Mackenzie Architects International Pty Limited v Ku-ring-gai Council

[2015] NSWLEC 1353

Land and Environment Court

New South Wales

Medium Neutral Citation:	Mackenzie Architects International Pty Limited v Ku-ring-gai Council [2015] NSWLEC 1353
Hearing dates:	20-21 July 2015
Date of orders:	26 August 2015
Decision date:	26 August 2015
Jurisdiction:	Class 1
Before:	Fakes C; Adam AC
Decision:	Appeal dismissed
Catchwords:	DEVELOPMENT APPLICATION: Residential Flat Building; Critically Endangered Ecological Community – Blue Gum High Forest; biodiversity offsets on site and off site
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Threatened Species Conservation Act 1995 Environmental Protection and Biodiversity Conservation Act 1999 State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development Ku-ring-gai Local Environmental Plan (Local Centres) 2012 Ku-ring-gai Local Environmental Plan 2015
Cases Cited:	Arkibuilt Pty Ltd v Ku-ring-gai Council [2014] NSWLEC 1161 BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 Dobrohotoff v Bennic [2013] NSWLEC 61; 194 LGERA 17 Hudson v Arap 1 (NSW) Pty Ltd [2015] NSWCA 126 Ingham Planning Pty Ltd v Ku-ring-gai Council [2010] NSWLEC 1222
Category:	Principal judgment
Parties:	Mackenzie Architects International Pty Limited (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Counsel: J Robson SC (Applicant) V McWilliam (Respondent)     Solicitors: Bartier Perry (Applicant) Sparke Helmore (Respondents)
File Number(s):	10952 of 2014

Judgment

1. COMMISSIONERS:   The applicant appeals Ku-ring-gai Council’s refusal of Development Application DA0095/13 for the construction of a residential flat building at 1-3 Corona Avenue, Roseville (development site) and the provision of a biodiversity offset at 1 Blytheswood Avenue, Warrawee (off-set site).

2. The appeal is made pursuant to s 97(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

The development site and its locality

3. The site comprises three adjoining lots on the northern side of Corona Avenue, close to the Pacific Highway and within approximately 400m walking distance from Roseville Station.

4. Two of the lots, known as 1 and 3 Corona Avenue, are regular in shape, each with an area in excess of 1100m2. The remaining lot is an irregularly shaped right of way providing access from Corona Avenue to 2-14 Pacific Highway; the area of which is 200.9m2.

5. The development site slopes both from the front and rear boundaries; the rear of the site sloping more steeply. The site also has a cross fall from east to west.

6. Currently at 1 Corona Avenue is a single storey dwelling and a shed; at 3 Corona Avenue there is a single storey dwelling, garage, shed, carport and swimming pool. The right of way comprises a concrete driveway.

7. Existing vegetation is a mixture of exotic and endemic tree species including three mature specimens of Eucalyptus saligna (Sydney Blue Gum) (trees 6, 20 and 22), and one mature Eucalyptus pilularis (Blackbutt) (tree 17) which are agreed remnants of the Critically Endangered Ecological Community Blue Gum High Forest in the Sydney Bioregion (CEEC BGHF) listed in Schedule 1A of the Threatened Species Conservation Act 1995 (TSC Act). These trees are located in the western mid and rear portions of the development site. The surrounding understorey consists of a dense covering of exotic weeds. The remaining areas of open space include lawns, garden beds and exotic tree species.

8. The development site is bounded to the east by a three storey residential flat building with basement parking; to the west at 5 Corona Avenue is a detached dwelling house, to the north and rear are several residential flat buildings ranging between 3, 4 and 5 storeys.

The offset site

9. The proposed offset site is an approximately 1300m2 portion of the 4299m2 Lot 2 DP 873654 at 1 Blytheswood Avenue, Warrawee. This is a vacant L-shaped battle-axe block with an access handle off Blytheswood Avenue. Warrawee Public School adjoins the lot to the east. To the northeast is a funeral home, to the northwest is a residential flat building, and to the southwest and adjoining the access handle is a dwelling house. The Public School playground and buildings are located on the northern portion of the NSW Department of Education land. The southern portion which adjoins the offset site is undeveloped and vegetated.

10. The proposed offset area is a strip that skirts part of the north-eastern side of the access handle and the eastern boundary with the school and along the common north-eastern boundary with the funeral home.

11. The vegetation on the offset site consists of Blue Gum High Forest species as well as other native species. There are number of exotic and weedy species particularly in the mid and ground storeys. The vegetation is predominantly mapped as ‘Category 2: Support for Core Biodiversity Land’ in the applicable development control plan.

12. A creek, identified as ‘Category 3 Riparian Land’ in the DCP, runs in a generally east west direction through the lot. There are some brick structures towards its western end. The majority of the creek is beyond the proposed offset area however mapped sections of the riparian zones are included in two portions of the offset area.

13. The site falls from east to west. On the north-eastern boundary adjoining the funeral home is an area of fill thought to be associated with the levelling of the lot on which the funeral home sits. The area of fill has been colonised by many BGHF species including a stand of Sydney Blue Gums.

The proposal

14. The proposal before the Court comprises:

• Demolition of the dwellings and associated structures at 1 and 3 Corona Avenue.

• Removal of almost all vegetation including the four mature BGHF species listed in [7].

• Construction of a 6 storey residential flat building containing 35 apartments over 5 storeys, and basement parking for 46 vehicles over 3 levels. The upper level of the proposed basement is considered to be a storey under council’s planning controls.

• Landscaping, and associated drainage works.

• Vehicular access from Corona Avenue over an existing common driveway which is constructed over a right of way on the adjoining property to the east (2-14 Pacific Highway, Roseville). Access to be shared between the site and 2-14 Pacific Highway.

• The implementation of a vegetation management plan, including bush regeneration, as a biodiversity offset for the proposed loss of BGHF species on the development site, at Blytheswood Avenue, Warrawee (the offset site).

Relevant background

15. In 1999, development consent was granted for the construction of 30 units, basement parking and consolidation of lots on land now known as 2-14 Pacific Highway, and 1 Corona Avenue, Lindfield.

16. In 2009, approval was granted for a boundary realignment and subdivision of land at 2-14 Pacific Highway and 1 Corona Avenue. This resulted in the transfer of burdened land to 1 Corona Avenue and created new easements reflecting the reassignment of land and services.

17. Development application DA0700/11 for the demolition of two dwellings and construction of two residential flat buildings with basement car parking and landscaping at 1-3 Corona Avenue was withdrawn. This development application sought to retain two significant trees in the centre of the site.

18. In March 2014, the current development application (DA) was lodged with council and the usual processes of notification and feedback commenced. The Amended Statement of Facts and Contentions (Exhibit 2) details council’s issues, requests for information and meetings with the applicant.

19. Council refused the DA on 22 May 2014. The reasons for refusal include: unacceptable impacts on BGHF CEEC, inconsistency with design quality principles in SEPP 65, non-compliance with a range of planning controls, as well as stormwater and BSIX certificate issues. The applicant filed the Class 1 application with the Court in November 2014.

20. The matter commenced as a conciliation conference under s 34 of the Land and Environment Court Act 1979 in March 2015. In response to council’s concerns over the loss of BGHF species, the applicant proposed a biodiversity offset site be established at 1 Blytheswood Avenue Warrawee. Despite some progress, full agreement could not be reached and the conciliation was terminated on 13 April 2015.

21. As a consequence of the conciliation, the applicant was granted leave to rely on amended plans and additional supporting documentation including ‘Supplementary Biodiversity and Offsets Advice’, Vegetation Management Plan (VMP) and an amended Statement of Environmental Effects (SEE). These are the plans and documents before the Court.

22. The plans (Exhibit M) include concept plans, prepared by the applicant’s architect, illustrating two options for constructing residential flat buildings that retain all four BGHF trees. The first concept plan illustrates a building with 13 x 2 bedroom units; option 2 illustrates a building with 13 x 2 bedroom units and 4 x 2 bedroom units with a study. These concept plans both have the notation “Insufficient area under footprint to provide adequate parking in accordance with council DCP and AS 2890’. These concept plans are discussed in Exhibit J – Statement of Environmental Effects – 2nd Addendum – 21 April 2015 prepared by the applicant’s planner, Mr Daintry.

The issues

23. The issues raised in council’s Amended Statement of Facts and Contentions concern biodiversity, sufficiency of information regarding stormwater management and vehicular access, and the public interest. Prior to the hearing, the applicant provided additional information in regards to stormwater and access and this contention is no longer pressed. There are no issues concerning the design of the proposed residential flat building and its compliance with council’s numerical planning controls.

24. The ecological/ biodiversity contentions are summarised as:

1. The proposed development is contrary to council’s requirements for biodiversity protection; in particular the proposal does not adequately consider avoidance, mitigation, or amelioration of adverse environmental impacts on the BGHF;

2. The Species Impact Statement (SIS) fails to adequately address the Director General’s Requirements provided by the Office of Environment and Heritage [We note that this contention was discussed by the ecologists in their joint report but was not developed in oral evidence or through cross-examination. The relevant particulars were generally covered by the agreed topics for discussion – see [61] of this judgment.]

3. There are insufficient biodiversity offsets on the development site to compensate for the loss of the existing BGHF on the site.

4. The proposed offsite biodiversity offset does not satisfy council’s biodiversity protection controls: in particular the shape is susceptible to weed encroachment, and the duration and timeframe of the proposed VMP are insufficient.

The assessment framework

25. As a residential flat building is proposed, compliance is required with State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development (since replaced by SEPP 65 – Design Quality of Residential Apartment Development).

26. Ku-ring-gai Local Environmental Plan (Local Centres) 2012 (KLEPLC) applies to the development site. Council presses the following aims of the plan in cl. 1.2(2).

(b)   to guide the future development of land and the management of environmental, social, economic, heritage and cultural resources in Ku-ring-gai for the benefit of present and future generations,

(d)   to provide a variety of housing choice within and adjacent to centres;

(e)   to protect, enhance and sustainably manage the biodiversity, natural ecosystems, water resources and ecological processes within the catchments of Ku-ring-gai,

27. The development site is zoned Zone R4 High Density Residential. Residential flat buildings and other forms of housing are permitted with consent. The relevant zone objectives are:

• To provide for the housing needs of the community within a high density residential environment.

• To provide a variety of housing types within a high density residential environment.

• To provide for high density residential housing close to public transport, services and employment opportunities.

28. The offset site is zoned Zone E4 Environmental Living under Ku-ring-gai Local Environmental Plan 2015 (KLEP 2015). This came into effect in April 2015.

29. Clause 6.3 Biodiversity protection in KLEPLC is the key control relevant to this matter. It states:

(1)   The objective of this clause is to protect, maintain and improve the biodiversity and condition of native vegetation and habitat, including:

(a)   protecting biological diversity of native fauna and flora, and

(b)   protecting the ecological processes necessary for their continual existence, and

(c)   encouraging the recovery of threatened species, communities, populations and their habitats, and

(d)   protecting, restoring and enhancing biodiversity corridors.

(2)   This clause applies to land identified as “Areas of Biodiversity Significance” on the Natural Resource – Biodiversity Map.

(3)   Before determining a development application for development on land to which this clause applies, the consent authority must consider:

(a)   the impact of the proposed development on the following:

(i)   any native vegetation community,

(ii)   the habitat of any threatened species, population or ecological community,

(iii)   any regionally significant species of plant, animal or habitat,

(iv)   any biodiversity corridor,

(v)   any wetland;

(vi)   the biodiversity values within any reserve,

(vii)   the stability of the land, and

(b)   any proposed measure to be undertaken to ameliorate any potential adverse environmental impact, and

(c)   any opportunity to restore or enhance remnant vegetation, habitat and biodiversity corridors.

(4)   Development consent must not be granted to development on land to which this clause applies unless it is satisfied [emphasis added] that the development:

(a)   is consistent with the objectives of this clause, and

(b)   is designed and will be sited and managed, so as to avoid any potentially adverse environmental impact, or if a potentially adverse environmental impact cannot be avoided:

(i)   the development minimises disturbance and adverse impacts on remnant vegetation communities, habitat and threatened species and populations, and

(ii)   measures have been considered to maintain native vegetation and habitat in parcels of a size, condition and configuration that will facilitate biodiversity protection and native flora and fauna movement through biodiversity corridors, and

(iii)   the development avoids clearing steep slopes and facilitates the stability of the land, and

(iv)   measures have been considered to achieve no net loss of significant vegetation or habitat.

(5)   In this clause:

Biodiversity corridor means an area that facilitates the connection and maintenance of native fauna and flora habitats and, within the urban landscape, includes areas that may be broken by roads and other urban elements and may include remnant trees and associated native and exotic vegetation.

30. The Natural Resource – Biodiversity Map –Sheet BIO_015C identifies the northern portion of the development site as an Area of Biodiversity Significance.

31. Ku-ring-gai Local Centres Development Control Plan (KLCDCP) applies to the development site. The following elements of Part 1: Site Design, apply.

1.3   Landscape Design

Controls

Site Planning and Design

1   All developments must:

Be designed to conserve indigenous vegetation, habitat and existing natural features on the site as part of the site planning and site layout process;

Note: Where losses occur, compensatory actions are likely to be required. These include measures such as tree replenishment and site rehabilitation.

Retain the most significant, intact and sustainable areas of vegetation;

Retain trees that contribute to the neighbourhood character;

11   Vegetation retention and planting must also consider resilience:

Healthy, undamaged specimens are to be the first priority for conservation, particularly habitat trees

Bushland Protection

13   Where stands of bushland are on or adjacent to a development site, a landscape buffer zone shall be established on the development site between the proposed development and the bushland. The width of the landscape buffer zone shall be determined having regard to:

The location of natural drainage lines and riparian zones;

The presence of habitat, threatened species, populations or communities;

14   Where development is adjacent to bushland, riparian land or other significant vegetation or habitat, the applicant must demonstrate how the ecological values will be protected. Council may require an environmental or vegetation management plan in this regard.

32. Part 6 KLCDCP provides the Biodiversity Controls. This part applies to the development site as the northern portion of the site is identified as being a component of the ‘Greenweb’. The DCP states:

The Greenweb identifies lands containing significant strategic biodiversity values, considered important in the support of native flora, fauna and ecological processes and has a particular focus on key vegetation communities, threatened populations, species and their habitats.

Lands identified as of biodiversity significance KLEP (Local Centres) 2012 (see Clause 6.3) are broken down into four biodiversity categories:

Category 1   Core Biodiversity Lands;

Category 2   Support for Core Biodiversity Lands;

Category 3   Landscape Remnant;

Category 4   Biodiversity Corridors and Consolidation

33. The following controls in Part 6 are relevant to the development site. The northern portion of the site is mapped as ‘Category 3 – Landscape Remnant’.

6.1   All Greenweb Categories

The development must be designed and sited to conserve the areas of vegetation and/or habitat of the highest ecological value on and adjacent to the site, and to minimise fragmentation and edge effects.

6.4   Category 3 – Landscape Remnant

Category 3 – Landscape remnant comprises area that are more fragmented then Support for Core Biodiversity Lands (Category 2), which nevertheless contain key vegetation communities and support core areas (see Table 3). These areas act as stepping stones or habitat islands to facilitate the movement of flora, fauna and genetic resources through the urban landscape and across a range of topographical locations. They also provide important community and aesthetic values.

Table 3: Areas identified as Greenweb Category 3

Category

Description

Category 3

Key vegetation community patches that are >0.1 ha in size or

Contain vegetation in key vegetation communities in good, moderate condition

Significant trees1 within key vegetation communities and the mapped area in which they are located

1Significant trees are local native trees identified as significant due to the presence of habitat (e.g. a hollow), provision of food for wildlife, and / exceptional form or size. The inclusion of significant native trees was opportunistic and does not capture every significant tree within the urban landscape.

1 Avoid locating development on land identified as Category 3 on the Greenweb map.

2 Vegetation retention and rehabilitation on sites that include land identified as Category 3 must be designed to improve connectivity with existing vegetation and habitat.

3 Planting within land identified as category 3 on the Greenweb map is to consist of not less than 50% locally native species. Species are to reflect the relevant vegetation communities within the area. A mix of groundcover shrubs and trees is desirable.

4 Where the site contains high species diversity or is dominated by weeds within any stratum, a vegetation management plan may be required.

6.7      No Net Loss of Biodiversity

1 Development proposals must seek to achieve no net loss of significant vegetation or habitat. Retention of vegetation and habitat in situ remains the preferred method of biodiversity conservation. In the event that loss of vegetation is unavoidable that loss must be mitigated and/or offset.

2 Any proposed loss of vegetation in the Greenweb must be accompanied by a proposal to protect, enhance or create habitat on or off site.

3 Any application for works in the Greenweb…[see 6.7(2)]

4 No net loss of significant vegetation or habitat may be achieved by:

i)   Retention and protection of existing significant vegetation and habitat, or

ii)  Informal compensatory measures:

- Planting and habitat creation, especially where it improves connectivity;

- Rehabilitation of degraded areas;

- Translocation of plants and soils; and

iii) Formal offsetting measures:

- Offsetting on or off the site in accordance with Part 7A of the NSW Threatened Species Conservation Act 1995 (also known as    Biobanking) or Council’s Biodiversity Offset Policy.

5 In determining the appropriate measures a number of factors must be considered:

i) Size and condition of the vegetation or habitat;

ii) Vegetation or habitat significance, including the legislative status, and its Greenweb category;

iii) Scale and duration of the impact;

iv) Current and future landscape context;

v) Level of uncertainty; and

vi) Any other mitigation measures proposed as part of the development.

6 Any proposal involving a formal offsetting mechanism, on or off site, must be in accordance with the following principles:

i) Principle 1: Avoid, Minimise and Mitigate

Offsetting should only be considered once all efforts to avoid, minimise or offset have been exhausted.

ii) Principle 2: The Precautionary Principle

In conducting an offsetting action, the precautionary principle must be applied……

iii) Principle 3: Net Gain

Offsetting must lead to a net gain in native flora and fauna and their respective habitats and improve the condition of the environment over time.

Offset sites should be identified and selected in accordance with regional and local conservation priorities. Offset actions must aim for long-term viability.

iv) Principle 4: Avoiding the Effects of Cumulative Impacts

Offsetting must not be used as a justification for granting approval to developments, where the cumulative environmental impacts are greater than the benefit to be obtained from the offset action.

Offsetting should also consider vegetation that is not lost, but retained on site and is reasonably expected to become degraded over the course of the life of the development.

v) Principle 5: Like-for-Like Protection and management of Biodiversity values

The area protected and managed must be the same vegetation community or habitat type as the community of habitat disturbed.

vi) Principle 6: Improvement in Value of habitat

The area to be protected and managed must be of equal or greater size and biological potential than the area lost. Where the area to be protected and managed is of equal potential, a larger area of habitat will be required to ensure a net gain is achieved. The composition, structure and function of a community should be considered. Offsets can be calculated using Biobanking or Council’s Biobanking Offset Policy.

vii) Principle 7: Enforceability

Formal offsets must be enforceable, secure and permanent. Techniques include:

- Purchase and dedication of land for conservation, or,

- Conservation agreement or covenant over the area to be protected and managed, or,

- Financial contribution to a land manager such as Council or national Parks and Wildlife Service for the restoration and ongoing  management of land which is not currently actively managed.

viii) Principle 8: Supplement existing protection and management

Formal offsets must be supplementary to existing protection and conservation management.

ix) Principle 9: Measurable Targets, Monitoring and Reporting

Monitoring and reporting of formal offsets is required to ensure that the actions have been carried out, and are leading to positive biodiversity outcomes.

34. Part 6 Volume B – 6R.2 summarises the methodology for conservation significance assessment. Relevantly, Category 3 sites are considered to be of value for native invertebrates, birds, habitat for pollinators and maintenance of good quality and quantity of gene flow among fragments. Mention is made in Part 6.22 of 5 ha being the lower limit for applying Biobanking methodology.

35. At the time of the hearing, Ku-ring-gai Council did not have a Biodiversity Offset Policy although references are made to it in the DCP.

The hearing and evidence

36. The hearing commenced on site. The Court and the parties had the benefit of hearing from a number of local residents, one of whom represented other owners of an adjoining residential flat building. Their main concerns are summarised as:

• Loss of Blue Gum High Forest species and subsequent impacts on local biodiversity including a possible perch site used by a Powerful owl; counter to council’s biodiversity controls.

• The trees are the only substantial remnants within about 3 blocks.

• Loss of visual amenity and screening which will not be replaced for some time by the proposed landscaping;

• The offsite offset site will provide no benefit to the local area.

• The proposed residential flat building is excessive in size and exceeds the FSR and other controls including as a consequence of the access handle.

• Unacceptable impacts on local traffic.

37. Both the development site and the proposed offset site were inspected. The parties’ experts assisted.

38. Expert evidence was provided by:

Discipline	Applicant	Council
Planning	Mr Brett Daintry (Consultant)	Mr Jonathon Goodwill (Executive Assessment Officer – council)
Arboriculture	Ms Melanie Howden (Consultant)	Mr Guy Paroissien (Consultant)
Ecology	Dr Meredith Henderson (Consultant) Mr Andrew Morison (Consultant)	Mr John Whyte (Ecologist – council) Mr Dominic Edmonds (Bushland Operations Co-ordinator – council)

39. The experts prepared joint reports and gave oral evidence.

40. The applicant’s fundamental position is that the removal of the BGHF trees on the development site cannot reasonably be avoided and that the proposed on-site and offsite landscaping and bush regeneration works will provide a better long term environmental outcome. Council’s position is that the applicant has not provided sufficient evidence to demonstrate that the impacts on the BGHF cannot be avoided and that the proposed measures are inadequate.

Planning evidence

41. It is agreed that the amended plans have resulted in a building that complies with SEPP 65 and with council’s numerical planning controls. The planners also agree that the development site is located within a comfortable walking distance from Roseville Station and that land close to transport nodes has been identified in regional and draft sub-regional plans as appropriate for increased density of residential and mixed-use purposes. This is to encourage the orderly and economic use and development of land in accordance with object (a)(ii) in s 5 EPA Act.

42. The differences between the planners go to the relative weight to be given to the objectives of the R4 zone and cl. 6.3 ‘Biodiversity protection’ in KLEPLC both within and between the particular objectives of each clause.

43. While Mr Daintry accepts that dwelling houses and other forms of housing are permitted in the R4 zone, he considers this does not achieve the zone objective of providing for ‘high density housing close to public transport, services and employment opportunities’, which in his view is the purpose of the zoning and essentially the highest and best use of the land. In his opinion, significant weight must be given to this objective.

44. In regards to biodiversity protection, Mr Daintry maintains there are two real issues in contention: whether the removal of trees can be reasonably avoided whilst achieving the R4 High Density Residential zone objectives; and, if a potentially adverse environmental impact cannot be avoided, then whether there will be a better environmental outcome delivered by the proposed landscaping on the site and the offsite offset site and associated VMP and bush regeneration works.

45. Mr Daintry opines that DA700/11for which he produced the Statement of Environmental Effects, and which provided for the retention of Trees 20 and 22, the two significant Sydney Blue Gums near the centre of the site, made a fair and reasonable attempt to minimise the environmental impact. However, the application was withdrawn at council’s suggestion because of inadequate information on a range of issues. In Exhibit J, SEE – 2nd Addendum, Mr Daintry considers the architectural plans for options that retain the four significant trees (see [22]). In his opinion, these options provide insufficient parking, have surplus FSR, excess deep soil area, are not in the public interest because they thwart the objects of the EPA Act and the R4 zone objectives, and are uneconomical. As a consequence, Mr Daintry considers the applicant has demonstrated that a potentially adverse impact cannot be avoided (cl 6.3(4)(i) and (ii)). Further, in his view, retaining the two trees in the centre of the site prohibits any reasonable development on the site ([20] Exhibit 5). Mr Daintry considers that the proposed on-site landscaping and offsite offset achieve the objectives of maintaining and improving diversity and condition of native vegetation and should be given significant weight.

46. Mr Goodwill agrees that a consent authority must have regard to the zone objectives; however he considers that that cl 6.3 must be given greater determinative weight as cl. 6.3(4) states that consent must not be granted unless the development satisfies the requirements in subclauses (a) and (b) in cl. 6.3(4). He also notes that dwelling houses are also permissible and therefore it must be assumed that dwelling houses are consistent with the R4 zone objectives, and to this end, it cannot be assumed that the intention of the LEP was to make residential flat buildings the only housing choice in the R4 zone. Mr Goodwill notes that the objectives also provide for ‘a variety of housing types within a high density residential environment’.

47. With respect to assessing a development application against the requirements of cl. 6.3(4)(b), Mr Goodwill considers a two-step approach is required. Firstly, it must be considered whether the development has been designed, sited and managed to avoid any potentially adverse environmental impact. If it has, and it meets the objectives of cl. 6.3, then the second step is not engaged and consideration of matters in cl. 6.3(b)(i)-(iv) is not required (Exhibit 5 [26]). Given his understanding of the ecological assessment provided by the applicant, Mr Goodwill notes that the proposal does not avoid any potentially adverse impact and therefore the second step is required. On his assessment of the ecological material, the proposal does not satisfy the provisions in cl. 6.3(4)(b)(i)-(iv) because as a consequence of the removal of all the BGHF trees: the proposal does not minimise disturbance and adverse impacts on BGHF or maintain any existing native vegetation, the new landscape cannot be categorised as BGHF, and it does not achieve no net loss of significant vegetation. However, he agrees that the offsite offset can be considered in determining whether the development achieves no net loss.

Arboricultural evidence

48. A joint expert report regarding these trees was prepared by the arborists – Ms Howden for the applicant and Mr Paroissien for the respondent. The experts participated in the view and subsequently gave concurrent evidence in court.

49. The four trees were numbered 6, 17, 20 and 22. Tree 17 is a Blackbutt, Eucalyptus pilularis; the other three trees are Sydney Blue Gums, Eucalyptus saligna. There is a range of other trees on the site, mainly exotics, which are not included in the Final Determination as being characteristic of BGHF.

50. The trees were first assessed by Ms Howden on 22 May 2012 with an updated assessment on 13 February 2013, and further assessment in June 2015

51. Ms Howden's inspections were visual inspections from the ground and did not involve probing, coring or other procedures to investigate the trunk, except in relation to tree 20, nor any investigation of roots. Mr Paroissien carried out his assessment in February 2015. His inspection examined foliage density and health, form, structural condition, overall health and vigour and landscape significance. The inspection was visual, and did not involve any probing or coring or investigation of roots. No aerial inspection was carried out.

52. The experts assessed the Safe Useful Life Expectancy (SULE) of the four trees. They were in agreement as to the SULE of Tree 22, but disagreed in relation to the other three.

53. Tree 22 is situated very close to the swimming pool and garden buildings of 3 Corona Avenue. It was suggested on the view that these structures dated from the 1990s. Despite the structures having existed over the root zone of Tree 22 for at least 20 years there was no obvious indication of adverse impact on the tree. It was agreed that Tree 22 is an outstanding specimen of high retention value and landscape significance assigned to SULE category 1, indicating expected life expectancy of more than 40 years.

54. For tree 20 Resistograph® testing was carried out by Urban Tree Management (UTM) in May 2012. The report of this investigation was included as Appendix C to the arborists’ joint report. The UTM investigation detected decay ranging from 52%, 56% and 61% across three cross sections, but not so extensive as to indicate a major likelihood of failure. The report recommends repeat testing within 3 – 5 years.

55. Based on the UTM testing and an assumption that the decay will progress, Ms Howden concludes that Tree 20 has a short SULE of 1-15 years; that is, she would expect the tree to require removal in this period. Mr Paroissien states that the UTM report determined the tree had a short to medium life expectancy and recommended further internal diagnostic testing in order to determine the extent of decay or speed of deterioration. Mr Paroissien concurs with the UTM conclusions. In his opinion, Tree 20 has a life expectancy of between 15 and 40 years depending on the rate of decay and the production of additional tissue.

56. Tree 6, when first assessed by Ms Howden in 2012 had heavy growth of Ivy (Hedera helix) up to 20 m. By the time of the 2013 assessment the Ivy had been removed, and Ms Howden noted that by 2015 the condition of the foliage had improved. Nevertheless, based on the evidence of more than six significant limb failures and significant basal bark cracking and longicorn beetle [borer] damage Ms Howden retains her assessment of a SULE rating of 4 with a recommendation for removal within about 5 years. In her view, given the extent of the limb failures, testing for decay is unnecessary. Mr Paroissien concludes that the tree has shown significant improvement in condition from that reported by Mr Howden in 2012, and that the tree should be given a longer SULE of between 15 and 40 years; this assessment is qualified by recommendation that there be investigation of the extent of possible decay in a stub at 3 to 4 m. If extensive decay were confirmed the SULE would be reduced to perhaps 5-15 years. He accepts that the tree is not currently managed and is a hazard but the risk of it causing damage or injury is low.

57. Tree 17 is the only Blackbutt on the site. The arborists agree that the tree was probably struck by lightning which has caused the large wound on its trunk and the death of one leader. Based on her inspections of the tree and her observation of fungal growths near the base of the trunk, Ms Howden maintains her opinion that this tree will continue to decline and is unlikely to recover, hence her SULE rating of remove within 5 years. Notwithstanding the damage, and the need for pruning of up to 25-30% of the tree should the site be developed, Mr Paroissien considered the remaining canopy to be healthy. In his opinion the tree has a SULE of 15-40 years, is of high to significant landscape value and a priority for retention. He agrees it should be monitored but at this stage it need not be removed. Ms Howden thinks the practical consequences of management would necessitate the removal of a large section of dead canopy which would then create additional wounds. In her view an aerial inspection is not necessary as the damage is visible from the ground and that while some form of internal diagnostic testing may be used, from a practical point of view she considers this not required.

58. The experts agree that all four mature BGHF trees would require removal for the development application before the court to proceed, and that retention of the trees would limit development options for the site, in view of the extent of the tree protection zones (TPZs) required under AS 4970 – 2009 Protection of trees on development sites. They conclude there is ‘no option put forward for consideration that demonstrates partial retention of trees with some encroachment into the TPZs that may result in a viable outcome.’ During the hearing Mr Paroissien stated that while decay in natural forests is desirable in an ecological sense, SULE assessments are carried out in the urban context. The arborists agreed, particularly in regards to hollows and decay, that there is a tension between arboricultural assessments for safety reasons and issues of biodiversity. If the trees were to be retained, in the context of development elsewhere on the site, the arborists agree they would require management and continued maintenance for safety reasons.

59. The arborists agreed that aerial inspections and further internal diagnostic testing would assist in providing a clearer indication of the likely useful life expectancies of the remaining trees.

60. The arborists were asked to consider the appropriateness of the species, number and spacing of the trees shown on the proposed landscape plans for the development site. They prepared an amendment which could be imposed as a condition of consent (Exhibit 13) recommending a number of species substitutions. They also note that clarification is required in relation to the R.L. of Basement Level 1 and the Landscape Plan on the south-western side.

Ecological evidence

61. To assist in managing the expert ecological evidence, four topics were discussed. The four experts participated in joint conferencing and prepared a joint report (Exhibit 6). They assisted on site and gave concurrent evidence. Apart from inspecting the development and the offset sites, the Court and the parties inspected vegetation in Nola Road to the west of the development site. Nola Road is the nearest area of mapped ‘Biodiversity Significance’. It is the eastern extremity of a largish area of principally Greenweb Category 2: Support for core biodiversity lands which follows drainage lines. A number of mature Blue Gums in Nola Road have recently been lopped by council for reasons of safety. The lopped stems retain a number of hollows.

Conservation priority and significance of the development site

62. Dr Henderson and Mr Morison, ecology experts for the applicant, mapped the extent of the BGHF using recent high resolution aerial imagery (December 2014) combined with on-ground inspection and measuring. The approach resulted in an area of impact of about 1100m2 of canopy area minus hardstand, in their opinion, a standard and objective method of determining area, a method which does not usually involve seed dispersal distances. In their view, the patch on the site only just meets the size criteria for listing as Category 3 in Ku-ring-gai Council’s Greenweb system [see [33] of this judgment] however it does not meet the criteria of good or moderate condition. They estimate this patch size to be 0.03% of all BGHF in the Ku-ring-gai LGA. They note that this patch is of insufficient size to be afforded protection under the Commonwealth Environmental Protection and Biodiversity Conservation Act 1999 (EPBC Act).

63. Dr Henderson and Mr Morison are of the opinion that in its current condition and if the status quo were to be maintained, the conservation significance is relatively low because the site and patch is small, in poor condition, of poor structure with little diversity and connectivity, does not have unique habitat values, does not support long term conservation opportunities, is of questionable long term viability, and given the nature of the surrounding development is not going to expand. Given these factors, they consider the ecological process to be limited to use by highly mobile fauna species which do not specifically rely on BGHF and possible transfer of pollen.

62. The applicant’s ecologists do not agree that significant corridor values would be lost given the mapping of the area as ‘Landscape Remnant’ and its position at the terminating arm of BGHF of the local occurrence. As such, they do not consider the patch to form a biodiversity corridor nor would its removal isolate another patch of BGHF. In regards to Nola Road, Dr Henderson considers that notwithstanding the recent lopping of trees along the road, the vegetation in the Nola Road gully and the patch on the site are part of the same local occurrence because of the possible movement of pollen. In the opinion of Dr Henderson and Mr Morison, at the local and LGA level, the removal of the patch on the development site will not lead to the community’s extinction.

63. Mr Whyte, council’s ecologist, argues that the extent of the BGHF on the site is larger than the 1100m2 measured by the applicant’s ecologists because it does not include the dispersal of seed and the soil seed bank. While he accepts that the patch is in poor condition, in his opinion the conservation significance of the patch is high and fundamentally thinks it should be protected because of its listing as a critically endangered ecological community under the TSC Act and because it meets many of the criteria described by the Scientific Committee in the Final Determination. Further, the LEP recognises its significance as part of the site is mapped as ‘biodiversity significant’.

64. With respect to the relationship between the site and Nola Road, Mr Whyte agrees that there may be pollen transfer but as there is no contiguous connection at ground level which would facilitate the movement of soil fungi and other microbes, the vegetation on the site is the local occurrence and therefore removing it removes the local occurrence.

Planning and management of the vegetation presently

67. The BGHF canopy trees define a remnant of BGHF but with lower layers largely comprised of exotic species. The ecology experts disagreed as to whether there was likely to be any prospect of regeneration capacity from a soil seed bank.

68. Mr Edmonds states that he has had success with using moderate intensity fire to successfully restore BGHF on similar weedy sites which have not been burnt for more than 70 years and on which only healthy canopy trees remain. In his opinion the development site is likely to contain a soil seed bank.

69. Dr Henderson and Mr Morison doubted that given the long history of disturbance, there would be a significant seed bank present, or that use of fire at the site would be a practical option. In their view the council’s evidence is speculative, but if the trees were retained, appropriate species of local provenance could be planted as under and mid-storey vegetation. They note that there is no obligation for the current owner to recover the BGHF on the site and no evidence of recruitment.

70. In their joint report, the ecologists debated the merits of maintaining the status quo/ do nothing approach. The applicants’ ecologists consider that if the status quo were to remain, adverse impacts would continue to operate on both sites and on the development site in particular, it is unlikely that in the long-term, any good or even moderate quality of vegetation will prevail. In their opinion, maintaining the status quo does not provide for biodiversity protection or enhancement. Mr Whyte states that retaining the BGHF on site ensures compliance with cl. 6.3 and the relevant controls in the DCP and would result in further enhancement and protection of the BGHF. In his words, “this is not a “status quo” but a mechanism to protect area[s] of biodiversity significance and enhance these areas under the relevant DCP controls.”

Proposed on-site mitigation measures

71. The applicant proposes a landscape plan including 470m2 of a range of BGHF species comprising ground covers, mid-storey and canopy species, principally located towards the rear of the site. While the applicant’s ecologists agree with Mr Whyte that the canopies of the 11 proposed canopy trees, eight of which are BGHF species will be somewhat confined by the proposed development, they opine that the form of the trees will adapt to the space available. They consider that using seed sourced from the existing trees will mitigate against the loss of genetic diversity of the local occurrence. Retained ‘deep soil’ would include a range of soil microbes.

72. When the planting is established the trees and other vegetation will provide some level of connectivity for the mobile species that are commonly found in the area. Dr Henderson and Mr Morison agree that a completely healthy and diverse vegetation community cannot be recreated from bare earth in a short period, however they consider on balance that more BGHF species are being planted than would be lost from the site and when combined with the proposed off-site offset this achieves the ‘improve or maintain’ outcome in accordance with Biobanking methodology. The mitigation measures also achieve ‘no net loss’. They note the Office of Environment and Heritage (OEH) guidelines that allow for planting where insufficient regeneration occurs.

73. The council’s experts consider that that the proposed landscape measures do not improve or compensate for the loss of the BGHF trees on site as the proposal does not retain native vegetation. In their opinion the proposed landscape plan does not meet the structural classification as prescribed in the Final Determination and it cannot be considered as BGHF. In addition, given the constraints and setbacks from buildings, the canopy trees are unlikely to reach their full potential. Mr Whyte maintains that the use of Biobanking methodology does not apply to the development site and overall the proposal does not achieve ‘no net loss’ of biodiversity as required by cl. 6.7 Part 6 KDCP.

Off-site off set

74. The stand of BGHF at the Warrawee site is much larger than that at Corona Avenue, with an intact canopy, although with a large number of non-native species in the ground layer and mid canopy. The site is of irregular shape, with a narrow access handle to Blytheswood Avenue. There is a general fall across the site from its upper part on the northern side. The part of the site which the applicant proposes as an offset, is a strip of land on the upper part of the slope, and is contiguous with BGHF on the adjacent public school and funeral parlour sites.

75. During the joint conferencing, Mr Whyte produced the 1991 development consent for the subdivision of a larger lot which included the funeral parlour site and the offset site (later tendered as Exhibit 10). Condition 7 requires “All unstable filling along the common boundary between the two (2) lots to be removed as detailed on the Geotechnical report by Jeffery and Katauskas Pty Ltd and the area reinstated to the satisfaction of Council’s Chief Engineer.” It is alleged that a bond associated with this consent will be released when the conditions of the 1991 consent are complied with.

76. On the view, the council's ecological experts pointed out that the substrate in that part of the proposed offset adjacent to the funeral parlour site was, in their opinion, largely fill, although the exact extent of the fill had not been determined. In council's experts' opinion the presence of the fill excluded the vegetation growing on it from being included within the definition of BGHF, and in any event, the area of fill could not be included as an offset because of the potential for its removal if the 1991 condition were to be complied with or enforced.

77. A geotechnical report prepared by Jeffrey and Katauskas 25 years ago was in evidence (Exhibit 9). The report includes a map showing the extent of fill, and data from a number of soil pits, one of which, number 10, was within the area now proposed as the offset site. The pits collectively, including 10, show the presence of fill material, but in a relatively shallow layer, mixed with soil. No data from any more recent investigation of the soil was presented.

78. The assemblage of native species present on the fill is of species included in the list of characteristic species in paragraph 2 of the Final Determination. The structure of the vegetation on the fill area is of a number of large dead canopy trees, and a large number of young, growing trees of BGHF species forming an even age cohort. The applicant’s ecologists note that the area of fill is mapped by council as BGHF.

79. The experts agreed on site that, when alive, the now dead tall upper canopy trees in the proposed offset site were growing in Wianamatta Shale derived soils and that when these trees were alive the community was BGHF. The experts were in agreement that it is likely that the emplacement of fill was the cause of tree death. Subsequently potential new canopy trees have grown up, although they are not yet at mature height. Notwithstanding lack of information as to the origin of these young trees (whether they arose from the seed bank or from canopy shed seed), there is no doubt that they are of local provenance.

80. The applicant’s ecologists consider that the development site does not have the condition, size or management that demonstrates a long term conservation outcome, however, the proposed offset site in Warrawee does.

81. In the absence of a council biodiversity offset policy, Dr Henderson, an accredited Biobanking Assessor, used Biodiversity Biobanking Assessment Methodology (BBAM) to “provide a transparent, robust and repeatable means to calculate an appropriate offsite offset.” (Exhibit G, p 14). The method does not take into consideration the proposed plantings on the development site. Applying the Biobanking credit calculator, the required offset was determined to be 1300m2. The Supplementary Offset and Biodiversity Advice (Exhibit G p 15) states:

The proposed offset site at 1 Blytheswood Ave, Warrawee, contains BGHF, is zoned for residential development and has no security of conservation tenure. By providing this site as an offset achieves a no net loss outcome because:

- A larger area of BGHF will be conserved (relative to the subject site loss)

- An area of BGHF that is zoned residential will be conserved

- An area of BGHF that is structurally and species diverse will be conserved

- The site will be actively managed by way of a vegetation management plan

- The conserved area of the site is taken off the ‘development table’ by way of a conservation covenant pursuant to s 88E of the Conveyancing Act 1919.

82. In response to questions about the shape of the offset zone and edge effects, the applicant’s ecologists agree there are edge effects however the area was selected because the best areas of vegetation are on school land, the areas in the offset site are in moderate condition but with more resilience and fewer weeds than downslope. In their view it increases and protects the area in better condition. They also agreed that ongoing maintenance and weed control is required and this is proposed in the VMP. Dr Henderson and Mr Morison state in the joint report that the VMP has key performance targets that are outcome based and if not achieved more work will be required. Mr Edmonds considers the two year restoration period in the VMP is not feasible and that planting and revegetation would take between 8 and 15 years. Mr Whyte raised concerns that should a development application be lodged for residential development on the offset site, the only developable area is in the vicinity of a number of large mature trees, which in his opinion, provide potential habitat.

83. During the concurrent evidence the experts discussed the availability of options for offsetting in accordance with Part 7A of the NSW Threatened Species Conservation Act 1995. They agree that currently there is no registered Biobanking site for BGHF. They also agree that Hornsby Shire Council is currently seeking expressions of interest in the provision of a Biobanking site for BGHF. Mr Morison indicated that there was no certainty that the call would result in an appropriate site being registered, and even if there were responses to the call, the timeframe for completion might be long. Mr Whyte agreed that if a Biobanking option were available, the offsetting might occur outside Ku-ring-gai, but that this would be acceptable. The area proposed for offsetting, and the area of the offset are both below the 5 ha threshold size adopted within the Biobanking methodology. Both parties reported that they had contacted officers within OEH to inquire whether it would be possible to trade as small a number of credits as the applicant had calculated would be required using the Biobanking calculator. Neither party has received absolute assurance from OEH, although Mr Whyte reported a more optimistic response than did the applicant. However, no written confirmation of the advice was tendered.

Submissions

84. Mr Robson SC for the applicant contends that the Court must have regard to the zone objectives. What is proposed is a residential flat building in an area close to public transport and employment which has been recently rezoned as high density. He maintains that the R4 zone creates an expectation that high density residential development is an appropriate use of the land. Mr Robson argues that no reasonable development on land so zoned can avoid ‘any potentially adverse environmental impact’. He presses Mr Daintry’s considerations of options that seek to avoid removing the trees which demonstrate that because of the constraints of the trees and other characteristics of the site, high density housing which achieves compliance with parking and other controls cannot be accommodated on the site.

85. Mr Robson submits that while biodiversity is a significant consideration, the objectives in cl 6.3 of protecting, maintaining and improving biodiversity should not be confined to a discrete site but considered in a much broader context. He cautions against taking a literal approach to the interpretation of cl. 6.3(4)(b) that requires a development to be sited to avoid any potentially adverse environmental impact. In citing Pepper J in Dobrohotoff v Bennic [2013] NSWLEC 61; 194 LGERA 17 at [34]-[36] in regards to the interpretation of environmental planning instruments, Mr Robson maintains that a reasonable, rational and realistic approach should be taken which weighs up the condition of the vegetation on the site against what is proposed by way of other measures to improve biodiversity both on and off the site.

86. With reference to Arkibuilt Pty Ltd v Ku-ring-gai Council [2014] NSWLEC 1161, Mr Robson contends that in that matter, the Court could not be satisfied that amendments to the proposal could not be made to avoid significant vegetation on the site as no other plans or evidence were produced to demonstrate the impacts could not be avoided. He argues that in this case the applicant has seriously considered avoidance by preparing and discussing other plans, but as adverse environmental impact cannot be avoided, the applicant has proposed measures which meet the objectives of cl. 6.3 by protecting, maintaining and improving biodiversity outcomes in that broader context.

87. In regards to the ecological and arboricultural evidence, Mr Robson submits there has been a proper assessment of the condition of the vegetation on the site and in the light of its poor condition, appropriate recompense has been offered. The offset site is not pristine and will benefit from the proposed work. In the absence of a council Biobanking policy, he presses the Biobanking expertise of the applicant’s ecologists and the uncomplicated and well-considered documents prepared by them, in particular the ‘Supplementary Biobanking and Offset Advice’ (Exhibit G) and the ‘Vegetation Management Plan’ (Exhibit H) including the s 88B measure contained in it. In conclusion, Mr Robson noted that should the Court be minded to approve the development, the application will need to be amended to include the offset site.

88. Ms McWilliam for the council contends that what the applicant has offered has not discharged the onus on an applicant to demonstrate that potentially adverse environmental impacts cannot be avoided and all options have been exhausted. These options may include limited removal of trees. She submits that the applicant’s interpretation of cl. 6.3 is flexible and novel and not adopted in Arkibuilt. Ms McWilliam cites Bathurst CJ in Hudson v Arap 1 (NSW) Pty Ltd [2015] NSWCA 126 at [25] where His Honour states (citations omitted): “The principles concerning construction of statutory provisions are well established. As was stated by the plurality of the High Court…”the task of statutory construction must begin with a consideration of the text itself…The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy”.” She maintains that while s 79C(3A) of the EPA Act enables a more flexible approach in the application of a DCP, that does not extend to LEPs. Ms McWilliam contends that the text, context and purpose of cl. 6.3 clearly go to protecting biodiversity. Further, she submits that Critically Endangered Ecological Communities require that every effort must be taken to avoid impacts on them. In support of this proposition the council relies on the findings in Ingham Planning Pty Ltd v Ku-ring-gai Council [2010] NSWLEC 1222 at [139]-[168].

89. Ms McWilliam notes that all experts accept the removal of the BGHF from the development site is an adverse environmental impact. She contends that this acknowledgement, in itself, would be sufficient to warrant refusal. The council’s position is that even if the applicant could satisfy the provision that impact cannot be avoided, the proposal fails the requirements of cl. 6.3(4)(b) because the proposal does not minimise adverse impacts on remnant communities and threatened species, it does not maintain a vegetation and habitat parcel of a size that facilitates biodiversity protection, and does not achieve ‘no net loss’ of significant vegetation as the offset and VMP are inadequate. Ms McWilliam also contends that the offsite offset site may be irrelevant as it is in not in an area covered by KLEPLC. She also presses Mr Whyte’s opinion that BGHF on the development site is the local occurrence and therefore its removal will place the local occurrence at the risk of extinction. In this regard, Ms McWilliam contends it will have a significant impact on a threatened ecological community as considered by s 5A(2)(c) EPA Act.

90. Apart from failing the necessary criteria in KLEPLC, Ms McWilliam asserts that the proposal also fails the relevant criteria in applicable parts of the DCP in particular Part 1.3 Landscape Design and Parts 6.4 and 6.7 – Biodiversity Controls. With respect to the offsite offset site, Ms McWilliam maintains the uncertainty surrounding the future of the fill is too great a risk to take when a CEEC is at stake.

91. In regards to Mr Daintry’s evidence Ms McWilliam argues it is flawed as fails to consider other permitted forms of development that may be equally consistent with the zone objectives.

Consideration

92. As stated by McClellan CJ in BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 at [114] an application could be approved in circumstances where the benefits outweigh likely environmental harm, but making this assessment will be a task for the consent authority (or the Court acting in the consent authority’s shoes) on the basis of the facts and circumstances of each individual case. In BGP Properties, at [117] McClellan CJ observed that ‘In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site.’ and …’The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instruments which the zoning reflects.’ Zone R4 has a large number of permissible uses (the range of which could not be said to be ‘confined’), and the objectives of the LEP (Local Centres) are also broad. The consent authority thus has a broad flexibility in interpreting and applying the LEP. Applying the principles in Dobrohotoff would not give us reason to adopt Mr Daintry’s interpretation requiring favouring Residential Flat Buildings over other permissible usages-an interpretation which might fall into the category of “pre-conceived ideas or vague notions” warned against in Dobrohotoff at [35].

92. The proposed residential flat building provides for the housing needs of the community within a high density residential environment, provides one form of a variety of housing types, and provides for high density residential housing close to public transport, services and employment opportunities. Therefore we are satisfied that what is proposed meets all the relevant objectives of the R4 High Density Residential Zone. While other forms of residential development are permitted in the R4 zone, an alternative form of residential accommodation is not before the Court.

93. There is agreement that the proposed building is satisfactory on numerical and design quality grounds.

94. However, before granting consent to the proposed development, we must be satisfied that it achieves the outcomes in cl. 6.3(4) KLEPLC.

95. The objective of cl. 6.3 is to: protect, maintain and improve the diversity and condition of native vegetation and habitat by: protecting biological diversity, protecting ecological processes necessary for biological diversity, and encouraging the recovery of threatened species, communities, populations and their habitats and protecting, restoring and enhancing biodiversity corridors. These objectives are broad and while they must apply to any proposed development site, they could apply to any proposed development that includes the protection of biodiversity and recovery of threatened communities elsewhere in the LGA.

96. It is common ground that the proposal requires the removal of four mature trees that comprise a landscape remnant of BGHF. The applicant’s case rests on the replacement of these trees with a structured landscape planting of BGHF species on the site and the restoration and protection of an area of better quality BGHF elsewhere in the LGA. Mr Robson urges us not to take a literal view of the first part of cl. 6.3(4)(b) because virtually all development has the potential for at least some adverse environmental impact and thus avoidance is almost impossible. While we generally accept that proposition, it remains incumbent on the applicant to firstly and adequately demonstrate that all reasonable options for avoiding the loss of a remnant of Critically Endangered Ecological Community have been explored, and secondly, if this cannot be avoided or minimised, then demonstrating how the proposal achieves the outcomes in cl. 6.4(3)(b).

97. Dealing with the first requirement, the applicant refers to a previous development application that retained trees 20 and 22. The applicant subsequently withdrew that application because of a number of concerns raised by council, including the absence of a Species Impact Statement. The applicant appears to rely on the fact that they made an attempt to retain the trees but this was somehow rejected by council, however, no evidence was adduced as to why the applicant could not comply with council’s concerns. For whatever reason, the applicant determined to prepare an entirely different scheme rather than pursue the earlier proposal. In our view, the two options put forward in Exhibit J do not adequately demonstrate the impossibility of avoiding the loss of all of the BGHF trees . Although in the course of the hearing the applicant sought to call their architect to the witness box to explain the options, this was denied on the grounds of procedural fairness. We note that council’s Amended Statement of Facts and Contentions has been with the applicant since May 2015. The issue of avoidance has been clearly raised. The applicant had ample opportunity through the usual process to request joint conferencing between the applicant’s architect and an architect or other appropriately qualified expert engaged by the council to address Contention 1(d).

98. Clearly there cannot be a requirement for a very large number of options to be considered but some middle ground may still be available, and more serious canvassing of options might be expected. Similarly, to the extent that the applicant relies on Ms Howden’s assessment of the short useful life expectancy of three of the trees, in oral evidence the arborists agreed that aerial inspections and further internal diagnostic testing would assist in providing a clearer indication of the likely useful life expectancies of the remaining trees. This in turn would better inform both the development options on the site and the habitat value of the trees in regards to hollows; this could potentially confine the impact to one tree. We note council’s pragmatic approach in Nola Street to managing the tension between risk management and biodiversity. However, we cannot be satisfied that enough has been done to avoid any potentially adverse impact, and we should refuse the appeal on these grounds.

99. Notwithstanding this finding, we propose to consider cl. 6.3.4(a) and cl.6.3(4)(b) ((i) – (iv)). Before addressing these subclauses we note that, by virtue of cl. 6.3(2), cl. 6.3 applies to land identified as “Areas of Biodiversity Significance” on the Natural Resources – Biodiversity Map in KLEPLC. The offsite offset site is not land to which this clause applies as the relevant LEP would be KLEP 2015. The question is whether the part of the proposal involving areas additional to Corona Avenue can be considered under cl 6.3 of the KLEPLC. This might be a matter for legal debate, but we were not taken by either party to any argument or elaboration on the point. Given that the DCP clearly endorses, as an option, Biobanking, and this could involve not only offsite, but outside the LGA, then we consider it is legitimate to consider the offsite offset under the considerations required in cl 6.3.(3)

100. Considering cl. 6.3(4)(b) helps us in our determination of cl. 6.3(4)(a). When considered literally, the proposal removes a landscape remnant of BGHF on the site and clearly does not minimise disturbance or adverse impacts on the site (cl. 6.3(4)(b)(i)) and nor does it maintain that remnant parcel of native vegetation that would facilitate biodiversity protection and movement of flora and fauna (cl.6.3(4)(b)(ii)). On this interpretation, the proposal must fail.

101. However, in taking a broader view, the parties’ ecologists differed in their opinions as to whether the patch on the site was the extent of the local occurrence or formed part of a biodiversity corridor. In weighing up this competing evidence, the applicant’s ecologists have provided a considered and reasoned approach using objective methods to support their opinions summarised in paragraphs [63]-[64] of this judgment. That is, the conservation significance of the patch and its value as a biodiversity corridor are relatively low because of its small size, poor condition, poor structure, the nature of surrounding development and the consequential limitations for expansion, and its position at the terminating end of the local occurrence (which is larger than the landscape remnant at the rear of the site). Mr Whyte disputes their findings on the basis that it does not include seed dispersal or micro flora and fauna however he provides no verifiable evidence or alternate methodology to substantiate his opinion that the patch is the local occurrence. With the expertise the Court brings to the matter, we consider that even if there is substantial pollination, any resultant seed will be very limited in its opportunity to germinate and establish. We also agree that the fauna likely to use the patch are wide ranging and or not specifically reliant on BGHF. However, we also agree that incremental loss can have a long term impact on higher trophic level fauna such as owls. We agree with the applicant’s ecologists that Mr Edmonds suggestion of patch burning is impractical on the development site and unlikely to be very popular with residents of neighbouring properties. On balance, we are persuaded by the applicants’ ecologists that removal of the four trees will not have a significant impact on the local occurrence of BGHF or on the functioning of the more substantial Greenweb Category 2 patch to the west of the site. However, our reading of cl. 6.3(4) is that with the exception of sub-cl. 6.3(4)(b)(iv), its construction precludes this broader approach.

102. In regards to cl. 6.3(4)(b)(iv) and whether measures have been taken to achieve ‘no net loss’ of significant vegetation or habitat, we are not assisted by the fact that this term is not defined in any of the applicable instruments or controls. Strategies for ‘no net loss’ are covered in Part 6.7 KDCP but no definition is provided. Some of the debate between the parties’ ecologists went to the benefits or otherwise of maintaining the status quo/ do nothing on both sites or implementing the proposed landscaping and offset measures (see [70]). That is, in the context of this development application, does what is proposed provide better biodiversity outcomes than refusal?

103. Part 6.7(4) KDCP provides a range of measures by which ‘no net loss’ of significant vegetation or habitat may be achieved. A literal reading of this Part implies that no net loss can be achieved by retention and protection of significant vegetation or informal compensatory measures and formal offsetting measures. The applicant proposes two mitigation measures: landscaping on the development site using a proportion of BGHF species (informal) and restoration of an area at 1 Blytheswood Avenue, Warrawee (formal).

104. In regards to the on-site landscaping, on a purely quantitative analysis, the area proposed to be landscaped with BGHF species is less than the area currently covered by the canopies of the four trees, although the number of canopy trees and other species is increased. Looking qualitatively, the replacement species address the structural and diversity deficiencies of the development site. We agree that local provenance material rather than horticultural cultivars of BGHF species should be used. We find that the proposed landscaping will be partial recompense for the loss of the four trees and, assuming its ongoing maintenance, the trees will achieve a stature that provides visual amenity and will provide food, perching and other habitat values for biodiversity in the longer term. We note that the proposed landscaping complies with council’s numerical controls.

105. Turning to the proposed offset site in Warrawee, the key components of any threatened ecological community for the purpose of listing on the Schedules of the TSC Act are the definition of the assemblage of species comprising the community, and the particular area in which the assemblage occurs. The BGHF Final Determination defines the assemblage of species in Paragraph 2 and the particular area, in terms of local government areas, in Paragraph 8; Ku-ring-gai is one of the Local Government Areas specified. The forest community developing in the proposed offset area is in our opinion, based on its composition and location, an example of BGHF and is not disqualified from this attribution by occurring in a previously disturbed and filled area, as recolonization has been a natural process, rather than being the consequence of deliberate planting. In our view, the assemblage of native species present on the fill is of species included in the list of characteristic species in Paragraph 2 of the Final Determination. The structure of the vegetation on the fill area is of a number of large dead canopy trees, and a large number of young, growing trees of BGHF species forming an even age cohort. We consider any removal of the fill will have an undesirable impact on the BGHF in its vicinity. [We note the 1991 condition of consent requiring the removal of the fill was imposed prior to the listing of BGHF as an EEC or indeed, the enactment of the TSC Act.]

106. It was claimed that the size of the offset area was determined based on Biobanking methodology The value was presumably on the basis of the successful implementation of the Vegetation Management Plan, so the value will be higher than the current value of the area (because of the removal of weeds and so on). However, according to Dr Henderson’s statement in oral evidence, the methodology did not factor in consideration of size and shape. The area proffered has a large edge/area ratio, so will be exposed to edge effects .If there is no management of the main part of the Blytheswood Avenue site , there will be the potential for continuing weed propagule movement across the boundary into the offset. We would agree with Mr Whyte that a patch with a lower edge/ area ratio might be preferable, however, the rationale behind the selection of the area (see [81]-[82]) is reasonable and not without merit.

107. The applicant’s ecologists agree that the VMP could be more detailed and provide more certainty as to the long term management of the offset. Absent those details as well as lack of clarity as to how a s88B covenant would work into the future, we cannot be satisfied that its protection in perpetuity is guaranteed.

108. Despite this, we cannot say that the applicant’s approach in offering an off-site offset is wrong as it is anticipated in council’s DCP. Our difficulty is with council’s formal offsetting measures in Part 6.7(4)(iii) which requires offsetting on or off the site in accordance with Part 7A TSC Act (Biobanking) or with council’s biodiversity offset policy. There is no council biodiversity offset policy, and no indication was given that any such policy was likely in the near future. In the absence of a council policy, strict compliance with Part 6.7(4)( iii) would require application of Biobanking on or off the site in accordance with the TSC Act. However, on Mr Morison’s evidence (at [83]) it would appear that currently there is no registered Biobanking site for BGHF. The applicant’s proposal for use of Biobanking methodology but not in a biobank site would not be possible under this part of council’s DCP. In the particular case of BGHF then a literal interpretation would be that there is no mechanism currently available for formal offsetting and if the ‘and’ is read as a strict conjunctive, Part 6.7(4) cannot be achieved and no net loss of biodiversity is impossible so any development proposal would need to be refused. In our view this would defeat the objectives both of KLEP (Local Centres) as a whole and the specific objectives of clause 6.3. This may be a situation where literal interpretation is, in the circumstances, inappropriate.

109. Given the uncertainties arising from the forgoing discussion, we cannot be satisfied that what is proposed is consistent with the objectives of cl. 6.3 KLEPLC. This conclusion, along with our findings in [99] has the consequence that the proposal does not meet the tests in cl. 6.3(4) and we cannot grant consent to this development.

Orders

111. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application DA0095/13 for the construction of a residential flat building at 1-3 Corona Avenue, Roseville is determined by refusal.

3. The exhibits except A, B, C, D, M and 2 are returned.

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Judy Fakes

Commissioner of the Court

_______________________

Paul Adam

Acting Commissioner of the Court

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Decision last updated: 27 August 2015