Saltwater Lagoon Pty Ltd v Glamorgan Spring Bay Council
[2022] TASFC 5
•2 August 2022
[2022] TASFC 5
| COURT: | SUPREME COURT OF TASMANIA (FULL COURT) |
| CITATION: | Saltwater Lagoon Pty Ltd v Glamorgan Spring Bay Council [2022] |
| TASFC 5 | |
| PARTIES: | SALTWATER LAGOON PTY LTD |
| v | |
| GLAMORGAN SPRING BAY COUNCIL | |
| COLES BAY HOLDINGS PTY LTD | |
| FILE NO: | 1723/2020 |
| DELIVERED ON: | 2 August 2022 |
| DELIVERED AT: | Hobart |
| HEARING DATES: | 13 April 2021 |
| JUDGMENT OF: | Estcourt J, Pearce J, Geason J |
| CATCHWORDS: |
Environment and Planning – Environmental planning – Planning schemes and instruments – Tasmania – Other matters – Interpretation of planning scheme – Performance-based scheme – Glamorgan Spring Bay Interim Planning Scheme 2015 – Rural Resource Zone – Clause 26.4.2 Building & Works; Clause 26.4.3 – To minimise significant impacts on rural landscape – Biodiversity Code E10.7.1 – Validity of conditions.
Land Use Planning and Appeals Act 1993, ss 20, 51(1A).
Project Blue Sky v Australian Broadcasting Authority [1998] 194 CLR 355; Raff Angus Pty Ltd v Resource
Management and Planning Appeal Tribunal; Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR
531; R v A2 [2019] HCA 35; King Gee Clothing Co Pty Ltd v Commonwealth (1945) 71 CLR 184; Ex parte
Zietsch; re Craig (1944) 44 SR (NSW) 360; 73 ALR 214; Timber World Pty Ltd v Meander Valley Council
[2020] TASSC 27; Mison v Randwick Municipal Council (1991) 23 NSWLR 734; Western Australia Planning
Commission v Temwood Holdings Pty Ltd [2004] HCA 63; 221 CLR 30; St Helen's Area Land Care and
Coast Care Group Inc v Break O'day Council [2007] TASSC; 15 Tas R 169; Kindimindi Investments Pty Ltd
v Lane Cove Council [2006] NSWCA 23; Buzzacott v Minister for Sustainability, Environment, Water,
Population and Communities [2013] FCAFC 111; Qantas Airways Ltd v Chief Commissioner of State
Revenue (2008) NSWSC 1049; Kidd v Resource Management & Planning Appeal Tribunal [2011] TASSC
38, 20 Tas R 339, considered.
Aust Dig Environment and Planning [51]
REPRESENTATION:
Counsel:
Appellant: A Spence SC Second Respondent: S McElwaine SC
Solicitors:
Appellant: Page Seager Second Respondent: S McElwaine + Associates
| Judgment Number: | [2022] TASFC 5 |
| Number of paragraphs: | 62 |
Serial No 5/2022
File No 1723/2020
SALTWATER LAGOON PTY LTD v GLAMORGAN SPRING BAY COUNCIL
| REASONS FOR JUDGMENT | FULL COURT ESTCOURT J |
PEARCE J GEASON J
2 August 2022
Orders of the Court:
1 Appeal allowed.
2 The matter is remitted to a differently constituted Tribunal for determination in accordance with law.
Serial No 5/2022
File No 1723/2020
SALTWATER LAGOON PTY LTD v GLAMORGAN SPRING BAY COUNCIL
| REASONS FOR JUDGMENT | FULL COURT ESTCOURT J 2 August 2022 |
1 I have had the opportunity to consider the reasons of Geason J in draft form. I agree that the appeal should be allowed for the reasons given by his Honour.
2 No 5/2022
File No 1723/2020
SALTWATER LAGOON PTY LTD v GLAMORGAN SPRING BAY COUNCIL
| REASONS FOR JUDGMENT | FULL COURT PEARCE J 2 August 2022 |
2 I have had the opportunity to consider the reasons of Geason J in draft form. I agree that the appeal should be allowed for the reasons given by his Honour.
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File No 1723/2020
SALTWATER LAGOON PTY LTD v GLAMORGAN SPRING BAY COUNCIL
| REASONS FOR JUDGMENT | FULL COURT GEASON J 2 August 2022 |
3 This is an appeal pursuant to s 25 of the Resource Management and Planning Appeal Tribunal Act 1993 (the Act) from a decision of the Resource Management & Planning Appeal Tribunal (the Tribunal) made on 19 June 2020.
4 An appeal under s 25 of the Act[1] is limited to matters of law. This appeal raises such
questions.
[1] Section. 25 Appeals to Supreme Court from decisions of Appeal Tribunal (1) A party to an appeal before the Appeal Tribunal may appeal to the Supreme Court, on a question of law, from any decision of
5 The appellant seeks orders setting aside the Tribunal's decision, and a direction to the first respondent that a permit not be granted to the second respondent. In the alternative it seeks an order remitting the matter to a differently constituted Tribunal.
6 The matter comes before the Full Court on reference from a single judge, the Tribunals' decision having been handed down a week before a decision of Blow CJ in Timber World Pty Ltd v Meander Valley Council [2020] TASSC 27, which the parties agree may have some bearing on the disposition of the appeal.
Background
7 The facts are not in dispute. On 12 June 2019 the second respondent lodged a development application (the application), seeking a permit for "additions and alterations to existing visitor accommodation located at 1593 and 1819 Coles Bay Road, at Coles Bay" within the rural resource zone of the Glamorgan Spring Bay Planning Scheme 2015 (the planning scheme). Visitor accommodation is a discretionary use within the zone. Planning Directive number 6 – "exemptions and standards for visitor accommodation in planning schemes" describes visitor accommodation at cl 3.1(a) as follows:
"Use of land for providing short or medium term accommodation, for persons away from their normal place of residence, on a commercial basis or otherwise available to the general public at no cost. Examples include a backpackers hostel, bed and breakfast establishment, camping and caravan park, holiday cabin, holiday unit, motel, overnight camping area, residential hotel and serviced apartment.
8 The development included 28 additional villas, extension to and refurbishment of the existing reception centre, four additional staff accommodation buildings, privacy screenings for some existing
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villas, waste and storage facilities, and access and parking associated with the additional development.
It is spread across three titles.
| 9 | The application for planning approval was accompanied by: (a) Jaws Architects Drawings, dated February 2019 (Initial Plans); | |||
|
(d) Traffic Impact Assessment prepared by Midson Traffic Pty Ltd, dated May 2019.
10 Planning approval requires satisfaction of several performance criteria within the Scheme, the planning authority having a discretion to refuse or permit the development: Cl 8.8(1)(b).
11 The development application was advertised on 7 August 2019. Seventeen representations were received by the Council in relation to the development, one of them on behalf of the appellant.
Biodiversity Code
12 A Biodiversity Code, is applicable to the development site. Clause E10 of the Scheme establishes a biodiversity protection area subject to a Biodiversity Code. The Code applies "… to development involving the clearance and conversion or disturbance of native vegetation within a Biodiversity protection area." The objective of the Code is "to ensure that development for buildings and works that involves clearance and conversion or disturbance within a Biodiversity Protection Area does not result in unnecessary or unacceptable loss of priority biodiversity values.[2]"
[2] "Biological diversity" is defined in the Nature Conservation Act 2002 at s 3:
13 "Clearance and conversion" and "disturbance" are defined at cl E10.3 as follows:
"clearance and conversion means the process of removing native vegetation from an
area of land and:
(a) leaving the area of land, on a permanent or extended basis, in a state predominantly unvegetated with native vegetation; or (b) replacing the native vegetation so removed, on a permanent or extended basis, with residential, commercial, mining, agriculture or other non-agricultural development. Disturbance means the alteration of the structure and species composition of a native vegetation community through actions including cutting down, felling, thinning, logging, removing or destroying of a native vegetation community."
14 Provision is made for offsetting biodiversity impacts through a system of "biodiversity offsets". For the purposes of cl E10.7.1 P1(v), the Planning Scheme defines "biodiversity offsets" at
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cl E10.3 as "..measures that compensate for the residual adverse impacts of an action on the
environment, when:
(a) alternatives and options to avoid those impacts have been exhausted; (b) it is still considered desirable for other economic, social or environmental reasons for the action to proceed."
15 Clause E10.7.1 is in these terms:
E10.7.1 Building and Works
Objective: To ensure that development for building and works that involves clearance and conversion or disturbance within a Biodiversity Protection Area does not result in unnecessary or unacceptable loss of priority biodiversity values.
Acceptable Solutions Performance Criteria
P1A1 P1
Clearance and conversion or Clearance and conversion or
disturbance must comply with one of disturbance must satisfy the following: the following: (a)If low priority biodiversity values: (a) be within a Building Area on a plan of subdivision approved under this (i) Development is designed and located planning scheme.
to minimise impacts, having regard to constraints such as topography or land
(b) the development is for a single hazard and the particular requirements dwelling on an existing lot within the of the development; Low Density Residential Zone, Rural Living Zone or Environmental Living (ii) Impacts resulting from bushfire Zone and:
hazard management measures are minimised as far as reasonably
(i) clearance and conversion or practicable through siting and fire- disturbance is confined to Low Priority resistant design of habitable buildings; Biodiversity Values; (b) If moderate priority biodiversity (ii) the area of clearance and conversion values: is no more than 3,000m2 ; (i) development is designed and located (iii) the area of disturbance is no more to minimise impacts, having regard to than 6,000m2;
constraints such as topography or land hazard and the particular requirements
(c) the development is other than for a of the development; single dwelling on an existing lot within the Low Density Residential Zone, (ii) impacts resulting from bushfire Rural Living Zone or Environmental hazard management measures are Living Zone and;
minimised as far as reasonably practicable through siting and fire-
(i) clearance and conversion or resistant design of habitable buildings;
disturbance to Low Priority
Biodiversity Values;
(iii) remaining moderate priority biodiversity values on the site are
(ii) the area of clearance and conversion retained and improved through is no more than 1,500m2
implementation of current best practice mitigation strategies and ongoing
(iii) the area of disturbance is no more management measures designed to than 3,000m2 protect the integrity of these values; (iv) residual adverse impacts on 6 No 5/2022
moderate priority biodiversity values not able to be avoided or satisfactorily mitigated are offset in accordance with the Guidelines for the Use of Biodiversity Offsets in the Local Planning Approval Process, Southern Tasmanian Councils Authority 2013 and any relevant Council policy
(c) If high priority biodiversity values:
(i) development is designed and located to minimise impacts, having regard to constraints such as topography or land hazard and the particular requirements of the development;
(ii) impacts resulting from bushfire hazard management measures are minimised as far as reasonably practicable through siting and fire- resistant design of habitable buildings;
(iii) remaining high priority biodiversity values on the site are retained and improved through implementation of current best practice mitigation strategies and
ongoing management measures designed to protect the integrity of
these values;
(iv) special circumstances exist;
(v) residual adverse impacts on high priority biodiversity values not able to be avoided or satisfactorily mitigated are offset in accordance with the Guidelines for the Use of Biodiversity Offsets in the Local Planning
Approval Process, Southern Tasmanian Councils Authority 2013
and any relevant Council policy.
16 There are published guidelines for the use of biodiversity offsets in the planning approval process published by the Southern Tasmanian Councils Authority. (They are incorporated by reference into the planning scheme at cl E10.7.1 P1(c)(v)).
17 Expert ecology and biodiversity evidence was given to the Tribunal by Andrew North and Mark Wapstra. They agreed that the development site contained high priority biodiversity values and that the Biodiversity Code was engaged because those values were impacted by the development. Notwithstanding those impacts, the development application did not include an offset plan. Nor did the submitted plans depict a biodiversity offset area. By reason of those impacts the development could not satisfy the "acceptable solutions" appearing in cl E10.7.1 of the Scheme. Approval therefore required the developer to satisfy the performance criteria ( above at 15).
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Interpretation of planning schemes
18 The appeal raises issues relating to the interpretation of the planning scheme. Before turning to the grounds of appeal it is useful to restate those principles.
19 Planning schemes are interpreted according to the same principles as pertain to the interpretation of legislation: words should be given their ordinary meaning interpreted in their context accordance with authorities such as Project Blue Sky v Australian Broadcasting Authority [1998] 194 CLR 355 at 78; Raff Angus Pty Ltd v Resource Management and Planning Appeal Tribunal [2018] TASSC 60, 28 Tas R 224. In Raff Angus Brett J said this:
"20 A planning scheme should be interpreted in accordance with the ordinary rules applicable to the interpretation of legislation, with the possible exception that the purposive approach specified in the Acts Interpretation Act 1931 (Tas), s 8A, is not applicable. See AAD Nominees Pty Ltd v Resource Management and Planning Appeal Tribunal (2011) 183 LGERA 168, per Blow J (as he then was) at [10]. The starting point of any process of statutory construction is the plain and ordinary meaning of the text, read in the context of the surrounding provisions and the legislative scheme. The aim of the process is to derive from the statutory words read in context, the meaning 'that the legislature is taken to have intended them to have': Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384, per McHugh, Gummow, Kirby and Hayne JJ.
21 In Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531,
Gageler and Keane JJ expanded on the relevance and effect of context in the process of statutory construction:
'[65] Statutory construction involves attribution of legal meaning to statutory text, read in context. 'Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning … But not always.' Context sometimes favours an ungrammatical legal meaning. Ungrammatical legal meaning sometimes involves reading statutory text as containing implicit words. Implicit words are sometimes words of limitation. They are sometimes words of extension. But they are always words of explanation. The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair.
[66] Context more often reveals statutory text to be capable of a range of
potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural. The choice between alternative meanings then turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies.'"
20 In R v A2 [2019] HCA 35, 373 ALR 214, the High Court articulated once again the settled approach to construction:
"[32]
The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable: See, eg, Amalgamated Society of Engineers v Adelaide Steamship Co Ltd ('the Engineers' Case') [1920] HCA 54; (1920) 28 CLR 129 at 162 per Higgins J; [1920] HCA 54. has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2; Project Blue Sky Inc v
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Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69]; [1998] HCA 28. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision. Bennion, Statutory Interpretation, 3rd ed (1997) at 343-344, referred to in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384 [78].
[33] Consideration of the context for the provision is undertaken at the first stage of the process of construction: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69]. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408. "Mischief" is an old expression: Heydon's Case [1584] EngR 9; (1584) 3 Co Rep 7a at 7b [76 ER 637 at 638]. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied: Black-Clawson International Ltd v Papierwerke Waldhof- Aschaffenburg [1975] UKHL 2; [1975] AC 591 at 614; Wacal Developments Pty Ltd v Realty Developments Pty Ltd [1978] HCA 30; (1978) 140 CLR 503 at 509; [1978] HCA 30; Wacando v The Commonwealth [1981] HCA 60; (1981) 148 CLR 1 at 17; [1981] HCA 60. The mischief may point most clearly to what it is that the statute seeks to achieve.
[34] This is not to suggest that a very general purpose of a statute will necessarily provide much context for a particular provision or that the words of the provision should be lost sight of in the process of construction. These considerations were emphasised in the decisions of this Court upon which the Court of Criminal Appeal placed some weight.
[35] The joint judgment in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at 46-47 [47]; [2009] HCA 41 rejected an approach which paid no regard to the words of the provision and sought to apply the general purpose of the statute, to raise revenue, to derive a very different meaning from that which could be drawn from the terms of the provision. The general purpose said nothing meaningful about the provision, the text of which clearly enough conveyed its intended operation: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at 46-48 [47]- [53]. Similarly, in Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at 265 [32]- [34]; [2010] HCA 23 the court below was held to have failed to consider the actual terms of the section. A general purpose of the statute, to address shortcomings identified in an earlier decision of this Court, was not as useful as the intention revealed by the terms of the statute itself. In Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469 at 476 [14]; [2012] HCA 59, it was necessary to reiterate that the question of whether there had been a 'substantial miscarriage of justice' within the meaning of the relevant provision required consideration of the text of the provision, not resort to paraphrases of the statutory language in extrinsic materials, other cases and different legislation.
[36] These cases serve to remind that the text of a statute is important, for it contains the words being construed, and that a very general purpose may not detract from the meaning of those words. As always with statutory construction, much depends upon the terms of the particular statute and what may be drawn from the context for and purpose of the provision.
[37] None of these cases suggest a return to a literal approach to construction. They do not suggest that the text should not be read in context and by reference to the mischief to which the provision is directed: See Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41;
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(2009) 239 CLR 27 at 46-47 [47]. They do not deny the possibility, adverted to in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408, that in a particular case, 'if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance'. When a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 321; [1981] HCA 26. A construction which promotes the purpose of a statute is to be preferred: Interpretation Act 1987 (NSW), s 33."
21 The Tribunal's task was to interpret the scheme in accordance with those principles.
22 I have referred to the decision of Blow CJ in Timber World (above). Its relevance derives from the Court's articulation of principles pertaining to the interpretation of planning scheme provisions.
23 In that case the Court was concerned with a decision of the Tribunal that a scheme provision contained within the Meander Valley Interim Planning Scheme 2013 was ultra vires. There the Tribunal had held that the provision in question was so uncertain that it was "incapable of application in an objective sense", and thus beyond power. It did not determine whether the provision could be severed so as to save the remainder of the clause, and in consequence decided that the whole of the relevant performance criterion was ultra vires. Blow CJ said this:
"9 Planning schemes are a type of delegated legislation. As a general rule, an ambiguity or uncertainty about the meaning of a provision in a piece of delegated legislation will not result in invalidity. Thus in Cann's Pty Ltd v Commonwealth (1946) 71 CLR 210, Dixon J (as he then was) said, at 227-228:
'But to resolve ambiguities and uncertainties about the meaning of any writing is a function of interpretation and, unless the power under which a legislative or administrative order is made is read as requiring certainty of expression as a condition of its valid exercise, as the by-law-making powers of certain corporations have been understood to do, the meaning of the order must be ascertained according to the rules of construction and the principles of interpretation as with any other document.'
10 However, there have been cases when legislative instruments have been so uncertain or unintelligible that applying the rules of construction and the principles of interpretation has been to no avail. King Gee Clothing Co Pty Ltd v Commonwealth (1945) 71 CLR 184 was such a case. That case concerned the validity of an administrative order fixing the maximum prices of certain types of clothing. Dixon J said, at 197:
'It needs no imagination to see that in drafting an order for the fixing of prices for an important trade many difficulties must be encountered and it would be impossible to avoid ambiguities and uncertainties which are bound to arise both from forms of expression and from the intricacies of the subject. But it is not to matters of that sort that I refer. They depend upon the meaning of the instrument and they must be resolved by construction and interpretation as in the case of other documents. They do not go to power. But it is another matter when the basis of the price, however clearly described, involves some matter which is not an ascertainable fact or figure but a matter of estimate, assessment, discretionary allocation, or apportionment, resulting in the attribution of an amount or figure as a matter of judgment. When that is done no certain objective standard is prescribed; it is not a calculation and the result is not a price fixed or a fixed price. That, I think, means that the power has not been pursued and is not well exercised.'
…
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15 The Tribunal's conclusion as to uncertainty was based upon a finding of fact that "it is not possible to address the requirements of sub-paragraph (b) because that analysis would be infinite in scope". It remains open to the Tribunal in any subsequent case about performance criterion P1(b) or a similarly worded provision to take a different view as to what will be sufficient to demonstrate that "there is no suitable alternative lower-risk site". Factors such as the nature of a proposed use, its likely "catchment area", the availability of alternative sites for sale, their prices, and the strength of the chances of planning approval being granted for alternative sites might all be considered relevant. The Tribunal, perhaps differently constituted, might take a less stringent view of the strength of the evidence that a proponent would need to adduce as to the unavailability of suitable alternative lower-risk sites. It cannot be said that the Tribunal will never take the view that P1(b) or a similarly worded performance criterion can be satisfied.
16 In Ex parte Zietsch; re Craig (1944) 44 SR (NSW) 360 at 365-366, Jordan CJ, with whom Davidson and Street JJ concurred, stated several considerations relevant to the question whether a provision in delegated legislation is void for uncertainty. The third of those principles, was expressed as follows, at 365:
'(3) If the provision itself is clear, the fact that its application, generally or in
particular cases, may be difficult or burdensome, is immaterial.'
17 It is clear that the authors of the relevant Code intended that performance criterion P1(b) would only be satisfied in exceptional circumstances. The objective stated at the beginning of cl E1.5.1.1 begins, "Only in exceptional circumstances should vulnerable uses be located on land which is within a bushfire-prone area." Demonstrating that "there is no suitable alternative lower-risk site" was something one might expect to be difficult or burdensome, but not always impossible.
18 The Tribunal erred in law by concluding that performance criterion P1(b) was
ultra vires for uncertainty on a basis unknown to the common law. It follows that this
appeal must succeed..."
Grounds of appeal[3]
[3] Definitions
24 There are four grounds of appeal:
Ground 1: The Tribunal erred at [141] – [144] of the Decision: 11 No 5/2022
(a)
in acting beyond its powers by ordering that the planning permit (DA20019/00064) issued by the First Respondent to the Second Respondent (Permit) be varied to include a new condition 21c (Condition 21c) that required the preparation of a 5:1 offset plan prior to the commencement of works (Offset Plan). As the Offset Plan did not form part of the Second Respondent's development application (or the Permit), the Tribunal erred in ordering that the Permit be varied to include Condition 21c as the Tribunal purported to grant the Second Respondent a permit for a development application that was significantly different to the development application sought by the Second Respondent.
(b)
further and in the alternative to Ground 1(a), in ordering that the Permit be varied to include Condition 21c, by issuing a purported final approval of the development which impermissibly deferred for subsequent determination an essential element of the development, therefore depriving the approval of finality.
Particulars
(a)
Condition 21(c) requires that prior to commencement of works, an area or areas totalling not less than 5x the estimated area of each high priority biodiversity value subject to clearance and conversion will be identified from the site (herein identified as the three titles of the subject land) by a suitably qualified person.
(b)
The "three titles" are a reference to Certificates of Title Volume 166065 Folios 6, 7 & 8 and comprise of approximately 390 hectares of land (Land).
(c)
Condition 21(c) fails to specify the location and physical area of the offset area/s within the Land.
Ground 2: The Tribunal erred:
(a) at [92]–[101] of the Decision in failing to apply the definition of "site" contained in cl 4.1.3 of the Glamorgan Spring Bay Interim Planning Scheme 2015 (Planning Scheme) to its interpretation of the word "site" in cl. E10.7.1 P1(c)(iii) of the Planning Scheme and instead defining "site" in cl E10.7.1 P1(c)(iii) of the Planning Scheme as "that area identified in Ms Blowfield's evidence as the 'hazard management area', as shown in the map reproduced at paragraph 55 above." (b) further to ground 2(a), at [100] of the Decision in determining that if the definition of "site" contained in c. 4.1.3 of the Planning Scheme was applied to the Tribunal's interpretation of the word "site" in cl E10.7.1 P1(c)(iii) of the Planning Scheme, cl E10.7.1 P1(c)(iii) of the Planning Scheme would be ultra vires because: (i) it is inconsistent with s 51(1A) of the Land Use Planning and Approvals Act 1993 (Tas) (LUPA Act); and
(ii) lacks reasonable proportionality to the end that is to be achieved.
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Ground 3: The Tribunal erred at [118]–[138] of the Decision in finding
that cl E10.7.1 P1(c)(v) of the Planning Scheme is ultra vires.Ground 4: The Tribunal erred at [80] of the Decision by way of a constructive failure to exercise jurisdiction in determining that assessment of compliance with cl E10.7.1 P1(c)(i) of the Planning Scheme did not require the Second Respondent to demonstrate that no alternative citing or design would cause either less or no impacts to high priority biodiversity values.
| 25 | The appellant explains its grounds further in its contentions: "Ground 1 asserts that the Tribunal erred in that, by its conditions, it: |
(a) Impermissibly changed the nature of the development application from visitor accommodation with a set footprint into a new proposal which comprised firstly visitor accommodation and in addition an offset which in effect was an ongoing use to manage an area which was not identified but was to be assessed at least five times the area of destroyed high value vegetation. This unspecified area was to be subject to the unspecified management controls and audits.
(b) Secondly, that additionally those conditions were uncertain and vague and not Ground 2 asserts that the Tribunal did not apply standard E10.7.1 P1(c)(iii) to the application as it was drafted but, in effect, rewrote it and that is contrary to the ratio of Timber World.[4] final. Ground 3 asserts error in the determination of the Tribunal that a control in cl. E10.7.1 P1(c)(v) of the Scheme was invalid upon the basis that it made reference to an external document.
Ground 4, asserts a constructive failure to exercise jurisdiction due to the Tribunal's erroneous application / interpretation of cl. E10.7.1 P1(c)(i) in that properly applied it required the Tribunal to consider whether there were development areas on the site (the three titles) which could have accommodated the proposed development with less or no clearance of high priority vegetation."
[4] Timber World Pty Ltd v Meander Valley Council [2020] TASSC 27.
| Ground 1 |
26 Ground 1(a) asserts that in requiring preparation of an offset plan before works commenced, the Tribunal granted a permit for something different from that which was applied for. In requiring this the Tribunal purported to exercise its general conditioning power under the LUPA Act ss 51(3A), and 62(1)(c)(ii) and Cl 8.11 of the Scheme.
| 27 | The conditions relating to biodiversity values were these: "Biodiversity |
21 An offset plan is required for the loss of high priority biodiversity values across the whole development footprint to be approved by the Council's General Manager or their delegate prior to the commencement of construction works.
22 Suitable barriers must be erected during the construction of the development to ensure native vegetation that must be retained is not damaged during construction works.
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23 The approved removal of native vegetation must minimise impact to retained
native vegetation, soils and watercourses to the satisfaction of the Council's General
Manager or their delegate.
24 …."
28 The appellant's contentions appear in its written submissions at [28]-[32]:
"[28]
The starting point was the Tribunal's consideration of this issue. It took the view that cl E10.7.1 P1(c)(v) was invalid. It then went on to consider proposing a condition on the permit for the provision of an offset. Its reasoning was as follows:[5]
[5] AB205 - Saltwater Lagoon Pty Ltd v Glamorgan Spring Bay Council and Coles Bay Holdings Pty Ltd (2020) TASRMPAT 12 at [141]-[144].
'Does the Tribunal have power to impose a condition on the permit for
provision of an offset?141 The Council, acting as the planning authority, and this Tribunal, have a general conditioning power pursuant to s51(3A), s62(1)(c)(ii) of the LUPA Act and pursuant to the provisions of the Scheme at Clause 8.11. This general conditioning power entitles this Tribunal to impose a condition requiring an offset if the evidence establishes that it is proper to do so in furtherance of achieving the objectives in the Code, and / or compliance with the Code. The Tribunal's powers to impose conditions is broad, subject to the requirements set out in Western Australian Planning Commission v Temwood Holdings Pty Ltd24 (Temwood).
142 The evidence of both Mr Wapstra and Mr North was that an offset applying a ratio of 5:1 (being the industry standard identified and used) is capable of application with respect to this Proposal, which would result in an offset area within the 390ha site. Both experts agreed that such an area containing high priority biodiversity values could be identified and quarantined. While Mr Wapstra's evidence was that an offset was not necessary, Mr North was of the opinion that an offset was appropriate and necessary if the Proposal was to be approved. The Tribunal accepts Mr North's evidence in that regard.
143 By the imposition of a condition requiring an offset which applies a 5:1 ratio based upon an audit of the estimated area of each high priority biodiversity value subject to clearance and conversion, identified prior to construction, will, in the Tribunal's view, address Mr North's concerns relating to the remaining uncertainty of the extent of the area that may be subject to clearance. Such a condition should also provide for ongoing management and reporting. Council proposed an 'offset plan' condition at 21d as set out in Annexure 'B' to this decision. Having regard to Mr North's evidence, that condition, subject to minor amendments, is both appropriate in the circumstances of this Proposal and the Tribunal is satisfied is within power.
144 Subject to the offset plan condition being imposed on the permit, the Tribunal is satisfied that the requirements of the Code are met. Grounds 1, and 2(a), (b), (c), (d) and (e) are not made out.'
[29] It is apposite to consider the conditions to be imposed in the permit.
[30] What is important to emphasise is that even now there is no plan which depicts the area where the offset is to occur. There are no conditions or controls in respect of the ongoing management and auditing. That is all for the future.
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[31] The Tribunal focused solely on whether it had power to impose a condition requiring an offset after having determined, we say erroneously, that cl. E10.7.1 P1(c)(v) was ultra vires.
[32] To the extent that it states a broad planning principle it is unobjectionable. However, we say the Tribunal fell into error in two distinct ways:
(a) That in granting a permit, including condition 21(c), it transformed impermissibly the development application by increasing the footprint of the proposal with an offset of five times the area of high priority vegetation destroyed; and (b) Further, in so doing the Tribunal directed the issue of a permit which was not final and was uncertain."
29 Turning to the first part of this ground, the appellant continues:
"In this appeal we submit that the development application was changed significantly and impermissibly by the conditions that required the provision of an offset but the location or locations were not identified.
The application is for a distinct 'use' class of 'visitor accommodation' with a footprint or development area approximately shown at paragraph [55] of the Tribunal's decision. The Tribunal's conditions impermissibly change the nature of the development in respect of both use classes and area.
The offset is a distinct and separate activity or use, potentially constituting natural and cultural values management. It requires the identification of actions to 'maximise the opportunity for the ecological values'. It requires a maintenance report on an annual basis for five years. It requires supplementary checks of a condition status on an annual basis for five years for the duration of the use.
In addition, the area the subject matter of the permit is to be changed in an unspecified manner, noting that, as yet, at least five times the finalised destruction of high value vegetation must be set aside. This is impermissible in that the application requirements under cl. 8.1 require "details of the location of the proposed use or development".
There are no details of the proposed offset, see cl 8.1(c), that requires 'a full description of the proposed use or development'.
There is no description of an offset, further there is a requirement, in cl. 8.1(d) that there must be 'a description of the manner in which the proposed use or development will operate'."
30 The appellant submits that the second respondent could have put forward a plan that included an offset as part of its development application, noting there was no application to amend the development pursuant to s 22(3) of the Act. It contends that a "natural values assessment" (defined in cl E10.3 of the Scheme), ought to have been part of the development application and informed the details of it.
31 In relation to the need for offset the Tribunal said [142]:
"The evidence of both Mr Wapstra and Mr North was that an offset applying a ratio of 5:1 (being the industry standard identified and used) is capable of application with respect to this Proposal, which would result in an offset area within the 390 hectare sight. Both experts agreed that such an area containing high priority biodiversity values could be identified and quarantined. Whilst Mr Wapstra's evidence was that an offset was not necessary, Mr North was of the opinion that an offset was appropriate and necessary if the proposal was to be approved. The Tribunal accepts Mr North's evidence in that regard."
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32 As the second respondent submits the issue was squarely engaged in the hearing and the evidence supported the conclusion that an offset could ameliorate the biodiversity impacts of the development.
33 Subject to the imposition of that condition the Tribunal determined that the requirements of the Code were met. (The Tribunal observed that the experts disagreed as to the appropriateness of an offset, but it was open to it to prefer the evidence of Mr North in that regard. Nothing turns on that).
34 The appellant refers to the decision of the New South Wales Court of Appeal in Mison v Randwick Municipal Council (1991) 23 NSWLR 734 for the general point of principle that it is not open to a planning authority to grant a permit for a development and use that it is materially different from that for which application which was made. Counsel for the second respondent submits that the decision in Mison "is not a freestanding common law principle but rather the question is one of statutory construction that turns upon the facts of individual cases", citing a decision of the Full Court of the Federal Court in Queensland (Department of Agriculture and Fisheries v Humane Society International (Australia) Inc [2019] FCAFC 163). It also refers the Court to several authorities including St Helen's Area Land Care and Coastcare Group Inc v Break O'day Council [2007] TASSC 15, 16 Tas R 169, page 175 at [12].
35 The question is whether the course taken by the Tribunal resulted in a development which was different or transformed from that which was applied for.
36 In my view it did not. Developments have land use consequences, which is why they are regulated. Regulation occurs through planning schemes resulting in the imposition of conditions. In that sense, conditions are the consequences of that which is applied for. Provided there is an evidentiary foundation for the condition, and it is properly connected to the development in accordance with the general principle articulated in Western Australia Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63, 221 CLR 30, the conditioning of a development application does not transform the development itself into something different. The result which accrues here in consequence of the offset requirement emerges from the operation the Biodiversity Code, applied to the development, according to the Scheme. That was no more than the result of the conclusion that cl. E10.7.1P(1)(v) was engaged. The offset is not however "a distinct and separate activity or use" which was required to form part of the development application. Its imposition on the development has not created a different development, or transformed it from that which was applied for. I reject the submission that the development proposal changed in consequence of the offset condition.
37 The second element of ground 1 asserts the condition lacks certainty and finality. The appellant submits that the condition "defers for subsequent determination an essential element of the development". It is submitted that the finality principle has been breached because the permit was granted, but then required that the requirements emerging from the application and operation of cl E10.7 of the Scheme be conducted after the permit had been granted. It submits that condition 21c is "completely uncertain" for the following reasons:
(a)
The offset plan is not defined. There is a requirement to identify high priority biodiversity values to be removed, which in our submission is required to be done at the development application stage not after the permit was issued.
(b)
An area, or areas, totalling not less than five times the estimated area of the high priority biodiversity to be cleared is to be identified. However, an area may be more than one physical area.
(c) There is a requirement for management actions which are not specified or the mechanism by 16 No 5/2022
which they are to be achieved. That is, it is not a conservation covenant or a Pt 5 agreement.
(d) There are requirements for a condition and maintenance report in the first five years and ongoing supplementary "checks". None of these requirements are registered on the title. An "independent third party" is not defined. (e) It refers to a "suitably qualified person" on multiple occasions, however, it fails to specify any criteria to determine who might be suitably qualified. 38 In Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23, the court identified a test for determining uncertainty or lack of finality at 28:
"… it would seem that the test of uncertainty or lack of finality, being determined by reference to an important aspect of the development, requires that what is left uncertain must be the possibility that the development as approved may be significantly different from the development the subject of the application. Thus, the result should not be different depending upon which approach is adopted: a consent will only fail for uncertainty where it leaves open the possibility of a significantly different development…". (My emphasis.)
39 In Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities
[2013] FCAFC 111 at 179:
"Decisions such as Mison, Winn, Kindimindi and Ulan Coal Mines go to confirm the observation that, under the general law, the question whether a conditional approval or a condition attached to the approval of some activity is valid, is an exercise in statutory construction. They also confirm that, as a general principle, the approval or a condition will not necessarily be considered invalid because a condition retains in the decision-maker some ongoing flexibility in relation to the implementation of an approved activity or because it delegates some authority in relation to the implementation of the decision to some other person or agency."
40 The principle advanced by the appellant is not a contentious one. The question is whether that principle is offended. The answer to that question requires consideration of whether there is a continuing uncertainty about what has been approved because "what is left uncertain" is the possibility that the development as approved may be significantly different from the development the subject of the application.
41 In my view the facts do not support the appellant's argument. I do not foresee a planning outcome which leaves open the possibility of something so different from that which was applied for and approved, that there is the requisite uncertainty of outcome to offend the principle; there is not continuing uncertainty around those matters, but rather "ongoing flexibility in relation to.. implementation" achieved by way of a delegated authority in relation to that matter.
42 I dismiss this ground.
| Ground 2 |
43 Ground 2 engages the principles of statutory interpretation to which I have already referred. The Tribunal decided that "site" for the purpose of assessing compliance with P1(c) was equivalent to the area identified in evidence as the hazard management area[6]. So doing it chose not to adopt the definition of "site" appearing in cl 4.1 of the Planning Scheme to cl E10.7. It did so because to adopt that definition would result in "an absurd unworkable performance criteria incapable of application…"; that the scale of the task which would be required was onerous and "that an
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[6] That area was identified at [55] by reference to the evidence of a planner, Ms Blowfeld. It is not necessary to identify that area, the issue being whether the Tribunal was correct to depart from the Scheme definition.
acceptance of the scheme definition, extended the clause beyond the boundaries of reasonable proportionality"[7]. It decided that "the plain and ordinary meaning of 'site' in P1(c) when read in the context of cl E10.7.1 as a whole, has a narrower meaning than the scheme definition. The Tribunal adverted to a submission made by the second respondent that cl P1(c)(iii) was inconsistent with s 51(1A) of the Land Use Planning and Appeals Act 1993 to bolster this conclusion, commenting, without deciding that point, that the submission had 'considerable force' if the Scheme definition of site was adopted."
[7] The evidence led at the hearing renders doubtful the Tribunal's conclusion that the obligation lacked reasonable proportionality. The evidence of Mr Wapstra, was that it was not unusual to assess an area of the size in question in this case.
44 An orthodox question of statutory construction, the approach identified in A2 (above) and Raf Angus (above) is required. That compels a consideration of the words used in the Scheme taken in the context of the surrounding provisions and legislative scheme.
45 Clause 8 of the scheme governs the assessment of an application for development. Clause 8 refers to "site" and does so, incontrovertibly, in terms which engage the scheme definition of that term. Clause 4.1 of the Scheme, which relates to planning terms and definitions in the Scheme, requires the adoption of those planning terms and definitions "unless the contrary intention appears."
46 When the assessment task is undertaken, it is governed by the approach in cl.8, unless the contrary intention appears. There is no express term in Cl E10 which permits a departure from the Scheme definition in particular circumstances. Nor considered in its broader context, is a different definition- or contrary intention, indicated.
47 The presumption that defined words have their defined meanings is not to be displaced without good reason: Qantas Airways Ltd v Chief Commissioner of State Revenue [2008] NSWSC 1049 at [38]. The second respondent's submission to the Tribunal that cl. P1 (c) (iii) is ultra vires, unless that definition is avoided, does not provide a basis for such a conclusion. If correct it would require that the uncertainty or ambiguity alleged be demonstrated each time the clause is engaged.
48 Approaching the matter that way, ground 2 can be resolved relatively quickly. The Tribunal's approach emerged from an appraisal of the task associated with assessing the scale of the task required by the adoption of the Scheme definition of "site". Nothing in the language of cl E10 indicates a proper basis for doing so; nothing in the language of that clause considered according to its terms, and its context, authorises the Tribunal to depart from the Scheme definition of "site" when undertaking the assessment. No discretion to depart from that definition is conferred.
49 The consequences of adopting the scheme definition are not relevant considerations. The fact that a large area falls within the purview of such definition neither permits, nor requires, a different construction. Adapting the reasoning in Timber World (above) that result reflects no more than that the authors of the Code intended that compliance with cl E10 could be achieved only in certain circumstances. Put another way that purpose is precisely the reason for adopting the definition of "site" in the Scheme.
50 Accordingly, "site" for the purpose of cl E10 must be identified in accordance with the definition in the Scheme in consequence of cl 8 of the Scheme, and the purpose enshrined within cl.E10 P1.
51 It follows that the tribunal erred in departing from the Scheme definition of "site" and this ground should be upheld.
52 Before the Tribunal, the second respondent asserted that this clause of the Scheme was attended by sufficient uncertainty to render it ultra vires. Departing from the Scheme definition of
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"site" avoids resolution of this contention, adopting it, enlivens the argument, as the Tribunal
acknowledged at [96] of its reasons. On that basis I will say something about it.53 The regulation of permits is fundamental to the system of planning and development enshrined within the LUPA Act and the subordinate legislation pertaining to land use and development in this State. The entitlement to develop land is not defeated by the application of the scheme definition of "site" to the performance criterion, nor is it rendered uncertain. The entitlement is merely regulated by it. The authors of the Scheme intended that in circumstances such as this one, the objectives contained within the Biodiversity Code should be rigorously applied. That outcome is achieved requiring its application to the site as defined by the Scheme, not as modified by a planning authority based on its own assessment of the effect or extent of the obligation which might arise in any given case from applying that definition. Section 20 of the LUPA Act authorises such purpose, and it is consistent with the Objectives in Schedule 1 of that Act. The passage appearing at [17] of Blow CJ's decision in Timber World (set out above) is apposite.
54 I reject the submission that the clause was attended by uncertainty or ambiguity or resulted in an outcome that lacked reasonable proportionality vis a vis the outcome required by the Scheme and the Code in order to deal with the biodiversity impacts of the development. The provision is not ultra vires.
Ground 3
55 Ground 3 asserts error in the Tribunal's decision to the effect that cl E10.7.1 P1(c)(v) of the Scheme is ultra vires. In light of my conclusion that ground 1 should fail, it is not necessary to consider this ground.
Ground 4
56 The nub of Ground 4, is that "the second respondent chose not to locate the proposal in an area already cleared of high priority biodiversity values" as required by cl E10.7.1 P1, and cannot assert that it has minimised the impacts of the development without also demonstrating there was not an alternative siting which would cause less or no impact upon those values. The Tribunal rejected this. At [80] it said:
"… Mr North's assessment proceeded on the basis that to establish that the Proposal was designed and located to 'minimise' impacts required demonstration that no alternative siting and design would cause either less or no impact at all…." The Tribunal accepts the Second Respondents submissions that on an assessment of compliance with P1(c)(i) only a consideration of the development on the chosen site is relevant. Mr North's evidence in that regard is not of assistance to the Tribunal." (My emphasis.)
57 In support of its submission the appellant draws an analogy from cases engaging the Heritage Act 1995. As that Act was framed, when engaged, an applicant seeking approval to undertake development, was required to show that there was "no prudent and feasible alternative to the carrying out of the work". Planning authorities had to wrestle with this without real direction as to how far such enquiry went. In Kidd v Resource Management & Planning Appeal Tribunal [2011] TASSC 38, 20 Tas R 339 the court held at [43] that the inquiry against this consideration was "not one confined to, nor constrained by, the parameters of the proposal." Each case required its own judgment about how far the enquiry was required to take matters so as not to confine it to the parameters of the proposal. The scope for argument, and challenges was significant.
| 58 | It is to be observed at the outset that no such obligation is expressly articulated in cl E 10.7.1 P1(c) unless one interprets the requirement for a "development" that is "designed to minimise impacts" as stipulating such obligation. It is trite to observe that the correct approach to the |
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assessment of a development application is to consider it against the applicable planning scheme, interpreted in accordance with established principles therefor, and to identify the planning consequences which emerge, and the options which are offered to address those planning consequences. If the demonstrated planning consequences offend a provision of the planning scheme in a way which cannot be ameliorated in a permitted way (through offsets for example), the development application cannot be approved. If the Scheme makes provision for alternative pathways to an approval, then, if an alternative pathway can be satisfied, the development application is required to be approved, subject to such conditions as are necessary. The planning authority is required to consider the application as submitted against the terms of the Scheme. I do not consider that the requirement in cl E10 P1(c)(i) should, be read as if E10 P1(c)(v) was not part of the provision. Clause E10 P1(c)(v) provides a pathway to development approval notwithstanding the biodiversity impacts which accrue by reason of the development as designed. E10 P1 imposes an obligation upon a developer to do no more than demonstrate that its development can achieve the required result by such means as the scheme permits. The very notion of offsets exists to afford a pathway to an approval in circumstances where the chosen design has such impacts.
59 Clause E10.7 P1 should be interpreted to reflect the fact that the scheme affords a method for the amelioration of biodiversity impacts as a means of obtaining an approval. Accordingly "designed to minimise impacts" in P1(c)(i) means "designed to minimise impacts in accordance with this part" which includes P1(c)(v) (offsets). This affords developers the option of submitting a preferred design; one which accords with its commercial needs.
60 The approach taken by the Tribunal was in accordance with this. It assessed the development in accordance with its statutory obligation according to the evidence. That it erred by adopting a definition of site in circumstances where such course was legally incorrect and factually unsupported, does not derogate from my conclusion in relation to this ground. Ground 4 fails.
Disposition
61 I would uphold the appeal. In the circumstances, I take the view that it is appropriate to remit the matter to a differently constituted Tribunal for its determination. That is the appropriate course in cases where the Tribunal has reached a wrong decision, as opposed to no decision, as those concepts are discussed in cases such as Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11, 209 CLR 597.
the Appeal Tribunal in the appeal.
(2) An appeal from a decision of the Appeal Tribunal must be made to the Supreme Court –
(a) within 28 days after the making of the decision; and
(b) in accordance with any applicable Rules of Court made by the Supreme Court and any regulations made for the
purposes of this section.
(3) The Supreme Court may extend the time for instituting the appeal.
(4) The time for instituting the appeal may be extended even though the time has ended.(5) The Supreme Court must hear and determine an appeal duly made under this section, and may make such orders as it considers
appropriate.
(6) Without limiting subsection (5) , the orders that may be made by the Supreme Court on an appeal include –
(a) an order affirming a decision of the Appeal Tribunal; and
(b) an order setting aside a decision of the Appeal Tribunal and –(i) making a decision in substitution for the decision set aside; or
(ii) remitting the matter for reconsideration in accordance with any directions of the Supreme Court."
"… the variety of-
(a) plants, animals and micro-organisms; and (b) the genes contained in plants, animals and micro organisms; and (c) the ecosystems of which plants, animals and micro-organisms form part." The appellant identifies a number of definitions that are relevant to this appeal:
"Site" "… the lot or lots on which a use or development is located or proposed to be located." : Clause 4.1 of the
Planning Scheme
"Lot" means a piece or parcel of land in respect of which there is only one title other than a lot within the meaning of
the Strata Titles Act 1998.": Clause 4.1 of the Planning Scheme
"Development area"… the area of land occupied by development including its yard, outbuildings, car parking,
driveways, storage areas, landscaping and wastewater disposal areas." : Clause 4.1 of the Planning Scheme
"Suitably qualified person (biodiversity)" means a person possessing the knowledge, skills and experience to provide
advice on ecological issues associated with the use and development of land. The person must be cognisant of current
legislation and policy and be mindful of best practice in management and mitigation of potential impacts.": Clause
E10.3 of the Planning Scheme
"Biodiversity" means "… biological diversity as defined under the Nature Conservation Act 2002." :Clause 4.1 of thePlanning Scheme
"Biological diversity" in the Nature Conservation Act 2002 at s 3:
"… the variety of-
(a) plants, animals and micro-organisms; and (b) the genes contained in plants, animals and micro organisms; and (c) the ecosystems of which plants, animals and micro-organisms form part."
Clause 4.1 of the Planning Scheme
"Biodiversity Offsets": For the purposes of cl. E10.7.1 P1(v), the Planning Scheme defines "biodiversity offsets" at cl.
E10.3 as:
"…measures that compensate for the residual adverse impacts of an action on the environment, when:
(a) alternatives and options to avoid those impacts have been exhausted; (b)
it is still considered desirable for other economic, social or environmental reasons for the action to proceed."
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