Pluim Commercial Contractors Pty Ltd trading as Pluim Group v Central Coast Council

[2019] NSWLEC 1077

Land and Environment Court

New South Wales

Medium Neutral Citation:	Pluim Commercial Contractors Pty Ltd trading as Pluim Group v Central Coast Council [2019] NSWLEC 1077
Hearing dates:	Conciliation conference on 4 February 2019
Date of orders:	27 February 2019
Decision date:	27 February 2019
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	See orders at [31] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference – agreement between the parties – orders
Legislation Cited:	Biodiversity Conservation Regulation 2017 Biodiversity Conservation (Savings and Transitional) Regulation 2017 Environment Protection Biodiversity Conservation Act 1999 (Cth) Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Native Vegetation Act 2003 Threatened Species Act 1995 Wyong Local Environment Plan 1991 Wyong Local Environmental Plan 2013
Category:	Principal judgment
Parties:	Pluim Commercial Contractors Pty Ltd trading as Pluim Group (Applicant) Central Coast Council (Respondent)
Representation:	Solicitors: S Nevin, Sparke Helmore Lawyers (Applicant) M Ball, Central Coast Council (Respondent)
File Number(s):	2018/208700
Publication restriction:	No

Judgment

1. On 13 June 2014, the Central Coast Council granted development consent to the Applicant for the construction of a place of worship on land, being Lot 9 in DP 825892, located at 7 Kyte Place, Tumbi Umbi (the site).

2. The consent (DA/905/2013) approved the removal or thinning of 0.95 ha of native vegetation on the site with approximately 0.55 ha required to be retained. This vegetation is Coastal Plains Smooth- barked Apple Woodland (with an ecotone with Coastal Narrabeen Moist Forests in the south). Although there are no Endangered Ecological Communities (EEC), there was one threatened tree recorded on the site – a Syzgium paniculatum. This species was, as at the date of the consent, listed as Endangered under the Threatened Species Act 1995 (now repealed) and as Vulnerable on the Environment Protection Biodiversity Conservation Act 1999 (Cth) but was approved to be removed.

3. Prior to removal of any vegetation on the site, the consent requires the Applicant obtain an approved property vegetation plan (PVP) from the Local Land Services (LLS). Condition 5 provides as follows:

“5. Prior to removal of native vegetation an approved property vegetation plan (PVP) from Local Land Services in accordance with the Native Vegetation Act 2003 must be obtained. Correspondence from the Local Land Services must be submitted to Council demonstrating that the requirements of the Native Vegetation Act 2003 have been satisfied.”

4. However, this is no longer possible as the Native Vegetation Act2003 has been repealed. It seeks the Court’s approval to modify the consent under s 4.55(1A) of the Environmental Planning and Assessment Act1979 (EPA Act) (2018 Modification Application) by deleting Condition 5 and replacing it with two new conditions 5A and 5B which state:

“5A Prior to the removal of any vegetation, a Biodiversity Development Assessment Report must be submitted to the Council. The Council must be satisfied that the Biodiversity Development Assessment Report has been prepared in accordance with the Biodiversity Conservation Act 2016, Biodiversity Assessment Method and Biodiversity Conservation Regulation 2017. The Biodiversity Development Assessment Report must include consideration of the stick nest that has been identified on the site.

5B   Prior to commencement of any vegetation clearing works, the number and class of ecosystem and species credits specified in the Biodiversity Development Assessment Report are to be retired to offset the residual biodiversity impacts of the development. The requirement to retire credits may be satisfied by payment to the Biodiversity Conservation Fund of an amount equivalent to the class and number of species or ecosystem credits, as calculated by the Biodiversity Offsets Payment Calculator. Evidence of the retirement of the required credits or payment to the Biodiversity Conservation Fund must be provided to Council prior to commencement of any vegetation clearing works.”

Background

5. The background facts to this appeal are detailed in the Statement of Facts and Contentions (SOFC) filed by the Council dated 2 August 2018. They are complicated but need to be understood.

6. It seems that at the date of lodgement of the DA, the site was zoned 7C Scenic Protection – Smallholding under Wyong Local Environmental Plan 1991 (WLEP 1991). Under that planning instrument, “places of worship” are a permissible type of development with consent. Subsequent to the grant of development consent, the WLEP 1991 changed in 2013 and the approved use became prohibited.

7. By virtue of the savings provision for development applications lodged prior to the commencement of the Wyong Local Environmental Plan 2013 under cl 1.8A, the Applicant’s consent is saved and required to be assessed under the previous WLEP 1991.

8. On 26 November 2014, the consent was modified (referred to as the 2014 Modification Application) but Condition 5 remained as set out above.

9. On 25 August 2017, the Native Vegetation Act2003 was repealed and the Biodiversity Conservation Act 2016 was commenced. At the same time, the Minister declared the Central Coast Council as an interim designated area with the requirements of the Biodiversity Conservation Act 2016 deferred until 24 November 2018.

10. As at 25 August 2017, the Applicant had not obtained the PVP (Property Vegetation Plan) required under Condition 5 the consent.

11. On 21 November 2017, the Applicant submitted an application pursuant s 96(1A) of the former EPA Act (2017 Modification Application) (identified as B) to modify the consent to delete Condition 5. As the 2017 Modification Application was lodged during the Biodiversity Conservation Act 2016 savings and transitional period, it was assessed under the former planning provisions (Biodiversity Conservation (Savings and Transitional) Regulation 2017, cll 27(1)(f) and 28).

12. The 2017 Modification Application sought to modify Condition 5 of the consent as follows:

“5. Prior to removal of native vegetation a Biodiversity Development Assessment Report (BDAR) prepared in accordance with the Environment Planning and Assessment Act 1979 must be obtained and complied with. Evidence must be submitted to Council demonstrating that the requirements of the BDAR are have been satisfied”.

13. The Council did not determine the 2017 Modification Application within the requisite time, so on 1 March 2018 the Applicant lodged this appeal to the Court under the EPA Act. On 9 March 2018, the Applicant submitted a further application pursuant to s 96(1A) of the former EPA Act to modify the consent. The Council treated this last application as being made pursuant to s 4.55(1A) of the current EPA Act (2018 Modification Application).

14. The 2018 Modification Application was lodged during the Biodiversity Conservation Act2016 savings in transitional period and therefore was assessed under the former planning provisions (Biodiversity Conservation (Savings and Transitional) Regulation 2017 cll 27(1)(f) and 28).

15. At the time of the granting of the consent, separate approval for the clearing of native vegetation associated with the proposal was required under the Native Vegetation Act 2003 to be issued by New South Wales LLS.

16. The Native Vegetation Act2003 was repealed on August 2017 resulting in the LLS no longer being able to issue PVPs.

17. The facts were further complicated in June 2018 when the LLS identified the existence of a “stick nest” on the site (unknown large bird) for which a 50 m protection radius from the tree trunk was needed. The Applicant was advised. And, on 28 June 2018, the LLS further advised that it could not approve the clearing of native vegetation of the site as proposed under DA/905/2013. It determined that the proposed clearing of remnant native vegetation on the site did not meet the “improve or maintain” environmental outcomes under the Native Vegetation Act 2003.

18. In accordance with Council’s Development Control Plan (DCP), the 2018 Modification Application was notified and 47 submissions were received.

19. Before the Council determined the DA, the Applicant lodged this appeal to the Court on a deemed to have refused basis.

20. After lodgement of this application, the Council wrote to the Applicant requesting evidence to demonstrate lawful commencement of the consent in accordance with s 4.53 of the EPA Act. It did this because the consent specified that it lapsed on 13 June 2016. In response, the Applicant gave the Council a Statutory Declaration dated and prepared by the Applicant’s surveyor, Mr Paul Hutcheon on 11 December 2018 identifying the works carried out on the site between February and October 2015. It also provided evidence of the building, engineering and construction works (involving physical activity on the land) that related to the development the subject of the consent having been lawfully carried out on the land under the consent prior to 13 June 2016. Based on this information, the Council has informed me that it now accepts that the consent has been lawfully commenced and, that I have jurisdiction to deal with this appeal.

21. I accept the agreed position of the parties in respect of this matter which is based on the evidence of Mr Paul Hutcheon (Surveyor) Statutory Declaration made on 11 December 2018 (filed as Annexure C to the Section 34 Agreement filed in the proceedings) and my own observations of the construction and engineering works physically commenced under the consent on the site. These works were pointed out to me by the parties at the site view which preceded the Court arranged conciliation conference held under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) on 4 February 2019. I was the presiding commissioner.

22. At the same time, I also heard oral evidence from several local residents and community representative who responded to the Council’s notification of the modification application and these proceedings. Noting, notwithstanding the clear explanation given by Mr Martin Ball, the Council’s solicitor, onsite to the objectors that the proceedings were only concerned with the deletion of Condition 5 and not a reconsideration of the original grant of the consent – several submitters did just that. Needless to say the evidence against the development more generally is not relevant and has not been taken into account.

23. That said, the submitters who focussed on the modification at issue were articulate in their concern for the protection of the native vegetation and fauna on the site including the “stick nest” identified in June 2018 by LLS. Relevantly, they objected to the deletion of Condition 5 in the absence of alternate conditions ensuring (prior to the removal of any vegetation) an appropriate biodiversity development assessment – including: a consideration of the “stick nest” and credits for vegetation clearing works to offset any residual biodiversity impacts of the development.

24. These relevant matters informed the subsequent discussion held between the parties when the conciliation conference resumed later in the morning at the Council’s Wyong Chambers. And, it was during this period that the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to them. This decision involves upholding the appeal and deleting Condition 5 and substituting the alternate Conditions 5A and 5B (set out above).

25. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4. 55(1A) of the EPA Act to modify the consent on the basis that it involves minimal environmental impact. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings in the Annexure C to their s 34 Agreement.

26. After a review of the evidence and the law, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

27. In that regard, as already stated, there is no jurisdictional impediment to my approving of the modification on the basis that the consent has lapsed under s 4.53 of the EPA Act. It has been commenced. Additionally, I am also satisfied that the modification sought will generate minimal environmental impacts (s 4.55(1A)(a) of the EPA Act), if I approve the deletion of Condition 5 and substitution of proposed Conditions 5A and 5B. I have formed this view based on the expert assessment prepared by Ms Lily Gorrell of Ecological Australia as expressed in her written statement which is an attachment to Annexure C to the s34 Agreement.

28. In short, I accept that Condition 5 required the Applicant to obtain a PVP under the Native Vegetation Act 2003 prior to the removal of native vegetation. The Native Vegetation Act2003 was repealed, and the Biodiversity Conservation Act2016 commenced, on 25 August 2017. The Biodiversity Conservation Act2016 establishes a framework to avoid, minimise and offset the impacts of proposed development and land-use change on biodiversity (s 1.3 (k)) including the establishment of a biodiversity offsets scheme the creation and retirement of credits in accordance with a biodiversity development assessment report.

29. The deletion of Condition 5 and substitution of Conditions 5A and 5B will result in the need for the retirement of credits in the same way that PVP would have required an offset to be obtained. The proposed modification (being the deletion of Condition 5 and the imposition of Conditions 5A and 5B) will therefore have a minimal environmental impact and the development to which the consent is modified relates will be substantially the same development as the development which consent is originally granted before the consent was modified.

30. In exercising the statutory power or function of the Council in determining the proceedings under s 4.16 of the EPA Act, I have had regard to the fact that the application has been notified in accord with Chapter 2.4 of the Council’s DCP in March and April 2018 and considered the public submissions concerning the proposed modification as required by s 4.55(1A)(d) of the EPA Act. The objectors have also been given an opportunity to make further submission during the site inspection. And, as the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

31. Accordingly, the Court orders:

1. The Appeal is upheld.

2. Modification Application No. DA/905/2013/C to modify Development Consent No. DA/905/2013/A is determined by approving the modifications as set out in Annexure “A” (being the deletion of Condition 5 and addition of substitute Conditions 5A and 5B).

3. As a consequence of Order (2), Development Consent No. DA/905/2013/C is now subject to the modified conditions of development consent set out in Annexure “B”.

………………………………

S Dixon

Senior Commissioner of the Court

Annexure A 

Annexure B 

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Decision last updated: 27 February 2019