Scott v The Hills Shire Council

[2016] NSWLEC 1358

Land and Environment Court

New South Wales

Medium Neutral Citation:

Scott v The Hills Shire Council [2016] NSWLEC 1358

Hearing dates:

16 and 17 August 2016

Date of orders:

26 August 2016

Decision date:

26 August 2016

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders:
(1) The appeal is dismissed.
(2) The development application (DA 561/2016/ZB) for the subdivision of land on Lot 10 DP 1191830, located at 186 and 186A Cattai Ridge Rd, Maraylya, is refused.
(3) The exhibits are returned, except exhibits A, C and 1.

Catchwords:

APPEAL: Development application subdivision of land from two lots to three lots – jurisdiction - whether a species impact statement is required

Legislation Cited:

Environmental Planning and Assessment Act 1997

 

Land and Environment Court Act 1979

 

Hills Shire Development Control Plan 2012

 

The Hills Local Environmental Plan 2012

Threatened Species Conservation Act 1995

Cases Cited:

Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco
Pty Limited [2010] NSWLEC48

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Robert Scott (Applicant)
The Hills Shire Council (Respondent)

Representation:

Counsel:
Dr James Smith (Applicant)
Mr Adam Seton (solicitor) (Respondent)

  Solicitors:
Storey & Gough Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2016/00157531

Publication restriction:

Nil

Judgment

1. Robert Scott has appealed from the Respondent’s refusal of his development application (DA 561/2016/ZB) for the subdivision of one lot (lot 10 in DP1191830) into three lots (proposed lots 110, 111, and 112) at 186 and 186A Cattai Ridge Rd, Maraylya (the Site).

2. The Site had been created under a previous subdivision (DA 625/2013/ZB). This had created lots 8 and 9 in DP1191830 under a first stage subdivision, along with the Site of the current DA, lot 10. This lot was previously proposed to be the subject of a second stage subdivision into two lots (lots 10 and 11). This second stage had not been completed.

3. The appeal is brought pursuant to s97 (1) of the Environmental Planning and Assessment Act 1997 (EPA Act), and was the subject of a conciliation conference under s34 of the Land and Environment Court Act 1979 (the Court Act). The conciliation was terminated and the appeal listed for hearing pursuant to s34C.

4. Leave was granted by the Court on 2 August 2016 to rely upon amended plans that altered the location of building footprints to reduce the impacts of the proposal on vegetation and fauna corridors (Exhibit C).

5. While the amended plans were viewed as reducing impacts of the proposed development, they did not overcome the Council’s objection to the development. Those grounds raised the following issues:

1. whether the development is inconsistent with elements of The Hills Shire Local Environment Plan (LEP) 2012 including the objective of the Site’s zoning as RU6 Transition Zone, and the provisions of Clause 7.4 concerning Biodiversity (terrestrial);

2. whether the development is likely to have significant impacts on threatened species and endangered ecological communities, including the yellow bellied glider, several species of bat, the Dural land snail, and the critically endangered ecological community Shale Sandstone Transition Forest. If the development were likely to have a significant impact on threatened species or ecological communities, whether the development application should have been accompanied by a Species Impact Statement;

3. whether the development’s proposed building platform is located so as to minimise the impact on sensitive environmental areas, avoid steep areas (>20%), remain clear of prominent ridges, ensure scenic value, and ensure consistency with the Hills Shire Development Control Plan (DCP) 2012 Part B Section 1 relating to ‘Rural Residential Development’;

4. whether sufficient information has been provided to enable assessment of wastewater disposal systems for each proposed lot;

5. whether the development if approved would create an undesirable precedent for similar developments in the area.

Background

6. The Respondent’s Amended Statement of Facts and Contentions dated 6 May 2016 (ASOFC) sets out the background facts and the relevant statutory controls and contentions.

7. The ASOFC records that the site is described as Lot 10 DP 1191830, 186 and 186A Cattai Ridge Rd, Maraylya.

8. The site is 6.06Ha in size and irregularly shaped. It fronts Cattai Ridge Rd to the west and north, and Cattai Creek to the east. The Site contains one existing dwelling house and ancillary structures which are proposed to be retained on the proposed lot 112. The site has some cleared lands around the existing dwelling house and ancillary structures but is otherwise heavily vegetated.

9. The character of the Site and surrounding lands is rural residential with scattered dwelling homes and ancillary structures. Most surrounding properties are heavily vegetated.

10. A portion of the Site contains land mapped as Biodiversity on the Hills Shire LEP 2012 Terrestrial Biodiversity Map (sheet CL1_012).

The Proposal

11. The development application seeks to subdivide the subject site into three rural residential lots numbered 110-112.

12. The subdivision seeks to retain the existing dwelling house and ancillary structures on proposed lot 112, which has existing access to Cattai Rd via a proposed right of access over the proposed lot 111. The other two lots are proposed to be created as vacant land having direct access and frontage to Cattai Ridge Rd.

13. The proposal also includes vegetation clearing and tree removal to provide building platforms and associated bushfire asset protection zones for each of the three lots, including an additional building platform on proposed lot 112.

Statutory controls

14. Under The Hills LEP 2012, the Site is zoned RU6 Transition the development complies with the minimum 2Ha lots size as required and is permissible with consent.

15. A portion of the Site is mapped as Biodiversity land under the Hills LEP 2012, and principally covers lands within the proposed lot 110.The development is therefore subject to cl. 7.4 [Biodiversity (Terrestrial)] of The Hills LEP 2012.

16. The development is also subject to The Hills DCP 2012, and in particular Part B Section 1 Rural.

17. The parties agreed at Court that, notwithstanding the ASOFC, the Site fell outside the lands covered by Sydney Regional Environmental Plan (SREP) 20 Hawkesbury and Nepean River (No.2_1997), and that SREP 20 did not apply to this matter.

The local residents (objectors)

18. The development is not subject to any objections from surrounding residents and no residents sought to offer evidence during the Court’s site inspection.

Fauna and flora evidence

19. Joint Expert Reports were tendered to address matters raised by the parties in relation to fauna and flora, and these reports were the subject of joint witness testimony from Ms Elizabeth Ashby, a consultant ecologist retained by the Applicant, Ms Teresa James, a consultant ecologist retained for by the Respondent, and Mr Mark Chidel (In-house Biodiversity Officer for the Respondent).

20. In relation to the potential impacts on threatened fauna, it was the joint evidence of the expert witnesses that:

1. the development was unlikely to have a significant impact on any of the species of bat identified in the expert reports (eastern cave bat, large-eared pied, eastern bentwing bat, little bentwing bat), or their habitats;

2. the development was unlikely to have a significant impact on the Dural land snail or its habitat;

21. In relation to the yellow bellied glider, the evidence of Mr Mark Chidel was that the development would reduce the size, and more critically the width, of vegetation on the Site, specifically within the area mapped as Biodiversity in the Hills LEP 2012, thus reducing the functionality of that vegetation as a fauna corridor. The evidence of Ms Ashby was that, while acknowledging the scale of vegetation losses, the width of the residual vegetation on the Site would be sufficient to facilitate movement by yellow-bellied gliders across the Site.

22. In relation to impacts of the development on threatened ecological communities on the Site, the evidence of Ms Ashby and Ms James centred upon the classification of some parts of the vegetation as either Sydney Hinterland Transition Woodland (SHTW), a community not listed under the Threatened Species Conservation Act 1995 (TSC Act), or an alternate classification as Shale Sandstone Transition Forest (SSTF) a community which is listed as a Critically Endangered Ecological Community under the TSC Act.

23. Ms Ashby and Ms James were of a common view that vegetation on the north-west portion of the proposed lot 110 was Sydney Hinterland Transition Woodland (SHTW), and that, with the revised location of the building envelop for this lot, there would be no significant impact of the development on any endangered ecological community.

24. Ms Ashby and Ms James were of differing views in relation to the classification of the vegetation bordering the lots 111 and 112 to the south-east and east of lot 110.

25. Ms James was of the view that, based on floristic data collected within several quadrats in this area, as well as her personal experience, it was possible to identify portions of this vegetation on the Site as SSTF, and to map an indicative area of this community that extended into proposed lot 111.

26. Ms Ashby was of the view that while many of the species present in this indicatively mapped area were characteristic of SSTF, they were also characteristic of SHTW, and that on balance the floristics supported a classification as SHTW.

27. Notwithstanding this, Ms Ashby had prepared a EPA Act s5A assessment of the impact of the development on the area indicatively mapped by Ms James as SSTF. This concluded that the impact of the development on that community, if present, would not be significant under the requirements of that assessment.

28. The evidence of Ms James was that the assessment undertaken by Ms Ashby was flawed insofar as it was based on:

1. an incorrect construction of a broader (68Ha) local occurrence area for the SSTF, itself based on unfounded assumptions;

2. the SSTF on the Site being confined to the indicative mapped area, and;

3. the nature of potential impacts within the APZ being inadequately defined.

29. Ms James concluded that she could not be certain that there would not be a significant impact on the SSTF community from the development.

30. Both Ms Ashby and Ms James acknowledged that the development would impact on some 9% (377m2) of the area of indicatively mapped SSTF community on site (total of 4,210 m2) through the placement of the proposed building envelop and asset protection zone (APZ) associated with the proposed lot 111.

Considerations

Jurisdiction

31. The EPA Act s80(1) requires that the consent authority (or on a merits review appeal the Court) determine the development application by:

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

2. (b) refusing consent to the application.

32. The EPA Act also requires that:

1. Despite subsection (1), the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development.

33. In considering the contentions, the requirement or otherwise for a SIS to accompany the application is a threshold issue with respect to the Court’s jurisdiction to determine the application.

Potential impacts on threatened species and endangered ecological communities

34. In relation to threatened fauna, I accept the joint expert witness testimony of Ms Ashby and Mr Chidel that:

1. the development was unlikely to have a significant impact on any of the species of bat identified in the expert reports (eastern cave bat, large-eared pied, eastern bentwing bat, little bentwing bat), or their habitats;

2. the development was unlikely to have no significant impact on the Dural land snail or its habitat;

35. In relation to potential impacts on the yellow-bellied glider and its habitat, I prefer the evidence of Ms Ashby that, while acknowledging the scale of vegetation losses, the width of the residual vegetation on the Site would be sufficient to facilitate movement by yellow-bellied gliders across the Site, and that the population of yellow-bellied gliders using the Site would have a reliance on landscapes and vegetation beyond the Site at certain points of the year.

36. I am satisfied that the potential impacts of the development on threatened fauna are unlikely to be significant.

37. In relation to threatened flora on Site, the potential impact of the development on the critically endangered ecological community SSTF must be considered.

38. The expert evidence of both Ms Ashby and Ms James in their Supplementary Joint Expert report – Ecological Issues (Exhibit 11), and under cross examination in Court, was in agreement that the development would impact on some 9% (377m2) of the area of indicatively mapped SSTF community on Site (total of 4,210 m2) through the placement of the proposed building envelop and associated APZ with the proposed lot 111.

39. I take this as establishing that a threat of serious or irreversible environmental damage exists with respect to the SSTF community indicatively mapped on Site.

40. The expert evidence of Ms James in the Supplementary Joint Expert report – Ecological Issues (Exhibit 11) was that, based on the limited data sets provided through both the Joint Expert reports and the individual expert reports that accompanied the development application, the precise extent of SSTF on the Site could not be confirmed.

41. Further there was disagreement between the experts, based on limitations of the floristic data available, as to whether the vegetation indicatively mapped as SSTF, did in fact constitute this critically endangered ecological community.

42. Notwithstanding this, I note that whilst contending that the vegetation on Site was not SSTF, Ms Ashby was sufficiently aware of the possibility of its presence that she prepared an assessment under the requirements of EPA Act s5A to ascertain the likely significance of impacts of the development on SSTF indicatively mapped on Site.

43. On the basis of both these points, I accept that there exists scientific uncertainty as to the environmental damage to SSTF that may arise from the development.

44. Given that the evidence of the experts has established that, with respect to SSTF, a threat of serious or irreversible environmental damage does exist and that there is scientific uncertainty as to that environmental damage, I conclude, based on application of the precautionary principle, that the development may have an adverse impact on this critically endangered ecological community.

45. Turning to the significance or otherwise of the impact of the development on the indicatively mapped SSTF community, it is pertinent to consider the outcomes of an assessment under the EPA Act s5A for that vegetation community.

46. For a critically endangered ecological community, three of the seven parts of the s5A assessment are relevant. They are:

1. (c) in the case of an endangered ecological community or critically endangered ecological community, whether the action proposed:

1. (i) is likely to have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction, or

2. (ii) is likely to substantially and adversely modify the composition of the ecological community such that its local occurrence is likely to be placed at risk of extinction.

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

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

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

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

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

47. In relation to the application of 5A(2)(c), the question turns on the definition of ‘local occurrence’ of the SSTF community. While not a defined term in the EPA Act, the interpretation of ‘local occurrence’ was considered in Newcastle & Hunter Valley Speleological Society v Upper Hunter Shire Council and Stoneco Pty Limited (2010) NSWLEC48. In the judgement, Preston CJ concluded that the word ‘local’ should be read in its normal English sense and take its meaning from the circumstances of the community concerned, its distribution, extent, fragmentation and other spatial characteristics.

48. I accept the evidence of Ms James, provided in the Joint Expert Report – Ecological Issues (Exhibit 10) in relation to the circumstances in which SSTF is found. These include that a moderate to high sandstone form of SSTF is supported in transitional shale/sandstone landscapes, where the presence of shale bands or lenses within the sandstone create valley side benches with gentler slopes providing deeper richer soils than is found on sandstone landscapes.

49. Ms Ashby and Ms James disagreed on whether the indicatively mapped SSTF on the Site constituted a local occurrence of the critically endangered ecological community.

50. Ms Ashby contended that the patch of SSTF on the Site of some 4,210 m2 was part of a larger (68Ha) local occurrence of the community that included SSTF mapped vegetation in Cattai National Park.

51. Ms James challenged the basis for this contention, noting that the pollinators identified by Ms Ashby as providing the functional links between the communities on Site and in Cattai National Park were associated largely with the canopy species. She noted that a significant component of the SSTF community was its understory and mid-story species, and that no evidence had been provided demonstrating a sufficiently strong functional link to support Ms Ashby’s interpretation for the ‘local occurrence’ of SSTF.

52. The uncontested evidence of both parties was that the nearest mapped occurrence of a SSTF community was some 400m distant from the indicatively mapped SSTF on the Site.

53. I prefer the evidence of Ms James on ‘local occurrence’ of SSTF and on the lack of data available to support a wider interpretation of local occurrence for SSTF to include areas beyond the Site.

54. Consequently, I view the local occurrence of SSTF as being that area of indicatively mapped SSTF on the Site.

Findings

55. I conclude that the development is likely to have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction. I base this on:

1. the interpretation of local occurrence of the SSTF community discussed above,

2. the effect of the development on lot 111, including building envelop and associated APZ, on both the indicatively mapped SSTF community and on associated buffer vegetation that currently exists. This would include the reduced extent of, and increased edge effects on, the remnant SSTF post development.

56. I also conclude that the development is likely to substantially and adversely modify the composition of the ecological community such that its local occurrence is likely to be placed at risk of extinction. I also base this on:

1. the interpretation of local occurrence of the SSTF community discussed above,

2. the effect of the development on lot 111, including building envelop and associated APZ, on both the indicatively mapped SSTF community and on associated buffer vegetation that currently exists. This would include the reduced extent of, and increased edge effects on, the remnant SSTF post development.

57. In relation to s5A(2)(d) of the EPA Act, I conclude that, notwithstanding the impacts of the development, including vegetation removal, the proposed action will not exacerbate fragmentation nor isolation of the community or its habitat.

58. In relation to s5A(2)(g) of the EPA Act, I accept that the action proposed does constitute or is part of a key threatening process, that being ‘Clearing of Native Vegetation’.

59. In consequence of having given consideration to the factors in s5A(2) of the EPA Act, I conclude that the development may have a significant impact on the indicatively mapped SSTF on the Site.

60. I note the evidence of Ms Ashby in the Joint Expert Witness Report - Ecological Issues (Exhibit 10) that in respect of the indicatively mapped SSTF community on Site, Council had maintained that a species impact statement (SIS) was required to accompany the development application.

Conclusion

61. In relation to the potential impacts of the development on threatened species and endangered ecological communities, I find that the application should have been accompanied by a SIS prepared in accordance with Division 2 of Part 6 of the TSC Act SIS to address potential impacts on the SSTF on Site.

62. Consequently, I find that the development cannot be determined because a precondition under s78A(8) of the EPA Act is that a development application (other than an application in respect of State Significant Development) must be accompanied by a species impact statement prepared in accordance with Division 2 of Part 6 of the Threatened Species Conservation Act 1995 if the application is in respect of development on land that is, or is a part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats.

63. Accordingly, the Court orders:

1. The appeal is dismissed.

2. The development application (DA 561/2016/ZB) for the subdivision of land on Lot 10 DP 1191830, located at 186 and 186A Cattai Ridge Rd, Maraylya, is refused.

3. The exhibits are returned, except exhibits A, C and 1.

Michael Chilcott

Commissioner

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Decision last updated: 26 August 2016