Land Dynamics Pty Ltd v Port Macquarie Hastings Council

[2018] NSWLEC 1443

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Land Dynamics Pty Ltd v Port Macquarie Hastings Council [2018] NSWLEC 1443
Hearing dates:	8 August 2018
Date of orders:	22 August 2018
Decision date:	22 August 2018
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	(1) The Applicant is granted leave to rely on amended plans; (2) The appeal is upheld; (3) Development consent is granted to development application DA 2016-995.1 for earthworks, tree removal, and the construction of multi-dwelling housing comprising six dwellings, along with community title and Torres title subdivision, subject to the conditions of consent annexed hereto as Annexure ‘A’; (4) The exhibits are returned, with the exception of Exhibits A and 1.
Catchwords:	Development Application: Koala linkages and corridors; SEPP 44; Port Macquarie Hastings LEP 2011 clause 7.5; Koala Plan of Management.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Port Macquarie-Hastings Local Environment Plan 2011 Rural Fires Act 1997 State Environmental Planning Policy No 44 - Koala Habitat Protection
Cases Cited:	Nil
Texts Cited:	An ecological overview of koalas and their habitat on the Innes Peninsula, Port Macquarie NSW March 2005 (Biolink 2005a) Koala Plan of Management for Part Lot 32 DR 809231 – Maher’s Hedland, Port Macquarie, NSW 2009 NSW Planning for Bush Fire Protection 2006 Port Macquarie Hastings Development Control Plan 2013
Category:	Principal judgment
Parties:	Land Dynamics Pty Ltd (Applicant) Port Macquarie Hastings Council (Respondent)
Representation:	Counsel: A Pearman (Applicant)   Solicitors: Ernst and Young (Applicant) S Puckeridge, Lindsay Taylor Lawyers (Respondent)
File Number(s):	2017/358963
Publication restriction:	No

Judgment

1. COMMISSIONER: Land Dynamics Pty Ltd (the Applicant) has appealed the decision by Port Macquarie Hasting Council (the Respondent) to refuse its development application DA 2016-995.1 for construction of new multi-dwelling housing, comprising six dwellings, community title and Torrens subdivision, along with earthworks and tree removal (the proposed development).

2. The proposed development would be located on part of Lot 252 within DP 123015, located on Philip Charley Drive, (the Subject Site), and which is within the Ascot Park housing estate development to the west of Port Macquarie.

3. The appeal is made pursuant to s 97(1) (now s 8.7(1)) of the Environmental Planning and Assessment Act 1979 (EP&A Act).

4. The Subject Site is zoned R1 General Residential under the provisions of Port Macquarie-Hastings Local Environment Plan 2011 (PMHLEP), and is also identified as being Category 1 bushfire prone land.

5. The proposed development is integrated development in line with the definition of integrated development under s 4.46 of the EP&A Act, and requires the concurrence of the NSW Rural Fire Service under s 100B of the Rural Fires Act 1997 (RF Act). The requirements for consent of integrated development are provided within 4.47 of the EP&A Act.

6. The Parties agreed that the Subject Site was land that had been identified as Core Koala Habitat under the provisions of State Environmental Planning Policy No 44 - Koala Habitat Protection (SEPP 44). Core Koala Habitat is defined under SEPP 44 as:

an area of land with a resident population of koalas, evidenced by attributes such as breeding females (that is, females with young) and recent sightings of and historical records of a population.

7. An inspection of the Subject Site was undertaken as part of a conciliation conference before me under the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act) on 7 March 2018. During the site inspection the following objectors, all local residents of Ascot Park, made submissions to the Court in relation to this appeal, as follows:

1. Mr Ray Muffett, whose concerns related to the proposed removal of trees under the proposed development, and impacts this would have on the amenity enjoyed by himself and other residents who had moved to the Ascot Park area.

2. Mr Sean Christie, on behalf of himself and his wife, Ms Kim Christie, whose concerns related to:

1. the proposed development adding further residents to the Ascot Park estate, and the implications of these additional residents on the functionality of the road system of Ascot Park to facilitate the exit of residents in the event of bushfire;

2. the potential impact of the proposed development on the local koala population, the presence of which had been an incentive to his and his wife’s purchase of land in the area.

3. Peter and Julie Jones, whose submission related to:

1. the proposed development’s inclusion of multi-dwelling housing, which, they said, was not a style of dwelling envisioned for Ascot Park, and which they contended would affect the value of properties in the Ascot Park area;

2. the loss of trees that would result from approval of the proposed development;

3. the potential risk posed by the additional car movements that would be generated by the proposed development, and the proximity of those additional movements to a children’s play area.

4. Mr Paul Scott, who submitted that the original plans for Ascot Park did not indicate that houses would be proposed on the Subject Site, and which he now believed represented an expansion of the development footprint in Ascot Park that should not be approved.

8. The Parties were unable to resolve the contentions between them during the conciliation phase of the proceedings. Consequently, the conciliation process was terminated, and the matter was set down for hearing.

9. The Parties requested that I dispose of the matter at the hearing. As I had already conducted a site view as part of the conciliation conference proceedings on 7 March 2018, no further inspection of the Subject Site was required, and the hearing was conducted at Court.

10. Prior to the hearing, on 13 April 2018, the Applicant had filed a Notice of Motion seeking leave to rely on amended plans, and leave was granted by the Court.

Statutory context

Environmental Planning and Assessment Act 1979

11. Section 4.15(1) (previously s 79C(1)) of the EP&A Act requires that, 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 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), and

(v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979),

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.

12. Section 4.15(3A) of the of the EP&A Act (previously s 79C(3A)) further provides that:

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.

Rural Fires Act 1997

13. The Rural Fires Act 1997 (RF Act) aims to provide:

(a) for the prevention, mitigation and suppression of bush and other fires in local government areas (or parts of areas) and other parts of the State constituted as rural fire districts, and

(b) for the co-ordination of bush fire fighting and bush fire prevention throughout the State, and

(c) for the protection of persons from injury or death, and property from damage, arising from fires, and

(c1) for the protection of infrastructure and environmental, economic, cultural, agricultural and community assets from damage arising from fires, and

(d) for the protection of the environment by requiring certain activities referred to in paragraphs (a)–(c1) to be carried out having regard to the principles of ecologically sustainable development described in section 6 (2) of the Protection of the Environment Administration Act 1991.

14. Section 100B of the RF Act provides, inter alia, that:

(1) The Commissioner may issue a bush fire safety authority for:

(a) a subdivision of bush fire prone land that could lawfully be used for residential or rural residential purposes, or

(b) development of bush fire prone land for a special fire protection purpose.

(2) A bush fire safety authority authorises development for a purpose referred to in subsection (1) to the extent that it complies with standards regarding setbacks, provision of water supply and other matters considered by the Commissioner to be necessary to protect persons, property or the environment from danger that may arise from a bush fire.

(3) A person must obtain such a bush fire safety authority before developing bush fire prone land for a purpose referred to in subsection (1).

…

Port Macquarie-Hastings Local Environmental Plan 2011

15. PMHLEP makes local environmental planning provisions for land in the Port Macquarie-Hastings Local Government Area (LGA) in accordance with the relevant standard environmental planning instrument under s 3.20 (formerly s 33A) of the EP&A Act.

16. PMHLEP provides the objectives and permitted land uses for various land use zones within the Port Macquarie Hastings LGA, including for land such as the Subject Site which is zoned R1 General Residential. The objectives of land zoned R1 General Residential are to:

• provide for the housing needs of the community;

• provide for a variety of housing types and densities;

• enable other land uses that provide facilities or services to meet the day to day needs of residents.

17. Multi-dwelling housing, as is proposed by the Applicant in its development application for the Subject Site, is permissible with consent in the R1 land use zone.

18. Clause 7.5 of PMHLEP, makes specific provisions for Koala Habitat, and is of particular import in relation to this appeal. It provides as follows:

(1) The objective of this clause is to ensure that development is designed to retain koala habitat.

(2) This clause applies to land that is shown as “Koala habitat area” on the Koala Habitat Map.

(3) Development consent must not be granted for development on land to which this applies unless the consent authority is satisfied that the development is consistent with the relevant provisions of any adopted plan of management prepared pursuant to State Environmental Planning Policy No 44—Koala Habitat Protection.

(4) Development consent must not be granted for a subdivision of land to which this clause applies unless the consent authority is satisfied that each lot that would be created by the subdivision will contain a sufficient building envelope to enable future development of the lot to comply with subclause (3).

Note. The land shown as “Koala Habitat” does not identify all koala habitat areas within the land to which this Plan applies.

(5) Land shown as “Koala habitat area” on the Koala Habitat Map is identified as being within an ecologically sensitive area for the purposes of clause 1.19 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.

Note. Clause 1.19 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 prevents complying development specified for certain complying development codes from being carried out on land identified by an environmental planning instrument as being within an ecologically sensitive area.

State Environmental Planning Policy No 44 - Koala Habitat Protection

19. SEPP 44 aims to encourage the proper conservation and management of areas of natural vegetation that provide habitat for koalas to ensure a permanent free-living population over their present range and reverse the current trend of koala population decline. It does this:

(a) by requiring the preparation of plans of management before development

consent can be granted in relation to areas of core koala habitat, and

(b) by encouraging the identification of areas of core koala habitat, and

(c) by encouraging the inclusion of areas of core koala habitat in environment

protection zones.

20. SEPP 44 applies to each LGA listed in Schedule 1 of the policy, which includes Port Macquarie Hastings LGA, that being the current name of the former Municipality of Hastings listed in the aforementioned Schedule 1.

21. Part 2 of SEPP 44 provides controls for development in areas of koala habitat, as follows:

7 Step 1 - Is the land potential koala habitat?

(1) Before a council may grant consent to an application for consent to carry out development on land to which this Part applies, it must satisfy itself whether or not the land is a potential koala habitat.

(2) A council may satisfy itself as to whether or not land is a potential koala habitat only on information obtained by it, or by the applicant, from a person who is qualified and experienced in tree identification.

(3) If the council is satisfied:

(a) that the land is not a potential koala habitat, it is not prevented, because of this Policy, from granting consent to the development application, or

(b) that the land is a potential koala habitat, it must comply with clause 8.

8 Step 2 - Is the land core koala habitat?

(1) Before a council may grant consent to an application for consent to carry out development on land to which this Part applies that it is satisfied is a potential koala habitat, it must satisfy itself whether or not the land is a core koala habitat.

(2) A council may satisfy itself as to whether or not land is a core koala habitat only on information obtained by it, or by the applicant, from a person with appropriate qualifications and experience in biological science and fauna survey and management.

(3) If the council is satisfied:

(a) that the land is not a core koala habitat, it is not prevented, because of this Policy, from granting consent to the development application, or

(b) that the land is a core koala habitat, it must comply with clause 9.

9 Step 3 - Can development consent be granted in relation to core koala habitat?

(1) Before a council may grant consent to a development application for consent to carry out development on land to which this Part applies that it is satisfied is a core koala habitat, there must be a plan of management prepared in accordance with Part 3 that applies to the land.

(2) The council’s determination of the development application must not be inconsistent with the plan of management.

10 Guidelines—matters for consideration

Without limiting clause 17, a council must take the guidelines into consideration in determining an application for consent to carry out development on land to which this Part applies.

22. Part 3 of SEPP 44 provides as follows:

Part 3 Plans of Management

11 Preparation of plan of management

(1) A plan of management may be prepared for:

(a) the whole of a local government area listed in Schedule 1, or

(b) a part of such a local government area (including an area of land that is the subject of a development application).

(2) Anyone (including a council) may prepare a plan of management.

(3) A plan of management is to be prepared in accordance with the guidelines.

12 Consultation with Director-General of National Parks and Wildlife

A person who prepares a plan of management for the whole of a local government area listed in Schedule 1 must consult the Director-General of National Parks and Wildlife.

13 Approval of plan of management

(1) A plan of management prepared by the council has no effect unless it is approved by the Director.

(2) A plan of management prepared by a person other than the council has no effect unless it is approved by the council and by the Director.

(3) A plan of management takes effect on the day it is approved by the Director or on a later day specified in it for the purpose.

14 Amendment or repeal of plan of management

A plan of management may be amended or repealed by another plan of management prepared and approved in accordance with this Part.

Maher’s Hedland Koala Management Plan

23. Clause 7.5 of PMHLEP provides that development consent must not be granted for development on land to which this applies unless the consent authority is satisfied that the development is consistent with the relevant provisions of any adopted plan of management prepared pursuant to SEPP 44.

24. As discussed above at [21], Part 2 of SEPP 44 also provides that:

1. before a Council may grant consent to a development application for consent to carry out development on land to which this Part applies that it is satisfied is a core koala habitat, there must be a plan of management prepared in accordance with Part 3 that applies to the land.

2. the council’s determination of the development application must not be inconsistent with the plan of management.

25. As noted above at [6], it was common ground between the Parties that the Subject Site was Core Koala Habitat as defined under SEPP 44. Consequently, before Council, or the Court on appeal, may grant consent to a development application to carry out development on the Subject Site there must be a plan of management prepared in accordance with Part 3 of SEPP 44 that applies to the Subject Site.

26. A Koala Plan of Management for Part Lot 32 DR 809231 – Maher’s Headland, Port Macquarie, NSW (the KPoM) has been prepared and was approved by Port Macquarie Hastings Council in December 2009. It was common ground between the Parties that this KPoM had been prepared in accordance with provisions of SEPP 44 and applied to the Subject Site. The KPoM is structured as follows:

1. Part 1 of the KPoM provides an overview of koala ecology, including in relation to koala populations within the specific area that is the subject of the KPoM;

2. Part 2 of the KPoM provides the aims and objectives of the plan, as follows:

The primary aim of management is to ensure, to the maximum extent possible, the survival and long-term population viability of koalas within the Maher’s study area and surroundings.

Within the Maher’s Headlands development precinct, this task is reflected in the following objectives:

i. minimise disturbance to currently mapped areas of Core Koala Habitat;

ii. maintain and/or create Habitat linkages/corridors throughout the study area to assist ongoing processes of dispersal, recruitment and gene flow within the larger koala metapopulation.

In order that the preceding aims and objectives can be realised, the following actions and measures are proposed in accord with the guidelines proposed in the overview study (Biolink 2005a).

3. Part 3 of the KPoM provides general planning provisions;

4. Part 4 of the KPoM makes provisions concerning development in Core Koala Habitat areas, including the following provisions in relation to development in ‘medium(normal) use’ areas:

i. where subdivision and/or development of land for residential purposes is proposed within areas of Medium (Normal) Use, the following apply:

• Subdivision design must demonstrate that maximum retention of preferred while a food species >250m (sic) DBHOB will be been (sic) achieved where possible;

• if this condition cannot be practically met for specific trees falling within the road reserve, all within residential lots, then such treaties and only such trees are permitted to be removed subject replacement plantings, and at a ratio of not less than two replacement seedlings >600m (sic) for every true removed, in an area where mature trees will not be at risk of future removal.

ii. future tree removal within medium use areas of cork while Habitat may be permitted where the tree removal is permissible under the provisions of the tree preservation order, or is for the purposes of bushfire hazard reduction works. Such tree removal is subject to replacement planting is, at a ratio of not less than two replacement seedlings >600m (sic) for every true removed, in an area where mature trees will not be at risk of future removal.

5. Part 5 of the KPoM provides guidance in relation to development in Potential Koala Habitat areas.

6. Part 6 of the KPoM provides guidance in relation to compensatory habitat measures.

7. Part 7 of the KPoM provides guidance in relation to monitoring and compliance assessment.

Contentions

27. At the commencement of the hearing the Applicant sought leave to rely on further amended plans, and leave was granted without objection from the Respondent. The amended plans were tendered as evidence.

28. The Parties advised that certain matters that had been in contention between them, were no longer pressed by the Respondent. These included contentions relating to the design of the proposed development in terms of front setbacks and garage setback provisions within the Port Macquarie Hastings Development Control Plan 2013.

29. Based on this, the remaining contentions between the Parties concerned the potential impacts of the proposed development in relation to bushfire management and koala habitat, and sought to resolve the following questions:

1. Is the design of proposed development compliant with the requirements of the NSW Rural Fire Service (NSW RFS) concerning the mitigation of any potential impacts with respect to bushfire risk?

2. Is the design of proposed development consistent with the provisions of SEPP 44, PMHLEP and the KPoM in relation to its potential impacts on koala habitat?

Is the design of proposed development compliant with the requirements of the NSW Rural Fire Service (NSW RFS) concerning the mitigation of any potential impacts with respect to bushfire risk?

30. The Parties advised at the hearing that the Respondent had received advice from the NSW RFS concerning the interpretation of the General Terms of Approval (GTAs) that the NSW RFS had provided to the Respondent in relation to the proposed development on 15 August 2017, pursuant to the requirements of s 100B of the RF Act (see above at [14]). These GTAs were deemed by NSW RFS to be a bushfire safety authority for the purposes of s 100B of the RF Act.

31. That advice in respect of the interpretation of the GTAs was provided through a series of e-mail exchanges between the Respondent and NSW RFS between 4 and 6 July 2018. The Respondent confirmed that it had shared this advice with the Applicant, who said that the advice was consistent with its own interpretation of the NSW RFS GTAs.

32. That advice concerned the establishment and maintenance of an inner protection area (IPA) for the proposed development and the basis for calculation of canopy cover requirements in relation to that IPA.

33. The Respondent said that its bushfire expert, Ms Melinda Losh, did not agree with the NSW RFS interpretation of its advice in relation to the GTAs, and that, as a consequence, a contention as to the compliance of the proposed development with the GTAs was still pressed by the Respondent. The Applicant confirmed that, based on the advice of its bushfire expert, Mr David Pensini, it accepted the advice provided by NSW RFS, including the recommended GTAs, and the NSW RFS’ interpretation of those GTAs.

34. The Parties agreed that if the Court were minded to accept the advice of the NSW RFS in relation to the interpretation of the GTAs, and in respect of the IPA canopy cover calculation for proposed development, then the contentions between the Parties concerning bushfire issues should be considered resolved, and the proposed development would be in compliance with the NSW RFS GTAs.

35. The NSW RFS GTAs included the following two recommended conditions in relation to Asset Protection Zones:

1. At the commencement of building work or the issue of subdivision certificate (whichever occurs first) and in perpetuity, the entire property shall be managed as an inner protection area (IPA) as outlined within section 4.1.3 and Appendix 5 of ‘Planning for Bushfire Protection 2006’ NSW Rural Fire Services document ‘Standards for asset protection zones’.

2. A restriction to the land use pursuant to section 88B of the ‘Conveyancing Act 1919’ shall be placed over the entire area of Lot 7 for the purpose of an asset protection zone. The asset protection zone shall be managed as an inner protection area (IPA) as outlined within section 4.1.3 and Appendix 5 of ‘Planning for Bushfire Protection 2006’ NSW Rural Fire Services document ‘Standards for asset protection zones’.

36. The Respondent's expert, Ms Losh, had said, within the joint report of the bushfire experts that was tendered as evidence at the hearing, that, in her opinion, the canopy area calculation for the IPA on Lot 7 should be determined based upon the NSW RFS GTA Condition 2 only.

37. The Applicant's bushfire expert, Mr Pensini, said that, in his opinion, the canopy area of the IPA on Lot 7 should to be based upon a calculation of the NSW RFS Conditions 1 and 2 taken together.

38. I have reviewed the GTAs issued by the NSW RFS, and the advice in relation to the interpretation of the GTAs provided in the e-mail exchanges between the Respondent and NSW RFS. Based on this, I am satisfied that the advice provided by NSW RFS concerning the calculation of canopy cover requirements for the IPA associated with the proposed development is clear, and reflects what I would understand to be the intent of proposed conditions 1 and 2 within the GTAs taken together.

39. Specifically, the NSW RFS advice was (under Condition 1) that the ‘entire property is to be managed as an inner protection area’, and that while (under condition 2) a restriction as to use is to be placed over the entirety of Lot 7 for the purpose of an asset protection zone, the e-mail communications confirmed that the IPA applies to the entire development (Lots 1-7) which taken together would form the IPA.

40. I am satisfied that the Applicant’s interpretation of the NSW RFS requirements in the GTAs is the correct interpretation.

41. In evidence presented within a supplementary joint report of the bushfire experts, which was tendered as evidence at the hearing, the bushfire experts provided the following conclusions and recommendations based on the findings I have made at [38] to [40]:

1. the Applicant’s proposed retention of the nominated seven trees on the Subject Site will be consistent with the retention of 15% canopy cover as is the required standard for an IPA;

2. the conclusion above at [(1)] is contingent upon there being no additional plantings of trees within proposed Lot 7 or on directly adjoining and adjacent public land;

3. the Applicant should be required, as part of any conditions of development consent, to prepare a vegetation bushfire management plan (VBMP) to guide the future management of the lots within the development by owners of the lots, including any future community association that would have responsibility for management of lots within the proposed development;

4. the VBMP should be prepared by a suitably qualified consultant and it should be certified by that consultant as being compliant with the requirements for an IPA as established within the guide produced by NSW RFS entitled NSW Planning for Bush Fire Protection 2006.

5. the VBMP should be referenced on the title of all the allotments within the proposed development.

42. A further supplementary joint report of the bushfire experts that was tendered as evidence at the hearing, proposed that:

1. a condition concerning the management of proposed Lot 7 be amended to require ‘Light de-compaction of the A-Horizen and planting with native grass species through hydroseeding;

2. that a tree identified as TW12A, and located within the diameter of tree TW12, be retained.

43. Based on the advice of the Parties and their experts above at [34] , [41] and [42], and my findings at [38] and [40], I conclude that, with the adoption of the recommendations of the bushfire experts at [41] and [42], the proposed development is compliant with the requirements of the NSW RFS concerning the mitigation of its potential impacts with respect to bushfire risk.

Is the design of proposed development consistent with the provisions of PMHLEP, SEPP 44 and the KPoM in relation to its potential impacts on koala habitat?

44. Section 4.15 of the EP&A Act requires (see above at [11]), that in determining a development application, a consent authority, or the Court on appeal, must take into consideration the provisions of any environmental planning instrument (EPI) that is of relevance to the development the subject of the development application.

45. The SEPP 44 and PMHLEP are the relevant EPIs for the purposes of the Court’s consideration of the Applicant’s development application in this appeal, and the relevant provisions of those EPIs are provided above at [15] to [18], and at [19] to [22], respectively.

46. The application of the provisions of SEPP 44 and of PMHLEP was the subject of testimony at the hearing from koala ecology experts, Mr Jason Berrigan, for the Applicant, and Dr Stephen Phillips, for the Respondent, along with testimony from the Applicant’s expert planner, Ms Donna Clark. These experts provided testimony in the form of a joint report that was tendered as evidence at the hearing, and through concurrent evidence provided during the hearing.

47. Clause 9(1) of SEPP 44 requires that, before a council (or the Court on appeal) may grant consent to a development application for consent to carry out development on land that is a Core Koala Habitat, there must be a plan of management prepared in accordance with Part 3 of SEPP 44, and that applies to the land that is the subject of the development application.

48. As noted above at [26], a Koala Plan of Management for Part Lot 32 DR 809231 – Maher’s Headland, Port Macquarie, NSW (the KPoM) has been prepared and was approved by Port Macquarie Hastings Council in December 2009.

49. Ms Pearman, for the Applicant, said that there was no contention raised by the Applicant that there the KPoM was inconsistent with the requirements of SEPP 44. This was not disputed at the hearing, and it was her submission that, the adoption of the KPoM by Port Macquarie Hastings Council in December 2009, satisfied the requirements of cl 9(1) of SEPP 44.

50. Having reviewed the requirements of SEPP 44 in relation to the production of a KPoM for the purposes of that SEPP, and having reviewed the timelines and processes for the preparation and adoption of the KPoM, I concur with the Applicant’s submission that the KPoM does satisfy the requirements of cl 9(1) of SEPP 44.

51. Clause 9(2) of SEPP 44 also requires that the consent authority’s determination of the development application must ‘not be inconsistent’ with the plan of management, that is the KPoM.

52. This requirement of SEPP 44 is reflected in cl 7.5 (3) of the PMHLEP which requires that development consent must not be granted for development on land to which that clause applies unless the consent authority is satisfied that the development is consistent with the relevant provisions of any adopted plan of management prepared pursuant to SEPP 44.

53. Linked to these provisions are those of Cl 7.5(4), which states that a development consent must not be granted for a subdivision of land to which this clause applies unless the consent authority is satisfied that each lot that would be created by the subdivision will contain a sufficient building envelope to enable future development of the lot to comply with subcl (3).

54. In response to the provisions of cl 7.5(3) of the PMHLEP, the Applicant said that Part 2 of the KPoM identified:

1. the aims and objectives of the KPoM (see above at [26]); and

2. that the actions and measures that followed the aims and objectives in the KPoM, were in accord with the guidelines proposed in ‘the overview study (‘An ecological overview of koalas and their habitat on the Innes Peninsula, Port Macquarie NSW March 2005’ (Biolink 2005a) and that these provided the basis for realisation of the KPoM’s aims and objectives.

55. Ms Pearman, for the Applicant, said that the relevant actions and measures referred to above at [54(1)], were those in Part 4 (Development in Core Koala Habitat) of the KPoM.

56. It was common ground between the Parties that the relevant provisions of Part 4 of the KPoM for the purposes of the proposed development were those within cl (b) in relation to development in ‘medium (normal) use areas’. In relation to this, the Parties and ecology experts concurred that the requirements in that provision of the KPoM for retention of trees with a DBHOB (diameter breast height over bark) of 250m, should be correctly read as 250mm.

57. Ms Pearman said that, as part of the development proposal, it was proposed that of the eight Tallowwood trees (the preferred koala food tree on the Subject Site) that met the size criteria in cl (b)(i) of the KPoM’s Part 4, seven were proposed to be retained. She also said that the one Tallowwood tree that was proposed to be removed (identified on plans as T7) had been assessed by the arboricultural, experts, Brett Jeffrey (for the Respondent) and Troy Roberts (for the Applicant), as displaying poor form and being in decline. Ms Pearman also noted that the arboricultural, experts had recommended removal of this tree.

58. Ms Pearman submitted that, on the basis of the information presented above at [57], the Applicant had demonstrated that that the maximum retention of preferred koala food trees of the required size had, where possible, been achieved, and that as a consequence, the design of the proposed development was consistent with the provisions of the KPoM with respect to retention of preferred koala food trees where development was proposed within Core Koala Habitat.

59. During the hearing, and in response to specific questions put to the koala ecology experts, the experts confirmed that they were not able to identify any additional trees that would be required to be retained under the provisions of KPoM Part 4, section (b)(i).

60. Ms Pearman also submitted that the proposed removal of the Tallowwood, which was proposed to be located in a residential lot, would be compensated by replacement plantings in excess of the requirements for replacement plantings with the KPoM.

61. The experts agreed that the proposed replacement plantings of Tallowwood trees by the Applicant exceeded the requirements of Part 4, section (b)(ii) of the KPoM.

62. As a consequence of the testimony of the experts at [59] and [61], I agree with the submission of Ms Pearman, for the Applicant, that the design of the proposed development was consistent with the provisions of Part 4 of the KPoM for development in core koala habitat.

63. During the hearing, Dr Phillips in his oral testimony also said that, in his opinion, the final KPoM adopted by Port Macquarie Hastings Council may not have been fully reflective, and may not provide a basis for the achievement, of the broader aims of SEPP 44 in relation to koala conservation and management.

64. However, in response to questions from Ms Pearman, for the Applicant, Dr Phillips agreed that:

1. SEPP 44 did provide that its aims and objectives were to be achieved through the preparation of plans of management;

2. the KPoM applicable to the Subject Site had been prepared and approved in a manner consistent with the requirements of SEPP 44; and

3. the specific requirements of the KPoM in relation to development in Core Koala Habitat, and specifically in relation to ‘medium (normal) use areas’, were met by the proposed development.

65. In further oral testimony during the hearing, the koala ecology experts agreed that:

1. notwithstanding the narrowing of the space that provided a potential linkage for koala movement across the Subject Site, the width of the habitat linkage that would remain as a consequence of the proposed development would provide a functional link for koala movement across the subject site and towards the potential koala habitat to its north and west;

2. that koala movements through this habitat link were likely to be low in number, and that this number of movements was likely to remain at that same level after delivery of the proposed development. They added that the habitat link through the Subject Site would retain its current level of functionality for the koalas moving through that area;

3. the inclusion of so-called ‘koala bridges’ into the design of fencing within the proposed development would further facilitate the movement of koalas through the Subject Site should consent be granted to the Applicant’s development application. The Applicant said that it would accept a condition of development consent to require this outcome.

66. In addition to the points of agreement between Dr Phillips and Mr Berrigan discussed above at [65], Ms Clark confirmed in her testimony that the Respondent had proposed, and the Applicant had agreed, that should consent be granted to the Applicant’s development application, this would be on the basis of conditions, one of which would require that no companion animals be allowed to be kept by residents of the proposed development within the Subject Site.

67. Notwithstanding the concerns expressed by Dr Phillips, and having considered both the testimony of the experts and the submissions of the Parties, I have concluded that the proposed development is consistent with the requirements of the KPoM, and specifically with those contained in section (b) of Part 4 (Development in Core Koala Habitat) concerning development in ‘medium (normal) use areas’, which the Parties had agreed applied to the Subject Site.

68. The Applicant also tendered amended plans at the hearing that confirmed that the proposed lots were consistent with the requirements of cl 7.4(4) of the PMHLEP. This was not challenged by the Respondent.

69. As a consequence of my conclusions at [67] and [68], I find that the Applicant’s proposed development is also consistent with the provisions of both SEPP 44 and PMHLEP.

Conclusion

70. Based on my findings at [42] and [68], and my conclusions in relation to in relation to the two questions requiring resolution by me in this matter, I have concluded that:

1. the design of proposed development is compliant with the requirements of the NSW Rural Fire Service (NSW RFS) concerning the mitigation of its potential impacts with respect to bushfire risk; and

2. the design of proposed development is consistent with the provisions of SEPP 44, PMHLEP and the KPoM in relation to its potential impacts on koala habitat?

71. Based on my conclusions at [70], and in relation to the provisions of subss 4.15(1)(b) and (c) of the EPA Act (see above at [11]), I am satisfied that the impacts of the proposed development are acceptable and that the Subject Site is suitable for the proposed development.

72. I have also considered the submissions of the objectors in this case, and notwithstanding these, I have concluded that the Applicant’s proposed development is in the public interest and should be approved, and that consent should be granted to the Applicant’s development application, with conditions that reflect my findings in this judgment and the recommendations of the experts during the hearing.

71. The Parties were asked at the conclusion of the hearing to provide agreed conditions of consent consistent with my findings and the recommendations of the experts during the hearing. These were provided following the hearing, along with further amended plans to reflect the recommendations of the experts. I have reviewed these conditions and the further amended plans, and I agree that they do reflect my findings in this matter. Based on this I make the following orders.

Orders

74. The orders of the Court are:

1. The Applicant is granted leave to rely on amended plans;

2. The appeal is upheld;

3. Development consent is granted to development application DA 2016-995.1 for earthworks, tree removal, and the construction of multi-dwelling housing comprising six dwellings, along with community title and Torres Subdivision, subject to the conditions of consent annexed hereto as Annexure ‘A’;

4. The exhibits are returned, with the exception of Exhibits A and 1.

……………………….

Michael Chilcott

Commissioner of the Court

Annexure A (465 KB, pdf)

Amendments

26 September 2018 - Pursuant to UCPR 36.17, the slip rule, by application of the Applicant, amends judgment of 22 August 2018 so that the following paragraphs now read:

[36] The Respondent's expert, Ms Losh, had said, within the joint report of the bushfire experts that was tendered as evidence at the hearing, that, in her opinion, the canopy area calculation for the IPA on Lot 7 should be determined based upon the NSW RFS GTA Condition 2 only.

[37] The Applicant's bushfire expert, Mr Pensini, said that, in his opinion, the canopy area of the IPA on Lot 7 should to be based upon a calculation of the NSW RFS Conditions 1 and 2 taken together.

Decision last updated: 26 September 2018