Ryan v Northern Regional Planning Panel (No 4)

[2020] NSWLEC 55

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

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

Hearing dates:

10-17 February 2020

Date of orders:

14 May 2020

Decision date:

14 May 2020

Jurisdiction:

Class 4

Before:

Pain J

Decision:

See [309]-[310] of judgment

Catchwords:

CIVIL ENFORCEMENT– residential development likely to have significant impact on threatened species – requirement for species impact statement with development application – no species impact statement provided with development application – development consent invalid

 

CIVIL ENFORCEMENT – breach of Heritage Act 1977 arising from excavation of potential relic – exculpating circumstances

 CIVIL ENFORCEMENT – earthworks and roadworks authorised under construction certificate not inconsistent with development consent

Legislation Cited:

Biodiversity Conservation Act 2016
Coroners Act 2009 Pt 5
Environmental Planning and Assessment Act 1979 ss 4.15, 4.16, 5A, 6.32, 9.45, 9.46, 78A
Environmental Planning and Assessment Regulation 2000 reg 145
Heritage Act 1977 ss 4, 4A, 139, 153, 154
Land and Environment Court Act 1979 ss 25A, 25B, 25C, 25E
Lismore Local Environmental Plan 2012 (Amendment No 13) Sch 1
National Parks and Wildlife Act 1974
Public Health Regulation 2012
Threatened Species Conservation Act 1995 ss 3, 4, 8, 94A, Pt 6 Div 2 (ss 109-113), Sch 2 Pt 1, Sch 3

Cases Cited:

ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67
Aldous v Greater Taree City Council (2009) 167 LGERA 13; [2009] NSWLEC 17
BT Goldsmith Planning Services Pty Limited v Blacktown City Council [2005] NSWLEC 210
Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (2017) 226 LGERA 54; [2017] NSWCA 263
Burwood Council v Ralan Burwood Pty Ltd and Others (No. 3) (2014) 206 LGERA 40; [2014] NSWCA 404,
Carstens v Pittwater Council (1999) 111 LGERA 1; [1999] NSWLEC 249
Coffs Harbour City Council v Arrawarra Beach Pty Ltd (2006) 148 LGERA 11; [2006] NSWLEC 365
Corowa v Geographe Point Pty Ltd (2007) 154 LGERA 117; [2007] NSWLEC 121
Dasreef Pty Limited v Hawchar (2011) 243 CLR 588; [2011] HCA 21
Friends of Tumblebee Inc v ATB Morton Pty Ltd (No 2) (2016) 215 LGERA 157; [2016] NSWLEC 16
Gold and Copper Resources Pty Limited v Hon Chris Hartcher MP, Minister for Resources and Energy, Special Minister (No 2) [2014] NSWLEC 30
Jones v Dunkel (1959) 101 CLR 298
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited (2010) 210 LGERA 126; [2010] NSWLEC 48
Oshlack v Richmond River Council (1993) 82 LGERA 222
Smyth v Nambucca Shire Council (1999) 105 LGERA 65; [1999] NSWLEC 226
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335

Category:

Principal judgment

Parties:

Michael Ryan (Applicant)
Northern Regional Planning Panel (First Respondent)
Lismore City Council (Second Respondent)
Winten (No 12) Pty Ltd (Third Respondent)
W A Sexton (Fourth Respondent)
Glorbill Pty Ltd (Fifth Respondent)

Representation:

COUNSEL:
M Hall SC (Applicant)
Submitting appearance (First Respondent)
Submitting appearance (Second Respondent)
Richard Beasley SC and Janet McKelvey (Third Respondent)
Submitting appearance (Fourth Respondent)
Submitting appearance (Fifth Respondent)

  SOLICITORS:
A Oshlack, agent (Applicant)
Department of Planning (First Respondent)
McCartney Young Lawyers (Second Respondent)
Dentons (Third to Fifth Respondents)

File Number(s):

19/6908

Judgment

1. The Applicant is a Bundjalung elder living in North Lismore. He has commenced civil enforcement proceedings challenging a decision to approve a subdivision on part of the North Lismore Plateau by the First Respondent the Northern Regional Planning Panel, (the Panel), on 17 October 2018 and a construction certificate (CC) issued by Lismore City Council (the Council) the Second Respondent inter alia. All respondents have filed submitting appearances apart from the Third Respondent Winten (No 12) Pty Ltd (Winten) the developer.

2. The three issues the focus of the “Third Further Amended Summons” are (i) whether a species impact statement (SIS) was required to be lodged before determination by the Panel; (ii) whether a breach of the Heritage Act 1977 occurred when the potential for a relic existing, being a suspected gravesite, was dug up without an excavation permit; and (iii) whether the Civil Works CC 14.2017.270.1 for earthworks and work on a road is invalid and void because no development consent for the work had been given.

3. The relief sought in the Third Further Amended Summons is:

1 A declaration that the [sic] s 78A(8) of the Environmental Planning and Assessment Act 1979 applied for a purported Development Application (“the DA”) on land described as Lot 2 DP 1214953 and Lot 3 DP 808657, Dunoon Road (“the land”) by reason of the existence of threatened species including:

a.   A viable local population of Carterornis leucotis (also known as White-eared Monarchs), defined as a threatened species under Schedule 1 of the Biodiversity Conservation Act 2016; and

b.   A viable local population of Nyctophilus bifax (also known as Eastern Long­Earred [sic] Bats), defined as a threatened species under Schedule 1 of the Biodiversity Conservation Act 2016.

2 By virtue of order 1, a declaration that Development Consent 2017/270 granted on 17 October 2018 by the First Respondent to the 2nd, 3rd, 4th and 5th Respondents (“the Consent”) was invalidly made, void and of no effect as the DA when lodged failed to comply with s 78A(8) of the Environmental Planning and Assessment Act 1979,

2A   A declaration that Construction Certificate CC 14.2017.270.1 granted on the 12th February 2019 by the Second Respondent to the Third Respondent (“the Construction Certificate”) is invalid and thereby void and of no effect.

3   A declaration that the Third, Fourth and Fifth Respondents have breached or will cause to be breached either jointly or severally:

a. section 139 of the Heritage Act 1977,

b. or alternatively section 86 of the National Parks and Wildlife Act1974. [NOT PRESSED]

4   A declaration that the third respondent in undertaking activity purportedly in reliance on the consent or construction certificate is unapproved development without consent.

5 Further to pleadings 1, 2, 2A, 3 and 4 above an order requiring the Second, Third, Fourth and Fifth Respondents to reinstate the land to any extent necessary in accordance with section 9.46(2)(c) of the Environmental Planning and Assessment Act 1979 and s 154(1)&(2) of the Heritage Act 1977.

6   An order restraining the second, third, fourth and fifth respondents their partners, employees, agents, contractors and servants from undertaking any work that seeks reliance on the consent and/or construction certificate.

4. Additional relief is sought in the event that the Heritage Act breach is established as contained in the “Terms of Relief in Relation to the Grave Destruction Issue” (MFI 2). A breach of the National Parks and Wildlife Act 1974 (NPW Act) concerning harm to Aboriginal remains is no longer pressed directly in these proceedings but will be mentioned in the context of the relief sought in MFI 2 if that becomes relevant.

Legislation

5. The parties agree on which versions of the Environmental Planning and Assessment Act 1979 (EPA Act) and Environmental Planning and Assessment Regulation 2000 (EPA Regulation) apply at the relevant key dates so that it is unnecessary to consider detailed transitional provisions. At the time development application (DA) no 5.2017.270.1 (2017/270) was lodged on 24 August 2017, ss 5A and 78A of the EPA Act were then in force which referred in turn to the Threatened Species Conservation Act 1995 (TSC Act) (now repealed). The suspected gravesite was excavated on 12 January 2018. It is noted that prayer 1 of the Third Further Amended Summons above refers to the Biodiversity Conservation Act 2016, but the reference should be to the TSC Act given the timing. Development consent was granted by the Panel on 17 October 2018. The proceedings commenced on 8 January 2019. The CC was issued on 12 February 2019.

Environmental Planning and Assessment Act 1979

6. Relevant sections of the EPA Act as at 24 August 2017 (date of lodgement of DA) provided:

Part 1 Preliminary

…

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

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

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

(b)   any assessment guidelines.

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

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

…

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

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

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

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

…

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

(3)   In this section:

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

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

…

Part 4 Development assessment

…

Division 2 The procedures for development that needs consent

…

78A   Application

(1)   A person may, subject to the regulations, apply to a consent authority for consent to carry out development.

…

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

…

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

7. Sections 4.16 of the EPA Act (current) as at 12 February 2019 (date CC issued) provided:

Part 4 Development assessment and consent

…

Division 4.3 Development that needs consent (except complying development)

4.16   Determination

(1)   General A consent authority is to determine a development application by:

(a)   granting consent to the application, either unconditionally or subject to conditions, or

(b)   refusing consent to the application.

…

(12)   Effect of issuing construction certificate If a consent authority or an accredited certifier issues a construction certificate, the construction certificate and any approved plans and specifications issued with respect to that construction certificate, together with any variations to the construction certificate or plans and specifications that are effected in accordance with this Act or the regulations, are taken to form part of the relevant development consent (other than for the purposes of section 4.55).

…

8. Sections 9.45 and 9.46 of the EPA Act (current) provide:

Part 9 Implementation and enforcement

…

Division 9.5 Civil enforcement proceedings

…

9.45   Restraint etc of breaches of this Act

(1)   Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach.

(2)   Proceedings under this section may be brought by a person on his or her own behalf or on behalf of himself or herself and on behalf of other persons (with their consent), or a body corporate or unincorporated (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings.

(3)   Any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings.

(4)   (Repealed)

9.46   Orders of the Court

(1)   Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.

(2)   Without limiting the powers of the Court under subsection (1), an order made under that subsection may—

(a)   where the breach of this Act comprises a use of any building, work or land—restrain that use,

(b)   where the breach of this Act comprises the erection of a building or the carrying out of a work—require the demolition or removal of that building or work, or

(c)   where the breach of this Act has the effect of altering the condition or state of any building, work or land—require the reinstatement, so far as is practicable, of that building, work or land to the condition or state the building, work or land was in immediately before the breach was committed.

(3)   Where a breach of this Act would not have been committed but for the failure to obtain a consent under Part 4, the Court, upon application being made by the defendant, may—

(a)   adjourn the proceedings to enable a development application to be made under Part 4 to obtain that consent, and

(b)   in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned.

(4)   The functions of the Court under this Division are in addition to and not in derogation from any other functions of the Court.

(5) Nothing in this section affects the provisions of Division 3 of Part 3 of the Land and Environment Court Act 1979.

9. The Applicant accepts that it cannot avail itself of s 6.32 of the EPA Act given that it came into effect on 1 December 2019 replacing reg 145(2) of the EPA Regulation.

Division 6.8 Miscellaneous

6.32   Validity of certificates under this Part

Without limiting the powers of the Court under section 9.46 (1), the Court may by order under that section declare that a certificate under this Part (other than an occupation certificate) is invalid if:

(a)   proceedings for the order are brought within 3 months after the issue of the certificate, and

(b)   the plans and specifications or standards of building work or subdivision work specified in the certificate are not consistent with the development consent for the building work or subdivision work.

10. Accordingly reg 145 (2) of the EPA Regulation applies to the CC.

Environmental Planning and Assessment Regulation 2000

11. Regulation 145 of the EPA Regulation as at 12 February 2019 (date CC issued) provided:

Part 8 Certification of development

…

Division 2 Construction certificates

…

145   Compliance with development consent and Building Code of Australia

(1)   A certifying authority must not issue a construction certificate for building work unless:

(a1)   the plans and specifications for the building include such matters as each relevant BASIX certificate requires, and

(a)   the design and construction of the building (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 140) are not inconsistent with the development consent, and

(b)   the proposed building (not being a temporary building) will comply with the relevant requirements of the Building Code of Australia (as in force at the time the application for the construction certificate was made).

(2)   A certifying authority must not issue a construction certificate for subdivision work unless the design and construction of the work (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 140) are not inconsistent with the development consent.

(3)   Subclause (1) (b) does not apply to the extent to which an exemption is in force under clause 187 or 188, subject to the terms of any condition or requirement referred to in clause 187 (6) or 188 (4).

Lismore Local Environmental Plan 2012

12. The Land Use Table of the Lismore Local Environmental Plan 2012 provided:

Zone E2 Environmental Conservation

1 Objectives of zone

To protect, manage and restore areas of high ecological, scientific, cultural or aesthetic values.

•   To prevent development that could destroy, damage or otherwise have an adverse effect on those values.C

•   To retain areas of unique natural vegetation, particularly rainforest remnants and ecologically endangered communities.

2 Permitted without consent

Environmental protection works

3 Permitted with consent

Boat launching ramps; Building identification signs; Business identification signs; Environmental facilities; Extensive agriculture; Flood mitigation works; Jetties; Oyster aquaculture Research stations; Roads; Water recreation structures

4 Prohibited

Business premises; Hotel or motel accommodation; Industries; Multi dwelling housing; Pond-based aquaculture; Recreation facilities (major); Residential flat buildings; Restricted premises; Retail premises; Seniors housing; Service stations; Tank-based aquaculture; Warehouse or distribution centres; Any other development not specified in item 2 or 3

Zone E3   Environmental Management

1   Objectives of zone

•   To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values.

•   To provide for a limited range of development that does not have an adverse effect on those values.

•   To encourage the retention of wildlife habitats and associated vegetation and wildlife corridors.

2   Permitted without consent

Environmental protection works; Extensive agriculture; Home occupations

3   Permitted with consent

Bed and breakfast accommodation; Boat launching ramps; Building identification signs; Business identification signs; Camping grounds; Caravan parks; Cellar door premises; Community facilities; Dairies (pasture-based); Dwelling houses; Eco-tourist facilities; Emergency services facilities; Environmental facilities; Farm buildings; Farm stay accommodation; Flood mitigation works; Home-based child care; Home businesses; Home industries; Information and education facilities; Jetties; Kiosks; Neighbourhood shops; Oyster aquaculture; Pond-based aquaculture; Recreation areas; Research stations; Roads; Roadside stalls; Tank-based aquaculture; Water recreation structures

4   Prohibited

Industries; Multi dwelling housing; Residential flat buildings; Retail premises; Seniors housing; Service stations; Warehouse or distribution centres; Any other development not specified in item 2 or 3

Threatened Species Conservation Act 1995

13. Relevant sections of the repealed TSC Act as between 18 August 2017 to 24 August 2017 provided:

Part 1 Preliminary

…

3 Objects of Act

The objects of this Act are as follows:

(a)   to conserve biological diversity and promote ecologically sustainable development, and

(b)   to prevent the extinction and promote the recovery of threatened species, populations and ecological communities, and

(c)   to protect the critical habitat of those threatened species, populations and ecological communities that are endangered, and

(d)   to eliminate or manage certain processes that threaten the survival or evolutionary development of threatened species, populations and ecological communities, and

(e)   to ensure that the impact of any action affecting threatened species, populations and ecological communities is properly assessed, and

(f)   to encourage the conservation of threatened species, populations and ecological communities by the adoption of measures involving co-operative management.

4 Definitions

(1)   In this Act:

habitat means an area or areas occupied, or periodically or occasionally occupied, by a species, population or ecological community and includes any biotic or abiotic component.

…

key threatening process means a threatening process specified in Schedule 3.

…

threatened species means a species specified in Part 1 or 4 of Schedule 1, Part 1 of Schedule 1A or Part 1 of Schedule 2.

...

vulnerable species means a species specified in Part 1 of Schedule 2.

…

8 Schedule 3 list of key threatening processes

Schedule 3 contains a list of key threatening processes for the purposes of this Act.

Part 6 Licensing

…

Division 1 Grant of licences

…

94A Assessment guidelines

(1) The Minister may, by order published in the Gazette, issue guidelines (assessment guidelines) relating to the determination of whether an action is likely to significantly affect threatened species, populations or ecological communities, or their habitats.

(2)   An order under this section (including any order that amends, revokes or replaces such an order) may be made only with the concurrence of the Minister for Planning.

…

Schedule 3 Key threatening processes (Section 8)

Aggressive exclusion of birds from woodland and forest habitat by abundant Noisy Miners, Manorina melanocephala (Latham, 1802)

…

Anthropogenic Climate Change

Bushrock removal (as described in the final determination of the Scientific Committee to list the threatening process)

Clearing of native vegetation (as defined and described in the final determination of the Scientific Committee to list the key threatening process)

…

Invasion and establishment of exotic vines and scramblers

…

Invasion, establishment and spread of Lantana (Lantana camara L. sens. lat)

Invasion of native plant communities by African Olive Olea europaea subsp. cuspidata (Wall. ex G. Don) Cif.

Invasion of native plant communities by Chrysanthemoides monilifera

Invasion of native plant communities by exotic perennial grasses

…

Loss and degradation of native plant and animal habitat by invasion of escaped garden plants, including aquatic plants

Loss of hollow-bearing trees

…

Predation by the Feral Cat Felis catus (Linnaeus, 1758)

…

Removal of dead wood and dead trees

Land and Environment Court Act 1979

14. Relevant sections of the Land and Environment Court Act 1979 (LEC Act) provide:

Part 3 Jurisdiction of the Court

…

Division 3 Orders of conditional validity for certain development consents

25A   Application of Division

(1)   This Division applies to—

…

(b)   a development consent granted, or purporting to be granted, under the Environmental Planning and Assessment Act 1979—

(i)   by any other consent authority, and

(ii)   in respect of a development application made on or after the commencement of this subsection.

(2)   This Division extends to invalidity arising from any steps preliminary to the granting of a development consent to which this Division applies, whether those steps were taken, or should have been taken, by the Minister or any other consent authority, or by any other person or body.

(3) In particular, this Division extends to invalidity arising from non-compliance with requirements declared to be mandatory requirements under section 102 of the Environmental Planning and Assessment Act 1979.

(4)   A reference in this Division to the Minister is a reference to the Minister responsible for the administration of the Environmental Planning and Assessment Act 1979.

…

25C   Orders for validity of development consents

(1) On application by the Minister or any other consent authority for an order under this subsection on the grounds that the terms specified under section 25B have been substantially complied with and that it is not proposed that the relevant development consent be regranted with alterations, the Court may make an order—

(a)   declaring that the terms have been substantially complied with, and

(b)   declaring that the consent is valid, and

(c)   revoking the order of suspension.

(2) On application by the Minister or any other consent authority for an order under this subsection on the ground that the terms specified under section 25B have been substantially complied with and that the development consent has been regranted with alterations as referred to in section 103 of the Environmental Planning and Assessment Act 1979, the Court may make an order—

(a)   declaring that the terms have been complied with, and

(b)   declaring that the development consent has been validly regranted, and

(c)   declaring that the suspended development consent has been revoked, and

(d)   revoking the order of suspension.

…

25E   Duty of Court

It is the duty of the Court to consider making an order under this Division instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part.

Heritage Act 1977

15. Relevant sections of the Heritage Act as at 12 January 2018 provided:

Part 1 Preliminary

…

4   Definitions

(1)   In this Act, except in so far as the context or subject-matter otherwise indicates or requires:

…

relic means any deposit, artefact, object or material evidence that:

(a)   relates to the settlement of the area that comprises New South Wales, not being Aboriginal settlement, and

(b)   is of State or local heritage significance.

…

4A   Heritage significance

(1)   In this Act:

…

local heritage significance, in relation to a place, building, work, relic, moveable object or precinct, means significance to an area in relation to the historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value of the item.

…

Part 6 Other measures for the conservation of the environmental heritage

…

Division 9 Protection of certain relics

…

139   Excavation permit required in certain circumstances

(1)   A person must not disturb or excavate any land knowing or having reasonable cause to suspect that the disturbance or excavation will or is likely to result in a relic being discovered, exposed, moved, damaged or destroyed unless the disturbance or excavation is carried out in accordance with an excavation permit.

(2)   A person must not disturb or excavate any land on which the person has discovered or exposed a relic except in accordance with an excavation permit.

…

Part 7 Implementation and enforcement

…

Division 2 Orders of the Court

…

153   Restraint etc of breaches of this Act

(1)   Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been infringed by or as a consequence of that breach.

(2)   Proceedings brought under subsection (1) shall be brought in accordance with the rules of Court.

154   Order of the Court

(1)   Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.

(2)   Without limiting the powers of the Court under subsection (1), an order made under that subsection may:

(a)   where the breach of this Act comprises a use of a building or work or of land—restrain that use, or

(b)   where the breach of this Act comprises the erection of a building or the carrying out of a work—require the demolition or removal of the building or work, or

(c)   where the breach of this Act has the effect of altering the appearance of a building or work or the state of land—require the restoration of the building or work or the reinstatement, so far as is practicable, of the land to the condition the building, work or land was in immediately before the breach was committed, or

(d)   where the breach of this Act comprises the demolition of the whole or part of a building—require the rebuilding of the building, as it was immediately before the breach was committed, in accordance with plans and specifications approved by the Heritage Council.

(3)   (Repealed)

Statement of Agreed Facts

16. An agreed statement of facts (SOAF) relied on by the parties states:

The development consent

1.   The proceedings concern a development consent for the subdivision of land at Lismore, being part of the area known as the North Lismore Plateau.

2.   Development application 17/270 (the Development Application) was lodged with Lismore City Council (the Second Respondent) on 24 August 2017. The development application was lodged by Planners North, being the consultant planning firm retained by the Third, Fourth and Fifth Respondents.

3.   The Development Application, as assessed by the Second Respondent, included:

(a)   A flora and fauna assessment prepared by Peter Parker. The assessment was updated during the course of assessment of the development application and submitted in final form prior to determination of the development application on 30 July 2018.

(b)   An engineering report and civil plans prepared by TGM Group and Planit Consulting. The report and plans were updated during the course of assessment of the development application and submitted in final form prior to determination of the development application on 21 September 2018.

4.   The Development Application did not include a species impact statement.

5.   The decision to grant development consent subject to conditions was made by the Northern Regional Planning Panel (the First Respondent) on 17 October 2018, following assessment of the Development Application by the Second Respondent.

6.   The Notice of Determination of the Development Application was issued by the Second Respondent on 24 October 2018, being Development Consent 5.2017.270.1 (the Consent).

7.   The Consent granted development consent to development on the following lots (together, the Land):

(a)   Lot 2 DP 1214953 and Lot 3 DP 808657 - owned by Glorbill Pty Ltd (the Fifth Respondent)

(b)   Lot 1 DP 367581, Lot 12 DP 844585 and Lot 1 DP 772627 - owned by the Second Respondent

8.   The Consent approved residential subdivision of the Land across two “precincts” (precincts 1 and 2) plus a local centre allotment, open space and areas for environmental management.

9.   The Consent also includes a concept approval only of 43 residential lots in precinct 3.

10.   The Consent also includes approval on the lots owned by the Second Respondent for the purposes of emergency fire access.

11.   The development approved by the Consent is depicted in the plan attached and marked “A” [attach “Ultimate Overall Proposal Plan” 14 Feb 2018117312-30B1] [omitted by parties]

12.   The Third Respondent is the proponent of the development application and intends to develop the Land in accordance with the Consent.

The other parties

13.   The Applicant, Michael Ryan, is a traditional owner of the land, a member of the Widjaba/Wiyabal clan within the Bundjalung nation, and a Bundjalung elder.

14.   At the time of lodging the Development Application the Fourth Respondent was the owner or one of the owners of Lot 2 in DP1044983, and consented to the lodging of the Development Application. The Fourth Respondent is the sole director of the Fifth Respondent.

15.   The Fifth Respondent is the owner of Lot 2, DP1214953 and Lot 3 DP 8088657.

The planning proposal

16.   The Development Application was made following a rezoning of the Land in 2015 from RU1 Primary Production.

17.   The Land was rezoned R1 General Residential, E2 Environmental Conservation and E3 Environmental Management. A small portion in the south-east was zoned B1 Neighbourhood Centre. A portion of the Land was retained as RU1 Primary Production.

18.   Ecological studies were carried out in the course of the planning proposal the subject of the rezoning. These studies were referred to by Peter Parker in the flora and fauna assessment submitted with the Development Application.

The construction certificate

19.   Subsequent to the Consent being issued, the Third Respondent, through its consultant engineering firm, Planit Consulting, made an application for a civil works construction certificate reliant on the Consent. The application was for bulk earthworks in precinct 1 and precinct 2.

20.   Civil Works Construction Certificate 14.2017.270.1 (the Construction Certificate) was issued by the Second Respondent on 12 February 2019.

21.   The Construction Certificate provides for excavation of a “borrow pit” in precinct 2 and the use of excavated material for the purposes of fill in precinct 1.

22.   The works the subject of the Construction Certificate are in the course of being carried out by the Third Respondent's contractors. These works are subject to undertakings given by the Third Respondent to the Court in the course of interlocutory proceedings determined by Justice Moore on 2 December 2019.

The suspected grave

23.   Consultants for the Third Respondent, Everick Heritage Consultants, undertook a site inspection of the Land on 30 November 2016 prior to submission of the Development Application. This inspection identified a suspected grave within the area of precinct 2.

24.   On 18 January 2017, Richard Yelf of Georadar carried out a ground penetrative survey of the suspected grave. The report of Mr Yelf concluded as follows:

... it is our interpretation that this grave-like feature near the ridge line on the Winten Property Group site on the North Lismore Plateau represents the probable burial of two persons. They appear to be the graves of early settlers inferred to be from the 1850- 1890 period.

The interpreted burial on the north western side of the inferred grave appears to be an adult of full stature, and the adjacent burial appears to be more diminutive and possible represents a female, or a large (teenage) child.

25.   In November 2017, Everick Heritage Consultants published a report in response to the findings of Mr Yelf and concluded that the site could have high archaeological potential because of the suspected grave. This report made two alternative recommendations.

26.   On 12 January 2018 Tony Lowe of Casey & Lowe Archaeology & Heritage were retained by the Third Respondent to further investigate the suspected grave. Physical works were carried out at the location of the suspected grave. Mr Lowe provided a report to the Third Respondent in which he concluded there was no evidence that the suspected grave was a grave.

27.   The Third Respondent did not obtain an excavation permit under the Heritage Act 1977 [or an Aboriginal heritage impact permit under the National Parks & Wildlife Act – not pressed].

Threatened species

28.   The Eastern Long-eared Bat, nyctophifus bifax, has been detected on the Land. It is a threatened species within the meaning of the Threatened Species Conservation Act 1995.

29.   The White-eared Monarch, Carterornis leucotis, has been detected on the Land. It is a threatened species within the meaning of the Threatened Species Conservation Act 1995.

17. The planning proposal referred to in pars 16-18 of the SOAF for the North Lismore Plateau was approved in 2015. It provided for the rezoning of rural land in three areas, the northern, central and southern sections, to R1 Residential, E2 Environmental Conservation and E3 Environmental Management. The precise area of rezoned land on the North Lismore Plateau is unclear in the evidence. A reference to 225 hectares appears in the evidence as does 334 hectares. The land the subject of the development consent (the Land) is located in the central section of the wider rezoned area of the North Lismore Plateau.

18. The Land relevant to those proceedings (see par 7 of SOAF) is described in the Statement of Environmental Effects (SEE) as 70.95 hectares (Lot 2 DP 1214953), 8.091 hectares (Lot 3 DP 808657), excluding roads. Lot 2 and Lot 3 are divided into Precincts 1, 2 and 3 for the purpose of the subdivision. For clarity, references to the Land mean Precincts 1, 2 and 3.

19. The development is described in the development consent as follows:

Subdivision of land to create a total of 433 residential allotments, a commercial allotment, open space and areas for environmental management. The proposed development will be undertaken as follows:

•   Precinct 1: total of 95 residential allotments, local centre allotment, open space and provision for environmental management;

•   Precinct 2: total of 295 residential allotments, open space and areas for environmental management;

•   Precinct 3: staged development consent sought in accordance with Section 83B of the EP&A Act for the creation of 43 residential allotments. Concept approval is sought for Precinct 3 and this area will be the subject of a further development application.

20. On the map below the Land is outlined in red and some of the wider rezoned area on the North Lismore Plateau is indicated by a dashed yellow line. The development footprint is shown in black hatching. The Land is between two roads, Dunoon Road on the east boundary and Booerie Creek Road on the west boundary.

21. Precinct 1 is on the eastern side of the Land. It is mostly covered by the development footprint. Small patches of vegetation, including a patch of forest red gum grassy open forest, fall within the development footprint and will be cleared. There are no areas of E2 or E3 zoned land in Precinct 1. Dunoon Road runs along the eastern boundary of Precinct 1.

22. Precinct 2 is the largest precinct, located centrally between Precincts 1 and 3. The western side of Precinct 2 is zoned R1, and is mostly covered by the development footprint. The vegetation types that fall within the development footprint on Precinct 2 that will be cleared are low closed forest to tall closed shrubland dominated by privet and camphor laurel, camphor laurel closed forest, and forest red gum grassy open forest. The remainder of Precinct 2 is zoned either E2 or E3 (largely), and includes various vegetation types that will be retained including low closed forest to tall closed shrubland dominated by privet and camphor laurel and hoop pine yellow tulipwood dry rainforest. The vegetation that will be retained on Precinct 2 includes a large band of E3 zoned forest that runs from north to south along the eastern edge of Precinct 2. This band of E3 zoned forest is interrupted by the development footprint where a road is to be developed between Precincts 1 and 2.

23. Precinct 3 is the smallest precinct, located on the western side of the Land. Precinct 3 contains land zoned E2, E3 and R1. The vegetation on Precinct 3 consists of low closed forest to tall closed shrubland dominated by privet and camphor laurel with shrub layer of desmodium acanthocladum (thorny pea). The development footprint has not been mapped on Precinct 3 as only concept approval has been granted. It is therefore unclear what vegetation will be cleared and what will be retained if development proceeds on Precinct 3. Booerie Creek Road runs along the western boundary of Precinct 3.

Evidence

24. The Applicant tendered: “Determination and Statement of Reasons” by the Northern Regional Planning Panel dated 17 October 2018 (development consent) (Ex A); evidence book (Ex B); a five volume tender bundle (Ex C); four A4 drone photographs of the Land (Ex D); an email from Richard Yelf (Georadar Research Pty Ltd (Georadar)) to Tim Robins (Everick Heritage Consultants (Everick)) attaching a report on GPR survey dated 20 January 2017 (Ex E); emails between Tim Robins (Everick) and Tony Lowe (Casey & Lowe) about a suspected early settlers gravesite in North Lismore between 28 January 2018 and 14 February 2018 (Ex F); a letter from Office of Environment and Heritage (OEH) to Lismore City Council providing input on DA 2017/270 dated 31 October 2017 (Ex G); “White-eared Monarch profile” from NSW Department of Planning, Industry and Environment website and “White-eared Monarch profile” by Higgins et al, 2006 (Ex H); “Constraints Mapping of North Lismore Plateau” by Warren and Associates (Ex J); and photo of track on the Land (Ex K).

24. Winten tendered: eight A3 versions of figures from the Robertson report (Ex 1); “Threatened species assessment guidelines” (TSCA Guidelines) (Ex 2); article “Roost selection by the North Queensland long-eared bat Nyctophilus bifax in littoral rainforest in the Iluka World Heritage Area, New South Wales” by Lunney et al (Ex 3); and A3 internal access road plans approved by Lismore Council on 14 April 2016 (Ex 4).

Summary of affidavits

26. The Applicant read four affidavits. The affidavit of Mr Michael Ryan signed 27 February 2019 described his opinion that the cultural heritage assessment report prepared by Everick in August 2017 failed in many respects to comply with relevant guidelines, particularly when it dealt with matters concerning the destruction of a gravesite which ground penetrating radar (GPR) had identified as containing two bodies. Mr Ryan stated that the development as approved would cause irreparable damage to this significant site.

27. The affidavit of Mr Patrick Michael Speeding, an elder of the Bundjalung Nation and a member of the Bundjalung Elders Council, affirmed 28 October 2019 described the sacredness of the North Lismore Plateau for his community and noted his objection to the development.

28. The affidavit of Ms Marie Anne Delbridge, an elder of the Bundjalung people and a member of the Bundjalung Elders Council, affirmed 28 October 2019 described the sacredness of the North Lismore Plateau for her community. Ms Delbridge objected to the development noting the presence of burials, sacred trees and women sites on the Land that may be desecrated or destroyed.

29. The affidavit of Mr Lewis Walker, a member of the Many Rivers people of the Wahlabul, Wherabul, Whirabul clans within the Bundjalung Nation, affirmed 22 October 2019 deposed to his support of the Applicant, recognised traditional owner of sacred totems Burninj and Namahl (echidna and goanna) and described his duty to prevent the threats facing his people if destruction or desecration of these totems come about.

30. The Applicant also sought to read part of the affidavit of Ms Vanessa Walsh solicitor for Winten sworn 27 November 2019, objected to by Winten on the basis of lack of relevance. Only par 14 and Annexure B were read.

Species impact statement ground

Threatened species assessment guidelines

31. Under s 5A(3)(a) of the EPA Act any assessment guidelines must be taken into account in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats. “Assessment guidelines” mean assessment guidelines issued and in force under s 94A of the TSC Act. The parties tendered the TSCA Guidelines dated August 2007 relied on by the ecologists in their evidence as the relevant guideline for the purposes of the TSC Act.

32. Extracts of the TSCA Guidelines (Ex 2) state:

Introduction

…

The Threatened Species Conservation Amendment Act 2002 revised the factors that need to be considered when assessing whether an action, development or activity is likely to significantly affect threatened species, populations or ecological communities, or their habitats, previously known as the “8-part test”. The changes affect s 5A EP&A Act, s 94 Threatened Species Conservation Act 1995 (TSC Act) and s 220ZZ Fisheries Management Act 1994 (FM Act).

These revised factors of assessment maintain the earlier intent of the legislation but focus particularly on likely impacts to the local rather than the regional environment. The reason for the shift to a local focus is that the long-term loss of biodiversity at all levels arises mainly from the accumulation of losses and depletions of populations at a local level. This is the broad principle underpinning the TSC Act, state and federal biodiversity strategies, and international agreements.

…

Assessment guidelines

Section 94A of the TSC Act and s. 220ZZA of the FM Act provides that the Minister for Climate Change, Environment and Water and the Minister for Primary Industries, with the concurrence of the Minister for Planning, may prepare assessment guidelines to assist in the interpretation and application of the factors of assessment.

These guidelines have been prepared to help applicants/proponents of a development or activity with interpreting and applying the factors of assessment. The aim of the guidelines is to help ensure that a consistent and systematic approach is taken when determining whether an action, development or activity is likely to significantly affect threatened species, populations or ecological communities, or their habitats either directly or indirectly.

Making determinations requires technical expertise, and knowledge of species and their habitats. The guidelines assume that those undertaking an assessment of significance have sufficient knowledge and experience to do so.

These guidelines clarify the specific terminology of the relevant legislation and provide clear interpretations of the factors of assessment. Further guidance, including examples and case studies will be provided in a supplementary document.

The assessment of significance should not be considered a “pass or fail” test but a system allowing applicants/proponents to undertake a qualitative analysis of the likely impacts, and ultimately, whether further assessment needs to be undertaken through a species impact statement. All factors must be considered and an overall conclusion must be drawn from all factors in combination. Where there is reasonable doubt regarding the likely impacts, or where detailed information is not available, a species impact statement should be prepared. Other issues not specifically addressed by the factors of assessment should be included and discussed in the broader impact assessment process, for example, in a review of environmental factors or an

environmental impact statement.

…

Terminology

…

Subject site means the area directly affected by the proposal.

Study area means the subject site and any additional areas which are likely to be affected by the proposal, either directly or indirectly. The study area should extend as far as is necessary to take all potential impacts into account.

Direct impacts are those that directly affect the habitat and individuals. They include, but are not limited to, death through predation, trampling, poisoning of the animal/plant itself and the removal of suitable habitat. When applying each factor, consideration must be given to all of the likely direct impacts of the proposed activity or development.

Indirect impacts occur when project-related activities affect species, populations or ecological communities in a manner other than direct loss. Indirect impacts can include loss of individuals through starvation, exposure, predation by domestic and/or feral animals, loss of breeding opportunities, loss of shade/shelter, deleterious hydrological changes, increased soil salinity, erosion, inhibition of nitrogen fixation, weed invasion, fertiliser drift, or increased human activity within or directly adjacent to sensitive habitat areas. As with direct impacts, consideration must be given, when applying each factor, to all of the likely indirect impacts of the proposed activity or development.

The factors of assessment

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

…

Life cycle: the series or stages of reproduction, growth, development, ageing and death of an organism.

Viable: the capacity to successfully complete each stage of the life cycle under normal conditions.

Local population: the population that occurs in the study area. The assessment of the local population may be extended to include individuals beyond the study area if it can be clearly demonstrated that contiguous or interconnecting parts of the population continue beyond the study area, according to the following definitions.

…

•   The local population of resident fauna species comprises those individuals known or likely to occur in the study area, as well as any individuals occurring in adjoining areas (contiguous or otherwise) that are known or likely to utilise habitats in the study area.

…

Risk of extinction: the likelihood that the local population will become extinct either in the short-term or in the long-term as a result of direct or indirect impacts on the viability of that population

Application

The key assessment is risk of extinction of the local population. The risk of extinction will increase if any factor operates to reduce population size or reproduction success. The components of the life cycle of a species are dependent on its habitat and affected by threats to the species. The removal or modification of habitat or changes to the nature of important periodic disturbances such as fire or flood may affect the survival of that species. Therefore, it is important that the applicant/proponent not only has an understanding of the species’ life cycle, but also an understanding of the way in which a species makes use of its habitat, the way this may change at particular times or in certain seasonal conditions, and whether the life cycle is dependent on a particular disturbance.

…

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

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

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

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

Interpretation of key terms used in this factor

Habitat: the area occupied, or periodically or occasionally occupied, by any threatened species, population or ecological community and includes all the different aspects (both biotic and abiotic) used by species during the different stages of their life cycles.

Extent: the physical area removed and/or to the compositional components of the habitat and the degree to which each is affected.

Importance: related to the stages of the species' life cycles and how reproductive success may be affected.

Locality: the same meaning as ascribed to local population of a species or local occurrence of an ecological community.

Application

When applying this factor, consideration must be given to all short-and long-term impacts (direct and indirect) on habitat which are likely to support threatened species, populations and ecological communities regardless of whether the habitat occurs on the subject site. This applies to both occupied and unoccupied habitat because the recovery of threatened species, populations and ecological communities relies on them having access to suitable habitat to move into as numbers increase.

The extent to which habitat is likely to be removed or modified should be determined by estimating the total area of habitat to be directly and indirectly impacted by the proposed development, activity or action. This may be an estimation of the surface area of land to be affected, and/or in some cases the number of key habitat components to be affected.

When deciding whether an area of habitat is likely to become fragmented or isolated from other areas of habitat, it is necessary to identify and assess the patterns and extent of habitat connectivity. The affected habitat may form part of a habitat corridor, cul-de-sac or an isolated area. Recent Landsat imagery, aerial photographs, vegetation maps, topographic maps and data obtained from on-ground investigations are useful information sources for assessing this. The dispersal and genetic exchange mechanisms of individual species should be considered. For example, will the isolation of habitat for threatened species, populations or ecological communities that are currently connected or near to each other adversely affect the maintenance of gene flow and the ability to sustain viable populations. It should also be noted that isolation can occur through a variety of habitat modifications and is not confined to the clearing of vegetation.

When assessing the importance of the habitat likely to be removed, modified, fragmented or isolated in the locality, a quantitative and qualitative approach should be adopted as follows:

•   an assessment of the area and quality of habitat of the threatened species, population or ecological community that occurs within the locality from recent Landsat imagery, vegetation mapping, topographic maps, air photos and in some cases data obtained from on-ground investigations

•   an estimate of the area and quality that the habitat of the study area represents in relation to the area and quality of that habitat within the locality

•   an assessment of the role of the habitat to be affected in sustaining habitat connectivity in the locality an assessment of the ecological integrity of the habitat to be affected in the study area, in relation to the ecological integrity, tenure and security of the habitat which will remain both in the study area and in the locality.

…

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

Context

This factor refers only to those key threatening processes (KTPs) listed in Schedule 3 of the TSC Act and Schedule 6 of the FM Act. …

…

Application

In addition to deciding whether the action/activity constitutes a KTP, consideration must also be given to whether the proposal is likely to exacerbate a KTP. Species listed in the determination as being “at risk” warrant particular considerations if these species are known or likely to occur within the study area of the development or activity.

Making an assessment of significance

…

All factors should be considered as well as any other information deemed relevant to the assessment. The assessment of significance should not be used as a substitute for a species impact statement. Application of the precautionary principle requires that a lack of scientific certainty about the potential impacts of an action does not itself justify a decision that the action is not likely to have a significant impact. If information is not available to conclusively determine that there will not be a significant impact on a threatened species, population or ecological community, or its habitat, then it should be assumed that a significant impact is likely and a species impact statement should be prepared.

Proposed measures that mitigate, improve or compensate for the action, development or activity should not be considered in determining the degree of the effect on threatened species, populations or ecological communities, unless the measure has been used successfully for that species in a similar situation.

In many cases where complex mitigating, ameliorative or compensatory measures are required, such as translocation, bush restoration or purchase of land, further assessment through the species impact statement process is likely to be required.

In determining the nature and magnitude of an impact, it is important to consider matter such as:

•   pre-construction, construction and occupation/maintenance phases

•   all on-site and off-site impacts, including location, installation, operation and maintenance of auxillary infrastructure and fire management zones

•   all direct and indirect impacts

•   the frequency and duration of each known or likely impact/action

•   the total impact which can be attributed to that action over the entire geographic area affected, and over time

•   the sensitivity of the receiving environment

•   the degree of confidence with which the impacts of the action are known and understood.

Recovery and threat abatement plans, priorities action statements, threatened species profiles and other fact sheets prepared by DECC and DPI may provide further guidance on whether an action or activity is likely to be significant.

Ecological Evidence

33. As part of the development assessment process, ecological studies were carried out by Greenloaning Biostudies Pty Ltd (Greenloaning) in 2012 and by Peter Parker in 2018. Greenloaning prepared an ecological assessment in April 2012 and supplementary report in June 2012, based on an ecological constraints analysis undertaken by Warren and Associates in 2011. The Greenloaning assessment report included a seven-part test of significance for species detected during field surveys, including the eastern long-eared bat. Greenloaning concluded that the proposed development was unlikely to have a significant impact on the eastern long-eared bat.

34. A flora and fauna assessment was prepared by Mr Parker in July 2018 (Parker report), updated during the course of assessment for the DA and submitted in final form on 30 July 2018. Mr Parker undertook the seven-part test of significance under s 5A of the EPA Act for various threatened species on the North Lismore Plateau, concluding that the development would have a negligible impact on the eastern long-eared bat as no roosting sites or potential habitat would be impacted, and no impact on the white-eared monarch as the dry rainforest would be conserved and enhanced.

35. A landscape schematic design report dated 18 August 2017 was prepared by RPS Group for the DA. The Landscape Masterplan included in that report showed planned landscaping across the Land, including areas of revegetation in Precincts 1 and 2 where removal of weed species and regenerative planting would be carried out. Local park nodes were indicated on the map including in areas marked on the Landscape Masterplan for revegetation where lookout shelters, park furniture, lighting, pedestrian pathway, signage and amenity landscaping would be developed. One of these local park nodes is located in the band of E3 zoned vegetation to be retained on Precinct 2, as described above in [22].

36. A SEE prepared in August 2017 for the DA proposed various ameliorative measures regarding biodiversity and vegetation on the development site. The SEE contained a “Statement of Commitments” which included a commitment to enter into a voluntary planning agreement to ensure the biodiversity certification of Precinct 3 for which concept approval was being sought. In the course of analysing environmental interactions applicable to the proposed development, the SEE stated that compensatory planting of over 2,000 forest red gums would occur following grant of development consent. A site planning objective was “to protect and enhance the biodiversity of the North Lismore Plateau and surrounding areas”. To meet that objective, a vegetation management plan was proposed, specifically with the aim of achieving the conservation of threatened species and the progressive rehabilitation of the endemic vegetation communities in conservation lands zoned E2 and E3.

Lunney et al report on eastern long-eared bat

37. In a report titled “Roost selection by the North Queensland long-eared bat Nyctophilus Bifax in littoral rainforest in the Iluka World Heritage Area, New South Wales” by Lunney et al published in 1995 (Ex 3), the authors described their study of the North Queensland long-eared bat in the Iluka Nature Reserve in 1988 and 1989. The ecologists agreed this is the eastern long-eared bat. The report records the capture of 20 bats in November 1988 and 32 bats in May 1989. The roost structures of these bats occurred predominantly in foliage, tree hollows and shallow depressions on trunks and limbs, as well as in epiphytes and between strangler figs. In the month of November, the bats regularly changed their diurnal roosts, whereas in May there was a lower rate of daily roost changes. The greatest distance recorded between consecutive roosts was 262 metres. The distance from trap site to roost between shed transmitters and the last known diurnal roost ranged from 18 to 513 metres.

37. Lunney et al concluded that the North Queensland long-eared bat selects a variety of roosts, most commonly in foliage and tree hollows. The bats did not move large distances, suggesting that the species meets all its needs within the Iluka littoral rainforest and does not depend on adjacent woodland for roosts or food.

Higgins et al report on white-eared monarch

39. In “White-eared Monarch profile” by Higgins et al published in 2006 (Ex H), the authors identified that the bird is often observed in ecotones between dense and more open vegetation, including edges of rainforest and elsewhere where breaks in canopy allow sunlight to reach the ground. It is also often recorded in regrowth rainforest that is 20-30 years old. The bird has been recorded in various ecosystems including open eucalyptus forest, coastal rainforest, mangroves and paperbark swamps.

40. The white-eared monarch is usually seen singly or in twos, and sometimes in small groups or in mixed species flocks. The white-eared monarch is active when foraging but is often difficult to observe as it mainly forages in canopy of rainforest and occurs less often at lower levels of the rainforest. It is inconspicuous and arboreal making it difficult to observe. According to the “White-eared Monarch profile” from the NSW Department of Planning, Industry and Environment website attached to Higgins et al, the white-eared monarch is easily disturbed by the presence of people.

Reports of Mr David Milledge

41. Mr David Milledge expert ecologist relied on by the Applicant prepared three reports. According to his curriculum vitae (CV), Mr Milledge is a fauna ecologist residing in far north-eastern NSW and Director of Landmark Ecological Services Pty Ltd. Mr Milledge holds a Master of Resource Science from the University of New England and has 50 years’ experience as an ecologist specialising in forest and woodland ecosystems, concentrating on endangered vertebrate species. His employment history and experience includes, inter alia, employment as a scientific technical officer and as a consultant wildlife ecologist and then director of Landmark Ecological Services Pty Ltd from 1995-2004 and again from 2008-present. A 20-page list of publications and reports attached to his CV shows extensive published reports on a range of species and ecological topics from 1964-2019 as well as contributions to books and journals on the Australian environment, ecology and avifauna since 1976.

42. Mr Milledge’s first report dated 18 March 2019 reviewed Mr Parker’s 2018 seven-part test of significance under s 5A of the EPA Act for micro-bat species on the North Lismore Plateau. Mr Milledge found that Mr Parker’s seven-part test was inadequate and that a SIS should have been prepared. No further reference to this report is required.

43. Mr Milledge’s second report dated 9 October 2019 detailed a brief field inspection conducted on 6 June 2019 of potential threatened micro-bat roosting and breeding habitat and other threatened fauna species in Precinct 2. Mr Milledge traversed Precinct 2 on foot to locate trees likely to provide micro-bat roosting and breeding habitat. The inspection focussed on a stand of forest red gums and surrounding regenerating dry rainforest in western Precinct 2. Eleven forest red gums were measured and inspected for visible hollows that may have provided roosting or breeding habitat. Mr Milledge concluded that Precinct 2 contained potential roosting and breeding sites for the eastern long-eared bat. As the habitat fell within an area proposed to be cleared for development, Mr Milledge concluded that the potential for significant effect under s 5A of the EPA Act should be examined. In arriving at this conclusion Mr Milledge took into account both the proposed clearing of roost and maternity site habitat and potential high-quality foraging habitat on the Land and the potential loss of roost and breeding sites in dry rainforest and other vegetation adjoining the site because of noise, light and other disturbance from residential development.

44. Mr Milledge’s third report dated 10 November 2019 reported on a two-night survey targeting threatened micro-bat species and other threatened fauna species in Precinct 2 and assessed impacts of the proposed residential subdivision on threatened fauna values. Mr Milledge set four two-bank harp traps at separate locations within potential micro-bat flyways. Two eastern long-eared bats were captured in harp traps between 15 and 17 October 2018 in Precinct 2.

45. Mr Milledge also undertook opportunistic observations of other vertebrate species and rainforest habitats. A white-eared monarch was observed and photographed foraging and calling in a stand of regenerating dry rainforest in the south-western section of Precinct 2 on 16 October 2019. The bird stayed in that regenerating dry rainforest stand all day, calling and hover-pecking through tree foliage. Its behaviour suggested it was breeding in the vicinity.

46. Discussion of the eastern long-eared bat included:

Based on the Lunney et al. (1995) findings, the trapping results of this survey (Table 2) indicate that the regenerating dry rainforest, together with the small area of dry rainforest around harp trap sites HT1 and HT3 (Fig. 2) provide important roosting habitat for the local population of the Eastern Long-eared Bat. This is evinced by the presence of rainforest trees with dense foliage and carrying numerous vines, together with dead trees with hollows and crevices plus emergent Forest Red Gums containing a number of hollows (as demonstrated by Milledge 2019b). Again, based on the results of Lunney et al. (1995), this habitat is highly likely to provide maternity roosts for the local population of the Eastern Long-eared Bat.

47. Discussion of the white-eared monarch included:

4.2.2 White-eared Monarch The insectivorous White-eared Monarch is predominantly a lowland rainforest specialist in far north-eastern NSW where it is confined to the coastal plain and foothills from the Clarence River to the Queensland border. It is scarce and sparsely distributed in this area, occurring most commonly on edges of rainforest, particularly drier associations and vine scrubs and often in regrowth (regenerating) forests (Higgins et al. 2006, CSIRO Division of Wildlife and Ecology 1996, Holmes 1987, Morris etal.1981)

The site appears to support at least one breeding pair of White-eared Monarchs, recorded in the western section of Precinct 2 (Fig. 1). Although Peter Parker does not indicate where this species was recorded in Precinct 2 or 1 (Fig. 7, Peter Parker 2018), suitable habitat elsewhere in the site and adjoining habitat on the North Lismore Plateau may support an additional one or two pairs of White-eared Monarchs, based on a breeding home range of approximately 10 to 15 ha (D. Milledge unpubl. data for Byron LGA).

48. Mr Milledge carried out a seven-part test of significance under s 5A of the EPA Act for both the eastern long-eared bat and white-eared monarch. These assessments focussed on the impact of clearing 6.7 hectares of habitat (30 per cent of total potential breeding habitat) on Precinct 2.

49. Considering s 5A(2)(a) (adverse impact on life cycle) and s 5A(2)(d) (impact on habitat), Mr Milledge found for the white-eared monarch that:

In relation to the habitat of a threatened species, population or ecological community:

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

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

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

the record(s) of Peter Parker (2018) and the results of this survey (s.4.2.2 above) suggest that a viable population of the White-eared Monarch is likely to occur on the North Lismore Plateau. Although this population may only comprise one to three pairs, the clearing of 6.7 ha of likely breeding habitat (dry and regenerating dry rainforest) for the proposal (Fig 3) and 30% of the total potential breeding habitat in the site (8.11 ha [corrected to 6.7 ha] of a total 23 ha, Fig. 3) must be considered as placing the viability of the local population at risk of extinction.

50. Considering s 5A(2)(g) (KTPs), Mr Milledge found two key threatening processes (KTPs) relevant to the white-eared monarch were likely to operate or increase as a result of the proposed development. Those KTPs were aggressive exclusion of birds from woodland and forest habitat by abundant noisy miners and anthropogenic climate change.

51. Mr Milledge found similarly for the eastern long-eared bat. Considering s 5A(2)(a) and (d) he concluded that the clearing of 6.7 hectares of habitat on Precinct 2 placed the viable population of eastern long-eared bats at risk of extinction. He also found that the likely modification of remaining areas of habitat for bushfire asset protection zones (APZs) and the detrimental edge effects from proximity to residential development would further add to the risk of extinction of the eastern long-eared bat on the North Lismore Plateau.

52. Mr Milledge found that s 5A(2)(g) applied to the eastern long-eared bat. Four KTPs were relevant to the eastern long-eared bat as a result of the proposed development. They were anthropogenic climate change, loss of hollow-bearing trees, removal of dead wood and trees and predation by feral cats.

53. Mr Milledge concluded that under s 5A of the EPA Act, the proposed development in Precinct 2 was likely to have a significant effect on both the eastern long-eared bat and white-eared monarch.

Report of Dr David Robertson dated 27 December 2019

54. Dr Robertson, ecologist, relied on by Winten, prepared one report dated 27 December 2019. According to his CV, Dr Robertson, Director of Cumberland Ecology, is a senior ecologist with more than 30 years’ experience in ecological survey, impact assessment and research. Dr Robertson holds a Bachelor of Science, Ecology, and Doctor of Philosophy, Ecology, from the University of Melbourne. His CV includes a list of extensive experience as an expert witness in the NSW Supreme Court, Queensland Planning and Environment Court, and NSW Land and Environment Court (in Classes 1, 3, 4 and 5 proceedings). A list of several publications is included in his CV published from 1983-1995, as well as peer reviews conducted by Cumberland Ecology from 2009-2019.

55. Dr Robertson described the “subject site” (Precincts 1, 2 and 3) as being located generally between Dunoon Road and Booerie Creek Road, in the locality known as North Lismore Plateau. The report methodology consisted of a literature review and desktop analysis, GIS mapping and database analysis, and a field survey carried out between 8-10 October 2019. The literature review examined the 2012 Greenloaning report and the 2018 Parker report, drawing the conclusion that it was appropriate to reassess the significance of impacts of the approved development footprint on the eastern long-eared bat and the white-eared monarch.

56. Dr Robertson relied on the Parker report and a “Vegetation Clearing Report and Tree Protection Plan” prepared by Planit Consulting (Planit) in February 2019 to say that future conservation management within “conservation lands” identified by the Parker report and Planit (2019) would limit and offset the adverse impacts on the two subject species. Dr Robertson said that the Parker report relied on “conservation zoning” of forest remnants and regrowth to E2 and E3 zoned land on the North Lismore Plateau to say that areas of dry rainforest would be “conserved and enhanced”. The conservation areas identified by Planit were those areas zoned E2 and E3 on the Land where it said restoration and wildlife planting would occur at the conclusion of construction works.

57. Dr Robertson introduced his assessments of significance as follows (figures omitted):

…

131.   The habit on the subject site, plus forested habitats elsewhere on the plateau are mapped and shown in Figure 5. What should be noted from this mapping is that the approved development will clear only a small proportion of the North Lismore Plateau. Based upon the Cumberland Ecology mapping and GIS measurements, the proposed development will clear ~ 12 ha of about 112 ha of forest and regrowth forest across the wider area of the rezoning (including Winton [sic] and other land). Approximately 77 ha is zoned for conservation within E2 or E3 land within the rezoned land. The balance of forest remains in other zonings and is in no immediate danger from clearing.

132.   It is understood that the Stage 3 development has not been approved and will be subject to separate impact assessments and offsetting under the current Biodiversity Conservation Act 2016. Forest and regrowth habitats on this area will be subject to the impact assessment rules that apply under that legislation, which may result in more forest and tree hollows being conserved than is currently indicted by draft plans. In any case, the Stage 3 assessments are yet to take place and will be independent of the current approval.

133.   Tree hollows are of relevance as habitat for bats including the Eastern Long-eared Bat, which frequently roosts in hollows. For this reason, they have been mapped and counted across the Winton [sic] land by Cumberland Ecology. Figure 5 provides a map of trees with hollows detected in recent surveys for Cumberland Ecology. On current estimates there are about 59 trees with hollows on site at a density of about 1.74 hollow trees per ha of forest/regrowth. Of these, about 34 or 57% will be removed for the approved development and the remainder retained. However, as per the total forest and regrowth areas in the rezoning area, there are trees with hollows in the contiguous vegetation in the remainder of the rezoning area and these should be taken into consideration when completing assessments of significance.

134.   Across the wider rezoning area, assuming a similar density of trees with hollows there would be a further 64 hollow trees. Therefore, the impact of approved forest clearance for the Winton [sic] site, which would clear 34 trees with hollows, should be seen in the wider context, with close to 100 trees with hollows remaining.

135.   It should also be considered that the E2/E3 areas of the rezoned land will be permitted to regenerate and as trees age, further hollows can be expected to form in the long term.

Assessment of white-eared monarch

58. Regarding the white-eared monarch, Dr Robertson noted one BioNet Atlas record of the bird within the subject site and the additional record by Mr Milledge. The BioNet Atlas record was in Precinct 3.

59. Considering s 5A(2)(a), Dr Robertson found that a viable population of white-eared monarchs may exist on or around the subject site as there were two records of the species. The population was unlikely to be placed at risk of extinction because the approved development would only clear a minority of habitat on site in the context of the wider rezoned area. While 12 hectares of forest and regrowth was estimated to be cleared by the development, only 8.7 hectares (corrected to 6.7 hectares by Winten in oral submissions) of this was rainforest, the vegetation preferred by the white-eared monarch. Dr Robertson made the following further points concerning the potential impact of the proposed development on the white-eared monarch: areas of high value vegetation that are favourable foraging and roosting habitat would be maintained; large expanses of weedy regrowth that represent habitat for the white-eared monarch would only be selectively cleared or enhanced through ongoing management; much of the perimeter of the subject site was on land greater than 18 degree slope meaning boundary vegetation would be retained; and 77 hectares of forest would be retained in the wider rezoned area.

60. Considering s 5A(2)(d), Dr Robertson found the extent to which habitat is likely to be removed or modified was minimal compared to areas retained on site and within the wider rezoned area. Fragmentation or isolation of habitat was unlikely because the areas of rainforest suitable for habitat were already mostly isolated habitats and clearing would not result in further fragmentation. Rather, connectivity would be improved through the enhancement and management of low closed forest and tall closed shrubland. The habitat removed would be unlikely to be of long-term importance to the survival of the species as there was only one record of the species from the locality. (Note: whilst reference is made here to only one record of the white-eared monarch, Dr Robertson acknowledged elsewhere in his evidence that there are two records of the species, see above in [58] and below in [85]). Areas of rainforest in the general locality of the subject site would provide additional foraging and nesting sites such that the long-term survival of the species would not be jeopardised.

61. Considering s 5A(2)(g), Dr Robertson listed seven KTPs relevant to the white-eared monarch the proposed development could contribute to. They were bush rock removal, clearing of native vegetation, invasion and establishment of exotic vines and scramblers, invasion, establishment and spread of Lantana, invasion of native plant communities by exotic perennial grasses, loss of hollow-bearing trees, and removal of dead wood and dead trees.

62. Dr Robertson concluded that the proposed development would result in the removal of limited potential habitat for the white-eared monarch, but that the majority of known and potential habitat on site, and in the wider rezoned area, would be retained and conserved. No significant impact was likely on the white-eared monarch as a result of the proposed development.

Assessment of eastern long-eared bat

63. Turning to the eastern long-eared bat, Dr Robertson noted that suitable roosting and breeding habitat existed on the subject site for the eastern long-eared bat. The species was detected by Greenloaning at two locations in the wider rezoned area, and more recently by Mr Milledge within the area proposed for clearing and twice by Cumberland Ecology both in the area proposed for clearing and in the area proposed for conservation (by reference to Figure 6, see below in [71]).

64. Dr Robertson found that the majority of suitable habitat for the eastern long-eared bat was to be conserved on the subject site and within the wider rezoned area. He estimated that of 59 trees with hollows on site, 34 or 52 per cent would be removed for the approved development. Trees with hollows were also present in contiguous vegetation in the wider rezoned area. Dr Robertson stated that such vegetation should be taken into consideration when completing assessments of significance.

65. Considering s 5A(2)(a), Dr Robertson found that the proposed development was not likely to place a viable local population of the eastern long-eared bat at risk of extinction as the majority of potential habitat would be retained on the subject site and wider study area, and the bat is highly mobile with a wide foraging range beyond the subject site.

66. Considering s 5A(2)(d), Dr Robertson found that the habitat values located on the subject site were replicated in the more extensive areas to be retained, including best quality rainforest remnants. Dr Robertson identified the following habitat features within the development footprint that would be removed: seven large forest red gums; 25 dead stags containing hollows; 11 camphor laurel trees with hollows; 17 areas of rock outcrops containing crevices and caves; and four other rainforest trees with hollows. The habitat was previously fragmented and no substantial further fragmentation or isolation was expected as a result of the proposed development. Rather, retention and enhancement of rainforest on the subject site would form corridors between areas of better quality habitat. Proposed vegetation modification and thinning would not reduce the availability of foods for the eastern long-eared bat as much of the vegetation on the subject site would be retained, providing a suitable habitat for a variety of insect species to survive. The species has a large foraging range meaning it would utilise other sites beyond the subject site for foraging. Dr Robertson found that the habitat provided on the subject site was not important for the long-term survival of the eastern long-eared bat.

237. As Winten submitted, the Georadar report does not establish that a relic as defined in s 4 was present. That is not the relevant consideration in relation to s 139(1) which refers to having reasonable cause to suspect the presence of a relic. I accept the Applicant’s submission that these two reports do give rise to a reasonable suspicion of the presence of a relic on Winten’s part.

238. The challenging circumstance to consider from a legal perspective in light of s 139(1) is the involvement of Lismore Police in causing Winten to engage Casey & Lowe. The Applicant submitted that the role of the police was unclear. The Applicant’s counsel submitted that the statements in the Casey & Lowe report that the police requested work to be undertaken could not be taken at face value and that there was an onus on Winten to better demonstrate the role of the police if it wanted to rely on their involvement as exculpating. A Jones v Dunkel (1959) 101 CLR 298 submission was not put expressly but was strongly inferred, essentially suggesting the absence of further evidence from Winten about police involvement would not have assisted Winten.

239. Winten relies on the text of the Casey & Lowe report extracted in [213] above. The first sentence states that the company was engaged by Winten at the request of Lismore Crime Scene detectives to test the “Early Settler’s Grave”. The second sentence states that Dr Donlon a physical anthropologist and Mr Lowe, director, were contacted by the same police unit who wished to determine if the site was a grave at all, and if so, whether it was of modern or historic internment. The third sentence states “whether it was connected to crime scene, or was a European or Aboriginal burial was relevant to whether the NSW police or NSW State Coroner needed to be involved, or whether appropriate permits from the OEH needed to be obtained”. Dr McCardle referred to these statements in her evidence without criticism. Given the clear statements in these documents, there is no lack of clarity about why Casey & Lowe did what they did and why Winten engaged them to do it, namely at the request of Lismore Police.

240. In Gold and Copper Resources Pty Limited v Hon Chris Hartcher MP, Minister for Resources and Energy, Special Minister (No 2) [2014] NSWLEC 30 at [75] I stated:

The principle in Jones v Dunkel recognises that an inference may be drawn about the absence of a witness but only where evidence already gives rise to an inference. In New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2012] NSWLEC 174; (2012) 190 LGERA 171 I held similarly at [93] citing Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5 where the High Court stated:

In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture (see per Lord Robson, Richard Evans & Co Ltd v Astley [1911] AC 674 at 687). But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise: cf per Lord Loreburn, above, at p 678

244. The clear and definite inference arises that the reason Winten paid Casey & Lowe to do work, which Casey & Lowe determined the scope of, was because of the request of Lismore Police that work of that nature be done. There is no conjecture or speculation necessary in so concluding. No Jones v Dunkel inference arises that in the absence of evidence of, for example, a police officer from Lismore Police, such evidence would not have assisted Winten. But for that police request the strong inference arises that Casey & Lowe would not have been employed by Winten at all to do the excavation. As the Applicant submitted, that is strictly irrelevant to whether s 139(1) of the Heritage Act has been breached, but if it has been that would clearly be an exculpating circumstance for Winten.

245. While the role of Lismore Police is clear, the legal framework which applies is not. The OEH letter dated 31 October 2017 (Ex G) relied on by the Applicant provides no guidance on the circumstances that arose here where Lismore Police requested further action intended to determine whether the NSW Coroner should become involved or other law enforcement action was required. According to the OEH letter the Coroners Act Pt 5, if it applies, renders the application of the Heritage Act permit provisions inapplicable. I was not taken to the Coroners Act by Winten meaning it was not relied on. There would appear to be some tension between the two separate schemes in that investigation of some sort may well be required to determine if the Coroners Act applies which may well be work which the Heritage Act regulates, as seems to be the case here.

246. The Council’s Delegated Determination Report extracted at [216] above states expressly that the police had carriage of the investigation in accordance with the Coroners Act. That is not conclusive evidence of the legal position which applies.

247. Dr McCardle’s evidence set out above in [221] was to similar effect, that on this occasion the statutory scheme had been followed. It is not obvious that is the case in relation to s 139(1) of the Heritage Act. A request from Lismore Police alone to do excavation work does not overcome the requirement to obtain an excavation permit if there is reasonable cause to suspect the presence of a relic, as there was. As at 18 January 2018 before Casey & Lowe commenced work, I consider there was reasonable cause to suspect a relic may have been present given the findings in the Georadar and Everick reports. One of the reasons given by Casey & Lowe for doing the work was to establish if a permit was required from OEH. That is too late given s 139(1) refers to whether reasonable cause exists to suspect that an excavation is likely to result in a relic being discovered. It is not appropriate to ask the question after Casey & Lowe completed the work at the inferred gravesite. That the result of their investigation was that there was no indication of human burial and no other form of relic was otherwise recovered is not relevant to establishing whether a breach of s 139(1) occurred before the excavation took place. It is relevant to the exercise of discretion whether to grant relief, as I discuss below.

248. There was also criticism of Winten by the Applicant for not involving the experts Everick and Georadar earlier employed by them. Nothing relevant to any legal issues arises from this criticism. How Casey & Lowe came to be engaged is clear. Casey & Lowe specialise in work of the kind requested by Lismore Police according to their director. The work was undertaken by Mr Lowe in the presence of Dr Donlon a qualified physical anthropologist. That Dr McCardle was critical of the excavation undertaken by Mr Lowe in terms of the methodology applied does not assist in the construction of the statutory scheme.

249. A permit under the Heritage Act in these circumstances was required before the excavation commenced on 18 January 2018. The Applicant has established that Winten, in engaging Casey & Lowe to do the excavation work, acted in breach of s 139(1) the Heritage Act. No mention has been made of the Fifth Respondent by the Applicant in its substantive submissions. My finding does not apply to it. The circumstances surrounding that engagement are entirely exculpating. In addition, Casey & Lowe did not find any evidence of a relic including human remains and Dr Donlon a suitably qualified anthropologist was present during the excavation. Dr McCardle, while critical of some of the procedures applied, stated that the correct procedures were used. These matters are relevant to the exercise of my discretion as to whether any declaration of a breach of the Heritage Act is made as set out in the Third Further Amended Summons and whether relief ought be granted in the terms sought by the Applicant in MFI 2. The Court has wide discretion in determining whether to grant relief and if so on what terms: Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335; ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67. These matters suggest that no declaration of a breach ought be made and that the relief sought in MFI 2 is unwarranted in the exercise of my discretion.

250. I appreciate and acknowledge from the affidavits read by the Applicant summarised above at [26]-[29] that protection of Aboriginal heritage is an understandably significant concern for the Applicant and his supporters. The evidence before me does not suggest that such harm has been caused and no breach of the NPW Act was pressed.

Construction certificate ground

251. The parties identified the following issues:

9.   Does the Construction Certificate permit construction of a haul road [on Precinct 1 and 2]?

10.   Is the construction of the borrow pit [on Precinct 2] permitted by the Construction Certificate?

11. If yes, was the construction of the haul road and/or the borrow pit permitted by the Construction Certificate “not inconsistent” with the development consent for the purpose of cl. 145(2) of the Environmental Planning and Assessment Regulation 2000 (as in force at the time of the grant of consent for the Construction Certificate on 12 February 2019)?

12. If yes, is the haul road and borrow pit nevertheless incorporated into the development consent by operation of s. 4.16(12) of the Environmental Planning and Assessment Act 1979?

13. Does a breach of cl. 145(2) of the Environmental Planning and Assessment Regulation 2000 result in the invalidity of the Construction Certificate?

14.   What is the appropriate relief, if any?

252. As already noted in [9]-[10] above there is no debate that s 4.16(12) operates and reg 145(2) of the EPA Regulation applies. Section 6.32 came into force after the relevant events occurred.

Amended Points of Claim

253. The Amended Points of Claim stated:

Construction Certificate

33   The Applicant seeks a declaration that Construction Certificate CC 14.2017.270.1 granted on the 12th February 2019 by the Second Respondent to the Fourth Respondent [sic] (“the Construction Certificate”) is invalid and thereby void and of no effect.

Particulars

i)   The Second Respondent granted Civil Works Construction Certificate (CCC) 14.2017.270.1 to the Fourth Respondent [sic] on 12 February 2019 in non-compliance with the consent conditions for DA No 5.2017.270.1

ii)   Further or in the alternative the CCC approval purportedly allowing the construction of a Haul Road and the excavation of a “borrow pit” was not a matter applied for in the DA, underwent assessment or contemplated in the consent conditions.

iii)   Civil Construction Works Certificate 14.2017.270.1 purportedly approves the construction of a haul road from the Plateau to the floodplain through an area of vegetation that had not been assessed for the presence of stone wall, evidence of Aboriginal heritage and/or threatened species which the Applicant knows to be present.

iv)   Further the Second Respondent approved Civil Construction Works Certificate 4.2017.270.1 purportedly marks out excavation of a 'borrow pit' on the plateau within precinct 2.

v)   No assessment to excavate an unquantified amount (apparently up to 108,000 cubic metres of material) of the impact on the geo hydrology, ecology or cultural heritage. There is no evidence in any of the assessment documents of the specific dimension or layout of the Borrow Pit.

vi)   The Applicant claims that the scale of the borrow pit, if it were not for a possible protection afforded by Para 37A of Schedule 3 of the EP&A Regulation would be designated development pursuant to clause 19 of Schedule 3.

vii)   There is no information by which the First Respondent could assess impacts, such as:

•   truck and machine movements,

•   whether explosives will be utilised,

•   is there to be dewatering

•   noise and dust Impacts

viii)   The drawings by Planit Consulting issued for Civil Construction Works Certificate 14.2017.270.1, mark out a haul road from an area of an excavation pit on the Plateau to the floodplain were not part of the development application as approved by the First Respondent.

ix)   The Applicant claims the construction of the haul road and the borrow pit will likely cause significant adverse environmental impact particularly on threatened species.

x)   The initial clearing for the borrow pit has seen 10 nesting and 11 hollow bearing trees removed and all but two destroyed.

254. The issues identified in particulars (v), (vi), and (vii) above in the Amended Points of Claim were not pressed at hearing.

Evidence

255. The evidence relied on is all documentary being business records apart from some photographs relied on by the Applicant. The parties relied in part on different documents as indicated at the end of each paragraph by [A] or [W].

256. On the map below, a road between Precincts 1 and 2 is labelled “Road 01”. The contested “borrow pit” area is in north-western Precinct 2.

Road

257. Development Consent 5.2016.7.1 granted 14 April 2016 (2016 DC) and Development Consent 2017/270 granted 17 October 2018 (2018 DC) are both relevant to the road issue in light of Winten’s arguments.

258. A set of plans approved in the 2016 DC was tendered by Winten and marked Ex 4. These plans show a road referred to as “internal access road” traversing Precinct 1 and ending in a cul-de-sac in northern Precinct 2 [W] (vol 3 tab 24(b); Ex 4).

259. The SEE prepared in August 2017 for the 2018 DC included an aerial photograph of the Land (folio 863). Winten submitted that an existing track visible in this photograph is the access track and location of the road approved in 2016 and the haul road intended to be used to move material cut from Precinct 2 to Precinct 1 for fill as part of the bulk earthworks referred to in the CC [W] (vol 2 tab 20 p. 863).

260. On 18 September 2017 the Council wrote to Planners North (engaged by Winten) requesting additional information relating to the DA, specifically concerning a road it called “the road connecting Precinct 1 to Precinct 2”. The Council requested Planners North provide details of this road including long section and cross section and an indication of time frame for construction of the road by reference to the proposed DA staging of works [W] (vol 3 tab 22 p 1374).

261. Planit Consulting responded to this request for information on 12 January 2018 noting that the final road design would be confirmed during the detailed design phase of the development (vol 3 tab 24 p. 1382). Copies of the 2016 DC plans were attached to this letter from Planit Consulting, which it said showed the preliminary design of the road connecting Precincts 1 and 2 (TB vol 3 tab 24(b)] [W]).

262. The 2018 DC (Ex A) was granted on 17 October 2018 with a schedule of conditions of consent.

263. Condition 44 of the 2018 DC provides [W], [A]:

The person acting upon this consent shall provide the following road works with associated stormwater drainage structures that have been designed and constructed in accordance with Council’s Development, Design and Construction Manual (as amended). Design details of the required works are to be submitted to and approved by Council prior to the issue of a Civil Works Construction Certificate. The proponent shall be responsible for any costs, including maintenance, for a period of six months from the date of approval of completion of the work.

Note: * the width may be reduced to 12.5m subject to approval at Civil Works Construction Certificate stage as this road is adjacent to Hairy Joint Grass and reduction In road reserve width may be beneficial

Intersection Works

(1) Construction of an Auxiliary Left Turn (AUL) lane and Basic Right Turn (BAR) lane at the Junction of Dunoon Road and Road 1 (Development Consent 5.2016.7.1) in accordance with AUSTROADS Part 5 “Intersections at Grade” giving particular attention to sight distance.

(2) Construction of an intersection at the junction of Road 2 and Road 1 (Development Consent 5.2016.7.1) 1 in accordance with AUSTROADS Part 5 “Intersections at Grade” giving particular attention to sight distance.

(3) Construction of a roundabout at the junction of Road 2, Road 5, and Road 8 in accordance with AUSTROADS Part 5 “Intersections at Grade” giving particular attention to sight distance.

(4)   A temporary turning circle shall be constructed at any road termination pending the completion of the road.

A certificate prepared by an appropriately qualified and practising Civil Engineer, shall be provided to the Certifying Authority to certify compliance with these requirements.

Reason: To facilitate suitable road access for vehicular traffic and to ensure appropriate access and infrastructure protection that is integral with infrastructure on surrounding sites.

264. Condition 49 of the 2018 DC provides: [W]

Traffic calming shall be designed and installed along proposed Road 1 (Development Consent 5.2016.7.1) to maintain the signposted speed in accordance with the Austroads Guide to Traffic Management Part 8: Local Area Traffic Management. Design details of the required works are to be submitted to and approved by Council prior to the issue of the relevant Civil Works Construction Certificate.

265. The 2018 DC conditions required certain plans be submitted to Council prior to commencement of work. An “Integrated Construction Management Plan” (ICMP) dated 27 October 2017 was prepared. The ICMP contained the following appendices: “Safety Management Plan” (Appendix A); “Environmental Management Plan” (the EMP) (Appendix B); “Quality Management Plan” (Appendix C); “Traffic Management Plan” (Appendix D); “Community Management Plan” (Appendix E); and “Emergency Response Plan” (Appendix F). In its description of the construction methodology, the ICMP said Stage 1 works would include the upgrade of an existing track to borrow pit in Precinct 2 to be an all-weather haul road, suitable for construction traffic, including passing bays, berms, drainage and adequate erosion and sediment controls (TB vol 4 tab 60) [A].

266. The EMP dated 2 October 2019 described the scope of work as including the development of an existing track to borrow pit for all-weather haul road (TB vol 4 tab 59) [A].

267. A “Dilapidation Report” dated February 2019 identified the public infrastructure that may be affected by the proposed development. In Appendix B (“Precinct 1 Construction Staging”), Portion 1 “Site Establishment and Main Access Road Preloading” listed works including “clearing and grubbing of borrow pit area and Precinct 1” and “upgrade haul road to borrow pit” (TB vol 4 tab 53 [A].

268. Approved 2018 DC plans labelled “Ultimate Overall Proposal Plan” shows a road labelled Road 1 travelling from Precinct 1 across Precinct 2 and integrating into the road system by way of a roundabout joining Road 1 to Road 12 and Road 13 in northern Precinct 2 (TB vol 4 tab 37) [W].

269. A staging diagram was prepared which showed the stages of construction for the planned development and the approximate dates on which each construction task would be carried out. Under the heading “Upgrade of existing track to haul road between Precinct 1 and Borrow Pit” works were described as including “cut from roadside hill to build up road camber and fill existing drain” [A].

270. Civil Works CC 14.2017.270.1 was issued by Lismore City Council on 12 February 2019. Plans issued with the CC show a road labelled Road 1, between Precincts 1 and 2 (for example, Earthworks Construction Staging Plan Month 1). Winten submitted that was in the same position as Road 1 in the 2016 DC plans (vol 4 tab 50) [W].

271. A report titled “NLP Precinct 1 – Post Clearing Report” dated 6 November 2019 annexed to the affidavit of Ms Vanessa Walsh dated 27 November 2019 was a report of clearing supervision by GeoLink totalling 41.5 hours over five separate days in October and November 2019. Habitat clearing on a road referred to as the “haul road” was reported. Winten objected to Ms Walsh’s affidavit on the basis that it did not go to any pleaded issue or matter of relevance. Only par 14 and the annexed GeoLink report were read (TB vol 5 tab 72) [A].

265. The photograph in Ex K taken at the Land sometime after 6 November 2019 shows a “Keep Left” sign on a track that the Applicant said showed that the haul road had been upgraded. Drone photographs 1-3 of Ex D taken on or about 13 January 2020 show a track on the Land from an aerial perspective. The Applicant said photograph 1 of Ex D was taken by a drone facing south towards Lismore and showed a road partially on Precinct 1, departing Precinct 1 and ascending an escarpment onto Precinct 2. The Applicant said photograph 2 of Ex D was taken from the opposite direction and showed part of the same road ascending a hill substantially on Precinct 2. The Applicant said photograph 3 of Ex D showed substantially the same subject matter, including material being brought along the road from higher ground [A].

Borrow pit

273. Photograph 4 of Ex D captured on or about 13 January 2020 shows a cleared and scraped area on Precinct 2. This is what the parties referred to as the “borrow pit” on Precinct 2.

274. Prior to the grant of the 2018 DC, materials submitted with the DA in August 2017 contemplated the earthworks required for the development. Plans prepared by TGM Group Pty Ltd (TGM Group) lodged with the DA included an “Earthworks Plan” on Precinct 1. The words “Precinct 1” do not appear on the Earthworks Plan. The Applicant submitted that by comparing this plan with plans of the whole Land that show the shape and area of all three precincts, it can be inferred that only Precinct 1 is shown on the Earthworks Plan. The indicative cut and fill volumes estimated by TGM Group on the Earthworks Plan were 35,239 cubic metres of cut and 82,810 cubic metres of fill. The Applicant relied on the fact that no similar plans were prepared and submitted with the DA for earthworks on Precinct 2, where the contested borrow pit is located (vol 2 tab C pp. 816-817) [W], [A].

275. The SEE also contemplated earthworks and estimated the volumes of cut and fill that would be required (vol 2 tab 20) [W]:

The subject site ranges in level from 10m AHD to 130m AHD. Significant sections of cut and fill are required for the site in order to maintain maximum grade requirements for the proposed road network. Preliminary earthworks plans have been prepared to estimate total cut and fill volumes. These estimate that the volume of cut will be in the order of 410,138m3 and the fill volume will be in the order of 491,280m3, resulting in a balance of 81,142m3 (fill).

276. A “Balance Land Report” was prepared in June 2017 by TGM Group to provide an engineering assessment on the balance of the land and a discussion of critical design components of the development. The Balance Land Report estimated the total cut and fill volumes that would result from the earthworks in the course of carrying out the development. Annexed cut/fill plans displayed the extent of cut and fill planned on the Land, including on Precinct 2. Winten said the borrow pit can be identified on these plans by reference to the extent of cut on Precinct 2 (vol 2 tab 20(a)) [W], [A].

277. The Council’s request for information in September 2017, referred to above in [260], sought clarification of the total volume of fill required for Precincts 1, 2 and 3, and details of any proposed fill material including the source and primary haulage routes [W].

278. In its response to the Council’s request, referred to above in [261], Planit Consulting prepared a report dated 12 January 2018 which specified revised cut and fill figures for all three Precincts: 47,500 cubic metres fill on Precinct 1, 108,000 cubic metres cut on Precinct 2, and 74,000 cubic metres fill on Precinct 3. The response included a revised set of Precinct 2 and 3 drawings including a cut/fill plan [W] (vol 3 tab 24(c) folio 1460).

279. An updated version of the Balance Land Report was provided to the Council in September 2018 to reflect these updated figures provided by Planit Consulting in its response to the Council’s request for information. The updated total estimates were 391,151 cubic metres cut and 357,253 cubic metres fill, with a balance of 33,898 cubic metres cut. The Report annexed the same plans provided by Planit Consulting to the Council with its letter of 12 January 2018 [W].

280. The Council’s own assessment of the DA (“Development Assessment Report”) included an engineer’s assessment which reflected the revised figures of cut and fill volume provided by Planit Consulting and incorporated into the revised Balance Land Report. The engineer’s assessment acknowledged that earthworks would be required on Precinct 2. The Development Assessment Report stated “Council is satisfied that the earthworks are acceptable” (vol 4 tab 34 p 2043, p 1951) [W].

281. Plans issued with the CC included the locality of bulk earthworks, site layout, planned construction stages, sediment and erosion control plans, cut/fill depths, and sections of work (vol 4 tab 50). A plan titled “Earthworks Construction Staging Plan Month 1” showed an area of planned cut in north-western Precinct 2. A plan titled “Earthworks Construction Staging Plan Month 3-6 – Stage 1” showed an area of planned cut in the same location in north-western Precinct 2, bearing the label “earthworks borrow area” [W].

Applicant’s submissions

282. The Applicant contended that (1) Winten constructed a haul road on Precinct 2 outside the terms of the development consent and the CC and (2) the civil earthworks (borrow pit) which the CC purported to authorise on Precinct 2 were inconsistent with the 2018 DC.

Road

283. Winten maintained it did not construct a (haul) road but was using an existing track for haul purposes. Both photographic and documentary evidence demonstrate the opposite – a haul road was constructed and developed on Precinct 2. Photographs 1-3 of Ex D and Ex K depict a widened, developed road.

284. The 2018 DC conditions referred to Roads 2-11 but omitted Road 1. The haul road, being Road 1, was therefore constructed without the benefit of the 2018 DC or a CC.

285. Dilapidation Report Appendix B Construction Staging report (above in [266]) expressly refers to clearing the borrow pit area and upgrading the haul road to the borrow pit.

286. The construction staging/programming diagram (above in [269]) included items of work being the upgrade of the existing track to the haul road between Precinct 1 and the borrow pit and cut from roadside hill to build up road camber and fill the existing drain (extend the existing road width to five metres). Another version of this staging diagram appeared in the evidence with slightly different dates also including references to upgrade of the existing haul road between Precinct 1 and the borrow bit.

287. The EMP shows that the existing track to the borrow pit is to be upgraded to an all-weather haul road, as also indicated in the ICMP referred to above in [265].

288. The contested GeoLink report (above in [271]) refers to clearing of the haul road. A road has been constructed or was intended to be constructed but for the interlocutory application and undertaking.

Borrow pit

289. Material supplied to the Council with the 2018 DA shows earthworks only on Precinct 1, see DA plans above in [274] and TGM Group report above in [276]. Nothing was provided to the Council at the time of the DA that could have disclosed to even the most prescient of consent authorities that a borrow pit was intended on Precinct 2. The Council cannot be deemed to have given consent to the borrow pit. The CC, which does purport to authorise the borrow pit, is therefore inconsistent with the 2018 DC because it purports to permit the carrying out of a major earthwork, which would be designated development in any other circumstance. The earthworks on Precinct 2 are development purportedly approved by the CC inconsistent with what was approved by the 2018 DC.

290. The Court must determine objectively whether a development approved by the CC inconsistent with the development consent.

291. The Applicant accepted that if successful on this issue the CC will not be automatically void: Burwood Council v Ralan Burwood Pty Ltd and Others (No 3) (2014) 206 LGERA 40; [2014] NSWCA 404 (Burwood v Ralan) at [165], [182]. This does not mean that the Court’s power to declare the CC prospectively invalid is removed. The relief sought is a prospective order, setting aside the CC and so preventing further work unless and until a valid consent is obtained. The Applicant does not seek a declaration the CC is void ab initio. If an order is made, the work done to date stands.

Winten’s submissions

Road

292. Winten submitted plans and reports prepared prior to the grant of the 2018 DC are relevant as there is a dispute about what was considered by the consent authority in granting the 2018 DC. There is no difference between the haul road and Road 1 as approved in the 2016 DC and amended in the 2018 DC. A previous iteration of Road 1 which ended in a cul-de-sac on Precinct 2 was approved in the 2016 DC. Details of the integration of Road 1 into the wider road network were provided to the Council in response to its request for further information in September 2017. Condition 44 of the 2018 DC refers to the construction of an intersection of the junction of Road 1 (2016 DC) and Road 2. Condition 49 of the 2018 DC was imposed to modify the requirements for Road 1 referred to as approved in Development Consent 5.2016.7.1 by requiring the installation of traffic calming devices and speed signposts.

293. References to a haul road relied on by the Applicant are to an existing track between Precincts 1 and 2 used by Winten’s contractor to move material cut from Precinct 2 onto Precinct 1 for fill as part of the bulk earthworks. The haul road is in approximately the same location as Road 1 referred to in plans approved by the 2016 DC. The CC provides for bulk earthworks on part of Road 1 on the southern part (Vol 4 tab 50). That is the work being undertaken, referred to as a haul road in the documents relied on by the Applicant. That work is consistent with the 2016 DC and 2018 DC.

Borrow pit

294. Regarding earthworks, documents originally submitted with the DA referred to requirements for cut and fill on Precinct 1, by reference to indicative drawings provided by Planit referred to above in [278].

295. The Council’s request for further information on 18 September 2017 in relation to proposed earthworks demonstrated that Council was aware of proposed earthworks and had turned its mind to an assessment of those earthworks. The response to this request by Planit Consulting in a letter dated 12 January2018 included a revised set of engineering plans for Precinct 1.

296. The revised plans provided in January 2018 included cut/fill on Precincts 2 and 3 including an area of cut in the area of the borrow pit.

297. On 21 September 2018 Planit Consulting provided to the Council an updated report by TGM Group which amended the volumes of cut and fill so as to reflect the updated Planit drawings.

298. Council’s own engineer examined the predicted quantity of cut and fill detailed in the DA and concluded that Council was satisfied the earthworks were acceptable. The CC plans reflected the location of the cut on Precinct 2 in the plans submitted to Council and approved as part of the 2018 DC. The CC provides for the excavation of a borrow pit on Precinct 2. Critical design components of earthworks were specified by TGM Group and the borrow pit was identified on drawings by Planit Consulting by reference to the extent of cut.

299. There is no inconsistency between the 2018 DC and the CC as the 2018 DC permitted the construction of Road 1 (the haul road in the CC) and the borrow pit.

300. Even if there is an inconsistency, the road and borrow pit are nevertheless incorporated into the development consent by operation of s 4.16(12) EPA Act. A breach of reg 145(2) of the EPA Regulation does not result in the invalidity of the CC: Burwood v Ralan and Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (2017) 226 LGERA 54; [2017] NSWCA 263 (Bunderra) at [52].

Consideration

301. The Applicant bears the onus of proof on the balance of probabilities of establishing the invalidity of the CC issued by the Council as the certifying authority. As identified at [252] above and as accepted by the Applicant, reg 145(2) of the EPA Regulation applies. The Applicant alleges that, firstly, no development consent or CC approval was granted for work on the haul road and, secondly, the borrow pit on Precinct 2 in the CC was not approved in the 2018 DC so that the CC is inconsistent with the 2018 DC. The statutory provisions in force at the relevant time were considered in Burwood v Ralan and Bunderra.

302. In Burwood v Ralan plans for a large residential and commercial development including a particular facade treatment were approved by the relevant local council. The plans submitted by the developer to the certifier to enable the mandatory CC to be issued varied substantially from the approved plans including in relation to the facade treatment. The CC was issued by the private certifier in relation to the changed plans. At issue was whether the CC plans were not inconsistent with the development consent plans and, if they were, what the legal consequence was. At [147] Sackville AJA (Leeming, Payne JJA agreeing) said the ordinary meaning of inconsistent includes “lacking in harmony between different parts or elements” or “self-contradictory”, “discrepancy” or “incongruity”. Not every difference between a development consent and plans and specifications furnished to the certifying authority and approved in a CC amounts to an inconsistency, at [148]. The judge must determine objectively whether there is inconsistency (and not consider the subjective view of the certifier who issued the CC as determinative), at [149]. Findings must be made about the nature and extent of variations, at [151]. On the assumption that the plans and specifications provided to the certifier were inconsistent with the development consent, the issue arose of whether this did give rise to invalidity of the CC, considered at [154]-[193]. The conclusion was no, the CC was not void and of no effect in the circumstances.

303. In Bunderra the Court of Appeal confirmed the application of Burwood v Ralan that inconsistency did not necessarily result in the invalidity of a CC applied to more than minor differences in plans, at [77]. Whether invalidity arises need only be considered if the Applicant can demonstrate inconsistency between the development approved in the DA and the CC.

Road

304. The questions posed at the outset in relation to a haul road were (i) does the CC permit its construction between Precincts 1 and 2 and (ii) if yes, is the CC inconsistent with the development consent. The Applicant’s case as presented at the hearing varied to the effect that there was no development consent granted for the haul road and no approval for it in the CC. For the reasons given by Winten, supported by extensive reference to the documents produced in the various stages of the development application, assessment and approval for the 2016 DC and the 2018 DC in evidence in [258]-[264] and [268] above, the haul road between Precincts 1 and 2 referred to in the CC is, in all the documents relied on by the Applicant in [265]-[269], being documents prepared to comply with the 2018 DC including a staging diagram, the CC in [270] and report in [271] above, in the same location as Road 1. Road 1 was consented to in the 2016 DC and incorporated into and amended in the 2018 DC as Winten identified. The incorporation of Road 1 into the 2018 DC occurred through Conditions 44 and 49 set out above in [263] and [264]. The plans referred to in evidence for the 2016 DC, the 2018 DC and the CC all show a road in the same location. The Applicant’s photographs in Exhibits D and K confirm that work has been undertaken on the haul road but do not otherwise assist in construing the documents in evidence.

305. The CC is not inconsistent with the 2018 DC applying reg 145(2) of the EPA Regulation and Burwood v Ralan at [147]. The reference to a haul road rather than Road 1 in the CC documents and other documents relied on by the Applicant including an EMP (in [266] above), Dilapidation Report (in [267] above) and GeoLink report (in [271]) above) does not give rise to a finding of inconsistency between the 2018 DC and the CC.

Borrow pit

306. The questions posed in relation to the borrow pit are (i) is the construction of the borrow pit permitted by the CC; and (ii) if yes, is the CC inconsistent with the development consent. Photograph 4 (Ex D) captured on or about 13 January 2020 shows a cleared and scraped area on Precinct 2. This is the contentious earthworks referred to by the parties as the “borrow pit”.

307. Having considered carefully the different documents the parties relied on in light of the different emphasis given to the documentary record of the DA process and the CC process as set out above in [273]-[281], I agree with Winten for the reasons it gives that the CC does permit the construction of the borrow pit. There is no relevant inconsistency between the 2018 DC plans and the CC plans in relation to the borrow pit. The only absence (which does not suggest an omission) is that the words “borrow pit” do not appear in development consent plans showing cut and fill areas on Precinct 2. The area to be cut which accords with the borrow pit is clearly depicted in the Balance Land Report in [276] above. That the approved CC plan titled “Earthworks Construction Staging Plan Month 3-6 – Stage 1” referred to the borrow pit, using that terminology for the first time apparently, does not give rise to inconsistency applying its usual and ordinary meaning as identified in Burwood v Ralan at [147].

308. As I have not found the CC to be inconsistent with the 2018 DC whether the CC should be declared invalid does not arise. The Applicant is unsuccessful on this ground.

Declarations and Orders

309. The Applicant has been successful in relation to the SIS ground. As already identified above at [201], it is appropriate that a declaration be made as identified in prayer 2 of the summons to the effect that Development Consent 2017/270 granted on 17 October 2018 by the First Respondent to the Second, Third, Fourth and Fifth Respondents (“the Consent”) was invalidly made, void and of no effect as the development application when lodged failed to comply with s 78A(8) of the Environmental Planning and Assessment Act 1979. Whether consequential orders need be made as identified in prayers 5 and 6 of the summons will be discussed further with the parties. I will not make the final declaration in this judgment to enable discussion about consequential orders. The declaration and any orders will be made shortly following submissions by the parties.

310. There have been no submissions on costs. The usual costs order in Class 4 proceedings is that costs follow the event. The Applicant has been successful in relation to one of its substantial grounds. I will provide the parties with an opportunity to make submissions on costs if a different costs order from the order that Winten is to pay the Applicant’s costs is sought. A timetable for doing so will be discussed with the parties.

***************

Amendments

23 July 2020 - Typographical - omission of (No 4) in Medium Neutral Citation case name

Decision last updated: 23 July 2020