Sanctuary Investments Pty Ltd v Baulkham Hills Shire Council

[2006] NSWLEC 733

Reported Decision: 153 LGERA 355

Land and Environment Court

of New South Wales

CITATION:

Sanctuary Investments Pty Ltd & Ors v Baulkham Hills Shire Council [2006] NSWLEC 733

PARTIES:

APPLICANT
Sanctuary Investments Pty Ltd; Beechworth Homes Pty Limited & Calliday Pty Limited
RESPONDENT
Baulkham Hills Shire Council

FILE NUMBER(S):

10385 of 2004

CORAM:

Jagot J

KEY ISSUES:

Development Application :- proposed subdivision and erection of dwellings - endangered ecological community - offer to make monetary contribution to acquiring other land by way of offset - offer to enter into planning agreement - adequacy of proposed offset - whether development appropriate

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Land and Environment Court Act 1979
Native Vegetation Act 2003
Threatened Species Conservation Act 1995
Threatened Species Conservation Amendment (Biodiversity Banking) Bill 2006

CASES CITED:

Fairfield City Council v N & S Olivieri P/L [2003] NSWCA 41;
Fitch v Shoalhaven City Council (1987) 67 LGRA 165;
Hammersmith Management Pty Ltd v Lake Macquarie City Council (2003) 124 LGERA 63;
Lake Macquarie City Council v Hammersmith Management Pty Ltd (2003) 132 LGERA 225;
Longboard Developments Pty Ltd and Ors v Byron Shire Council [2001] NSWLEC 143;
Maitland City Council v Anambah Homes Pty Limited [2005] NSWCA 455

DATES OF HEARING:

23/10/2006, 24/10/2006, 25/10/2006

 
DATE OF JUDGMENT: 

11/23/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr C McEwen SC
SOLICITORS
Home Wilkinson Lowry

RESPONDENT
Mr T To
SOLICITORS
PricewaterhouseCoopers Legal

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

23 November 2006

10385 of 2004

SANCTUARY INVESTMENTS PTY LTD; BEECHWORTH HOMES PTY LIMITED & CALLIDAY PTY LIMITED
Applicant

BAULKHAM HILLS SHIRE COUNCIL
Respondent

JUDGMENT

Jagot J:
A. Introduction
1 This is an appeal against Baulkham Hills Shire Council’s refusal of development application no. 1632/04/HC for the subdivision and the erection of five detached dwellings on a site adjoining Eldon Green, West Pennant Hills. Commissioner Brown assisted me during the hearing of this matter.

2 The site is Lot 7 in DP 270109. It is the most southerly area of land in a community title development known as The Glade. It is irregular in shape, with an area of 1.184 hectares. The site is bordered by the Cumberland State Forest to the east and residential properties to the south. Residential properties that form part of The Glade development are located to the north and west of the site.

3 Access to the site is via private roads that form part of The Glade development. The nearest private road is Eldon Green and the nearest public road is Coonara Ave to the north. A tributary of the Darling Mills Creek forms a natural watercourse adjacent to the northern section of the site, flowing to the southwest. This watercourse is located within the community property of The Glade.

4 The site is generally covered by tall open forest with some cleared areas. This vegetation is Sydney Turpentine-Ironbark Forest (STIF), an endangered ecological community under the Threatened Species Conservation Act 1995. The determination of the NSW Scientific Committee under Div 3 of Pt 2 of that Act, made in October 1998, records that this community is limited to the Sydney Basin Bioregion, that it is estimated that 0.5% of the original area of STIF remains in a number of remnants, with small areas of these remnants only included in conservation reserves.

5 The Commonwealth Minister for the Environment and Heritage, in August 2005, determined to list the Turpentine-Ironbark Forest of the Sydney Basin Bioregion as a critically endangered ecological community under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The advice to the Minister from the Threatened Species Scientific Committee established by that Act recorded that the geographical distribution of this community coincided with urban areas, and has undergone a severe decline in extent, has a restricted area of occupancy, is subject to ongoing and demonstrable threats, has suffered a reduction in ecological community integrity, and is unlikely to regenerate within the near future even if impacts cease.

6 The vegetation on the site forms part of a larger remnant connecting the Cumberland State Forest to the east and southwest along a tributary of Darling Mills Creek. The vegetation on site is generally in good condition, with sufficient seed banks in the soil to enable regeneration of the site from under scrubbing carried out to comply with perceived bushfire requirements.

7 The surrounding area is characterised largely by urban development, predominantly single detached dwellings, although the Cumberland State Forest and the headquarters of IBM Australia are located nearby.

B. The proposal

8 The applicants propose to subdivide the site into 5 residential lots and a neighbourhood lot as follows:

• Lot 1 – 6020 sq m (the neighbourhood lot),
• Lot 2 – 1078 sq m,
• Lot 3 – 1853 sq m,
• Lot 4 – 851.4 sq m,
• Lot 5 – 851.4 sq m,
• Lot 6 – 1190 sq m.

9 The neighbourhood lot is proposed as a riparian and conservation corridor.

10 The applicants propose to erect two storey dwelling houses on lots 2 – 6. Vehicular and pedestrian access to these lots is proposed through an extension of Eldon Green via a bridge and associated works across the neighbourhood lot. Details of the bridge and associated works were available at the hearing, but were not part of the development application. The bridge will involve an area of about 10m in width, including a 2 – 2.5m asset protection zone for the bridge structure.

11 The area of the access road and the dwellings are to be cleared of trees and vegetation. Dwelling curtilages are to be managed as an asset protection zone. Although asset protection zones were also originally proposed in the corridor, the current position of the Rural Fire Service is that the hazard reduction works within the balance of the site and the width of the corridor do not warrant additional works within the corridor itself (other than those directly related to the bridge). About 6930m2 of STIF will be removed by the carrying out of the development. About 2470m2 will be retained and regenerated in the corridor in accordance with the proposed ecological site management plan.

12 A species impact statement accompanied the application, as the proposal is “likely to significantly affect threatened species, populations or ecological communities, or their habitats” (s 78A of the Environmental Planning and Assessment Act 1979 (“the EPA Act”)). The applicants propose that the loss of STIF be addressed through retaining and rehabilitating the vegetation and riparian corridor on the site and providing an “offset” contribution of $86,000 towards the purchase of land in the Ku-ring-gai local government area, some 12km away. That land is privately owned, and contains Sydney Blue Gum High Forest (another endangered ecological community under both State and Commonwealth legislation).

13 The applicants suggest a deferred commencement condition to require the acquisition of this land or some alternative land to the satisfaction of the Department of Environment and Conservation prior to the development consent becoming operative. Alternatively, the applicants offer to enter into a planning agreement with (presumably) the Council, Ku-ring-gai Council and the Department in accordance with ss 93F to 93L of the EPA Act, to the same general effect as the suggested deferred commencement condition. The offer triggers the application of s 79C(1)(a)(iiia) of the Act (which requires the consent authority to take into consideration any planning agreement that has been entered into under s 93F, or any draft planning agreement that a developer has offered to enter into under s 93F).

C. Planning controls

14 The site is zoned Residential 2(d)(Protected) under Baulkham Hills Local Environmental Plan 2005. LEP 2005 was made on 26 August 2005. Clause 13(2) provides that consent must not be granted unless the consent authority is satisfied that the proposed development:
(a) is consistent with one or more of the aims of this plan and any relevant objectives for development, and
(b) is not contrary to achieving the objectives of the zone within which it will be carried out.

15 Relevant aims of the LEP 2005 in cl 2(1) include:
( a) With respect to the natural and built environment of the Baulkham Hills local government area, to conserve and enhance the natural and built environment of Baulkham Hills for present and future generations,

16 Relevant objectives for development in cl 2(2) include:
(ii) protect and enhance the area’s biodiversity, and
(iii) ensure that environmentally sensitive areas are suitably protected, and
…
(v) respect, improve and integrate with the local character of the locality in which it is carried out, …

17 The objectives of the zone are:
(a) to provide for the residential development of land within the zone having particular regard to the special environmental development constraints of that land, and
(b) to provide for the preservation of the vegetative, landscape, drainage, scenic and environmental qualities of the land within the zone by minimising the impact of development on the natural environment.

18 Together, the proposed subdivision and dwellings constitute development for the purpose of environmentally integrated housing, which is permissible with consent. Clause 5 defines "environmentally integrated housing" as:
(a) the integrated design and construction of dwellings with a resultant maximum yield of dwellings and lots that is consistent with the subdivision potential of the land, which may be indicated in a development control plan, and
(b) the protection of all environmentally significant or sensitive areas (normally as common or neighbourhood property) of land, including natural drainage channels, important vegetative and topographic features, geotechnical hazard areas and the like, by the integration of buildings and works with the environment.

19 Development Control Plan No. 3 Residential applies. The Council adopted DCP 3 in April 2006. Clause 4.7 contains requirements for bushland and biodiversity conservation. Clause 4.12 provides requirements for subdivision generally including minimum allotment sizes (cl 4.12.2) and building platforms (cl 4.12.3). Clause 4.12.1 provides specific provisions for environmentally integrated housing. That clause explains that a primary purpose of environmentally integrated housing is to achieve better protection of environmentally significant features by an integrated approach to subdivision and subsequent development.

20 The table to cl 4.12.2 refers to the DCP map sheets with respect to minimum allotment size. Residential sheet 37 identifies the area of The Glade development, including the site that is designated as area “C” on this sheet. This is significant in the applicants’ case, as, by the date of adoption of DCP 3, area “C” alone remained undeveloped. Accordingly, there can be no doubt that DCP 3, including sheet 37, constitutes a DCP indicating the subdivision potential of the site as contemplated in the definition of environmentally integrated housing.

21 Sheet 37 identifies more specific controls for the site including provisions with respect to housing choice, tree cover, surrounding properties, integrated development, drainage and natural features.

22 The “housing choice” principles contain a provision “lots to a nominal average of 2300m2 in Area (C)”. Although there was some debate about the meaning of “nominal” in this control, there was no dispute that the proposal was consistent with this control.

23 The “surrounding properties” principles include setting back buildings a substantial distance from the southern boundary in area “C”, an approach which is apparent on the development plans.

24 The “natural features” objective and principles disclose the intention of the DCP to preserve a corridor along the creek to enable the creek to be retained and restored, the vegetation along that corridor to be preserved and subject to restrictions on use, for damage to the corridor to be minimised and managed through a community management statement on an ongoing basis and for any crossing of the creek to be limited to a single point. The development plans reflect these principles in that the proposed corridor generally accords with the location shown as such within area “C” on sheet 37, the creek crossing is limited to one point and the corridor is to be managed as a neighbourhood lot in a community scheme in accordance with the ecological site management plan.

25 The “integrated development” principles require subdivision proposals in area “C” to nominate building platforms that minimise tree disturbance and to include environmentally sensitive creek lines as neighbourhood property. The development plans include the dwellings to be constructed and building platforms, and the proposed riparian and conservation corridor is within the neighbourhood lot. The Council contends that the building platforms do not minimise tree disturbance, however.

26 The “tree cover” principles provide that as many substantial or significant trees as practical are to be retained, and that removal of vegetation, particularly in areas “B” and “C” is to be minimised. Consistent with its views about the integrated development principles, the Council contends that the proposal has not minimised the removal of vegetation and does not retain as many substantial or significant trees as practical. D. The issues

27 The parties were at issue with respect to the relationship between the proposed development and the endangered ecological community STIF, in the context set by the planning controls, the measures to be incorporated on site to protect and enhance the riparian and conservation corridor and the applicants’ proposed contribution to the purchase of other land as an offset for the removal of the STIF.

28 Mr McEwen SC appeared for the applicants. He submitted that the development was consistent with the provisions of LEP 2005, DCP 3 and sheet 37, adopted by the Council in April 2006. The site was the only area not developed at the time the Council adopted the DCP. The Council, through the DCP, had accepted that the site had the potential to be subdivided into 5 lots. The Council had also accepted that the vegetation corridor should be located along the creek line, with a single crossing, precisely as proposed in the application. In this context, the accepted significant effect of the development on the STIF was consistent with the planning controls and adequately and appropriately ameliorated by the proposed riparian and conservation corridor to be managed in accordance with the ecological site management plan, and the contribution towards the acquisition of the offset land consistent with the position of the Department.

29 Mr To appeared for the Council. He submitted that the planning controls had to be read as a whole. When read as a whole, the controls disclosed the focus on preserving significant environmental features, minimising the impacts of development, minimising the removal of trees and vegetation in area “C” and retaining as many significant and substantial trees as possible. In this context, the fact that the development complied with the numerical requirement of the nominal lot average and provided a corridor as depicted on sheet 37 did not mean that the development was consistent with, or acceptable having regard to, the planning controls. Moreover, the development did not ensure the long-term conservation of the corridor and the proposed contribution to the acquiring of offset land was inadequate, inappropriate and, absent a planning agreement, invalid.

E. The evidence

30 Mr John Travers, ecologist, was involved in the preparation of the species impact statement and prepared the ecological site management plan and other documents relating to tree protection and bushfire hazard reduction in support of the application. In Mr Travers’ opinion the proposed corridor and contribution to the acquisition of other land for conservation purposes was consistent with the requirements of the Department and the policy underlying the Department’s offsetting policy (reflected in the provisions of the Native Vegetation Act 2003 and the Threatened Species Conservation Amendment (Biodiversity Banking) Bill 2006). He concluded that this approach was appropriate because the proposed offset land adjoined a nature reserve, was of similar size, contained a critically endangered ecological community, was zoned residential, was of core conservation value, contained vegetation in a similar condition to the site, contained Blue Gum High Forest, which shares many of the same floristics as STIF, contained almost identical habitat features as the site, and (on a regional scale) STIF and Blue Gum High Forest are often continuous. He acknowledged that the contribution to the purchase of the other land by way of an offset was essential to the acceptability of the proposal, given the amount of STIF to be removed in the carrying out of the development.

31 Mr Travers was also satisfied that the Rural Fire Service would not alter its current position to require future bushfire hazard reduction in the proposed riparian and conservation corridor. Although he had contemplated a need for bushfire hazard reduction within the corridor based on his experience, subsequent meetings with the Service had confirmed that the corridor was not of sufficient width to require hazard reduction in addition to the asset protection areas within the development areas on site. Accordingly, he considered that the corridor would function as proposed in his ecological site management plan for both flora and fauna purposes on the site and as part of the larger corridor between the Cumberland State Forest, Darling Mills State Forest and Excelsior Reserve. In particular, Mr Travers observed that the larger corridor has limited and varying connectivity. Notwithstanding this, the proposed corridor on site would maintain the current overall viability of the connection between these areas.

32 Dr Peter Smith, ecologist, reviewed the proposed development and offset on behalf of the Council. Dr Smith estimated that around 75% (or 6930m2) of the STIF community on site would be lost through roads, buildings and bushfire protection zones. He described this as significant because the site has important corridor values, linking Cumberland State Forest with Darling Mills State Forest and Excelsior Reserve. Dr Smith was also concerned that the riparian and conservation corridor on site was in the more degraded area requiring ongoing intensive management, and would be interrupted by the bridge. Instead, he proposed a 30 metre wide corridor running near the southern boundary of the site through better quality vegetation requiring less intensive management, unaffected by the proposed access bridge and secure from any pressure for potential vegetation removal for future bushfire hazard reduction works, which he thought was likely to arise once revegetation was complete given that the understorey would extend to the boundaries of existing residences. He also considered that the 10m proposed bridge would inhibit the corridor’s function by reason of discontinuity. The function of the corridor (linking the reserves) was determined by its general condition, not its narrowest point. The fact that there were narrower points within the larger corridor off the site could not justify reducing its overall effectiveness by maintaining an inadequate corridor on site.

33 In Dr Smith’s opinion, the proposal did not satisfy the requirements for preservation of an adequate corridor on site or the securing of appropriate offset land. Dr Smith was concerned about the proposed offset land being some 12km away, in another local government area, containing a different endangered ecological community. Moreover, the Department had received a request for the Director-General’s requirements for a species impact statement with respect to that land, suggesting that it also was proposed for development He considered that the purpose of offsets was to ensure that (overall) the conservation status of a particular community was not adversely affected, and that this was not being achieved by the proposal. He was also concerned that the documents supporting the offset did not disclose any detailed biometric analysis consistent with the quantitative and qualitative measures developed for the Native Vegetation Act 2003 and foreshadowed as part of the Threatened Species Conservation Amendment (Biodiversity Banking) Bill 2006. Instead, the documents disclosed a simple formula relating to bush regeneration costs (not land acquisition costs).

34 Ms Sarah Burke, Senior Threatened Species Officer with the Department, gave evidence. Ms Burke explained that the Department had draft guidelines for offsets only. These guidelines provide that the first step is always to avoid and minimise all conservation impacts and require offsets to be considered in the second step if the impacts cannot be avoided or minimised. The offsetting policy was in its infancy. About six projects thus far had been required to provide offsets as a condition of the Director-General’s concurrence. The approach had been different each time depending on the nature of the project – ranging from acquiring lands in secure conservation tenure to mere revegetation of lands already within conservation tenure (for example, a council reserve). The Department considered that maintaining a corridor on site was essential, but that conservation impacts remained despite the proposed corridor. Accordingly, the Department considered an offset appropriate. Contributing towards the purchase of the land in Ku-ring-gai was a better conservation outcome than contributing towards the revegetation of an existing reserve, and within the range of other offsets imposed by the Department as a condition of concurrence. It was essential that both the on site corridor and the offset lands have secure conservation status in accordance with a plan of management. Ms Burke understood that the bridge would cross the corridor on the site, which was acceptable. It would not be acceptable if any bushfire hazard reduction works were required in the corridor.

35 Ms Burke agreed that the first preference for any offset was to conserve STIF. STIF sites were not available for conservation, however. Blue Gum High Forest was of higher conservation value than STIF. In accordance with the draft offsetting policy, conserving a community of higher value was acceptable.

36 Ms Burke confirmed that the existing draft policy was not comparable to the proposed biodiversity banking legislation, which would incorporate a detailed scheme with respect to assessing applicable credits and ratios.

37 When asked whether the Department considered the impacts on the site unavoidable, Ms Burke explained that the Department’s position was always framed as advice to the consent authority, it being the consent authority’s role to consider whether the development was appropriate. If the consent authority considered the development appropriate, then the Department provided its advice with respect to concurrence. The question of offsets would arise at that stage in the assessment. The Department had not proposed that the applicants acquire land because it inferred that the size of the development would make that course economically unviable. The proposed contribution was not ideal but, if the STIF on site was to be removed, the Department’s suggestion was preferable to a mere contribution to revegetating lands already owned by the Council.

38 Ms Burke considered the Department’s “offsetting principles and options” document prepared for the specific development the most relevant to understanding the policy underlying offsets. That document records the Department’s view that if impacts on threatened species and endangered ecological communities were unavoidable, then development applications should include offsets to counterbalance these impacts. The document notes that the Department would support this approach where “it can be shown that no feasible alternative exists to the removal of vegetation”. Further, that the decision “whether the current proposal, and any associated loss of vegetation, is justified rests with the consent authority”. The objective underlying the offset approach is one of “no net loss”, to balance adverse impacts, and to ensure that planning decisions do not diminish future recovery options. Accordingly, offsets should be considered a “last resort” option, to be explored “after all other options to minimise impacts have been considered”. If these requirements were satisfied then the offset for any particular development should reflect six principles – namely:

1. preference should be given to a "like for like" offset.
2. the offset should be greater than the area cleared.
3. the offset should preferably be in proximity to the area impacted.
4. the offset actions should be located in strategic, targeted areas.
5. offsets should be in addition to existing initiatives and should not duplicate or replicate existing schemes or programs.
6. the offset must be secure and long-term.

39 These provisions reflect the Department’s more general draft policy “principles for the use of biodiversity offsets in NSW”. That draft policy also requires that offsets be underpinned by sound ecological principles, should aim for net improvements in biodiversity over time, must be enduring, should be agreed before the impact occurs, must be quantifiable in that impacts and benefits should be reliably estimated, must be targeted for a like for like or better conservation outcome, must be appropriately located in the same region, must be supplementary to existing requirements, and must be enforceable. The draft policy notes that the requirement that offsets be quantifiable involves applying a methodology based on the best available science to calculate the loss from the development and the gain from the offset, and that a state-wide tool will be developed for the bio-banking legislation based on the tools developed for the Native Vegetation Act.

40 Mr Player and Mr Tse, planners, gave evidence. Their primary evidence largely depended on the ecological advice of Mr Travers and Dr Smith (respectively). They agreed that, subject to the ecological issues, the proposed development was generally consistent with DCP 3, including sheet 37. Mr Tse acknowledged that the Council was aware of the sensitive vegetation on site when it adopted DCP 3 in April 2006. Mr Tse agreed that the dwelling footprints were not unusual in the area, but did not consider them appropriate in terms of the outcomes for tree retention. Mr Player agreed that the development must fail if it did not satisfy the zone objectives irrespective of numerical compliance. On balance, he considered that the development minimised the impacts on the natural environment.

41 A number of residents of The Glade gave evidence. They were concerned about the use of the steep and narrow private roads for construction and the risks and inconvenience associated with truck movements, construction parking and work sites. They were concerned about the additional traffic once the development was complete for the same reasons. They objected to the environmental damage given the extent of removal of trees and fauna habitat involved. They objected to the additional strain on the infrastructure servicing The Glade, which was already under pressure. They were also concerned about additional financial and other obligations being imposed on the community association by reason of the development.

F. Conclusions

42 Although the applicants maintained that their offer to pay $86,000 to Ku-ring-gai Council towards the purchase of the other land could be imposed by a condition of consent under s 80A(1)(a) of the EPA Act, they offered to enter into a planning agreement as an alternative. The requirements imposed by ss 94 to 94E of the EPA Act (for example, that the development will or is likely to require the provision of or increase the demand for public amenities and public services within the area, that contributions be authorised by a contributions plan and be reasonable) do not apply to dedications of land, payment of monetary contributions or provision of material public benefits in accordance with planning agreements. Planning agreements are subject to their own regime in ss 93F to 93L of the EPA Act.

43 A planning agreement is a voluntary agreement between a developer and a planning authority or authorities “under which the developer is required to dedicate land free of cost, pay a monetary contribution, or provide any other material public benefit, or any combination of them, to be used for or applied towards a public purpose” (s 93F). Public purpose is broadly defined in s 93F(2). Section 93F(4) provides that a “provision of a planning agreement in respect of development is not invalid by reason only that there is no connection between the development and the object of expenditure of any money required to be paid by the provision”. Section 93F(8) provides that “a council is not precluded from entering into a joint planning agreement with another council or other planning authority merely because it applies to any land not within, or any purposes not related to, the area of the council”. Under cl 25A of the Environmental Planning and Assessment Regulation 2000, the Department is a planning authority and able to enter into planning agreements with councils.

44 Section 93I contains provisions intended to ensure that planning agreements are voluntary. Under s 93I(2), a consent authority “cannot refuse to grant development consent on the ground that a planning agreement has not been entered into in relation to the proposed development or that the developer has not offered to enter into such an agreement”. However, s 93I(3) provides that a consent authority may require a planning agreement to be entered into as a condition of a development consent, but only if it requires a planning agreement that is in the terms of an offer made by the developer in connection with a development application or a change to an environmental planning instrument sought by the developer for the purposes of making the development application. It follows that if, as in this case, a developer offers during the hearing of an appeal under s 97 to enter into a planning agreement, the Court may exercise the functions of the consent authority under s 39(2) of the Land and Environment Court Act 1979 to impose a condition in terms of the offer. It also follows that the Court is bound to take into consideration the offer in accordance with s 79C(1)(a)(iiia) of the EPA Act, as part of the process of weighing all relevant considerations as contemplated by that section.

45 Given the applicants’ offer, the question of the extent of the power available under s 80A does not arise. Nevertheless, it is appropriate that I record that I do not accept the applicants’ arguments about the capacity to impose such a condition absent the offer to enter into a planning agreement. The reasons put forward by the applicants to this end are unpersuasive. Absent the provisions relating to planning agreements, s 94 was the exclusive source of power for a consent authority to impose conditions requiring the payment of money ( Fairfield City Council v N & S Olivieri P/L [2003] NSWCA 41 at [2], [73] and [77], Maitland City Council v Anambah Homes Pty Limited [2005] NSWCA 455 at [132], Fitch v Shoalhaven City Council (1987) 67 LGRA 165). The applicants’ offer is to pay a monetary contribution, albeit to another council. The fact that the condition is not one authorised by a contributions plan and that the money will be expended outside the area of Baulkham Hills Shire Council does not mean that the condition is free from the constraints imposed by the scheme of s 94, and able to be imposed under s 80A(1). Contrary to the applicants’ submission, s 80A(1)(a) is not a source of residual power to impose conditions requiring payment of money outside the scheme of s 94, as the decisions in Olivieri and Anambah disclose. The decision in Longboard Developments Pty Ltd and Ors v Byron Shire Council [2001] NSWLEC 143, relied on by the applicants, is not authority for any contrary position. The scheme is also not ousted by the applicants’ agreement to the condition. The provisions relating to planning agreements turn on the developer’s agreement, but agreement cannot give the consent authority power it does not have under the statute. Nor do I accept the submission that purchasing land for conservation purposes is outside the scope of “public amenities and public services” referred to in s 94. That is contrary to the decision in Hammersmith Management Pty Ltd v Lake Macquarie City Council (2003) 124 LGERA 63 affirmed in Lake Macquarie City Council v Hammersmith Management Pty Ltd (2003) 132 LGERA 225).

46 It follows that the offer to enter into the planning agreement founds both the power to impose the condition for payment of a monetary contribution to Ku-ring-gai Council and the obligation to consider the offer as required by s 79C.

47 The definition of environmentally integrated housing in the LEP 2005 contemplates a development control plan providing more detailed provisions about the subdivision potential of land. I accept the applicants’ submission that the definition must be read as a whole so that the environmentally significant and sensitive areas referred to in sub-para (b) of the definition are informed by the subdivision potential of the land, and the converse. Otherwise, the definition might be impossible to apply to a site (such as the subject), which is covered by vegetation, all of which constitutes an endangered ecological community. That approach is consistent with the focus of the zone objectives on residential development that has particular regard to the special environmental development constraints of the land and preserves the environmental qualities of the land by minimising the impact of development on the natural environment.

48 The relevant provisions of DCP 3 supplement this scheme. The DCP aims to preserve significant flora and fauna species and communities and to ensure that environmentally integrated housing involves designing buildings and subdivisions around significant natural features. Sheet 37 provides a nominal subdivision potential (with which the development complies) and requires a specific conservation corridor along the creek (which the development provides). It also requires the removal of vegetation, particularly in areas “B” and “C” to be minimised.

49 These provisions, read as a package, do not contemplate the removal of trees and vegetation across the majority of area “C” outside the riparian corridor in order to achieve the subdivision potential of five lots. They contemplate a subdivision and dwelling location and design that preserves the vegetation corridor along the creek line, retains as many substantial or significant trees as practical and minimises vegetation removal, including within the balance of area “C” by appropriate attention to layout and design details to achieve those objectives. Accordingly, while the LEP 2005 and DCP might found a reasonable expectation that the site should be able to yield five residential lots, that expectation represents the commencement, not the inevitable culmination, of the development design process in the context set by the LEP 2005 and the DCP. Moreover, the LEP 2005 and DCP do not operate in isolation from the provisions of the EPA Act and other legislation directly concerned with threatened species and endangered ecological communities.

50 The development involves clearing a substantial part of area “C” outside the conservation corridor. Examination of the development and tree removal plans does not lead me to infer that the proposal provides for the preservation of the environmental qualities of the land by minimising the impact of the development on the natural environment, retains as many substantial or significant trees as practical or minimises the removal of vegetation. The location of the road, turning circle and building platforms on site disclose a layout and design inconsistent with those objectives.

51 This various tree removal plans support this conclusion. They show many trees proposed for removal that I anticipate could be retained either with the proposal in its current form or by layout and design modifications. These facts do not suggest that minor modifications of the development would remove the issues of concern. Rather, they suggest that insufficient weight has been given by the applicants to the objectives that I have identified, presumably due to their reliance on the retention of the riparian corridor, the position of the Department and the assumed capacity to provide an offset by contributing money towards the purchase of the other land in Ku-ring-gai. I accept that these matters must be considered in the assessment process in order to determine the overall performance of the proposed development. I turn to those matters now.

52 In circumstances where the DCP (adopted April 2006) expressly contemplates the maintenance of the riparian corridor, I do not think it reasonable to endorse a corridor in a different location. Dr Smith’s alternative corridor may have other potential impacts not dealt with by the evidence. For example, the DCP contemplates residential development on area “C” being set back from boundaries. The residents of The Glade also wish to maintain as much distance as possible between their houses and the new development. Dr Smith’s proposed corridor would be likely to push all development towards the creek line and The Glade. Where a council has recently adopted a DCP specifically contemplating the location of a vegetation corridor, it would be inappropriate to endorse a proposal as put forward by Dr Smith for a corridor in a different location, with potential impacts that have not been identified or assessed though the development application process. Any such amendment should be left to the planning processes under Pt 3 of the EPA Act.

53 As Dr Smith observed, once the corridor has been revegetated as contemplated by the ecological site management plan, with interlocking canopies and dense understorey approaching the boundaries of the houses within The Glade adjoining the creek line, there is a real risk of pressure for hazard reduction works from those residents. Conditions of development consent and the provisions of the community management statement cannot eliminate that risk. Mr Travers originally anticipated that hazard reduction would be required in the corridor. More extensive consultation with the Rural Fire Service satisfied Mr Travers that the Service would not require hazard reduction within the corridor. I accept that this represents the current position of the Service.

54 If the development otherwise satisfied the objectives of the zone and the DCP with respect to minimising removal of trees and vegetation, then the risk of hazard reduction within the corridor in future might be acceptable. In this case, however, the regeneration and maintenance of the corridor in perpetuity is important, because of the extent of clearing required on the balance of the site to accommodate development and the status of the vegetation as an endangered ecological community under State and Commonwealth laws. This is to be weighed with my other findings below.

55 The position of the Department (that it is satisfied with the proposed corridor, assuming that it is not required to be hazard reduced and with the proposed offset) must be understood in the context of the Department’s policies and Ms Burke’s evidence that the Department considered that the consent authority alone had to assess whether the development and associated vegetation loss were justified. I find that position curious, given the provisions of s 79B(5) of the EPA Act. That section sets out the matters the Director-General must consider when determining whether to grant concurrence to an application likely to significantly affect a threatened species, population, or ecological community, or its habitat. Those considerations contemplate that the Director-General will exercise an important role in the assessment process – in particular, with respect to the question whether the vegetation loss is justified.

56 Mr Travers and the applicants place great weight on the position of the Department in this matter as supporting the proposed corridor and offset by monetary contribution. There are anterior issues not addressed by the Department, however. The first step identified by Ms Burke (and apparent from the various draft policy documents of the Department) requires impacts to be avoided by prevention and mitigation measures. The overall layout and design of the development itself should be such a measure. The development involves extensive vegetation and tree removal from that part of the site identified for development. Under the Department’s policy, the question of offsets should not (in theory) arise because the development has not satisfied the first hurdle. Putting that issue aside, there are significant difficulties on the evidence about the proposed offset.

57 I infer from Ms Burke’s evidence that the Department accepted the offset if the development were to proceed and viewed it as preferable to any contribution towards revegetating a council reserve (on the basis that it is a better conservation outcome to bring new lands into conservation protection status than merely to revegetate already conserved lands). The general pragmatism of that approach may be appropriate where a development has implemented all available prevention and mitigation measures, is justified and may otherwise proceed without an offset. But it does not suggest that this proposed offset is underpinned by sound ecological principles. The monetary contribution was calculated by reference to the cost of revegetation, and does not represent an outcome where either the impacts or the benefits have been reliably estimated or the best available science has had any particular role to play.

58 Consistent with the approach of Dr Smith, I do not think that it is satisfactory to accept the proposed offset on the basis of the meagre evidence presented by the applicants to the effect that better alternative sites were unavailable. The offset land is some 12km distant from the impacted site, in another local government area, involving a different endangered ecological community of apparently smaller area than that proposed to be cleared.

59 I accept that purchasing the other land within Ku-ring-gai is a desirable conservation objective. But I am not satisfied that a contribution of $86,000 by the applicants to that end will have a neutral or positive conservation impact in the context of their proposed development. While Ku-ring-gai Council resolved to accept the contribution, that fact does not particularly advance the applicants’ case. The cost of the other land is not known. The likelihood of it being available for sale is not known. Apparently, requirements for a species impact statement have been sought in connection with that land, suggesting that development of it may be proposed in the future. Alternative uses for the $86,000 contribution (if the land is not available) have not been identified and remain at large. None of these issues are appropriately resolved by imposing a deferred commencement condition requiring a planning agreement to be executed on terms satisfactory to the Department.

60 The applicants’ offer to enter into a planning agreement to secure the monetary contribution by way of offset does not adequately address the impacts of the proposed development on the endangered ecological community. Nor, for the reasons above, is the corridor on site sufficient to ameliorate the extent of removal of STIF that would otherwise occur through the carrying out of the development.

61 I am satisfied that the proposed development, if approved, would be contrary to the objectives of the 2(d) zone and inconsistent with the DCP in important respects because it does not preserve the environmental qualities of the land by minimising the impact of development on the environment or minimise the removal of trees and vegetation. The subdivision potential of the site should result in a development layout and design which recognises that the DCP objectives of minimising tree and vegetation removal warrant significant weight, particularly given the status of the vegetation as an endangered ecological community. Instead, the development provides the corridor as contemplated by the DCP and otherwise appears to assume that the impacts of development on the balance of the site can be ameliorated through the monetary contribution. For the reasons I have given, that is not so and is at odds with the focus of the LEP 2005 and the DCP on the particular site.

62 Other matters support this conclusion, although they would not have warranted refusal of the application in their own right. It was undesirable for the bridge to be excluded from the development application, but I accept that there was sufficient information available to assess its impacts.

63 The fact that Mr Travers thought the Rural Fire Service could be persuaded not to require a full turning circle (which involved removal of many trees) indicated that the applicants had not taken all reasonable steps to minimise tree and vegetation removal, despite the status of the vegetation as an endangered ecological community.

64 I also consider that the ecological sensitivity of the site, and the limited means of access to it, warranted provision of a construction management and parking plan with the development application – both to address the concerns of residents about managing access and parking during construction and protecting trees and vegetation to be retained from construction impacts.

65 Accordingly, the grant of development consent to the proposed development is precluded by cl 13(2) of the LEP 2005 (because I am satisfied that the development is contrary to achieving the objectives of the 2(d) zone) and would otherwise be inappropriate as development inconsistent with important aspects of the DCP with respect to preserving ecological communities and minimising tree and vegetation removal. The appeal is therefore dismissed.

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