Site R and D Pty Ltd v Byron Shire Council

Case •

[2022] NSWLEC 1121

•

08 March 2022

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Site R & D Pty Ltd v Byron Shire Council [2022] NSWLEC 1121
Hearing dates: 9, 10, 11, 12, 13 November 2020, 22 March and 21, 22 and 23 June 2021
Date of orders: 8 March 2022
Decision date: 08 March 2022
Jurisdiction:Class 1
Before: Chilcott C
Decision:

Directions – see [417]

Catchwords:

DEVELOPMENT APPLICATION – subdivision of land – whether Applicant’s requests to vary development standards under SEPP 1 should be upheld – whether Subject Site contains core koala habitat – whether potential impacts on frog habitat are acceptable – whether potential biodiversity impacts, including proposed tree removal, are acceptable – whether design of road access to industrial land is acceptable – whether all jurisdictional requirements are satisfied – consideration of conditions

Legislation Cited:

Biodiversity Conservation Act 2016, ss 6.5, 6.12, 7.2, 7.3, 7.4, 7.7, 7.12, 7.13, 7.16

Biodiversity Conservation Regulation 2017, s 6.8

Biodiversity Conservation (Savings and Transitional) Regulation 2017

Byron Local Environmental Plan 1988, Part 4

Byron Local Environmental Plan 2014, cll 11, 81, 88, 92, 97, 98, 99, 100

Conveyancing Act 1919, s 88B

Environment Protection and Biodiversity Conservation Act 1999 (Cth)

Environmental Planning and Assessment Act 1979, ss 3.43, 4.14, 4.15(1), 4.15 (3A), 8.7

Environmental Planning and Assessment Regulation 2000

Interpretation Act 1987, ss 5(6), 30(2)(d)

Land and Environment Court Act 1979, s 34

Local Government Act 1993, s 68

Rural Fires Act 1997, s 100B

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 3, Ch 4, Sch 14

State Environmental Planning Policy (Coastal Management) 2018

State Environmental Planning Policy (Infrastructure) 2007, 101, 102, 104

State Environmental Planning Policy (Koala Habitat Protection) 2019

State Environmental Planning Policy (Koala Habitat Protection) 2020, cll 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 18, 19

State Environmental Planning Policy (Koala Habitat Protection) 2021, cl 18

State Environmental Planning Policy (Major Development) 2005

State Environmental Planning Policy No 1 - Development Standards, cll 3, 8

State Environmental Planning Policy No 14 – Coastal Wetlands

State Environmental Planning Policy No 26 – Littoral Rainforest

State Environmental Planning Policy No 55 – Remediation of Land, cl 7

State Environmental Planning Policy No. 44 – Koala Habitat

Threatened Species Conservation Act 1995

Cases Cited:

Ballina Shire Council v Palm Lakes Works Pty Ltd [2020] NSWLEC 41

City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262; [1999] NSWLEC 246

Fastbuck$ v Byron Shire Council (1999) 103 LGERA 94; [1999] NSWCA 19

Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142

Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited (2010) 210 LGERA 126; [2010] NSWLEC 48

Scott v Wollongong City Council (1992) 75 LGRA 112

Site R & D Pty Ltd v Byron Shire Council [2021] NSWLEC 1226

Villa World Byron Pty Ltd v Byron Shire Council [2020] NSWLEC 1612

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:

Australian Standard AS 2890.2:2018 Part 2 Street commercial vehicle facilities

Austroads, Austroads Design Vehicles and Turning Path Templates Guide, (2013)

NSW Department of Planning, Industry and Environment, Biodiversity Assessment Method 2020, (October 2020) Biolink, Byron Coast Koala Habitat Study, (2012)

Byron Development Control Plan 2014

Development Design Specification D1Geometric Road Design (Urban and Rural), AUS-SPEC, 2018

NSW Department of Planning, Development near Rail Corridors and Busy Roads - Interim Guideline, (2008)

NSW Roads and Maritime Services, Guide to traffic generating developments, (2002)

Planit Consulting, Terrestrial Flora & Fauna Assessment Harvest Estate, West Byron, (August 2020)

Category:Principal judgment
Parties: Site R & D Pty Ltd (Applicant)
Byron Shire Council (Respondent)
Representation:

Counsel:
C Ireland (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Brock Partners (Applicant)
Marsdens Law Group (Respondent)
File Number(s): 2018/222143
Publication restriction: No

Table of contents

Table of contents

List of Acronyms

Judgment

Background to the WBURA

The Subject Site

Zoning of the Subject Site

Context of the Subject Site

Notice of motion to amend the development application

The Applicant’s Proposed Development, as amended

Applicant has provided SEPP 1 objections to development standards

Notification and objector submissions

Contentions

Statutory context

Environmental Planning and Assessment Act 1979

Byron Local Environmental Plan 2014

Byron Local Environmental Plan 1988

Byron Shire Development Control Plan 2014

State Environmental Planning Policy No 55 – Remediation of Land

State Environmental Planning Policy (Infrastructure) 2007

State Environmental Planning Policy No 14 – Coastal Wetlands

State Environmental Planning Policy No 26 – Littoral Rainforest

State Environmental Planning Policy (Biodiversity and Conservation) 2021

State Environmental Planning Policy (Koala Habitat Protection) 2021

State Environmental Planning Policy (Koala Habitat Protection) 2020

Biodiversity Conservation Act 2016

Rural Fires Act 1997

Remaining contentions

Does the Proposed Development satisfy the provisions of the Koala SEPP 2020 such that it can be determined through the grant of consent?

Should the Proposed Development be approved given the Respondent’s contended inconsistencies between various plans of management, including the Applicant’s koala plan of management (KPoM) and vegetation management plan (VMP)?

Are the potential impacts of the Proposed Development on certain frog species acceptable?

Does the Applicant’s proposed road system provide acceptable access to the IN2 lands within the Proposed Development?

Other matters – Jurisdictional considerations

Owners consent

The coastal zone

Heritage conservation

Acid Sulfate Soils

Flood planning

Lawful points of discharge

Other water related contentions

Public infrastructure

Infrastructure delivery

Contamination

Bushfire prone land

Provisions of BDCP

Public interest

Consideration of submissions

Koala SEPP 2021

Conditions

Deferred commencement conditions

Operational conditions

Conclusions

Directions

List of Acronyms

Acronym

Full title

AFMP

Acid Frog Management Plan

AWC

Australian Wetlands Consulting Pty Ltd

ASSMP

Acid Sulfate Soils Management Plan

BCC KPoM

Byron Council Comprehensive Koala Plan of management

BCMP

Biodiversity Conservation Management Plan

BDAR

Biodiversity Development Assessment Report

BDCP

Byron Development Control Plan 2014

BLEP

Byron Local Environmental Plan

CEMP

Construction Environmental Management Plan

CTMP

Construction Traffic Management Plan

EP&A Act

Environmental Planning and Assessment Act 1979

EP&A Regulation

Environmental Planning and Assessment 2000

ESCP

Endangered Species Conservation Plan

ICOLL

Intermittently closed and open lakes and lagoons

KHMP

Koala Habitat Management Plan

KPoM

Koala Plan of Management

SKAR

Standard Koala Assessment Report

TSMP

Threatened Species Management Plan

VLC

Veitch Lister Consulting

VMP

Vegetation Management Plan

WBURA

West Byron Urban Release Area

Judgment

  1. COMMISSIONER: Site R&D Pty Ltd (the Applicant) has the appealed the refusal by the Northern Regional Planning Panel, under delegation from Byron Shire Council (the Respondent) of the Applicant’s development application 10.2017.661.1 seeking consent to subdivide land in two separate areas forming part of the West Byron Urban Release Area (WBURA) (the Proposed Development), in Byron Bay.

  2. The appeal comes to the Court pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s proceedings. It is determined pursuant to s 4.16 of the EP&A Act.

  3. Details of the WBURA lands forming the Subject Site in this appeal are provided below at [5], and a more detailed description of the Proposed Development is provided below (at [30]).

  4. The Court undertook a view of the Subject Site at the commencement of the hearing to appreciate the context of the Proposed Development and the nature of contentions in the appeal.

Background to the WBURA

  1. The Applicant’s Statement of Environmental Effects (SEE) prepared by DAC Planning Pty Ltd in August 2019, records the long history of the proposed rezoning of land in the West Byron Bay area for urban use, and notes that:

  1. the NSW Minister for Planning gazetted the West Byron Bay site as a potential State Significant Site in October 2009;

  2. a State Significant Site Study was prepared on behalf of the West Byron Bay Landowners Association and was submitted to the Department of Planning in June 2011, and that study informed the rezoning of the lands within the West Byron Bay site for urban purposes;

  3. the study was publicly exhibited in 2011, and following consideration of submissions received in response to that exhibition the Department of Planning prepared a draft proposal for rezoning of land in the West Byron Bay site which itself was exhibited between November 2013 and January 2014;

  4. the site was rezoned for urban purposes in November 2014 by way of an amendment to the Byron Local Environmental Plan 1988 (BLEP 1988) pursuant to provisions of State Environmental Planning Policy (Major Development) 2005.

  1. The West Byron Bay site, now referred to as the WBURA, is located approximately 3km west of the Byron Bay township, and south of Ewingsdale Road, opposite the West Byron light industrial area to the north of Ewingsdale Road. Its location to the south of Ewingsdale Road and west of the main Byron Bay township area is illustrated in the figure below, extracted from Part E8 of Byron Development Control Plan 2014 (BDCP).

The Subject Site

  1. The Subject Site in this appeal is approximately 68.9 Ha in area, and consists of the following land parcels:

  1. Lot 1 DP 201626;

  2. Lot 2 DP 542178;

  3. Lot 1 DP 780242;

  4. Lot 2 DP 818403;

  5. Lot 1 DP 520063;

  6. Lot 7020 DP 1113431;

  7. Lot 5 DP 1222674; and

  8. Lot 6 DP 1222674.

  1. The Subject Site forms part of the WBURA and development on the site is subject to the provisions in Part 4 of the BLEP 1988.

  2. The WBURA also includes a series of landholdings that have been the subject of a separate development application lodged by Villa World Byron Pty Ltd, and which has already been determined (see below ay [19]), and this includes the lot identified above (at [7(8)]).

  3. That lot is also included within the Subject Site for reasons including the Applicant’s need to rely on access arrangements from Ewingsdale Road that have already been the subject of a grant of consent (see below at [27]) and which have required the Applicant in this appeal to amend its plans.

  4. The location of the Subject Site, and its constituent lots, within the WBURA is illustrated in the figure below, which was produced by Australian Wetland Consulting Pty Ltd (AWC) and is included as Fig 1.3 within the amended Threatened Species Management Plan. This document was tendered at the hearing within the Applicant’s Exhibit A.

  5. The lots constituting the Subject Site are illustrated in the following figure within the two areas outlined in red:

Zoning of the Subject Site

  1. The following land use zones apply to the Subject Site:

  1. zoning pursuant to West Byron Bay – Land Zoning Map, and subject to the West Byron Bay site provisions of Part 4 of BLEP 1988:

  1. B1 Neighbourhood Centre;

  2. R2 Low Density Residential;

  3. R3 Medium Density Residential;

  4. E2 Environmental Conservation;

  5. E3 Environmental Management;

  6. RE1 Public Recreation;

  7. IN2 Light Industrial.

  1. ‘Residual Land’ (that are part of the Subject Site but which not subject to the West Byron Bay provisions in Part 4 of BLEP 1988).

  1. The land use within the Subject Site is illustrated in the figure below that was produced by AWC and included as Fig 1.2 within the amended Threatened Species Management Plan.

  1. In this figure the boundaries of the two parts of the Subject Site are outlined in black, and the Residual Lands is shown as areas of white within the Subject Site boundaries.

  2. The subdivision of land and associated works proposed by the Applicant are permissible under the land use zones applicable to the Subject Site under BLEP 1988.

  3. The Applicant has structured its subdivision of the Subject Site into 12 stages across four precincts, as follows:

  1. Precinct 1, containing Stages 1, 2, 3, 4 (part), 9 (part) and 10;

  2. Precinct 2, containing Stages 4 (part), 5, 6, and 9 (part);

  3. Precinct 3, containing Stages 7 and 8; and

  4. Precinct 4, containing Stages 11 and 12.

  1. The arrangement of these precincts is provided in the following figure.

Context of the Subject Site

  1. The Subject Site adjoins other land within the WBURA that is subject to a consent granted by the Court on 8 December 2021 in the matter of Villa World Byron Pty Ltd v Byron Shire Council [2020] NSWLEC 1612 (referred to hereafter as the Villa World decision).

  2. The lands that were the subject of the Villa World decision and those that are the subject of the current appeal are co-dependent in terms of their future development, and particularly in relation to site access.

  3. To this end, the Applicant confirmed that a landowners agreement had been entered into between owners of the lands subject to the Villa World decision and other owners of land within the Subject Site to ensure coordination of the respective proposed developments, and to avoid nuisance arising between these owners of land within the WBURA.

  4. Clause 5.1 of that agreement establishes general obligations between the parties to the agreement as follows:

“Each party must in addition to granting access pursuant to clause 2:

(a) act in good faith at all times towards each other in relation to the ongoing development of the adjoining land; and

(b) use their reasonable endeavours to not cause any disruption or nuisance to the other parties reasonable use of its lot.”

  1. As a consequence, the plans for which consent is sought in the current appeal, while facilitating the delivery of the Applicant’s Proposed Development, should not, if possible, be in conflict with those for which consent was granted by the Court in the Villa World decision.

  2. Following the site view undertaken on 9 November 2020, the hearing proper commenced on 10 November 2021, at a time when the Parties in the Villa World decision had filed an agreement pursuant to s 34 of the Land and Environment Court Act 1979 and to which the Court gave effect through the grant of consent in the judgment in the Villa World decision.

  3. In response to the agreement of the Parties in the Villa World decision, and the plans to which that consent referred, the Applicant sought leave to amend its development application to address a contention raised by the Respondent (identified as contention 5). This concerned certain inconsistencies between the Applicant’s proposed staging plan and the provisions of chapter E8.10 of BDCP 2014, as well as the plans for the adjoining development that was the subject of the Villa World decision and following that grant of consent.

  4. That request was considered through a notice of motion (NoM) moved by the Applicant.

Notice of motion to amend the development application

  1. On 23 and 30 April 2021, by notice of motion, the Applicant sought leave to further amend its development application 10.2017.661.1 in response to matters that had arisen during the course of the proceedings, including the consent granted in the Villa World decision.

  2. The leave sought was granted, and as recorded in the Court’s judgment in Site R & D Pty Ltd v Byron Shire Council [2021] NSWLEC 1226, the following orders were made:

  1. the Applicant was granted leave to amend Development Application 10.2017.661.1 (The proposed Development, as amended) and to rely upon the following amended documents as annexed at Annexure “B” (unmarked set of amended plans for Stage 11 and 12) and Annexure “C” (Abbott & Macro amended plan of subdivision) of the affidavit of Anthony Charles Griffiths sworn 1 April 2021 filed with this Notice of Motion (and including the works shown on Melaleuca Drive):

  1. Abbott and Macro Plan 15024-9R Sheet 2 of 9 dated 2 February 2021;

  2. Figure 8.1 – Issue M;

  3. Figure 15.1 – Issue Q;

  4. Plan W1 – Issue E;

  5. Plan W2 – Issue E;

  1. in addition to Order (1) above, the Applicant was granted leave to amend Development Application 10.2017.661.1 to rely in this appeal on the following plans approved for the Harvest Estate in the Villa World decision on 8 December 2020 as development consent DA 10.2017.201.1, in relation to the Villa World Road 01 [Bayshore Drive] only:

  1. 0200 Rev B Finished Surface Cut Fill Plan, Sheet 1 of 2 [earthworks    cut/fill at Road 01];

  2. 0210 Rev B Earthworks Plan Sheet 1 of 6 [shows Road 01 and Section D marker];

  3. 0230 Rev A Retaining Wall Sections [Section D];

  4. 0300 Rev C Road and Drainage Plan Sheet 1 of 6 [shows ROAD 01 and swales 10 and 11];

  5. 0310 Rev C Typical Road Sections Sheet 1 of 7 [shows ROAD 01 Collector Road chainage 0 to 474];

  6. 0320 Rev B ROAD 01 Longitudinal Section Sheet 1 of 2 [shows ROAD 01 longitudinal section];

  7. 0420 Rev A Typical Swale Sections [shows swales 10 and 11];

  8. 0440 Rev A Bio-Retention Basin and Bio-Swale Typical Details [shows bioretention swale typical section]; and

  9. 0450 Rev A Plan of Swales Sheet 1 of 2 [shows ROAD 01 grassed swale (swales 10 and 11) and bio-retention swale;

  1. the Parties’ acoustic experts were directed to commence further joint conferencing by 7 May 2021, and to file a supplementary expert joint report; and

  2. the Respondent was ordered to file:

  1. by 14 May 2021, a Further Amended Statement of Facts and Contentions removing any issues that had been resolved and only adding any issues raised by the Respondent’s experts in their Supplementary Joint Reports before that time;

  2. by 28 May 2021, a Second Further Amended Statement of Facts and Contentions including any unresolved acoustic issues arising from the joint conferencing of the acoustic experts; and

  3. by 28 May 2021, draft Without Prejudice Conditions in response to the Applicant’s proposed conditions annexed to the affidavit of Anthony Charles Griffiths filed with the Notice of Motion.

  1. These documents were filed with the Court as directed.

The Applicant’s Proposed Development, as amended

  1. The Applicant’s Proposed Development, as amended, now includes the creation of one hundred and sixty two (162) lots comprising one hundred and twenty seven (127) residential lots, twenty five (25) super (master) lots, two (2) business lots, one (1) recreation lot, two (2) industrial lots and five (5) residue lots.

  2. More specifically, the Proposed Development, as amended, seeks consent for:

  1. development to be carried out in twelve (12) stages;

  2. construction of a roundabout at the intersection of proposed Road No. 5, Ewingsdale Road and the access road to SAE Institute;

  3. construction of all internal roads;

  4. provision of underground water, sewer, power and telephone services;

  5. upgrading and embellishment of the existing drainage channel within Lot 7020 DP 1113431;

  6. provision of an underground stormwater drainage system including water quality control devices;

  7. bulk earthworks across the subject land including the importation of approximately 470,000m3 329,500m3 of fill;

  8. construction of an acoustic fence adjacent to Ewingsdale Road;

  9. restoration works, habitat reconstruction and offset planting within the E2 Zoned Lot 1 DP780242, Lot 1 DP 201626 and Lot 2 DP 818403; and

  10. restoration works and offset planting within the E3 zoned Lot 2 DP 818403, Lot 2 DP 542178 and Lot 7020 DP 1113413.

Applicant has provided SEPP 1 objections to development standards

  1. The Applicant had provided two objections to development standards within BLEP 1988 pursuant to the provisions of State Environmental Planning Policy No 1 - Development Standards (SEPP 1), and these objections seek to vary the development standards within:

  1. clause 11, in relation to the subdivision of land for uses, including for a dwelling house within certain zones identified within the clause; and

  2. clause 81, which establishes a minimum lot size for developments within Zone R2 Low Density Residential and Zone R3 Medium Density Residential.

  1. It was common ground between the Parties, and I agree, that these two SEPP1 objections should be upheld because, consistent with the guidance provided by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827:

  1. compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard;

  2. the objections are well founded, as required under the provisions of cl 7 of SEPP 1;

  3. granting of consent to that development application would be consistent with the aims of this Policy as set out in cl 3 of SEPP 1; and

  4. the matters in clause 8(a) and (b) of SEPP 1 have been considered and justify upholding of the SEPP 1 objections: Fastbuck$ v Byron Shire Council (1999) 103 LGERA 94; [1999] NSWCA 19 (at [100]), and City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262; [1999] NSWLEC 246 (at [291]). The matters in clause 8(a) and (b) are:

(a) whether non-compliance with the development standard raises any matter of significance for State or regional environmental planning, and

(b) the public benefit of maintaining the planning controls adopted by the environmental planning instrument.

Notification and objector submissions

  1. The Applicant’s development application as originally lodged was notified and placed on public exhibition between 14 December 2017 and 7 February 2018. That notification period was extended for a further period to allow submissions to be received up to 31 March 2018.

  2. In response to this initial notification 2,218 objector submissions were received along with one submission in support of the Proposed Development.

  3. On 13 February 2020, prior to the commencement of the hearing in the current appeal, and by Notice of Motion, the Court granted leave to the Applicant to rely on amended plans.

  4. The Applicant’s amended plans and accompanying documents were notified and placed on public exhibition between 11 March 2020 and 9 April 2020. That notification period was again extended by the Respondent until 7 May 2020, and some 1,760 objector submissions were received in response to that notification.

  5. The submissions received in response to notification of the Applicant’s development application consisted of some 3000 pages of documents. The Respondent advised that its planning officer had reviewed the submissions received. That officer confirmed that, in his opinion, no new issues were raised in the submissions received in 2020 than were identified in submissions made in 2018. Those issues covered the following matters:

  1. increased traffic concerns associated with the subdivision, including disrupted access to services within Byron Bay such as medical care;

  2. potential biodiversity/ecological impacts – both to flora and fauna, and including potential impacts on koala habitat and populations;

  3. potential impacts on the intermittently closed and open lakes and lagoons (ICOLLs) and the Belongil Estuary;

  4. potential groundwater ,stormwater and flooding impacts;

  5. potential impacts associated with acid sulfate soils;

  6. potential geotechnical and cut/fill impacts;

  7. potential economic impacts on tourism;

  8. potential impacts on Aboriginal cultural heritage;

  9. potential construction impacts on surrounding residents;

  10. potential visual impacts, including in relation to an acoustic wall;

  11. potential acoustic impacts;

  12. potential cumulative impacts associated with development of, and inconsistencies with, the adjoining subdivision;

  13. concerns in relation to the provision of site access;

  14. the design of the subdivision;

  15. bushfire concerns;

  16. potential social impacts from increases to the population of Byron Bay;

  17. potential sewage impacts;

  18. potential future impacts of climate change on the subdivision;

  19. concerns relating to over-development in the Byron Bay area;

  20. the suitability of the location for the proposed development; and

  21. the public interest.

  1. During the hearing, the Court received oral submissions from seven objectors. Each objector had also provided written submissions in support of their oral testimony.

  2. Those submissions were received from:

  1. Mr Paul Margolin, a resident of Melaleuca Drive who owned a property adjacent to the Subject Site, and who expressed concerns in relation to:

  1. potential hydrological impacts of the Proposed Development on his property, including in relation to flooding;

  2. the unlawful filling of a drainage easement and impacts on water flows on his land; and

  3. ensuring that drainage from the Proposed Development was directed to a lawful point of discharge;

  1. Mr Tom Vidal, a resident of Melaleuca Drive and Secretary of the Belongil Catchment Drainage Board, and who expressed concerns in relation to:

  1. flooding and potential shifts in flooding frequency that he had observed;

  2. the requirement for drainage from the Proposed Development was directed to a lawful point of discharge;

  3. the impact of filling proposed as part of the Proposed Development; and

  4. the adequacy of consultation undertaken with the Belongil Catchment Drainage Board;

  1. Mr Bruce Clarke, a resident of Ewingsdale, who stated that while he supported reasonable development in the area nevertheless expressed concerns in relation to:

  1. the adequacy of the Applicant’s assessment of potential traffic impacts of the Proposed Development, noting that, in his opinion, Ewingsdale Road was currently performing poorly in terms of traffic flow management;

  2. potential construction impacts of the Proposed Development;

  3. potential impacts of filling proposed by the Applicant for the Subject Site;

  4. potential impacts on flooding regimes in the area, and the frequency of floods which in his estimation had increased;

  5. potential impacts on sedimentation of waterways;

  6. the adequacy of assessments undertaken concerning sewage management;

  7. the potential of the development to displace koalas; and

  8. potential amenity impacts;

  1. Mr Veda Turner, a resident of Byron Bay, who expressed concerns in relation to:

  1. the need to coordinate development across the Applicant’s Proposed Development in this appeal and the adjoining development granted consent in the Villa World decision, and specifically in relation to:

  1. the integration of roads and stormwater infrastructure;

  2. potential traffic impacts and impacts in relation to creeks from stormwater flows;

  1. potential impacts arising from fill in relation to flooding regimes; and

  2. accounting for the potential impacts of climate change and sea level rise;

  1. Ms Bronwyn Morris, a resident of Montecollum, who expressed concerns in relation to:

  1. the suitability of the Subject Site for the Proposed Development given its potential impacts in relation to flooding, acid sulfate soils, bushfire, contamination, flora and fauna, noise, odours and pests;

  2. potential traffic impacts;

  3. the potential impacts of fill on flood behaviour in the area;

  4. the potential impacts of the Proposed Development on local swamp ecosystems and the wildlife within those areas; and

  5. the potential impact of the Proposed Development in relation to sewage;

  1. Mr Anthony Stante, a resident of Coorabell, who had provided a response, drafted with Ms Annie Stante, to the West Byron Traffic and Transport Report prepared by Veitch Lister Consulting (VLC), and who expressed concerns in relation to:

  1. the reliability of the Applicant’s traffic modelling;

  2. the need to prepare a strategic traffic model for Byron Bay, noting that the town’s bypass should not be viewed as a “silver bullet”; and

  3. the need for upgrades to Ewingsdale Road, which he said could cost up to $75M;

  1. Mr Dailan Pugh, a resident of Byron Bay, who had provided a submission of some 150 pages, and who expressed concerns in relation to:

  1. potential impacts of the Proposed Development on koalas and koala populations, as well as on wallum frogs;

  2. potential climate change impacts;

  3. the potential of the Proposed Development to degrade the Special Purpose Zone associated with Belongil Creek;

  4. potential impacts of stormwater flows in relation to ICOLLs;

  5. potential traffic impacts;

  6. the requirement to ensure that water is disposed of at legal points of discharge;

  7. compliance of the Proposed Development with the provisions of the BDCP; and

  8. whether approval of the Proposed Development was in the public interest.

Contentions

  1. Following the Court granting leave for the Applicant to amend its development application (see above (at [28]), the Respondent’s Further Amended Statement of Facts and Contentions (FASFAC) noted that on the basis of proposed draft conditions of consent:

  1. contentions concerning flooding on the Subject Site had been resolved;

  2. contentions concerning earthworks, fill and geotechnical matters had been resolved;

  3. contentions concerning site access had been resolved;

  4. contentions concerning the proposed design of the subdivision had been resolved;

  5. contentions concerning the management of stormwater, including the design of drainage associated with the Proposed Development, had been resolved;

  6. contentions concerning the potential impact of the Proposed Development on acid sulfate soils had been resolved;

  7. contentions concerning bushfire management on the Subject Site had been resolved;

  8. contentions concerning potential Aboriginal cultural heritage impacts had been resolved;

  9. contentions concerning construction noise management were resolved; and

  10. contentions concerning potential visual impacts and in relation to character had been resolved.

  1. During the hearing, and on the basis of further expert evidence of the Parties’ acoustics experts, Mr Jason Fox, for the Applicant, and Mr Tim Fitzroy, for the Respondent, a contention in relation to further potential acoustic impacts was resolved through the Applicant’s agreement to the imposition the certain additional conditions of consent recommended by those experts.

  2. The remaining contentions in the appeal fell into the following broad areas which all pertain to aspects of the suitability of the Subject Site for the Proposed Development:

  1. potential ecological impacts, and in particular in relation to:

  1. the potential impacts of the Proposed Development on koalas and their habitat;

  2. the potential impact of the Proposed Development on other threatened vegetation communities on the Subject Site, and the adequacy of the Applicant’s plans for restoration and rehabilitation of certain lands within the Subject Site;

  3. the potential impacts of the Proposed Development on certain frog species and their habitat; and

  4. the adequacy of the Applicant’s proposed arrangements for access to proposed Stages 11 and 12 in the western area of the Subject Site.

  1. The Court was assisted in its consideration of these contentions by written, and in some circumstances oral, evidence of the Parties experts as follows:

  1. the expert ecologists, Dr David Robertson, for the Applicant, and Dr Mark Fitzgerald, for the Respondent;

  2. the expert traffic engineers, Mr Ken Hollyoak, for the Applicant, and Mr Craig McLaren, for the Respondent;

  3. the expert civil engineers, Mr Robert Staniland, for the Applicant, and Mr David England, for the Respondent;

  4. the expert water engineers, Dr Daniel Martens, for the Applicant, and Mr David England, for the Respondent;

  5. the expert planners, Mr Stuart McDonald, for the Applicant, and Mr Jeff Mead, for the Respondent; and

  6. the acoustics experts, Mr Jason Fox, for the Applicant, and Mr Tim Fitzroy, for the Respondent.

Statutory context

Environmental Planning and Assessment Act 1979

  1. The objects of the EP&A Act, at s 1.3, are as follows:

(a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State’s natural and other resources,

(b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment,

(c) to promote the orderly and economic use and development of land,

(d) to promote the delivery and maintenance of affordable housing,

(e) to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats,

(f) to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage),

(g) to promote good design and amenity of the built environment,

(h) to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants,

(i) to promote the sharing of the responsibility for environmental planning and assessment between the different levels of government in the State,

(j) to provide increased opportunity for community participation in environmental planning and assessment.

  1. Section 3.43(5) of the EP&A Act provides that:

(5) A provision of a development control plan (whenever made) has no effect to the extent that—

(a) it is the same or substantially the same as a provision of an environmental planning instrument applying to the same land, or

(b) it is inconsistent or incompatible with a provision of any such instrument.

  1. Section 4.14 of the EP&A Act provides relevantly in relation to the current appeal as follows:

(1) Development consent cannot be granted for the carrying out of development for any purpose (other than a subdivision of land that could lawfully be used for residential or rural residential purposes or development for a special fire protection purpose) on bush fire prone land (being land for the time being recorded as bush fire prone land on a relevant map certified under section 10.3(2)) unless the consent authority -

(a) is satisfied that the development conforms to the specifications and requirements of the version (as prescribed by the regulations) of the document entitled Planning for Bush Fire Protection prepared by the NSW Rural Fire Service in co-operation with the Department (or, if another document is prescribed by the regulations for the purposes of this paragraph, that document) that are relevant to the development (the relevant specifications and requirements), or

(b) has been provided with a certificate by a person who is recognised by the NSW Rural Fire Service as a qualified consultant in bush fire risk assessment stating that the development conforms to the relevant specifications and requirements.

  1. Section 4.15(1) of the EP&A Act provides that:

(1) In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application -

(a) the provisions of -

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),

(v) (Repealed)

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

  1. Section 4.15(3A) of the EP&A Act further provides that:

If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:

(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and

(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c) may consider those provisions only in connection with the assessment of that development application.

Byron Local Environmental Plan 2014

  1. The Subject Site is identified as a Deferred Matter under Byron Local Environmental Plan 2014 (BLEP 2014).

  2. Pursuant to cl 1.3(1A) of BLEP 2014, that plan does not apply to the Subject Site, and determination of the development application in this appeal is subject to the provisions of BLEP 1988.

Byron Local Environmental Plan 1988

  1. The following provisions of BLEP 1988 are of relevance to the determination of the Applicant’s development application in this appeal:

  1. clause 11 of BLEP 1988, which concerns the subdivision of land in rural areas for agricultural purposes, and which provides that Council shall not consent to the subdivision of land for agriculture, forestry or a dwelling-house within the zones shown in Column 1 of the Table to this clause unless the area of each of the allotments to be created is not less than that shown opposite that zone in Column 2 of the Table and, in the opinion of the council, each allotment is of satisfactory shape and has a satisfactory frontage;

  2. clause 81 of BLEP which:

  1. establishes a minimum lot size for Zone R2 Low Density Residential and Zone R3 Medium Density Residential, and encourages small residential lots in appropriate locations in West Byron Bay; and

  2. requires that the size of any lot resulting from a subdivision of land to which the clause applies is not to be less than the minimum size shown on the Lot Size Map and which establishes the minimum subdivision lot sizes as follows:

  1. a minimum lot size of 450m2 applies within lands that form part of the R2 Low Density Residential zone footprint within the Proposed Development;

  2. a minimum lot size of 200m2 applies to land zoned R3 Medium Density Residential and B1 Neighbourhood Centre;

  3. there is no prescribed minimum lot size within the RE1 zone footprint within the Proposed Development; and

  4. a 40ha minimum lot size otherwise applies throughout the Subject Site;

  1. clause 88, which concerns development in coastal areas and provides as follows:

(1) The objectives of this clause are as follows -

(a) to provide for the protection of the coastal environment of the State for the benefit of both present and future generations through promoting the principles of ecologically sustainable development,

(b) to implement the principles in the NSW Coastal Policy, and in particular to -

(i) protect, enhance, maintain and restore the coastal environment, its associated ecosystems, ecological processes and biological diversity and its water quality, and

(ii) protect and preserve the natural, cultural, recreational and economic attributes of the NSW coast, and

(iii) provide opportunities for pedestrian public access to and along the coastal foreshore, and

(iv) recognise and accommodate coastal processes and climate change, and

(v) protect amenity and scenic quality, and

(vi) protect and preserve rock platforms, beach environments and beach amenity, and

(vii) protect and preserve native coastal vegetation, and

(viii) protect and preserve the marine environment, and

(ix) ensure that the type, bulk, scale and size of development is appropriate for the location and protects and improves the natural scenic quality of the surrounding area, and

(x) ensure that decisions in relation to new development consider the broader and cumulative impacts on the catchment, and

(xi) protect Aboriginal cultural places, values and customs, and

(xii) protect and preserve items of heritage, archaeological or historical significance.

(2) Development consent must not be granted to development on land that is wholly or partly within the coastal zone unless the consent authority has considered -

(a) existing public access to and along the coastal foreshore for pedestrians (including persons with a disability) with a view to -

(i) maintaining existing public access and, where possible, improving that access, and

(ii) identifying opportunities for new public access, and

(b) the suitability of the proposed development, its relationship with the surrounding area and its impact on the natural scenic quality, taking into account—

(i) the type of the proposed development and any associated land uses or activities (including compatibility of any land-based and water-based coastal activities), and

(ii) the location, and

(iii) the bulk, scale, size and overall built form design of any building or work involved, and

(c) the impact of the proposed development on the amenity of the coastal foreshore including—

(i) any significant overshadowing of the coastal foreshore, and

(ii) any loss of views from a public place to the coastal foreshore, and

(d) how the visual amenity and scenic qualities of the coast, including coastal headlands, can be protected, and

(e) how biodiversity and ecosystems, including -

(i) native coastal vegetation and existing wildlife corridors, and

(ii) rock platforms, and

(iii) water quality of coastal waterbodies, and

(iv) native fauna and native flora, and their habitats,

can be conserved, and

(f) the cumulative impacts of the proposed development and other development on the coastal catchment.

(3) Development consent must not be granted to development on land that is wholly or partly within the coastal zone unless the consent authority is satisfied that—

(a) the proposed development will not impede or diminish, where practicable, the physical, land-based right of access of the public to or along the coastal foreshore, and

(b) if effluent from the development is disposed of by a non-reticulated system, it will not have a negative effect on the water quality of the sea, or any beach, estuary, coastal lake, coastal creek or other similar body of water, or a rock platform, and

(c) the proposed development will not discharge untreated stormwater into the sea, or any beach, estuary, coastal lake, coastal creek or other similar body of water, or a rock platform, and

(d) the proposed development will not -

(i) be significantly affected by coastal hazards, or

(ii) have a significant impact on coastal hazards, or

(iii) increase the risk of coastal hazards in relation to any other land.

  1. clause 92 of BLEP 1988 concerning heritage conservation, which relevantly in relation to this appeal, provides as follows:

(4) Effect of proposed development on heritage significance

The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).

(5) Heritage assessment

The consent authority may, before granting consent to any development—

(a) on land on which a heritage item is located, or

(b) on land that is within a heritage conservation area, or

(c) on land that is within the vicinity of land referred to in paragraph (a) or (b),

require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned.

(6) Heritage conservation management plans

The consent authority may require, after considering the heritage significance of a heritage item and the extent of change proposed to it, the submission of a heritage conservation management plan before granting consent under this clause.

  1. clause 97 of BLEP 1988, in relation to acid sulfate soils, and in particular:

  1. subcl 97(2), which provides that development consent is required for the carrying out of works described in the Table to this subclause on land shown on the Acid Sulfate Soils Map as being of the class specified for those works; and

  2. subcl 97(3) which provides that development consent must not be granted under this clause for the carrying out of works unless an acid sulfate soils management plan has been prepared for the proposed works in accordance with the Acid Sulfate Soils Manual and has been provided to the consent authority.

  1. clause 98 in relation to flood planning, which applies to the Subject Site, and

  1. has the following objectives

(a) to minimise the flood risk to life and property associated with the use of land,

(b) to allow development on land that is compatible with the land’s flood hazard, taking into account projected changes as a result of projected sea level rise,

(c) to avoid significant adverse impacts on flood behaviour and the environment.

  1. which requires under the provisions of cl 98(3) as follows:

Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development—

(a)  is compatible with the flood hazard of the land, and

(b)  is not likely to significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and

(c)  incorporates appropriate measures to manage risk to life from flood, and

(d)  is not likely to significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and

(e)  is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding.

  1. clause 99 of BLEP 1988, in relation to satisfactory arrangements for public infrastructure, provides under its subcl 99(2) as follows:

(2) Development consent must not be granted for the subdivision of land in an urban release area if the subdivision would create a lot smaller than the minimum lot size permitted on the land immediately before the land became, or became part of, an urban release area, unless the Director-General has certified in writing to the consent authority that satisfactory arrangements have been made to contribute to the provision of designated State public infrastructure in relation to that lot;

  1. clause 100 of BLEP 1988, in relation to public utility infrastructure, provides under its subcl 100(1) as follows:

(1) Development consent must not be granted for development on land in an urban release area unless the Council is satisfied that any public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to make that infrastructure available when it is required.

Byron Shire Development Control Plan 2014

  1. Byron Shire Development Control Plan 2014 (BDCP) states that its primary purpose is to specify requirements for quality development and sustainable environmental outcomes on land including the West Byron Bay Site identified under Part 4 of the BLEP 1988.

  2. Chapter E8 of the BDCP which applies specifically to the West Byron Urban Release Area, notes that it:

  1. provides for the matters specified in cl 101(3) of BLEP 1988; and

  2. has been prepared and adopted by Byron Shire Council, in satisfaction of the requirements of cl 101(2) of BLEP 1988;

  3. provides a framework to guide the future development of West Byron; and

  4. specifies subdivision, built form, environmental protection and other controls to “achieve the vision for West Byron Bay”.

  1. The following provisions of Part E8 of the BDCP are of particular relevance to contentions identified by the Respondent in this appeal:

  1. Part E8.5 describes the relationship of BDCP to other plans and policies and notes that:

“Development within West Byron Bay will need to comply with this chapter, as well as other relevant chapters in the Byron Shire DCP 2014 set out in Table E8.1. In the event of any inconsistency between this DCP Chapter and other Chapters within Byron Shire DCP 2014 or any other plan or policy of Council, this chapter will prevail to the extent of the inconsistency”.

  1. Part E8.10 provides design principles for development within the West Byron Bay area, including in relation to concept and staging plans provided within Appendices A and B to BDCP, and it notes that:

“Both plans are indicative and further changes to the layout and or staging may occur through the development of West Byron and further assessment. Where major variations are proposed the applicant will be required to demonstrate the development remains consistent with the Design Principles in this section”.

  1. Part E8.10.1 identifies that the lands that are the subject of the current appeal fall within Stage 1 of the of the Staging Plan and notes that Stage 1 will comprise minimum infrastructure and works to enable the site to be subsequently developed for commercial, residential and industrial land uses. This includes a detailed traffic study be undertaken to confirm the appropriate configuration of the two round about intersections with Ewingsdale Rd. The study to address the requirements of the Guide to Traffic Generating Developments (RTA 2002), and any additional traffic studies and design plans prepared by Council to inform the final design of the roundabouts;

  2. Part E8.10.2 which provides guidance in relation to housing subdivision layouts, orientation and diversity;

  3. Part E8.10.3 in relation to transport movement and street hierarchy, and which, inter alia, provides the following prescriptive measures of relevance to the current appeal:

“1. The road layout is based generally on the Concept Plan. The road hierarchy is based

on the following:

a) a main Spine Road which intersects with Ewingsdale Road in two places at

roundabouts (Distributor road)

b) Collector roads;

…

2. The street network layout and associated infrastructure to be carefully sited and designed, having regards to the provisions contained under E8.10.5.1 Biodiversity and Vegetation Management and in particular threatened species of flora, fauna and endangered ecological communities, habitat corridors and links.

…

6. Formal pedestrian crossings to be clearly delineated through changes in road pavement material and or raised, plus appropriate signage and line marking as required.

7. “Except where otherwise provided for in this Chapter, all roads, streets and roundabouts are to be designed and constructed in accordance with the minimum requirements set out in the Northern Rivers Local Government Development Design and Construction Manual”.

…

10. The road through the IN2 Zone Land to terminate in a cul de sac at the boundary with Lot 181 DP755695. Alternatives to extend the road through this parcel and back to Ewingsdale Road will be considered where it can be demonstrated with a traffic study a positive outcome for traffic management on Ewingsdale Road and to enable the free flow and movement of heavy vehicles, delivery trucks and other traffic entering the IN2

Zone.”

  1. Part E8.10.4 concerning stormwater management, which requires under its prescriptive measure 1 that the Applicant should provide with its development application a detailed stormwater management plan based on the concept of water sensitive urban design which is, inter alia, to be consistent with the stormwater requirements for subdivisions within Chapter D6 of BDCP and the Northern Rivers Development and Design Manual;

  2. Part E8.10.5 in relation to biodiversity, vegetation management and landscaping, and which, inter alia:

  1. states as follows:

“The subject site provides important habitat for a range of species and ecological communities including koalas, wallum froglet, wallum sedge frog, blossom bat and remnant coastal cypress pine communities. A voluntary planning agreement has been signed between the Minister for Planning and the landowners requiring a vegetation management plan to be prepared addressing matters such as a program and implementation strategy of environmental management works for the land zoned E2 Environmental Conservation.

Vegetation management however will need to apply to the entire site, and any native vegetation that is proposed to be removed from within the urban footprint will need to be appropriately compensated. Landscaping will play an important role as part of the overall environmental management of the site, and will enhance habitat attributes, whilst also playing a part in the management of stormwater.”

  1. provides the following performance criteria:

“1. Ensure that a comprehensive Biodiversity Conservation Management Plan, including identified sub-plans, is prepared and approved to minimize and offset the impact of development on the site with the Stage 1 Development Application.

2. Environmental buffers to sensitive ecological areas to be revegetated or restored, with development located outside environmental buffers.

3. Protect potential and core koala habitat areas from development that would compromise habitat quality and integrity and enhance koala habitat to provide connectivity links to facilitate the natural movement of koalas.

4. Protect, maintain and enhance key habitat corridors to improve linkages between habitats.

5. Improve biodiversity on the site by rehabilitating and re-vegetating areas identified for conservation within an established timeframe for delivery.

6. Mitigation of direct and indirect impacts of development on drainage lines and riparian areas.

7. To identify, protect and maintain wallum froglet and wallum sedge frog habitat areas where appropriate and to provide additional wallum froglet and wallum sedge frog habitat areas within the West Byron Site, so that there is no net loss in habitat.”

  1. provides the following prescriptive measures:

“1. A comprehensive Biodiversity Conservation Management Plan is required to be prepared for the Stage 1 Development Application. The plan is to be for the entire Urban Release Area and to include the following:

a) identification of existing vegetation to be retained;

b) the types of vegetation management works required and how those works will be implemented, including allocation of responsibility for funding works;

c) an initial five-year implementation program setting out habitat restoration and management works including strategies for planting, weed control and maintenance based on strengthening general key habitat corridors along the eastern and southern periphery of the Urban Release Area (See Figure E8.6 below). Such works are to be incorporated into the first Construction Certificate for the site to ensure any compensatory planting that may be required is established as West Byron is gradually developed;

d) details of responsibility for the ongoing management of habitat areas in the E2 and E3 Zones following the initial five year implementation program;

e) methods to prevent the introduction of exotic pest species or to manage and reduce pest species already present;

f) methods to reduce potential for bird strikes into windows of buildings;

g) details of ongoing monitoring, reporting to Council and processes for adaptive management where necessary;

h) The Vegetation Management Plan for the E2 Zone as required under the Voluntary Planning Agreement (VPA) dated 21/10/14 to be incorporated into the comprehensive Biodiversity Conservation Management Plan. The plan to address threatened species, SEPP 44 Koala Habitat Protection, measures to manage Belongil Creek and the requirements of the VPA. The plan can be detailed in the following sub plans:

i) Threatened species management plan providing details on any expected impacts on threatened species or their habitat, how such impacts will be avoided as far as practical or mitigated if necessary, and how any impacts will be compensated through rehabilitation and revegetation work. Council records indicate the site provides habitat for wallum sedge frog and the wallum

tree frog. The management plan is to address the National Recovery Plan for Wallum Sedge frogs and other wallum dependant frog species.

ii) A Belongil Creek Plan of Management to be prepared in consultation with the relevant land owner and provide for bushland restoration on land adjacent to the creek and within riparian buffers provided by the E2 conservation zones, weed control and habitat restoration along drainage lines. Any new culverts over existing water crossings to provide improvements in water quality and fish passage

iii) A Koala Plan of Management (KPOM) is to be prepared in accordance with the requirements of State Environmental Planning Policy No. 44 – Koala Habitat Protection. Should Council have an adopted KPOM for the area, Applicants have the choice to use this plan or prepare their own plan. An Individual KPOM as a minimum to address the following:

• SEPP 44 Guidelines for Individual KPOMs

• Potential and Core Koala Habitat on and surrounding the site

• Rehabilitation of habitat in the E Zones to focus on Koala Habitat restoration to address any compensation requirement and to provide or embellish linkages between potential and core koala habitat areas

• measures to protect existing koalas whilst new habitat is being established.

• details of koala friendly crossings under / over Ewingsdale Road, and timing and responsibility for their delivery.

• other measures to protect koalas including reduced vehicle speeds and traffic calming measures, development fencing, dog prohibition or control, pool safety through design measures such as ramps or “beaches”, control on construction activities, signage, appropriate building envelopes having regards to bushfire requirements for asset protection zones.

Revegetation and rehabilitation works are to be delivered in accordance with the Biodiversity Conservation Management Plan and the sub plans, and is to be based on the Concept Plan in Appendix B. All plantings should use species locally sourced with local genetics, and include the aim of achieving a 90% survival rate.

3. Development applications for subdivision (excluding subdivision for the consolidation of lots that does not create additional lots or the opportunity for additional dwellings, boundary adjustments or to dedicate land for a public purpose) are to:

a) Address the relevant statutory considerations under the Environmental Planning and Assessment Act 1979 (specifically Section 5A, 5C and Section 79C) consider potential impacts to:

i) threatened species, populations and endangered ecological communities under the Threatened Species Conservation Act 1995 and the Environmental Protection and Biodiversity Conservation Act 1999 ii) SEPP 14 Wetlands and SEPP 44 Koala Habitat Protection iii) Relevant provisions of the Water Management Act 2000, Fisheries Management Act 1994, Marine Parks Act 1997 and the Native Vegetation Act 2003 iv) Be accompanied by a detailed ecological assessment including habitat values, location and extent of any habitat proposed for removal and offset location, extent and timing. b) Identify buffers between development (in zones R2 Low Density Residential, R3 Medium Density Residential, IN2 Light Industrial, B1 Neighbourhood Centre) and any land zoned E2 or E3 and provide a plan of management for the buffers and the zone interface. Buffers or buffer zones are not required between E2 and E3 zones. Buffer management plans must: i) Mitigate direct and indirect impacts from development in order to protect the integrity and health of the natural environment.

ii) Avoid negative impacts on the natural environment and ensure retention and enhancement of those functions and characteristics that are important to biodiversity conservation, landform stability, erosion management, hydraulic function and other important natural, geophysical and biophysical processes

iii) Provide a minimum width buffer of 20 metres. The buffer can include a perimeter road/ bushfire trail for bushfire protection purposes provided that road is located outside of the E2 and E3 zone and comprises a minimum vegetated edge adjacent to the E2 and E3 zone of 7 metres. Cycleways and pedestrian paths are also acceptable within buffer areas. Where required the vegetated edge to the E3 Zone to be widened to 10 metres to provide for a suitable level of amenity to properties in the E3 Zone off Melaleuca Drive. iv) Incorporate existing native vegetation into the buffer. v) Provide details on long term management and responsibility.

4. Landscaping of drainage lines, parks, reserves, road buffers and other large areas within the urban footprint of the Urban Release Area to be designed to enhance biodiversity values and habitat linkages. Concept landscaping plan to be submitted with development applications for subdivision which form one or more stages of the proposal for West Byron.

5. The road network within the south eastern perimeter of the Urban Release Area including vehicle access from the main residential areas to include traffic calming measures such as narrower road widths including chicanes and or one way traffic flows to facilitate the movement of fauna through this area from the E3 Zones to the E2 Zones. Other options to regulate and limit through traffic in this area is to develop Lot 1 DP 780242 and Lot 229 DP 755695 as community title/ strata title residential estates with an “Environmental Living Theme” and incorporate surrounding E2 and E3 Zoned land into the common/ neighbourhood property for ongoing management.

6. Any roads, cycleways, pedestrian footpaths, bushfire trails and other necessary infrastructure that traverses into or across the E2 and E3 Zone to be sited to minimise impacts on the environmental qualities of native vegetation and habitat in those zones by utilising existing breaks in the native vegetation and or siting and designing such works to have minimal disturbance (eg narrow road width/ locate where weeds and exotics are to be removed, signage for wildlife crossings etc). Details to be submitted with the development application.

7. For ongoing removal of trees and vegetation after West Byron is developed, land owners to comply with Chapter B2 Preservation of Trees and Other Vegetation, and any requirements of the Biodiversity Conservation Management Plan approved under this Chapter.

8. Despite the provisions of Clause E8.3, residual areas outside of the Urban Release Area in Lots 227 and 229 DP 755695, Lot 9 DP 111821, and Lot 2 DP818403 to be incorporated into the Biodiversity Conservation Management Plan as required.

9. The keeping of cats and dogs other than guide dogs is to be prohibited. Any plan of subdivision to include an appropriately worded S.88B instrument in relation to keeping such pets. The prohibition to also apply to community title and strata tittle subdivisions and to be incorporated into Strata Plans of Management and or Neighbourhood Management plans and the like. Appropriate conditions to apply for applications to residential development including multi dwelling housing, integrated housing, dwelling houses, dual occupancy and secondary dwellings.”

  1. Part E8.10.8 in relation to hazards and constraints, and which provides specific controls in relation to flooding, acid, sulfate soils, ground water, bushfire, mosquitoes, contamination and potential odour from the adjacent chicken processing plant on Ewingsdale Road;

  2. Part E8.10.9 concerning Aboriginal cultural matters, and which:

  1. includes the following objectives:

“1. Traditional Owners are recognised and respectfully consulted to identify ways to protect culture and features of Indigenous cultural significance.

2. Culturally significant features are to be protected and incorporated in accordance with the recommendations and findings of such consultation.

3. Opportunities for Traditional Owners to look after country both physically and spiritually will be encouraged.”

  1. includes the following prescriptive measures:

“1. An Aboriginal Cultural Heritage Assessment to be carried out by a suitably qualified professional for the West Byron Site with the Stage 1 Development Application. The assessment to be carried out in accordance with the relevant Office of Environment and Heritage (OEH) Guidelines for Aboriginal cultural heritage matters.

2. Any sites, items, objects, relics or places of significance that are located within the development site are to be appropriately identified and management measures for their ongoing protection are to be recommended as required under the OEH Guidelines.

3. The assessment is to demonstrate consultation with the Byron Bay Bundjalung People, and other Key Stakeholders pursuant to Clause 80C of the NPW Regulation 2009, in accordance with the OEH Aboriginal Cultural Heritage Consultation Requirements for Proponents 2010.”

  1. Part E.8.10.10 in relation to urban design of significant sites and higher densities, and in particular

  1. Part E8.10.10.4 in relation to industrial lands, which states that:

“Approximately 7.5 hectares of the West Byron Site is zoned IN2 Light Industrial. The IN2 Zoned land sits opposite the Byron Bay Industrial Estate to the north and residential land to the east. For specific development guidelines for construction of factory units in this area, applicants are directed to Chapter D5 Industrial Development within DCP 2014. The following controls though apply to the subdivision design and development of the land Zoned IN2.”

  1. Part E8.10.10.4 which provides the following performance criteria and prescriptive measures that are of particular relevance in this appeal:

“Performance Criteria

1. Access roads are designed to facilitate the movement of large vehicles.

2. Lot sizes meet minimum requirements to facilitate safe manoeuvring onsite for delivery trucks.

…

5. Development be designed and sited to minimise land use conflicts with surrounding residential development.

Prescriptive measures

1. A single DA be submitted to Council for the initial subdivision of the IN2 Zoned Land presenting an integrated proposal for the road and allotment layout, based on potential industries seeking industrial land in Byron Bay. Details to be provided with the

development application.

2. Access roads through the IN2 Zoned land to be of a suitable width to accommodate articulated vehicles plus on street parking.

3. A minimum of twenty five percent (25%) of lots are to be designed with an appropriate area and width to enable Articulated Vehicles to enter and leave in a forward direction.”

State Environmental Planning Policy No 55 – Remediation of Land

  1. State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55) applies to the Proposed Development pursuant to cl 4 of this SEPP, and the provisions of the following subclauses of cl 7 of SEPP 55 are of relevance in this appeal:

(1) A consent authority must not consent to the carrying out of any development on land unless -

(a) it has considered whether the land is contaminated, and

(b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

(2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines.

(3) The applicant for development consent must carry out the investigation required by subclause (2) and must provide a report on it to the consent authority. The consent authority may require the applicant to carry out, and provide a report on, a detailed investigation (as referred to in the contaminated land planning guidelines) if it considers that the findings of the preliminary investigation warrant such an investigation.

State Environmental Planning Policy (Infrastructure) 2007

  1. State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP) applies to the Proposed Development because:

  1. the Subject Site adjoins Ewingsdale Road, which is a classified road with a traffic volume greater than 20,000 vehicles per day; and

  2. because the Proposed Development will generate traffic onto a classified road.

  1. The following are the relevant provisions of SEPP Infrastructure that require consideration in relation to the Proposed Development, together with the basis upon which the Parties agree that the requirements of those provisions have been satisfied.

  1. clause 101 of the Infrastructure SEPP:

  1. which requires that a consent authority must not grant consent to development on land that has frontage to a classified road unless it is satisfied that:

a) where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and

(b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of –

(i) the design of the vehicular access to the land, or

(ii) the emission of smoke or dust from the development, or

(iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

(c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

  1. subclauses 102(2) and 102(3) of the Infrastructure SEPP, provides that:

(2) Before determining a development application for development to which this clause applies, the consent authority must take into consideration any guidelines that are issued by the Secretary for the purposes of this clause and published in the Gazette;

(3) If the development is for the purposes of residential accommodation, the consent authority must not grant consent to the development unless it is satisfied that appropriate measures will be taken to ensure that the following LAeq levels are not exceeded -

(a) in any bedroom in the residential accommodation - 35 dB(A) at any time between 10 pm and 7 am,

(b) anywhere else in the residential accommodation (other than a garage, kitchen, bathroom or hallway) - 40 dB(A) at any time.

  1. clause 104 of the Infrastructure SEPP, which applies because the development is for more than 50 lots with access to a road that connects to a classified road, being Ewingsdale Road, and in relation to which:

  1. cl 104(3) provides that before determining a development application to which cl 104 applies, the consent authority must give written notice of the application to the NSW Roads and Maritime Services (RMS), and take into consideration:

  1. any submission the RMS provides within 21 days of the notice having been given,

  2. the accessibility of the site, including:

the efficiency of movement of people and freight to and from the site and extent of multi-purpose trips, and

the potential to minimise the need for travel by car and to maximise movement of freight in containers or bulk freight rail, and

  1. any potential traffic safety, road congestion or parking implications of the development.

State Environmental Planning Policy No 14 – Coastal Wetlands

  1. State Environmental Planning Policy No 14 – Coastal Wetlands (SEPP 14) continues to apply to the Proposed Development because:

  1. SEPP 14 was in force at the time the development application was lodged; and

  2. the savings and transitional provisions within cl 21(1) of State Environmental Planning (Coastal Management) 2018 (Coastal Management SEPP) provide that “the former planning provisions continue to apply (and this Policy does not apply) to a development application lodged, but not finally determined, immediately before the commencement of this Policy in relation to land to which this Policy applies”;

  3. the Applicant’s development application was lodged before the commencement of the 2018 SEPP and has not yet been finally determined.

State Environmental Planning Policy No 26 – Littoral Rainforest

  1. The Subject Site does not contain any littoral rainforest as mapped under the now repealed State Environmental Planning Policy No 26 – Littoral Rainforest.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

  1. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP (B&C) commenced on 1 March 2022, and by dint of its Chapters 3 and 4, along with Schedule 14, this policy has incorporated the provisions of both State Environmental Planning Policy (Koala Habitat Protection) 2020 (Koala SEPP 2020) and State Environmental Planning Policy (Koala Habitat Protection) 2021 (Koala SEPP 2021), into SEPP (B&C) in the same terms as applied prior to 1 March 2022.

  2. Following its commencement and prior to handing down this judgment, I invited the Parties to confirm whether or not they would seek to address the Court on this change in statutory regimes, and both Parties confirmed their view that:

  1. given that the provisions of the two Koala SEPPs were incorporated into the new SEPP (B&C) in the same terms, other than in respect of name and commencement date, and cl 20 of Koala SEPP 2020 repealing State Environmental Planning Policy (Koala Habitat Protection) 2019, the commencement of SEPP (B&C) is of no substantive effect in relation to the considerations of this judgment;

  2. the Respondent noted that all savings and transitional provisions of the repealed Koala SEPPs continue to have effect due to sections 5(6) and 30(2)(d) of the Interpretation Act 1987.

  1. This judgment was substantively drafted prior to the commencement of SEPP (B&C), and as a consequence of the above advice of the Parties, and for practical reasons, the judgment retains references to Koala SEPP 2020 and Koala SEPP 2021, and does not seek to cross reference to the new SEPP (B&C).

State Environmental Planning Policy (Koala Habitat Protection) 2021

  1. State Environmental Planning Policy (Koala Habitat Protection) 2021 (Koala SEPP 2021) commenced operation on 17 March 2021 and aims to encourage the conservation and management of areas of natural vegetation that provide habitat for koalas to support a permanent free-living population over their present range and reverse the current trend of koala population decline.

  2. Notwithstanding that it was operational at the time of this appeal, cl 18 of this SEPP, provides that:

18 A development application made in relation to land, but not finally determined before this Policy applied to the land, must be determined as if this Policy had not commenced in its application to the land

  1. Consequently, Koala SEPP 2021 has no application in the determination of this appeal, and the Applicant’s development application is subject to the provisions of the previous instrument concerning koalas and protection of koala habitat being State Environmental Planning Policy (Koala Habitat Protection) 2020 (Koala SEPP 2020).

State Environmental Planning Policy (Koala Habitat Protection) 2020

  1. Koala SEPP 2020, which repealed State Environmental Planning Policy (Koala Habitat Protection) 2019 (Koala SEPP 2019), aims to encourage the proper conservation and management of areas of natural vegetation that provide habitat for koalas to ensure a permanent free-living population over their present range and reverse the current trend of koala population decline. It seeks to achieve this by:

  1. requiring the preparation of plans of management before development consent can be granted in relation to areas of core koala habitat;

  2. encouraging the identification of areas of core koala habitat; and

  3. encouraging the inclusion of areas of core koala habitat in environment protection zones.

  1. The following elements of Koala SEPP 2020 are of particular relevance in this appeal:

  1. clause 4 provides the following definitions of relevance to the assessment and determination of the Proposed Development:

core koala habitat means an area of land with a resident population of koalas, evidenced by attributes such as breeding females, being females with young, and recent sightings of and historical records of a population.

guidelines means the guidelines, as in force from time to time, made for the purposes of this Policy by the Planning Secretary.

Planning for Bush Fire Protection means the document referred to in clause 272 of the Environmental Planning and Assessment Regulation 2000.

potential koala habitat means areas of native vegetation where trees of the types listed in Schedule 2 constitute at least 15% of the total number of trees in the upper or lower strata of the tree component.

  1. clause 5(1) states that the SEPP applies to each local government area (LGA) listed in its Schedule 1, and the Byron LGA is listed in that schedule;

  2. subclauses 7(a), 7(b) and 7(c) confirm that the provisions of Part 2 of the SEPP in relation to development of koala habitat applies to certain lands and the Subject Site meets each of the criteria in those subclauses;

  3. clause 8 provides requirements with respect to development on, and the identification of, potential koala habitat as follows:

(1) Before a council may grant consent to a development application for consent to carry out development on land to which this Part applies, the council must be satisfied as to whether or not the land is a potential koala habitat.

(2) The council may be satisfied as to whether or not land is a potential koala habitat only on information obtained by it, or by the applicant, from a person who is qualified and experienced in tree identification.

(3) If the council is satisfied— (a) that the land is not a potential koala habitat, it is not prevented, because of this Policy, from granting consent to the development application, or (b) that the land is a potential koala habitat, it must comply with clause 9.

  1. clause 9 provides requirements with respect to development on, and the identification of, core koala habitat as follows:

(1) Before a council may grant consent to a development application for consent to carry out development on land to which this Part applies that it is satisfied is a potential koala habitat, it must satisfy itself as to whether or not the land is a core koala habitat.

(2) The council may be satisfied as to whether or not land is a core koala habitat only on information obtained by it, or by the applicant, from a person with appropriate qualifications and experience in biological science and fauna survey and management.

(3) If the council is satisfied— (a) that the land is not a core koala habitat, it is not prevented, because of this Policy, from granting consent to the development application, or (b) that the land is a core koala habitat, it must comply with clause 10.

  1. clause 10 concerns the circumstances in which consent can be granted for development on land identified as core koala habitat, as follows:

(1) Before granting consent to a development application for consent to carry out development on land to which this Part applies that it is satisfied is a core koala habitat, there must be a plan of management prepared in accordance with Part 3 that applies to the land.

(2) The council’s determination of the development application must not be inconsistent with the plan of management.

  1. the following conditions should be imposed with the grant of any consent for the Proposed Development, as amended:

“Prior to the issue of the first construction certificate for the development, the hydrogeological assessment should be updated to reflect the amended overall site civil and drainage scheme. The amended assessment should determine and specify (as necessary) the requirements of any long-term groundwater impact mitigation measures.

Prior to the issue of a construction certificate for any stage of the development, a hydrogeological model shall be prepared for that stage, including any already constructed stages, that determines the requirements of any temporary groundwater impact mitigation measures (if any) that should be included as part of the civil engineering design for that stage.”

  1. I agree with the Applicant that:

  1. relying on the agreed evidence of the Parties’ water experts, the Respondent’s proposed condition 15 need not be imposed in the form proposed;

  2. the Applicant’s proposed replacement condition 15, adapted, appropriately to the circumstances of the development, should be imposed; and

  3. the expert’s further recommended condition should also be imposed immediately prior to the Applicant’s proposed condition.

  1. Finally, I also note that the Applicant has also proposed the deletion of the Respondent’s proposed condition 16 concerning groundwater analysis and modelling, relying the agreed evidence of the Parties’ water experts as the basis for this deletion.

  2. I have reviewed the Respondent’s proposed condition 16 and agree that it can be deleted for the reasons provided by the Applicant, which I adopt, other than in relation to the requirements for peer review and Council approval of the updated hydrogeological assessment and stage specific hydrogeological models that will form part of the revised condition 13 that will be imposed as a consequence of this judgment.

  3. As a consequence of the above considerations, condition 15 should read, and be imposed, as follows:

“15. Updated hydrogeological assessment and models required

“Prior to the issue of the first subdivision works certificate for the development (excluding Stage A), the hydrogeological assessment should be updated to reflect the amended overall site civil and drainage scheme. The amended assessment should determine and specify (as necessary) the requirements of any long-term groundwater impact mitigation measures.

Prior to the issue of a subdivision works certificate for each stage (excluding Stage A), a hydrogeological model shall be prepared for that stage, including any already constructed stages, that determines the requirements of any temporary groundwater impact mitigation measures (if any) that should be included as part of the civil engineering design for that stage.

The hydrogeological assessment and stage specific hydrogeological models shall be peer reviewed by an independent groundwater expert.

The assessment/models and peer reviews shall be submitted to, and approved by, Council’s Director of Planning (or nominee) prior to issue of the subdivision works certificate for each stage.

The plans of subdivision works for the relevant Subdivision Works Certificates must be consistent with any such approvals.”

Condition 21 Groundwater interaction with stormwater devices

  1. The Applicant has proposed an amendment to the Respondent’s proposed condition 21, in which it seeks to insert the following phase identified in bold into the condition:

“21. Groundwater interaction with stormwater devices

Prior to the issue of a subdivision works certificate for any stage of the development (except Stage A), the civil engineering plans must demonstrate that the invert of filter media of any stormwater treatment device is one metre above the water table, and if this cannot be achieved, then demonstrate that no adverse groundwater impacts arise out of the stormwater treatment device and that groundwater will be below the filter media invert. If this is not possible, then the stormwater treatment device must be suitably lined, with appropriate consideration of hydrostatic forces.”

  1. The Respondent submitted that the Applicant’s proposed addition should not be imposed because:

  1. the Respondent’s engineering expert is of the view that if the base of the filter material cannot be separated from the ground water, then the system will short circuit and potentially the stormwater may flow into the groundwater untreated; and

  2. the purpose of the 1m separation is to slow the release of water from the treatment device and allow the removal of nutrients by the vegetation and the filter media.

  1. In the absence of a submission from the Applicant in support of its proposed amendment, other than the text itself, I accept the submission of the Respondent and agree that its proposed condition 13, as originally drafted, should be imposed.

Conditions 22 to 26, 29, 31: minor amendments

  1. I agree that the minor amendments proposed by the Applicant in respect of proposed conditions 22 to 26 should be adopted.

Condition 28 Master Stormwater Management Plan

  1. The Respondent’s proposed condition 28 had required, inter alia, that the Applicant’s modified Master Stormwater Management Plan should include identification of legal points of discharge for the site as a whole.

  2. The Applicant has submitted that, following the agreement of the parties’ water experts that the layout of the Proposed Development, as amended, achieved lawful points of discharge for all stormwater, it was unnecessary to identify these as proposed by the Respondent.

  3. While I accept that the Parties’ water experts agreed that the contention in relation to lawful points of discharge had been resolved, I do not agree that the Respondent’s proposed condition 28 should be amended to delete the requirement to identify these in the Applicant’s modified Master Stormwater Management Plan.

  4. In my assessment, as the lawful points of discharge have been agreed by the Parties’ water experts, the identification of these within the modified plan should be a straightforward matter. Further, stormwater and flooding management were matters were significant matters of public interest. It is my assessment that the public interest would be served by the identification of these points within the Applicant’s modified plan.

Condition 32 Main Drain Upgrade

  1. The Respondent has proposed the imposition of a condition 32 requiring the preparation, along with certain content, of a Master Stormwater Management Plan, and that the Applicant should obtain an approval under s 68 of the Local Government Act 1993 to carry out stormwater works.

  2. The Applicant has submitted that any requirement to secure an approval under s 68 of the Local Government Act 1993 to carry out stormwater works would apply regardless of the condition, and therefore the condition was unnecessary.

  3. The Respondent presses the imposition of its version of this condition, noting that its water expert, Mr England, states that the condition is required because without a “s 68 approval” it will not be possible for the proposed connection of drainage works within the Main Drain.

  4. Having considered the Parties’ submissions I am satisfied that the condition as drafted by the Respondent should be imposed for the reason provided by the respondent, which I adopt, and to assure compliance with the provisions of s 68 of the Local Government Act 1993.

Condition 33 Main Drain Stability

  1. The Respondent has proposed a condition 33 requiring that, prior to the issue of any subdivision works certificate proposing works in the Main Drain or discharging water into the Main Drain, the Main Drain batters should be certified by a suitably qualified geotechnical engineer.

  2. The Applicant has proposed the deletion of the condition but provides no submission in support of this proposal.

  3. The Respondent presses its version of this condition on the basis that its water expert, Mr England, has stated that, in his opinion, this condition is required because the Applicant proposes to connect to the Main Drain and the condition is proposed to ensure the stability of the Main Drain batters, particularly in those areas of connecting stormwater infrastructure.

  4. I agree with, and accept, the reasons provided by the Respondent concerning the basis for the condition, and I am satisfied that the condition as drafted by the Respondent should be imposed.

Condition 34 Construction Traffic Management

  1. The Respondent has proposed imposition of a condition 34 concerning construction traffic management and the text of this condition is largely agreed between the Parties.

  2. The Applicant has:

  1. proposed the deletion of a paragraph at the end of point 2. of the condition which reads:

“It is noted that the impact of construction activities along Ewingsdale Road and at the assessed intersections in the VLC Report dated October 2020 may alter the SIDRA findings if sensitivity testing of any changes to the above listed factors in Paragraph 2 above occur from a worst-case assessment viewpoint.”

  1. submitted that the operative intent and effect of this paragraph was unclear, and therefore it had no utility.

  1. I have considered the submissions of the Parties and I agree with the Applicant that the paragraph serves no clear intent. I am satisfied that the paragraph can be deleted as proposed by the Applicant.

  2. The Respondent’s proposed condition 34 includes a point 6(a) in the following terms:

“6. As a minimum, the CTMP is to commit to the following measures to reduce the impacts of construction traffic on Ewingsdale Road:

(a)   schedule the works involving truck movements outside of school holiday or public holiday periods.”

  1. The Applicant has submitted that:

  1. point 6(a) as drafted by the Respondent was impractical because trucks would be required for all stages of works including for delivery of materials, and the condition would have the effect that no work would be possible during school holidays and public holiday periods;

  2. in the alternative, the proposed point 6(a) should require that the “greatest volume of truck movements” should be scheduled outside of school holiday or public holiday periods, and that his would represent a reasonable compromise requirement.

  1. Having considered the submissions of the parties I agree with the Applicant that the Respondent’s draft of point 6(a) is impractical, and I am satisfied that the Applicant’s proposed amendment to point 6(a) should be imposed.

  2. Finally, the Applicant has proposed that point 8 of the Respondent’s draft condition 34 should be deleted. Point 8 of the draft condition concerned that content of the Applicant’s construction traffic management plan (CTMP) and required:

“8. The CTMP is to contain a provision that requires the upgrade of Ewingsdale Road to accommodate construction traffic if construction traffic increases (noting that a modification of this consent will be required if construction traffic increases beyond the requirements of this consent) and these upgrades to be submitted to and approved by Council as part of each stage.”

  1. The Respondent submitted that the text of point 8 should be retained because:

  1. the CTMP should contain a reference to what would be required if the construction traffic increases; and

  2. the CTMP should acknowledge the impacts associated with increased construction traffic and recognise that the development consent would need to be formally modified if construction traffic increased beyond the requirements of this consent.

  1. I have considered the submissions of the Parties, and I am satisfied that the text of point 8 within proposed condition 34 should be deleted because:

  1. the Court would anticipate that the recipient of a grant of consent would act in accordance with the terms of that consent, including in relation to construction traffic;

  2. the Court would also anticipate the Applicant would not generate construction traffic beyond that for which consent had been granted; and

  3. if an increase in construction traffic were required at some future point, such an increase would be the subject of an application for determination by a relevant consent authority having regard to the assessed potential impacts of the application.

  1. Given the above points, the text of proposed point 8 is of no utility.

Conditions 38 to 42AA Updates to various plans

  1. The drafts of conditions 38 to 42AA within the Applicant’s consolidated response to Council’s conditions dated 29 July 2022, including marked additions, should be imposed with the grant of consent for the proposed Development, as amended.

Condition 48 Landscape Plan required

  1. The Applicant has proposed that the Respondent’s proposed condition 48, which requires the submission of landscape plans, with prescribed contents, as part of future applications for subdivision works certificates for each stage, be deleted.

  2. The deletion is proposed because, in the Applicant’s submission, detailed landscape plans have already been provided and “only need to be upgrade to correspond to revised lot layout” and this is required under proposed condition 3B in the most recent draft conditions.

  3. The Respondent presses retention of the draft condition because the matters listed in the condition for inclusion in the plans are yet to be addressed by the Applicant within landscaping plans provided to date.

  4. I am satisfied that the Respondent’s proposed condition 48 should be imposed because:

  1. that the Applicant has acknowledged that its current landscaping plans do require revision; and

  2. if the plans are as complete as stated by the Applicant then the work required for plan revision in support of subdivision work certificate applications, while necessary, would not be onerous.

Condition 53 Works within Road Reserve

  1. The Applicant’s proposed amendment to point d) of the condition is not adopted to maintain consistency with the outcome of considerations concerning DCC 7 (see above at [290]).

Condition 55 Engineering Construction Plans

  1. The Applicant has proposed an amendment to point a) within the Respondent’s proposed condition 55, seeking to insert the words “with the exception of works on Ewingsdale Road”.

  2. The Respondent presses imposition of its condition 55 as drafted.

  3. I am satisfied that the Applicant’s proposed amendment of proposed condition 55 does not aid in the utility of the condition as drafted by the Respondent and should not be adopted.

Conditions 68 and 69A CEMP reporting, review and independent audit

  1. The Applicant has proposed amendments to the Respondent’s drafts of conditions 68 and 69A that seek:

  1. to delete requirements that Construction Environmental Management Plan (CEMP) reporting and independent audits should be approved by Council prior to the commencement of works for each stage of the development; and

  2. to require that the plans and audits are submitted to, with no requirement for approval, within six months of the completion of each stage.

  1. Having considered the Parties proposed alternate versions of conditions 68 and 69A, I am satisfied that the conditions as drafted by the Respondent should be imposed as those versions will, in my assessment, facilitate the more effective management and mitigation of potential environmental impacts.

  2. I note that the Applicant had sought to note an exception in relation to the now proposed Stage A of the proposed Development, as amended. I am confident that the Parties will confirm the final wording of these conditions based on my considerations above (at [375]), including in relation to their application to proposed Stage A.

Condition 69 Subdivision Work

  1. The Applicant has proposed that the note at the end of the Respondent’s draft condition 69 should be amended though deletion of descriptive phrase:

“, including earthwork, road work, stormwater drainage work, landscaping work, tree/vegetation removal, erosion and sediment control, traffic control, etc.”

  1. I am satisfied that this descriptive phrase should not be deleted and the Applicant’s proposed amendment should not be adopted within final conditions imposed with a grant of consent in this appeal. The phase provides additional clarity to Parties interpreting the term “subdivision works” within the consent.

Condition 82 CTMP Monitoring

  1. The Respondent has proposed a draft condition 82 that requires monitoring of construction traffic into, and leaving, the Subject Site during subdivision works, and the Applicant has proposed that the condition should be deleted.

  2. The Respondent’s draft condition requires, inter alia, that the following are recorded daily:

  1. the total number of construction traffic movements related to the works;

  2. the number of heavy vehicle movements;

  3. the number of light vehicle movements;

  4. the number of vehicle movements related to importing fill to the site;

  5. the number of vehicle movements related to exporting unsuitable/excess material from the site.

  1. In the alternative to the condition’s deletion, the Applicant has also proposed that the various construction traffic types identified above (at [380]), should be replaced in the condition with the following two vehicle categories:

  1. the number of truck importing fill into the site; and

  2. the number of trucks leaving the site empty after delivering fill, or exporting unusable/excess material from the site.

  1. The Applicant also proposes that the duration of reporting traffic monitoring results should be limited to the duration of the bulk earthworks, rather than for the duration of the subdivision construction works.

  2. The Applicant submitted that it was not necessary to record every vehicle entering and leaving the Subject Site on every day of construction to address construction traffic impacts, noting that the highest volume of construction traffic relates to the bulk earthworks phase.

  3. The Respondent presses the imposition of its proposed condition 82 as drafted, noting that its proposed conditions also place limits on construction traffic movements associated with the implementation of the subdivisions, and that the condition requires that other important aspects of construction traffic are monitored.

  4. I have considered the submissions of the parties, including the Applicant’s alternate proposed wording for proposed condition 82, and I am satisfied that the Respondent’s proposed condition 82 should be imposed without amendment. In my assessment, the Applicant’s proposed alternate version of condition 82 would unreasonably exclude significant volumes of construction traffic from the traffic monitoring and reporting regimes.

  5. The identification, assessment and mitigation of potential traffic impacts of the proposed Development, as amended, was a significant focus of both evidence in the hearing and of public interest as expressed through submissions of objectors in the proceedings.

  6. The Applicant’s proposed amendments to condition 82 are not in the public interest and are not adopted.

  7. I note that the form of the Respondent’s proposed condition 82 is in the same form as a condition (condition 75) imposed through the grant of consent in the Villa World decision.

  8. While I do not rely on this fact as a reason for maintaining the Respondent’s draft condition 82 in this appeal, I note that the collection and reporting of traffic movement data in a consistent form as a consequence of the Villa World decision and any consent issued in relation to this appeal, will assist the Parties in the management and mitigation of potential traffic impacts within the WBURA across its development.

Condition 99 S88 B Instruments

  1. The Respondent has proposed the imposition of a draft condition 99 requiring the submission of certain instruments made under s 88B of the Conveyancing Act 1919, and which, inter alia, must provide for certain restrictions on use of residual lots.

  2. This requirement is included at condition 99(o), which specifies that restrictions on the use of land are to be registered on the so-called “association lots”, to prohibit, other than in relation to identified exceptions, certain uses including “the creation and maintenance of any tracks through the area”.

  1. The Applicant has proposed that the words “the creation and maintenance of any tracks through the area” should be deleted on the basis that it may have a need to create and maintain tracks on the residual lots for the purpose of access for rehabilitation works.

  2. The Responded has submitted that it would agree to the words that the Applicant seeks to have deleted being amended to read “creation of any tracks through the area”, striking out the descriptor “or maintenance”.

  3. The Respondent’s concession would continue to prohibit the creation of any tracks through the residual lots. Such new tracks as may have been envisaged by the Applicant could not then be created, and there would be no consequent maintenance required for tracks that are not made.

  4. The Respondent’s concessionary wording would permit, by implication, the maintenance of existing tracks on the residual “association lots”.

  5. I have considered the submissions of the parties in relation to this condition and note that a condition in the same terms as drafted by the respondent was imposed in the Villa World decision.

  6. Given that the principal purpose of the residual “association lots” relates to the restoration and rehabilitation of the landscape for environmental purposes, I agree with the Respondent that it would counterproductive to permit the creation, and persistence through maintenance, of tracks on those lots.

  7. Notwithstanding the imposition of a condition in the same terms as originally proposed by the Respondent within the consent granted in the Villa World decision, I accept the concession provided by the Respondent that the relevant phrase within condition 99(o) should read “the creation of any tracks in through the area”, and I am satisfied that the condition should be imposed in the Respondent’s amended form.

Condition 113 Developer Contributions to be paid

  1. The Respondent has proposed the imposition of a draft condition 113 in relation to Developer Contributions in the following terms:

“Contributions set out in the schedule contained at the end of these conditions, plus any relevant CPI increase are to be paid to Council prior to the release of each subdivision certificate. Contributions are levied in accordance with the Byron Shire Developer Contributions Plan 2012 (as amended). The Plan may be viewed on line or during office hours at the Council Offices located at Station Street, Mullumbimby. These contributions are to fund public amenities and services as listed in the schedule. Additional details on the specific amenities are to be found in the Byron Shire Developer Contributions Plan 2012 (as amended).

The contributions as set out in the schedule may either be paid in full or they may be paid in stages on a proportional basis dependent on the number of lots to be released in the subdivision certificate. The first credit for a site will be retained on the residual lot. Any additional credits over one (1) will be allocated at the first stage.

In lieu of payment of the developer contribution for bikeways and footpaths Council will accept the works as set out in condition 55 (b) (i) for the shared path and 55(b) (iii) for the shared path only as works in kind. Council will offset up to the full amount of the contribution for bikeways and footpaths provided that the value of the works is independently certified by a Quantity Surveyor who is registered with the Australian Institute of Quantity Surveyors.

In lieu of payment of the developer contribution for local open space Council will accept the works as set out in condition 51 as works in kind. Council will offset up to the full amount of the contribution for local open space provided that the value of the works is independently certified by a Quantity Surveyor who is registered with the Australian Institute of Quantity Surveyors.

In lieu of payment of the developer contribution for local open space Council will accept the dedication of the recreation lot as shown on plan 15024-9R. Council will offset up to the full amount of the contribution for local open space provided that the value of the land to be dedicated is independently valued by a registered valuer.

The contributions in the schedule are current at the date of this consent. The contributions payable will be adjusted in accordance with the relevant plan and the amount payable will be calculated on the basis of the contribution rates that are applicable at the time of payment. The schedule contains a date for which the schedule remains valid, after this date you will have to contact Council for an updated schedule.”

  1. I note that this condition is in the same form as a homologous condition imposed with the grant of consent in the Villa World decision (condition 015).

  2. In response to an initial proposal from the Applicant to delete certain elements of the first, second and six paragraph of the condition as drafted, the Respondent provided a indicated that it would accept certain amendments to the first and final (sixth) paragraphs of the condition.

  3. The Applicant submitted that it did not accept the Respondent’s concessionary wording in the condition, because it viewed the Respondents amended wording as having the potential to cause confusion, and it preferred to maintain its own amended version of draft condition 113.

  4. I have considered the Parties submissions in relation to proposed draft condition 113, and I am satisfied that the Respondent’s version of the condition as originally drafted should be imposed as that version is, in my assessment, more complete and clearer than the alternative proposed by the Applicant. It has the further advantage of consistency with the condition imposed in the Villa World decision but I do not rely on this as the reason for my decision concerning condition 113.

Schedule s 7.11 Contributions

  1. The Applicant has proposed that there is no need to include a “valid date” field in the schedule as, in its submission, this creates unnecessary ambiguity as to whether the Schedule specifies a fixed amount or a variable amount.

  2. The Respondent submitted that the “valid date” field should be retained because “from this date the contributions amount may change due to CPI”.

  3. I have considered the Parties’ submissions in relation to the inclusion of a valid date field in the s 7.11 Schedule and, noting the form of the Schedule imposed with the consent in the Villa World decision, anticipate that the final form of this Schedule can be agreed by the Parties in the context of finalising agreed conditions of consent in this appeal, and which will be the subject of a direction at the conclusion of this judgment.

Conclusions

  1. The background to the WBURA, the details of Subject Site, its context within the WBURA was described above (at [5] to [31] and [19] to [26]).

  2. As noted above at [27] and [28], the Applicant’s Proposed Development was amended on 5 May 2021 following the Court’s consideration of a Notice of Motion on 23 and 30 April 2021, and its amended application was described above at [30] and [31].

  3. Contentions raised by the Respondent in relation to the Proposed Development, as amended, were recorded within the Respondent’s FASFAC and these were the subject of significant written and oral evidence from the Parties’ experts during the appeal.

  4. The evidence and recommendations of the Parties’ experts resolved numerous of the Respondent’s contentions as identified above (at [41]), including through the Parties’ agreed adoption of the expert’s recommended conditions of consent.

  5. The remaining contention in the appeal were identified above (at [73]), and these:

  1. required resolution of the following questions:

  1. does the Proposed Development satisfy the provisions of the Koala SEPP 2020 such that it can be determined through the grant of consent?

  2. should the Proposed Development be approved given the Respondent’s contended inconsistencies between various plans of management?

  3. are the potential impacts of the Proposed Development on certain frog species acceptable?, and

  4. does the Applicant’s proposed road system provide acceptable access to the IN2 lands within the Proposed Development?

  1. were resolved as follows:

  1. in relation to the provisions of the Koala SEPP 2020, I am satisfied that the Subject Site does not contain core koala habitat as defined within cl 4 of this SEPP, for reasons provided at [93(2)], and consequently, I concluded that:

  1. consistent with the provisions of cl 9(3) of Koala SEPP 2020, if the council, or the Court on appeal, is satisfied that the Subject Site is not core koala habitat, it is not prevented, because of the SEPP, from granting consent to the Applicant’s development application;

  2. there is no requirement for the Applicant to satisfy the provisions of cl 10 of Koala SEPP 2020 and a koala plan of management is not required to be prepared in accordance with Part 3 of the SEPP; and

  3. it is unnecessary for me resolve the Applicant’s contention that the provisions of Koala SEPP 2020 do not apply to the Proposed Development, because even if I were to favour the Applicant’s submission, the outcome would be no different to the conclusion I have reached above (at [((i))];

  1. in relation to the Applicant’s various plans of management and inconsistencies between these:

  1. as noted above at [107], on the basis of the evidence of the Parties’ expert ecologists, I am satisfied that the potential impacts of the Proposed Development, as amended, have been assessed, and agree that the plans should be amended to provide a consistency, as provided within paragraphs [108(1)] to [108(4)] of this judgement;

  2. the Applicant is not required to update its plans to achieve consistency with the BCC KPoM;

  3. the work to update the Applicant’s plans should not be the subject of a deferred commencement condition;

  4. the work should be completed prior to the issue of a subdivision works certificate for any stage of the development, whether for Stage 1 or any other stage;

  1. in relation to whether potential impacts of the Proposed Development on certain frog species are acceptable:

  1. as noted above (at [146]), I have concluded that the potential impacts of the Proposed Development, as amended, on the populations of the Wallum Sedge Frog and the Wallum Froglet on the Subject Site are acceptable for reasons provide above at [135(6)], [136(6)] and [140];

  2. as noted above (at [148]), the Applicant has agreed to maintain its commitment to purchase and retire the ecosystem and species credits required under its BDAR to off-set the residual impacts of the Proposed Development, as originally assessed, notwithstanding the avoidance of those impacts achieved under its now amended proposal;

  3. the Applicant’s proposed draft conditions of consent include a proposed condition 12B which requires that the ecosystem and species credits would be retired prior to the issue of any subdivision works certificate for Stage 1 of the Proposed Development, as amended;

  4. consistent with the provisions of s 7.13(2) of the BC Act, no further consideration of the likely impact of the proposed development on biodiversity values, including in relation to the Wallum Froglet and the Wallum Sedge Frog, is required; and

  5. consistent with the provisions of s 7.16 of the BC Act, Applicant’s BDAR has considered whether the Proposed Development would have a serious and irreversible impact (SAII) on any threatened ecosystems or species and has concluded that it will not give rise to any SAII;

  1. in relation to whether the Applicant’s proposed road system would provide acceptable access to the IN2 lands within the Proposed Development:

  1. as noted above (at [185]), the Applicant’s proposed road system provides acceptable access to the IN2 lands within Stage 12 of the Proposed Development, as amended, and no aspect of this design provides a basis for refusal of the Applicant’s development application;

  1. As a consequence of my considerations and conclusions above (at [407] to [411]) I am satisfied that:

  1. the matters that I am required to consider under s 4.15(1) of the EP&A Act have been considered; and

  2. approval of the Proposed Development, as amended, is in the public interest.

  1. I have also considered jurisdictional matters concerning the Applicant’s Proposed Development, as amended (see above at [187] to [227]).

  2. I am satisfied that all jurisdictional requirements have been satisfied, and there is no jurisdictional matter that would prevent the conditional grant of consent to the Applicant’s Proposed Development, as amended, pursuant to s 4.16 of the EP&A Act.

  3. Finally, in relation to conditions, I have:

  1. provided guidance (see above at [108] to [119]) in relation to the conditions to be imposed concerning the revision of certain of the Applicant’s plans of management;

  2. noted that the Applicant’s proposed draft conditions of consent include a proposed condition 12B requiring that the ecosystem and species credits to be retired in relation to biodiversity impacts and these will be retired prior to the issue of any subdivision works certificate for Stage 1 of the Proposed Development, as amended;

  3. further noted (at [186]), that the Applicant has proposed that it would accept the imposition of certain conditions of development consent in relation to the movement of vehicles between ROAD01 and the IN2 lands and I agree that these conditions should be imposed with any grant of consent to the Proposed Development, as amended; and

  4. considered the Parties’ competing proposed conditions of consent, and differences in those conditions have been resolved as identified in the judgment above (at [247] to [406]).

  1. As is evident from the above conclusions, in order to make final orders disposing of the appeal, it will be necessary for the Parties to revise their proposed draft conditions of consent and prepare a final agreed set of conditions reflecting the outcomes of the judgment. As a consequence, the Court makes the following directions.

Directions

  1. The Court directs:

  1. the Parties are to prepare final conditions of consent, reflecting the conclusions of this judgment above (at [407] to [415]), and are to file these with the Court by no later than Thursday 31 March 2022;

  2. the matter is listed for mention on Monday 4 April 2022 at 4pm by Teams;

  3. if the Parties comply with direction (1) above, the listing on Monday 4 April 2022 will be vacated;

  4. the Parties are granted liberty to restore on 3 days notice.

……………………………..

M Chilcott

Commissioner of the Court

**********

Decision last updated: 09 March 2022

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Cases Citing This Decision

1

Site R and D Pty Ltd v Byron Shire Council (No 2) [2022] NSWLEC 1209
Cases Cited

8

Statutory Material Cited

26

Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41
City West Housing Pty Ltd v Sydney City Council [1999] NSWLEC 246
City West Housing Pty Ltd v Sydney City Council [1999] NSWLEC 246