is made up of two distinct parts: the concept proposal that defines a CA and impact area consisting of (7) precincts, roads and pathways; and Stage 1 works proposed within these defined areas.

74. Based on my assessment of the application, including consideration of the supporting plans and documents, I determine that the application seeks consent to adapt the land for separate uses. The application relies on an effective subdivision of the land to create two distinct uses, for conservation and development (footprint).

75. The parties provided no definition to the ‘use of land’ and the EPA Act is limited in its definition. The EPA Reg and PSLEP also provide no relevant definition. The Merriam-Webster Dictionary describes ‘use’ as being “…to carry out a purpose or action” and “act with regard to”. Land is defined as being “ground or soil of a specified situation, nature, or quality”. Adaption is described as “to make fit (as for a new use) often by modification”.

76. I am satisfied that the concept proposal, as described in the proposed precinct plan (Figure 1) effectively separates (subdivides) the land, which is adapted (by modifying the land) for two distinct uses. The Stage 1 works adapt the land based on these defined uses, being for the purpose of conservation (Conservation Area) and development footprint (impact area including 7 precincts with roads and paths). These (two) defined uses are physically divided by a fence, road and buffer, the works adapt the land relative to their distinct and separate use. The proposed physical works relating to Stage 1 modify the land consistent with the proposed adaptive use of the land.

77. This division of the land on the site into distinct parts with two separate (and intended) uses, is a fundamental component of the application. The proposed separation of the land is consistent with the meaning of the ‘subdivision of land’, as described in s 6.2(1)(b) of the EPA Act, below:

6.2 Meaning of “subdivision” of land (cf previous s 4B)

(1) For the purposes of this Act, subdivision of land means the division of land into 2 or more parts that, after the division, would be obviously adapted for separate occupation, use or disposition. The division may (but need not) be effected—

(a) by conveyance, transfer or partition, or

(b) by any agreement, dealing, plan or instrument rendering different parts of the land available for separate occupation, use or disposition.

(2) Without limiting subsection (1), subdivision of land includes the procuring of the registration in the office of the Registrar-General of—

(a) a plan of subdivision within the meaning of section 195 of the Conveyancing Act 1919, or

(b) a strata plan or a strata plan of subdivision within the meaning of the Strata Schemes Development Act 2015.

Note—

The definition of plan of subdivision in section 195 of the Conveyancing Act 1919 extends to plans of subdivision for lease purposes (within the meaning of section 23H of that Act) and to various kinds of plan under the Community Land Development Act 2021.

(3) However, subdivision of land does not include—

(a) a lease (of any duration) of a building or part of a building, or

(b) the opening of a public road, or the dedication of land as a public road, by the Crown, a statutory body representing the Crown or a council, or

(c) the acquisition of land, by agreement or compulsory process, under a provision of an Act (including a Commonwealth Act) that authorises the acquisition of land by compulsory process, or

(d) a division of land effected by means of a transaction referred to in section 23G of the Conveyancing Act 1919, or

(e) the procuring of the registration in the office of the Registrar-General of—

(i) a plan of consolidation, a plan of identification or a miscellaneous plan within the meaning of section 195 of the Conveyancing Act 1919, or

(ii) a strata plan of consolidation or a building alteration plan within the meaning of the Strata Schemes Development Act 2015.

(Emphasis added)

78. The proposed precinct plan, scope of proposed concept approval plan and management plans, that support the application, consistently demonstrate the intent of the application to adapt the land for these distinct and separate uses. I am satisfied that the concept proposal seeks to identify the land intended for different uses, and the Stage 1 works effect and modify the land consistent with these separate uses.

79. I recognise, as posed by Mr Robertson SC, that the certification of subdivision of the land is sought to form part of future development applications, pursuant to s 6.2(1)(a) and (2) of the EPA Act. However, this is not the only process to effect the subdivision of the land, pursuant to s 6.2(1)(b).

Relevant Jurisdictional considerations

80. The application is made pursuant to s 4.22(1) of the EPA Act, below:

4.22 Concept development applications (cf previous s 83B)

(1) For the purposes of this Act, a concept development application is a development application that sets out concept proposals for the development of a site, and for which detailed proposals for the site or for separate parts of the site are to be the subject of a subsequent development application or applications.

(2) In the case of a staged development, the application may set out detailed proposals for the first stage of development.

(3) A development application is not to be treated as a concept development application unless the applicant requests it to be treated as a concept development application.

(4) If consent is granted on the determination of a concept development application, the consent does not authorise the carrying out of development on any part of the site concerned unless—

(a) consent is subsequently granted to carry out development on that part of the site following a further development application in respect of that part of the site, or

(b) the concept development application also provided the requisite details of the development on that part of the site and consent is granted for that first stage of development without the need for further consent.

The terms of a consent granted on the determination of a concept development application are to reflect the operation of this subsection.

(5) The consent authority, when considering under section 4.15 the likely impact of the development the subject of a concept development application, need only consider the likely impact of the concept proposals (and any first stage of development included in the application) and does not need to consider the likely impact of the carrying out of development that may be the subject of subsequent development applications.

Note—

The proposals for detailed development of the site will require further consideration under section 4.15 when a subsequent development application is lodged (subject to subsection (2)).

81. Matters for consideration to grant consent to the application, are described in s 4.15(1) of the EPA Act, below:

4.15 Evaluation (cf previous s 79C)

(1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application—

(a) the provisions of—

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),

(v) (Repealed)

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

(2) Compliance with non-discretionary development standards—development other than complying development If an environmental planning instrument or a regulation contains non-discretionary development standards and development, not being complying development, the subject of a development application complies with those standards, the consent authority—

(a) is not entitled to take those standards into further consideration in determining the development application, and

(b) must not refuse the application on the ground that the development does not comply with those standards, and

(c) must not impose a condition of consent that has the same, or substantially the same, effect as those standards but is more onerous than those standards,

and the discretion of the consent authority under this section and section 4.16 is limited accordingly.

(3) If an environmental planning instrument or a regulation contains non-discretionary development standards and development the subject of a development application does not comply with those standards—

(a) subsection (2) does not apply and the discretion of the consent authority under this section and section 4.16 is not limited as referred to in that subsection, and

(b) a provision of an environmental planning instrument that allows flexibility in the application of a development standard may be applied to the non-discretionary development standard.

Note—

The application of non-discretionary development standards to complying development is dealt with in section 4.28(3) and (4).

(3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority—

(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and

(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c) may consider those provisions only in connection with the assessment of that development application.

In this subsection, standards include performance criteria.

…

(6) Definitions In this section—

(a) reference to development extends to include a reference to the building, work, use or land proposed to be erected, carried out, undertaken or subdivided, respectively, pursuant to the grant of consent to a development application, and

(b) non-discretionary development standards means development standards that are identified in an environmental planning instrument or a regulation as non-discretionary development standards.

82. The application was declared a regionally significant development, pursuant to s 4.5(b) of the EPA Act. Section 20(1) and Sch 6, s 2 of the State Environmental Planning Policy (Planning Systems) 2021 are engaged by the application, based on the capital value of the development investment.

83. When the application was lodged with Council, the Threatened Species Conservation Act 1995 (TSC Act), had been repealed and replaced by the Biodiversity Conservation Act 2016 (BC Act), which came into effect on 25 August 2017.

84. However, the site forms part of the Port Stephens Local Government Area (LGA), and at the time of lodgement of the application, this LGA was identified as an ‘interim designated area’, and subject to transitional arrangements of the BC Act. The application is assessed as a deemed pending or interim planning application, consistent with Pt 7 of the Biodiversity Conservation (Savings and Transitions) Regulation 2017 (Savings Reg).

85. Under Sch 9 of the BC Act, and cll 27 and 28 of the Savings Reg (described below), former relevant planning provisions of the TSC Act and EPA Act (as at 24 August 2017) are engaged in consideration of the application:

27 Definitions: Part 7

(1) In this Part—

former planning provisions means the provisions of the Environmental Planning and Assessment Act 1979 that would be in force if that Act had not been amended by the new Act.

pending Part 5 assessment of an activity for which the proponent is not also the determining authority, means—

(a) an environmental impact assessment of the activity under Part 5 of the Environmental Planning and Assessment Act 1979 if the determining authority granted approval before the commencement of the new Act to the carrying out of the activity, or

(b) an environmental impact assessment of the activity that began under Part 5 of the Environmental Planning and Assessment Act 1979 before the commencement of the new Act (but only if the determining authority grants approval within 18 months of that commencement to the carrying out of the activity).

pending or interim planning application means any of the following—

(a) an application for planning approval (or for the modification of a planning approval) made before the commencement of the new Act but not finally determined immediately before that commencement,

(b) an application for planning approval (or for the modification of a planning approval) made within 18 months after the commencement of the new Act if an environmental impact statement is to be submitted in connection with the application and the Secretary of the Department of Planning and Environment issued, before the commencement of the new Act, environmental assessment requirements for the preparation of the statement,

(c) an application for planning approval (or for the modification of a planning approval) made within 12 months after the commencement of the new Act if a species impact statement is to be submitted in connection with the application and the Environment Agency Head issued, before the commencement of the new Act, requirements for the preparation of the statement,

(d) an application for planning approval (or for the modification of a planning approval) made after the commencement of the new Act if an environmental impact statement is to be submitted in connection with the application and the Secretary of the Department of Planning and Environment determines in writing that the proponent had undertaken substantial environmental assessment in connection with the statement before the commencement of the new Act (but only if the application is made within 18 months after that determination),

(e) except in the case of State significant development—an application for development consent under Part 4 of the Environmental Planning and Assessment Act 1979 (or for the modification of such a development consent) made within 6 months after the commencement of the new Act (but only if any species impact statement that is to be submitted in connection with the application is submitted within 12 months after the commencement of the new Act),

…

(f1) in the case of development (except State significant development) within an expired interim designated area under subclause (3)—an application for development consent under Part 4 of the Environmental Planning and Assessment Act 1979 (or for the modification of such a development consent) made on or before 24 November 2018 (but only if any species impact statement that is to be submitted in connection with the application is submitted on or before 24 May 2019),

…

planning approval means—

(a) a development consent under Part 4 of the Environmental Planning and Assessment Act 1979, or

(b) a State significant infrastructure approval under Part 5.1 of that Act.

planning approval body means—

(a) in relation to an application for development consent under Part 4 of the Environmental Planning and Assessment Act 1979 (or for the modification of such a consent)—the consent authority, or

(b) in relation to an application for State significant infrastructure approval under Part 5.1 of that Act (or for the modification of such an approval)—the Minister administering that Act.

(2) For the purposes of paragraph (b) of the definition of pending or interim planning application in subclause (1), if the environmental assessment requirements referred to in that paragraph are re-issued, then the application is a pending planning application if the application is made within 18 months after the re-issue of the requirements (but only if the application is made within 3 years after the commencement of the new Act).

…

(3A) For the purposes of paragraph (f1) of the definition of pending or interim planning application in subclause (1), the following are expired interim designated areas—

(a) the local government areas of Central Coast, City of Cessnock, City of Coffs Harbour, City of Lake Macquarie, City of Maitland, City of Newcastle and Port Stephens,

…

28 Former planning provisions continue to apply to pending or interim planning applications

(1) The former planning provisions continue to apply (and Part 7 of the new Act does not apply) to the determination of a pending or interim planning application.

(2) However, Part 7 of the new Act applies to the determination of a pending or interim planning application referred to in paragraph (b), (c) or (d) of the definition of pending or interim planning application in clause 27 (1) if the applicant or proponent and the planning approval body for the application agree in writing that Part 7 of the new Act is to apply to the determination of the application instead of the former planning provisions.

86. Pursuant to cl 28(1) of the Savings Reg, Pt 7 of the BC Act does not apply in consideration of this application. The application is relevantly assessed against several former provisions of the EPA Act, specifically ss 5A, 78A(8) and 79B, as described below:

5A Significant effect on threatened species, populations or ecological communities, or their habitats

(1) For the purposes of this Act and, in particular, in the administration of sections 78A, 79B, 79C, 111 and 112, the following must be taken into account in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats:

(a) each of the factors listed in subsection (2),

(b) any assessment guidelines.

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

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

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

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

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

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

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

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

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

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

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

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

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

(3) In this section:

assessment guidelines means assessment guidelines issued and in force under section 94A of the Threatened Species Conservation Act 1995 or, subject to section 5C, section 220ZZA of the Fisheries Management Act 1994.

key threatening process has the same meaning as in the Threatened Species Conservation Act 1995 or, subject to section 5C, Part 7A of the Fisheries Management Act 1994.

78A Application

….

(8) A development application (other than an application in respect of State significant development) must be accompanied by:

(a) if the application is in respect of designated development—an environmental impact statement prepared by or on behalf of the applicant in the form prescribed by the regulations, or

(b) if the application is in respect of development on land that is, or is a part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats—a species impact statement prepared in accordance with Division 2 of Part 6 of the Threatened Species Conservation Act 1995.

79B Consultation and concurrence

(1) General If, by an environmental planning instrument, the consent authority, before determining the development application, is required to consult with or to obtain the concurrence of a person, the consent authority must, in accordance with the environmental planning instrument and the regulations, consult with or obtain the concurrence of the person, unless the consent authority determines to refuse to grant development consent.

(2) However, if, by an environmental planning instrument, the Minister, before determining a development application, is required to obtain the concurrence of a person, the Minister is required only to consult with the person.

(2A) State significant development—exclusion This section does not apply to State significant development unless the requirement of an environmental planning instrument for consultation or concurrence specifies that it applies to State significant development.

(3) Consultation and concurrence—threatened species Development consent cannot be granted for:

(a) development on land that is, or is a part of, critical habitat, or

(b) development that is likely to significantly affect a threatened species, population, or ecological community, or its habitat,

without the concurrence of the Chief Executive of the Office of Environment and Heritage or, if a Minister is the consent authority, unless the Minister has consulted with the Minister administering the Threatened Species Conservation Act 1995.

Note—

The development is taken not to significantly affect threatened species, populations or ecological communities, or their habitats if:

(a) the development is to be carried out on biodiversity certified land (within the meaning of Part 7AA of the Threatened Species Conservation Act 1995), or

(b) a biobanking statement has been issued in respect of the development under Part 7A of the Threatened Species Conservation Act 1995.

(4) Despite subsection (3), if the Minister administering the Threatened Species Conservation Act 1995 considers that it is appropriate, that Minister may:

(a) elect to act in place of the Chief Executive of the Office of Environment and Heritage for the purposes of that subsection, or

(b) review and amend any recommendations that the Chief Executive proposes to make, or any advice that the Chief Executive proposes to offer, for the purposes of that subsection.

(5) In deciding whether or not concurrence should be granted under subsection (3), the Chief Executive of the Office of Environment and Heritage or the Minister administering the Threatened Species Conservation Act 1995 must take the following matters into consideration:

(a) any species impact statement that accompanied the development application,

(b) any assessment report prepared by the consent authority,

(c) any submissions received concerning the development application,

(d) any relevant recovery plan or threat abatement plan,

(e) whether the development proposed is likely to reduce the long-term viability of the species, population or ecological community in the region,

(f) whether the development is likely to accelerate the extinction of the species, population or ecological community or place it at risk of extinction,

(g) the principles of ecologically sustainable development,

(h) the likely social and economic consequences of granting or of not granting concurrence.

(6) The Minister administering the Threatened Species Conservation Act 1995 must provide the Minister who is the consent authority with any recommendations made by the Chief Executive of the Office of Environment and Heritage concerning determination of a development application relating to development referred to in subsection (3) and, if that Minister does not accept any one or more of the recommendations, that Minister must include in the determination the recommendations not accepted and that Minister’s reasons for not accepting them.

(7) A copy of the reasons referred to in subsection (6) must be available for public inspection, during ordinary office hours, at the head office of the National Parks and Wildlife Service.

(8) Granting or refusal of concurrence A person whose concurrence to development is required may:

(a) grant concurrence to the development, either unconditionally or subject to conditions, or

(b) refuse concurrence to the development.

In deciding whether to grant concurrence, the person must take into consideration only the matters stated pursuant to section 30 (3) and applicable to the development (unless the relevant environmental planning instrument is a deemed instrument referred to in Division 2 of Part 21 of Schedule 6).

(8A) Threatened species requirements The Chief Executive of the Office of Environment and Heritage may grant concurrence under this section conditional on the taking of specified action (voluntary action, as provided by subsection (8B)) that the Chief Executive considers will significantly benefit threatened species conservation, but only if the Chief Executive is satisfied that the person who proposes to carry out the development to which the concurrence relates has agreed to take the voluntary action and agrees to the imposition of the condition.

(8B) The voluntary action that can be required by a condition imposed under this section is any one or more of the following:

(a) the reservation of land under Part 4 of the National Parks and Wildlife Act 1974 or the entering into of a conservation agreement relating to the land under that Act,

(b) action to secure the protection of land for conservation purposes by a method that the Chief Executive considers satisfactory,

(c) action to restore threatened species habitat on land referred to in paragraph (a) or (b),

(d) the contribution of money for a purpose referred to in paragraphs (a)–(c).

(9) Giving effect to concurrence A consent authority that grants consent to the carrying out of development for which a concurrence has been granted must grant the consent subject to any conditions of the concurrence. This does not affect the right of the consent authority to impose conditions under section 80A not inconsistent with the conditions of the concurrence or to refuse consent.

(10) Avoidance of consents subject to concurrence If, by an environmental planning instrument or by subsection (3), a development application may not be determined by the granting of consent without the concurrence of a specified person, a consent granted:

(a) without that concurrence, or

(b) not subject to any conditions of the concurrence,

is, subject to sections 102–104, voidable.

(11) However, if the specified person fails to inform the consent authority of the decision concerning concurrence within the time allowed for doing so, the consent authority may determine the development application without the concurrence of the specified person and a development consent so granted is not voidable on that ground.

(12) Nothing in this section affects any liability of a consent authority in respect of a consent granted as referred to in subsection (10) (a) or (b).

87. Pursuant to cl 31 of the Savings Reg, the change to the listing of the Koala (Phascolarctos cinereus) on 20 May 2022 from vulnerable to endangered is a relevant consideration of the application.

88. Pursuant to (former) s 79B(3) of the EPA Act, concurrence of the relevant authority, being OEH at the time of application, is required. It is noted that concurrence was refused by (the now) DPIE, pursuant to s 79B(8)(b).

89. Although concurrence was not given by DPIE for the application, after consideration of the application, and if satisfied with regards to the potential impact to threatened species, the Court has the power to grant consent, pursuant to s 8.14(3) of the EPA Act and s 39 of the Land and Environment Court Act 1979 (LEC Act).

90. As an integrated development, concurrence of relevant authorities is also required, pursuant to s 4.47 of the EPA Act. RFS, Fisheries NSW, TfNSW and NRAR were sought for their advice in assessment of the application, and their responses, where relevant, are provided later in the judgement.

91. Several provisions of the TSC Act apply in consideration of the application, including ss 109, 110, 111 and 112, described below:

109 Form of species impact statements

(1) A species impact statement must be in writing.

(2) A species impact statement must be signed by the principal author of the statement and by:

(a) the applicant for the licence, or

(b) if the species impact statement is prepared for the purposes of the Planning Act, the applicant for development consent or the proponent of the activity proposed to be carried out (as the case requires), or

(c) if the species impact statement is prepared for the purposes of the Plantations and Reafforestation Act 1999, the applicant for authorisation under that Act.

110 Content of species impact statement

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

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

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

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

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

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

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

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

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

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

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

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

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

(3) A species impact statement must include the following information as to ecological communities:

(a) a general description of the ecological community present in the area that is the subject of the action and in any area that is likely to be affected by the action,

(b) for each ecological community present, details of its local, regional and State-wide conservation status, the key threatening processes generally affecting it, its habitat requirements and any recovery plan or any threat abatement plan applying to it,

(b1) an assessment of whether those ecological communities are adequately represented in conservation reserves (or other similar protected areas) in the region,

(b2) an assessment of whether any of those ecological communities is at the limit of its known distribution,

(c) a full description of the type, location, size and condition of the habitat of the ecological community and details of the distribution and condition of similar habitats in the region,

(d) a full assessment of the likely effect of the action on the ecological community, including, if possible, the quantitative effect of local populations in the cumulative effect in the region,

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

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

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

(4) A species impact statement must include details of the qualifications and experience in threatened species conservation of the person preparing the statement and of any other person who has conducted research or investigations relied on in preparing the statement.

(5) The requirements of subsections (2) and (3) in relation to information concerning the State-wide conservation status of any species or population, or any ecological community, are taken to be satisfied by the information in that regard supplied to the principal author of the species impact statement by the National Parks and Wildlife Service, which information that Service is by this subsection authorised and required to provide.

111 Chief Executive’s requirements

(1) The person applying for the licence (or, if the species impact statement is being prepared for the purposes of the Planning Act, the applicant for development consent or the proponent of the activity or, if the species impact statement is being prepared for the purposes of the Plantations and Reafforestation Act 1999, the applicant for authorisation under that Act) must request from the Chief Executive and must, in preparing the species impact statement, comply with any requirements notified to the person by the Chief Executive concerning the form and content of the statement.

(2) The Chief Executive must notify any requirements under this section within 28 days after having been requested to provide them.

(3) Despite the other provisions of this Division, the Chief Executive may, having regard to the circumstances of a particular case, limit or modify (or limit and modify) the matters to be included in a species impact statement in such manner as may be specified by the Chief Executive in the particular case.

(4) Despite anything in this Act or the Planning Act or the Plantations and Reafforestation Act 1999, the Chief Executive may, having regard to the circumstances of a particular case, dispense with the requirement for a species impact statement in the particular case if the Chief Executive is satisfied that the impact of the activity concerned will be trivial or negligible.

112 Regulations

The regulations may make further provision for or with respect to the form and contents of species impact statements.

92. The site is mapped as bushfire prone, and therefore any future residential subdivision will be subject to consideration of s 4.14 of the EPA Act and s 100B of the Rural Fires Act 1997 (RF Act). It is agreed this is not a jurisdictional requirement at the concept stage, however the application has sought to provide a level of certainty to the appropriateness of future residential development on the site, with a bushfire safety authority issued by the RFS. To further demonstrate that future residential development on the site can address the relevant jurisdictional requirements, the RFS has provided its concurrence after review of the application. RFS is satisfied that the proposed precinct plan has considered the Planning for Bushfire Protection guidelines, by adopting appropriately sized APZ’s around the margins of the precincts (and along the E-W road).

93. It was noted that the outline of the precincts described in the proposed precinct plan supporting the application relies on a shape and location of APZ’s that could likely constrain future subdivision of lots. It is acknowledged that the school, proposed within Precinct 4, is a designated special fire protection purpose, pursuant to s 100B(6) of the RF Act. An appropriately sized APZ would therefore be required in future development applications. This however is not relevant for consideration of the application.

94. The site is located within the hydraulic catchments of Grahamstown Dam and Irrawang Swamp (Wetland 804), which form part of HWC’s designated area of operations and/a special area. In response to s 51 of the Hunter Water Act 1991, below, HWC have provided written responses relating to water quality impact on its infrastructure/assets (the Grahamstown Dam and Wetland 804):

51 Consent authority to notify Corporation of certain applications etc

(1) In this section, consent authority has the meaning given in the Environmental Planning and Assessment Act 1979 and includes a council to which an application for approval to erect a building under Part 1 of Chapter 7 of the Local Government Act 1993 may be made.

(2) If a consent authority within the area of operations or a special area receives a development application or building application in relation to any matter that, in the opinion of the consent authority, may:

(a) significantly damage or interfere with the Corporation’s works, or

(b) significantly adversely affect the Corporation’s operations, or

(c) significantly adversely affect the quality of the water from which the Corporation draws its supply of water in a special area,

the consent authority must, within 7 days of the receipt of the application, give the Corporation notice of the application.

(3) The consent authority must take into account any submissions made by the Corporation in relation to the development application or building application in determining whether to consent to the development application or building application or to attach conditions to any such consent.

(4) The consent authority may assume that the Corporation has no submissions to make in relation to a development application or building application of which notice has been given under this section if no such submissions are received by the consent authority within 21 days after the notice was given to the Corporation.

(5) If a consent authority has complied with this section in relation to a development application, the consent authority is not required to comply with this section in relation to a building application that deals with the same subject matter as the development application.

95. It is noted that HWC have expressed concern regarding the potential for biodiversity impacts resulting from the preferred alignment of the proposed drainage channel, a State public infrastructure, that is described in the application to service the future residential development of the KHURA. This is considered later in the judgment.

96. The site is bisected by numerous watercourses, mapped as first/second/third order streams, with relevant riparian buffer requirements, pursuant to the Water Management Act 2000 (WM Act). The proposed works in streams relating to Stage 1 works require a controlled activity approval, pursuant to s 91 of the WM Act. NRAR have provided their General Terms of Approval (GTA’s), and which are adopted in the agreed draft conditions of consent.

97. The site has identified potential fish habitats associated with Wetlands 803 (and 804), therefore the requirements of the Fisheries Management Act 1994 are relevant. The application is supported by a Fish Habitat report prepared by RPS, dated 22 May 2019, which recommends seeking concurrence of DPI in future development applications. DPI have raised no objection to the (concept) application and have issued GTA’s, which are adopted in the agreed draft conditions of consent.

98. Pursuant to cl 49 of the EPA Reg, the applicant has satisfied the Court with the provision of written consent from all landowners relating to the application. It is understood that all proposed works are located within the boundaries of the site.

99. The site, located within the Port Stephens LGA, is mapped and described in the Port Stephens Council Comprehensive Koala Plan of Management (PSCPoM). The site is mapped as containing potential core Koala habitat, pursuant to ss 3.6 and 3.7 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity). The application is considered pursuant to the requirements of ss 3.8 and 3.9, recognising that the guidelines described in s 3.15 are not yet published.

Have the relevant requirements for the provision of designated State public infrastructure been sufficiently addressed?

375. It is accepted that the Panel have issued a consent for the provision of water reticulation and sewerage system to service the site, as determined on 29 September 2020, with the notice of determination provided in Exhibit 5. The concept proposal describes the location for water (supply) storage, in areas dedicated within the CA. The experts do not dispute the suitability of these locations or that water and sewerage can be provided to the precincts on the site, as part of future development applications. I am satisfied that the requirements for public utility infrastructure that is essential for the development of the KHURA are capable of being provided when required, pursuant to cl 6.2 of the PSLEP.

376. The contention, as raised by the Panel, is that the application has not demonstrated that satisfactory arrangements for the provision of designated (and relied on) State public infrastructure has been or can be made before the subdivision of the land as part of the KHURA, pursuant to cl 6.1(1) of the PSLEP. The relevant State public infrastructure relates to the PH interchange and the stormwater diversion channel (hereafter the channel), which are described in the State VPA, and relied on by the application. There is no contention that the application is required to provide this infrastructure. The issue relates to the application relying on this infrastructure to service the future development of the site that is initiated by the subdivision of the land forming part of the KHURA. The concept proposal is informed by this infrastructure.

377. Further to this, the Panel contends that pursuant to cl 6.1(2) of the PSLEP, the Director-General of DPIE (the D-G) has not provided certification (to Council) for satisfactory arrangements of designated State infrastructure, in the form of a Satisfactory Arrangement Certificate (SAC). This is required as part of the application because the application relies on subdivision of the land. It is the position of the Panel that as the application seeks the subdivision of the land into lots smaller than when the land was created as an urban release area, a SAC is required to support the application.

378. It is accepted that the construction of the PH interchange and channel, as described in the State VPA, will be the subject of separate Part 5 (of the EPA Act) applications, not yet applied. This infrastructure is relied on by the application, as described in the concept proposal to service the site. This infrastructure will support the future development of the KHURA, to satisfy the objective of cl 6.1(1) of the PSLEP.

379. Based on the submission of Mr Robertson SC, it is understood that the applicants acknowledge the requirements of cl 6.1 of the PSLEP, however consider that the SAC is appropriate to support future development applications, upon the subdivision of the precincts into residential lots. It is submitted that because the application under appeal does not seek the subdivision of land, cl 6.1 is not engaged, as outlined in an extract of the applicants submission below:

“[197] Clause 6.1 (arrangements for designated State public infrastructure) does not apply as it relates to the granting of consent for subdivision. No subdivision is proposed by the concept DA.”.

380. Mr Robertson SC further submits that prior to the hearing, the Panel had not made the applicants expressly aware of the need for a SAC to support the application.

381. The State VPA stipulates that ‘certain land subdivision’ in the KHURA cannot be granted consent until the Secretary has issued a Satisfactory Arrangements Certificate, pursuant to cl 6.1 of the PSLEP. However, there is no further explanation provided in this document to define the ‘certain’ land subdivision criteria.

382. It is agreed that the design and construction of the PH interchange and channel infrastructure are subject to an REF. It was confirmed during the hearing, based on communications from TfNSW in evidence, that the REFs for this infrastructure are currently in draft form, not yet exhibited. Therefore, the designated State public infrastructure described in the State VPA, and relied on by the application remains at a draft concept design stage.

383. In consideration of the application, it is important to firstly establish at what stage in the development of the site, as part of an urban release area, that satisfactory arrangements are to be made for the provision of designated State public infrastructure, and therefore cl 6.1 of the PSLEP is engaged.

384. The parties agree that the D-G has not provided a SAC in relation to development of the site, being part of the KHURA, pursuant to cl 6.1(2) of the PSLEP.

385. In the reasons for refusal of the application (Exhibit 5), the Panel assessed that the requirements of cl 6.1(2) of the PSLEP had not yet been satisfied. The SoFC (Exhibit 9) and ASoFC (Exhibit 1) both contend that cl 6.1(2) of the PSLEP was not satisfied without the provision of a SAC.

386. This was disputed as not being sufficiently clear or relevant to the application under appeal by Mr Robertson SC. The applicants amended SoFC in reply (Exhibit F) relies on Council’s assessment report that indicates cl 6.1 of the PSLEP is not engaged by the application. This report suggests that a SAC is required for future development applications that seek to subdivide the precincts into residential lots forming part of KHURA.

387. As I have already determined the application seeks the subdivision of the land, I am satisfied that cl 6.1 of the PSLEP is engaged in the consideration of the application.

388. There is no evidence that the D-G has been contacted nor responded to address the requirements of cl 6.1(2) of the PSLEP relevant to the application.

389. It is accepted that prior to the land becoming part of an urban release area, the Port Stephens Local Environmental Plan 2000 (PSLEP 2000) was the relevant environmental planning instrument. The site, prior to becoming part of the KHURA, was zoned 1(a) Rural Agriculture, pursuant to cl 9 of the PSLEP 2000.

390. Pursuant to cl 12 of the PSLEP 2000, land that is zoned 1(a) cannot be subdivided unless for specified reasons, as follows:

12 Subdivision within rural zones generally

(1) A person must not subdivide land within any rural zone except:

(a) for any of the following purposes:

(i) the opening or widening of a public road,

(ii) to change allotment boundaries in any way, but not so as to create additional allotments,

(iii) consolidation of allotments,

(iv) rectification of any encroachment on any existing allotments,

(v) the creation of allotments corresponding to the parts into which a single allotment is divided by a public road, or

(b) for the purpose of the creation of an allotment or allotments intended to be used for any one or more of the purposes (excluding dwelling-houses or dual occupancy housing) for which it may be used with or without the consent of the consent authority, or

(c) in the case of land within a Rural Small Holdings zone—as permitted by clause 13.

(2) Subdivision of land for a purpose specified in subclause (1) (a) does not have the effect of precluding development of the land for any purpose for which it might have been developed immediately prior to the subdivision (except in so far as the land has been taken for a road as referred to in subclause (1) (a)).

391. Clause 13 of the PSLEP 2000 does not specify a minimum lot size for land zoned 1(a). The parties agree that there was no minimum lot size applicable to the site, prior to the creation of the KHURA.

392. The parties did not dispute that cl 6.1 of the PSLEP would be engaged upon the subdivision of the land as part of the KHURA. However, Mr Robertson SC went further to state in his written submission filed on 14 April 2023 at [28], that cl 6.1(2) of the PSLEP does not apply to the application, irrespective of whether subdivision was sought, because there was no minimum lot size provision that applied to the site as described in the PSLEP 2000.

393. Clause 6.1(2) of the PSLEP has two discrete tests to requiring a SAC, and I find that the lack of a provision establishing a minimum lot size in the PSLEP 2000 does not negate the requirement for a SAC in the development on the site as part of the KHURA. It is the second test of cl 6.1(2) that is relevant to the application, being that the land ”or became part of, an urban release area”. I consider the intent of cl 6.1 of the PSLEP is to ensure that for future intensive development on lands within a designated urban release area, such as the KHURA, the land is capable of being serviced by appropriate and sufficient State public infrastructure to meet the needs of future residents.

394. It is an accepted fact that the land became part of an urban release area and that the application is not supported by a SAC, issued by the D-G. Based on my assessment of the application, a SAC is necessary to support the application, to satisfy the requirements of cl 6.1(2) of the PSLEP.

395. Consent cannot be granted for the subdivision of the land within the KHURA without the D-G providing a SAC as it establishes the provision of designated State public infrastructure to meet the future development needs of the site.

396. Further to this, there is no certainty that a SAC would be provided based on the concept proposal, due to the indicative and draft nature of the channel design, as explained below. The draft nature of the PH interchange relied on by the concept proposal is also in contention, which I address below.

397. I am not satisfied that the objective described in cl 6.1(1) of the PSLEP has been (or could be for future applications) sufficiently addressed by the application. The application has deferred the requirements of cl 6.1 to later stages in the development of the site, which I find is not reasonable. There is insufficient detail to address the relevant jurisdictional requirements in consideration of the application.

398. As explained below, the potential for environmental impact resulting from the preferred alignment of the channel, on which the application relies to ensure the function of the site for future residential development, is uncertain and does not satisfy s 4.15(1)(b) of the EPA Act.

PH interchange

399. As described in the State VPA, there is a ‘development cap’ on future residential subdivision of the site until the PH interchange is completed, capped at 250 (residential) lots, as confirmed by communications provided in evidence from TfNSW. Until the PH interchange is completed, future residential lots below the initial development cap must have access to Newline Road. The applicants have sought to resolve the ‘pending nature’ of this infrastructure by the provision of a condition (draft condition 12, Exhibit L) that limits the provision of a subdivision certificate on the creation of residential lots (in the precincts) until the PH interchange is constructed. This approach remains in dispute between the parties.

400. Upon the opening of the PH interchange, the State VPA requires that the existing access road to the Pacific Highway, currently used by the RDA, is to be closed, with alternative access provided. It is understood from oral evidence of the applicants’ experts that it is proposed when the existing access road is closed, RDA will be provided access to their site via a new connection to the E-W road.

401. It was explained by the experts that construction access to the site prior to the completion of the PH and NR interchanges would be via the existing access road to the Pacific Highway and possibly via an existing service road (of unconfirmed condition) that runs south of Wetland 803 from Newline Road. The applicants’ draft conditions (in Exhibit L) propose that this service road around the landfill be upgraded to an all-weather road, should access be required prior to the opening of PH and NR interchanges.

402. Consideration of the evidence demonstrates that the application is supported by sufficient detail on the design and location of the PH interchange, and that a SAC would likely be issued (upon application), pursuant to cl 6.1(2) of the PSLEP. However, without the SAC being issued from the D-G to support the application, I am not satisfied that the PH infrastructure has satisfied the objective of cl 6.1(1).

403. Based on the evidence, I am satisfied that the PH interchange will be designed to address known flood risk, pursuant to cl 6.6 of the PSLEP.

404. I am satisfied that the proposed PH interchange is capable of being designed (as described in the draft REF) to a standard to address the requirements of cl 6.5 of the PSLEP. I find that there is sufficient detail supporting the application that the PH interchange could cater for the additional traffic load and be designed in a location that will ensure its effective function. The location and design of this infrastructure is not contentious.

405. Further to this, I am satisfied that the upfront funding by third parties for this infrastructure is expressed adequately in the State VPA, also relying on development contributions by the developer of the land at designated milestones.

406. In consideration of the proposed design and the agreed conditions of consent, I am satisfied there will unlikely be additional burden to traffic load on the Pacific Highway, except perhaps by construction traffic, until the PH interchange is constructed, and future residential lots subdivision are certified.

Stormwater Diversion Channel

407. The channel is a designated State public infrastructure that is required to divert stormwater from the future development footprint of the KHURA, away from the Grahamstown Dam, to protect its water quality. The channel is subject to a separate Part 5 (EPA Act) approval, not yet applied.

408. The location of the (stormwater drainage) channel relied on by the application is described in the draft REF that is in evidence, as being preferred along an alignment predominantly east of the Pacific Highway. This is extensively on HWC land. This infrastructure is intended to direct treated stormwater runoff from the eastern precincts on the site, away from the Grahamstown Dam in flood events up to 0.2% AEP, and then towards Wetland 804. It is considered essential infrastructure in the residential development of the site/KHURA.

409. The experts do not agree that the PH interchange, as described in the draft REF, can be constructed as designed, without the channel being constructed. The experts also do not agree whether there are likely to be unacceptable ecological impacts resulting from the channel design relied on by the application, based on the lack of ecological assessment on the HWC land, which is also an issue raised by HWC in their communications with the applicants in assessing the application. It remains in dispute whether the concept proposal is reasonable without a more reliable alignment of the channel.

410. According to Mr Grech, the construction and completion of the PH interchange could proceed without (independently of) the channel being constructed. Also, the channel alignment relied on in the concept proposal, described as option (4) in the draft REF, is a preferred option to (the applicants and) a working committee that included HWC, which reviewed the alignment options as part of the REF process.

411. The experts agree there is a requirement for the channel in the (future) development of the site and KHURA. They however dispute whether the channel could or should ultimately be located (partially) on the applicants’ land, as posed in option 3 of the draft REF. This option (3) would result in a substantial loss of land from the proposed eastern precincts, and would require a modification to the concept proposal.

412. The indicative internal design of stormwater infrastructure described in the concept proposal, to service the site relies, for the eastern precincts, on the preferred location of the channel, being option 4 in the draft REF. The concept proposal informs future development application/s, which will detail the design of appropriate water management strategies such as rainwater harvesting, diversion, biofiltration and bioretention basins to manage stormwater, and which are supported by the channel.

413. It is not disputed by the experts, and I concur, that there is sufficient area of land within the (eastern) precincts to accommodate the required stormwater management infrastructure, and that the application has appropriately considered indicative locations for the internal management of stormwater.

414. The issue however relates to the uncertainty in the ultimate location and design of the channel, and whether the channel located predominantly on HWC land addresses the requirements of cl 6.1 of the PSLEP.

415. Although the (Part 5) approval for the channel does not form part of the application, in consideration of s 4.15(1) of the EPA Act, the Court must consider the likelihood of impact resulting from the concept proposal relying on the channel in its preferred alignment.

416. HWC raised a concern regarding the location of the preferred (option 4) channel alignment in a letter dated 8 December 2022 (Exhibit 5). This letter was provided in response to their review of the application, draft REF and a draft biodiversity assessment by Arcadis, dated September 2019. Pursuant to s 5.16(3) of EPA act, HWC is a relevant authority that must be consulted, and their issues had regard to, prior to (Part 5) approval of the channel infrastructure.

417. HWC are concerned by the draft nature of the documents that inform the concept proposal and that their issues as raised previously, specifically with regards to the potential for impact to threatened species and biodiversity values have not been sufficiently addressed. In this letter, HWC remains unsatisfied that “environmental impacts arising from the construction and operation of the stormwater channel have been avoided, minimised, mitigated and offset to the extent that they are acceptable”. At the date of the hearing, HWC had not provided their in-principle support to the preferred alignment (option 4) of the channel.

418. In consideration of the evidence, I assess that there is reasonable uncertainty with regards to the likely location and ultimate design of the channel, and that this uncertainty impacts a functional element of the concept proposal. I remain uncertain on the functionality of the concept proposal, without a confirmed location or design of the channel that supports the development of the site and KHURA. The unassessed likelihood of environmental impact to ecological habitats around the Grahamstown Dam based on the preferred channel location is unreasonable. I therefore cannot be satisfied that the site is suitable for development on the site as described in the concept proposal, pursuant to s 4.15(1)(c) of the EPA Act.

419. The State VPA provides funding and some responsibility arrangements for the design of the channel, although not responsibility for its construction, unlike for the PH interchange, which has more certainty in its design and construction. Significantly, the preferred channel design and location are still the subject of uncertain environmental outcomes, that could lead to a change in its alignment, thereby impacting the definition of the precincts described in the concept proposal. A modification of the concept proposal would likely be required if the channel was substantially changed. This creates uncertainty.

420. It is agreed by the parties that the development of the KHURA cannot proceed without the designated State public infrastructure as described in the State VPA, including the channel.

421. I am not satisfied the D-G would issue a SAC for development of the site, consistent with the concept proposal, until there is reasonable certainty to the location and design of the channel. I find that the objective of cl 6.1(2) of the PSLEP, to provide satisfactory arrangements for the provision of designated State public infrastructure prior to subdivision is not satisfied. The design and location of the channel are not sufficiently certain and satisfactory arrangements have not been provided prior to the subdivision (and intensification) of the land, as relied on by the application. Based on the draft and contentious design of the channel, there remains uncertainty that a SAC would be issued by the D-G to satisfy cl 6.1(2).

407. The channel alignment in its preferred location is a fundamental component of the conceptual proposal and application. The boundaries that define the precincts and CA rely on the channel and indicative stormwater management. A change in the channel alignment, specifically moving further onto the site, would likely require in precinct boundary changes and reconfiguration of the internal stormwater services on the site. This could also result in a deficit of developable land available for future residential/commercial use in the eastern precincts, affecting the lot yield of the KHURA.

408. Due to this assessed uncertainty in the location of the channel, it is unreasonable for the concept proposal and application to rely on the channel in its preferred alignment. The concept proposal seeks to establish the development footprint that is potentially unable to function for the purpose of stormwater management. Clause 6.1(1) of the PSLEP is not satisfied.

409. The basis for my consideration above, is that the application seeks the subdivision of the land, as previously determined. If I am wrong on this, I would also not be satisfied that satisfactory arrangements for designated State public infrastructure could be made prior to the (future) residential subdivision of the land as part of the KHURA, based on the draft nature of the channel design and ecological concerns raised by HWC. Clause 6.1 of the PSLEP is also not satisfied on this basis.

410. The applicants posed conditions attached to a consent to address the uncertainty relating to the alignment of the channel, Condition 12 (Exhibit L) and deferred commencement Condition 2 (Exhibit 6), described below:

“[12] A subdivision works certificate that would involve the creation of residential lots must not be issued until the date that is 9 months prior to any scheduled date for the practical completion of the “Road Works” as notified by TfNSW as referred to in the Voluntary Planning Agreement between the Minister for Planning and Public spaces, Roads and Maritime Services, Kingshill Development No 1 Pty Ltd and Kingshill Development No 2 Pty Ltd (State VPA).”

“[2] Evidence of an approval pursuant to Part 5 of the Environmental Planning and Assessment Act 1979, or other relevant authority, for the construction of the Kings Hill Stormwater Channel described generally in the draft “Kings Hill Stormwater Channel, Review of Environmental Factors” prepared by Arcadis for the Roads and Maritime Services dated September 2019 shall be submitted to the Council...”

426. This approach to address uncertainty was described by Ms Reid as being a ‘Grampian’ style condition, as explained by Preston CJ in Mullaley Gas and Pipeline Accord Inc v Santos NSW (Eastern) Pty Ltd (2021) 252 LGERA 221; [2021] NSWLEC 110 at [150], below:

“[150] Condition A9 is what is referred to as a Grampian condition, after the name of the case in which a condition of this type was described: Grampian Regional Council v Secretary of State for Scotland and City of Aberdeen District Council (1984) SC (HL) 58; [1984] JPL 590. A Grampian condition prevents the development the subject of the consent from being commenced until a specified event (such as the construction of a bridge or an intersection) has taken place, even though that event might not be wholly within the power of the applicant for consent to bring about: see Grampian Regional Council v Secretary of State for Scotland and City of Aberdeen District Council at 67 and see also McCarthy v Mulwaree Shire Council (1992) 78 LGERA 158 at 171; British Railways Board v Secretary of State for the Environment [1993] 3 PLR 125 at 134; [1994] JPL 32 at 32, 38; Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited (2010) 210 LGERA 126 at 236; [2010] NSWLEC 48.”

427. Whilst I accept that the design/construction of the channel (and PH interchange) is beyond the control of the applicants, the degree of uncertainty as to the location and ultimate design of the channel being built in a timely manner, together with the unassessed potential for environmental impact is such that a consent to the application cannot rely on the condition/s posed by the applicants. This approach is consistent with that adopted by Justices Priestley, Clarke and Meagher in Mison v Randwick Municipal Council (1991) 23 NSWLR 734, whom held that a condition of consent cannot have the effect of significantly altering the development that consent is granted.

428. I consider that there is an unresolved possibility that the channel alignment could be relocated within the site, and that this would result in a significant change to the shape and size of the eastern precincts, that could also impact the shape of the CA boundary. Such a change to precinct boundaries would likely require a modification of the concept proposal and proposed precinct plan (Figure 1), which although is legally feasible, is not a sound basis on which to grant consent to the application.

429. On this basis it is my assessment that the application has a likelihood of environmental impact, with the channel on land disputed by HWC. The application does not satisfy subss 4.15(1)(b) and (c) of the EPA Act.

Does the application result in the orderly and economic use in the development of the land?

430. The contention as raised by the Panel is that the application does not result in the orderly or economic use in the development of the land, primarily due to the extensive clearing proposed by the Stage 1 works; and that the development footprint and subdivision patterns in the precincts are neither logical nor cost effective development, pursuant to cl 6.3(1) of the PSLEP.

431. The submission of the Mr Robertson SC for the applicants is that the application does not propose ‘wholesale clearing’, as described by the Panel in its contentions, rather a well-planned and staged clearing process that is responsive to ecological assessment.

432. Development of the KHURA, and of the site within the KHURA, is subject to the provisions of the PSDCP, and specifically Part D14. Part D14 provides a generalised development control plan for the Kings Hill-Raymond Terrace area, and was prepared in consideration of cl 6.3(3) of the PSLEP, below:

6.3 Development control plan

(1) The objective of this clause is to ensure that development on land in an urban release area occurs in a logical and cost-effective manner, in accordance with a staging plan and only after a development control plan that includes specific controls has been prepared for the land.

(2) Development consent must not be granted for development on land in an urban release area unless a development control plan that provides for the matters specified in subclause (3) has been prepared for the land.

(3) The development control plan must provide for all of the following—

(a) a staging plan for the timely and efficient release of urban land, making provision for necessary infrastructure and sequencing,

(b) an overall transport movement hierarchy showing the major circulation routes and connections to achieve a simple and safe movement system for private vehicles, public transport, pedestrians and cyclists,

(c) an overall landscaping strategy for the protection and enhancement of riparian areas and remnant vegetation, including visually prominent locations, and detailed landscaping requirements for both the public and private domain,

(d) a network of active and passive recreation areas,

(e) stormwater and water quality management controls,

(f) amelioration of natural and environmental hazards, including bush fire, flooding and site contamination and, in relation to natural hazards, the safe occupation of, and the evacuation from, any land so affected,

(g) detailed urban design controls for significant development sites,

(h) measures to encourage higher density living around transport, open space and service nodes,

(i) measures to accommodate and control appropriate neighbourhood commercial and retail uses,

(j) suitably located public facilities and services, including provision for appropriate traffic management facilities and parking.

(4) Subclause (2) does not apply to any of the following developments—

(a) a subdivision for the purpose of a realignment of boundaries that does not create additional lots,

(b) a subdivision of land if any of the lots proposed to be created is to be reserved or dedicated for public open space, public roads or any other public or environment protection purpose,

(c) a subdivision of land in a zone in which the erection of structures is prohibited,

(d) proposed development on land that is of a minor nature only, if the consent authority is of the opinion that the carrying out of the proposed development would be consistent with the objectives of the zone in which the land is situated.

433. Amongst other requirements, Part D14 of the PSDCP sets out the objectives and controls relevant to a precinct plan, with a recognition that precinct plans will “be included as future amendments to this DCP; or be provided as a staged development application for each development precinct.” The proposed precinct plan relied on by the application is a response to this requirement. The objectives for a precinct plan are described in Part D14, below:

“•To ensure consideration is provided to the relationship between residential, commercial, mixed use, open space, biodiversity and important infrastructure, such as the Pacific Highway and Grahamstown Dam

• To ensure development occurs in a logical and coordinated manner

• To ensure development is efficient and results in cost effective infrastructure and adequate access to services by residents

• To ensure the town centre facilitates a sense of place and community while complementing the economic and community function of the existing higher order regional centre of Raymond Terrace

• To ensure a hierarchy of centres within the Kings Hill urban release area with a high quality of design, a high amenity public domain and excellent connectivity to the adjacent residential areas”

434. The objective of cl 6.3(1) of PSLEP is “to ensure that development on land in an urban release area occurs in a logical and cost-effective manner, in accordance with a staging plan and only after a development control plan that includes specific controls has been prepared for the land”. This objective is consistent with the objectives described above for Part D14 of the PSDCP.

435. It is recognised that the Kings Hill-Raymond Terrace area DCP, described in Part D14 of the PSDCP, is generalised in form, although is considered sufficient to address the requirements cl 6.3(2) of the PSLEP.

436. The application refers to a ‘proposed precinct plan’ (Figure 1) which is intended to support more detailed ‘residential precinct plans’ in future development applications.

437. I am satisfied that the application does not need to rely on more detailed subdivision patterns within each precinct, which is consistent with a (s 4.22 of the EPA Act) concept proposal. This level of information will rightly be provided in future development applications relating to the future residential subdivision of the precincts.

438. However, based my consideration of the evidence, I find that the application does not satisfy the objective of cl 6.3(1) of the PSLEP. I assess that the lack of certainty of the precinct/CA boundaries, due to ecological considerations of the channel not yet assessed, as described above, and the fact that clearing is sought that relies on these boundaries. The proposed clearing of the impact area prior to having confidence in the boundary of the precincts, that have a direct relationship to the CA boundary, is neither logical nor cost efficient. I consider the seeking of consent for the total clearing of the precincts before there is certainty to precinct boundaries is pre-emptive and not scientifically sound.

439. In consideration of the scheduled timing of the clearing closely coincident with enhancement of the CA, as described in the staging plan (Figure 2), I assess that the application relies on an unnecessarily complex and confusing staging of actions/works I am not satisfied that this approach satisfies s 4.15(1)(b) of the EPA Act.

440. Based on my assessment above, I am not satisfied the application has sufficiently demonstrated the application relating to a concept proposal with Stage 1 works is suitable for the site, pursuant to s 4.15(1)(c) of the EPA Act.

441. On this basis, I find that the application is not in the public interest, pursuant to s 4.15(1)(e) of the EPA Act.

Conclusion

442. In determining this application, I find that the application under appeal does not satisfy the requirements of the relevant instruments for consideration, namely the EPA Act, TSC Act and the PSLEP. The reasons for my determination, are described above, and principally relate to the potential for significance of effect to native fauna; insufficient certainty on the provision of designated State significant infrastructure; likelihood of environmental impact; complex and disorderly development seeking to overcome potential adverse impacts; site not demonstrated as suitable for proposed (and future) development; and not in the public interest.

443. I determine to refuse the grant of consent for Development Application 16-2018-772-1, pursuant to s 4.16(1)(b) of the EPA Act.

Orders

444. Consequently, the orders of the Court are as follows:

1. Leave is granted to rely on amended plans and documents that amend Development Application 16-2018-772-1, as described in Exhibits P, Q and R, and parts of Exhibits A, B and D.

2. The appeal is dismissed.

3. Development Application 16-2018-772-1, relating to a concept proposal to define areas for residential precincts and conservation, and Stage 1 works to establish a conservation area and clear precinct areas for future development, on Lot 41 Deposited Plan 1037411, also known as 3221 Pacific Highway, Kings Hill, and Lot 4821 Deposited Plan 852073, also known as 35 Six Mile Road, Kings Hill is refused.

4. The exhibits are retained.

Sarah Bish

Commissioner of the Court

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Decision last updated: 23 August 2023