Stevens Holdings Pty Limited v Central Coast Council

[2025] NSWLEC 1384

Land and Environment Court

New South Wales

Medium Neutral Citation:

Stevens Holdings Pty Limited v Central Coast Council [2025] NSWLEC 1384

Hearing dates:

12-16 August 2024; 24 September; 19 November; 23 January 2025: final submissions 7 February 2025

Date of orders:

30 May 2025

Decision date:

30 May 2025

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The Applicant is granted leave to rely on those amended plans and other documents listed in Annexure A, subject to paying the costs of the Respondent thrown away as agreed or assessed in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979.

(2) The appeal is upheld

(3) Development application DA/765/2021 for community title subdivision, carried out in five stages, to create 182 residential lots including associated servicing works, roadworks, earthworks, demolition and landscaping at 414 Old Maitland Road, Mardi is determined by the grant of consent, subject to those conditions of consent at Annexure B.

(4) All Exhibits are returned, except for Exhibits A, B, E, M and 9.

Catchwords:

DEVELOPMENT APPLICATION: subdivision of land in C2, C3 and R5 zone – biodiversity values of site – whether biodiversity Development Assessment Report adequate – whether development avoids and minimises impacts – whether serious and irreversible impacts – flood management – assessment of off-site impacts – bush fire protection

Legislation Cited:

Biodiversity Conservation Act 2016, ss 6.5, 6.12, 7.13, 7.16

Community Land Development Act 1989

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.65, 4.66, 8.2, 8.7, 8.15, Div 4.8

Fisheries management Act 1994

Land and Environment Court Act 1979, s 30

Land Tax Management Act 1956, ss 3, 10AA, Sch 4

Local Land Services Act 2013, Part 5A, ss 60A, 60D, 60E, 60F, 60H, Divs 4, 5, 6

Native Vegetation Act 2003, ss 9, 60A

Native Vegetation Conservation Act 1997

Rural Fires Act 1997, s 100B

Threatened Species Conservation Act 1995

Water Management Act 2000, s 91

Biodiversity Conservation Regulation 2017, cll 6.7,

Environmental Planning and Assessment Regulation 1979, s 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Part 2.2

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017, Pt 5, ss 31, 32, 33, 36, 37, 38, 39, 40

State Environmental Planning Policy No 46 – Protection and Management of Native Vegetation

Wyong Local Environmental Plan 2013, cll 1.2, 2.3, 2.6, 2.7, 4.1AA, 4.1C, 5.10, 5.21, 6.1, 7.1, 7.9

Cases Cited:

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

Telstra Corporation Ltd v Hornsby Shire Council (2006) 67 NSWLR 256; [2006] NSWLEC 133

White v Ballina Shire Council [2021] NSWLEC 1468

Texts Cited:

Brisbane City Council, Natural Channel Design, (2003)

Central Coast Council, Central Coast Council Flora and Fauna Guidelines, (2019)

Department of Planning and Environment, Controlled activities – Guidelines for riparian corridors on waterfront land, (May 2022)

Department of Planning, Industry and Environment, Natural Resources Access Regulator Waterfront Land Tool, (May 2020)

Jessica O’Donnell, Kirstie Fryirs and Michelle Leishman, ‘Can the Regeneration of Vegetation from Riparian Seed Banks Support Biogeomorphic Succession and the Geomorphic Recovery of Degraded River Channels?’ (2015) 31(7) River Research and Applications 834

NSW Rural Fire Service, Planning for Bush Fire Protection (November 2019)

Office of Environment and Heritage, National Recovery Plan for Magenta Lilly Pilly Syzygium paniculatum (June 2012)

Transport for NSW, Construction Noise and Vibration Guidelines, (September 2023)

Wyong Development Control Plan 2013

Category:

Principal judgment

Parties:

Stevens Holdings Pty Limited (Applicant)
Central Coast Council (Respondent)

Representation:

Counsel:
T Robertson SC with T To (Applicant)
J Reid (Respondent)

Solicitors:
Beatty Hughes & Associates (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2023/57547

Publication restriction:

Nil

Judgment

1. COMMISSIONER: The small township of Mardi is located inland from the central coast of NSW, a few kilometres from Wyong. To the west of Mardi lies the Old Maitland Road, along which is located the Mardi dam that is a source of drinking water for the community nearby.

2. To the north of Mardi Dam lies a large parcel of land that is proposed as a site for development, and which adjoins the Ourimbah State Forest to its north and east.

3. To this end, the Applicant in these proceedings, Stevens Holdings (Stevens), lodged development application no. DA/765/2021 with Central Coast Council on 23 July 2021 seeking consent for subdivision of land into 246 lots (the original DA).

4. The DA was refused by the Hunter and Central Coast Regional Planning Panel on 21 February 2022, after which a request for Review under s 8.2 of the Environmental Planning and Assessment Act 1979 (EPA Act) was lodged, subsequent to which the DA was amended to reduce the subdivision to 219 lots.

5. Stevens appealed the refusal by filing an application in Class 1 of the court’s jurisdiction on 20 February 2023, under s 8.7 of the EPA Act.

6. The Court granted leave to Stevens to amend the development application on a number of occasions prior to, and during the hearing.

7. On the fifth day of the hearing, Stevens sought an adjournment to prepare amended plans and other documents responsive to contentions pressed by the Council.

8. The Council did not oppose the application and likewise sought time to prepare a further amended statement of facts and contentions.

9. I granted the adjournment and directed that amended documents be filed and served by timeframes that were largely met by the parties.

10. I also record that the following amended plans and other documents for which Stevens was granted leave were the subject of Notice of Motion, unopposed, dated 24 September 2024.

• Subdivision Biodiversity Development Assessment Report, Revision 10 dated September 2024.

• Services Alignment Biodiversity Development Assessment Report, Revision 9, dated September 2024.

• Subdivision Arboricultural Assessment Report, Revision 4, dated September 2024.

• Services Arboricultural Assessment Report, Revision 6, dated September 2024.

• Biodiversity Management Plan, Revision 9, dated September 2024.

• Updated letter – Arborists Assessment of R5 and C2 zoned land to avoid indirect impacts to C2 zoned land

• Tree pruning letter – Arborist advice for tree pruning along Old Maitland Road to establish traffic sightlines for proposed 414 Old Maitland Road residential subdivision Mardi, NSW, dated 12 September 2024

• Tree survey letter – Changes to tree assessment in arboriculture from survey of trees for proposed 414 Old Maitland Road residential subdivision Mardi, NSW, dated 13 September 2024.

11. I also note here that the Council approved the amending of the development application no. DA/765/2021 in accordance with s 38 of the Environmental Planning and Assessment Regulation 1979 (EPA Regulation) by those documents listed at [10], subject to Stevens paying the Council’s costs thrown away as a result of the amendments to the application pursuant to s 8.15(3) of the EPA Act, as agreed or assessed.

12. It is also helpful to record here that while the hearing was initially allocated to Commissioner Horton and Acting Commissioner Moore, on 1 November 2024 the parties agreed in writing, and the Chief Judge concurred, to the proceedings being heard and disposed of by Commissioner Horton in accordance with s 30(3)(a) of the Land and Environment Court Act 1979 (LEC Act).

The proposal

13. The site has a frontage to Old Maitland Road of approximately 1.14km and a combined site area of around 223 hectares. The land on the site is currently used for agricultural purposes, with a mix of cleared land and native bushland.

14. In general terms, the proposal takes three essential forms:

1. Firstly, subdivision for the purposes of residential development on around 56 hectares of the site.

2. Secondly, the reservation of around 140 hectares in what is known as ‘The Stewardship site’, to be managed under a Biodiversity Stewardship Agreement.

3. Thirdly, an area of around 12 hectares identified for native vegetation regeneration under a Biodiversity Management Plan.

15. The proposed development, as characterised by the Council in the Amended Statement of Facts and Contentions filed 14 October 2024 (Exhibit 11), comprises:

1. Initial Torrens Title Subdivision to create two lots:

1. Proposed Lot 1 will contain all of the land for future development including the C3 Environmental Management Corridor and R5 large lot residential land.

2. Proposed Lot 2 contains all of the land zoned C2 which is to be the subject of a Stewardship Agreement.

2. A Development Lot Plan to create Lot 1 Community Association Property and 5 development lots for further subdivision in stages.

3. The community title staged subdivision of proposed Lots 2-6 to create a total of 182 residential lots in five (5) stages, including:

1. Stage 1: 48 community title lots

2. Stage 2: 21 community title lots

3. Stage 3: 50 community title lots

4. Stage 4: 50 community title lots

5. Stage 5: 13 lots in a neighbourhood scheme.

4. Infrastructure works internal and external to the site to create water, stormwater, sewer, electricity and NBN connections.

5. The construction of roads internal to the site and a new primary intersection with Old Maitland Road approximately 200m north of Collies Lane and a secondary emergency service access south of McPherson Road.

6. Earthworks, filling and flood mitigation works.

7. Removal of vegetation.

8. Landscaping.

16. Servicing for the site will involve the following aspects occurring internally and externally to the site:

1. The construction of a new wastewater pump station on the Old Maitland Road frontage and infrastructure works via Collies Lane to an existing connection on the corner of Mildon Road and Gavenlock Road approximately 4km away (the Services Corridor).

2. Water pipe infrastructure works to connect to the existing water main adjacent to Council’s water treatment plant south of the site.

3. Connection to existing overhead power lines with new substations.

4. The construction of an internal road network.

5. All works are to be built stage-by-stage

17. Additional works as part of the subdivision include:

1. Construction of an internal road network, including a flood free emergency access point.

2. Dewatering and removal of existing ponds/farm dams and redirection, reconstruction and partial piping of 100 m of an unnamed creek and establishment and retention of a 20m wide riparian zone on either side of the creek for the section within the C3 zoned land through the central to north-eastern portion of the site.

3. Bridge access to the Stage 5 neighbourhood scheme land over Deep Creek.

4. Implementation of stormwater and water treatment measures in each stage.

5. Landscaping works, including the establishment of open space areas and street trees.

6. Fill of up to 4.69m to meet the 1% AEP flood level and a 500mm freeboard (with an allowance for climate change), including importing 256,629m³ of material.

7. Removal of vegetation outside of the C2 Environment Conservation zone.

A Biodiversity Stewardship Site Agreement is proposed

18. A Planning Agreement requires the Stewardship Site at [14(2)] to be secured for conservation by a Biodiversity Stewardship Agreement (BSA) (Exhibit A, Tab T).

19. A Biodiversity Stewardship Site Assessment Report (BSSAR), prepared by AEP and dated March 2023 accompanies the development application (Exhibit A, Tab A20)

20. Stevens asserts (Exhibit M, folio 170) that the BSA will conserve and regenerate the following ecological communities and threatened species present on the site:

“Two (2) threatened ecological communities (TECs):

Swamp Sclerophyll Forest on Coastal Floodplains, and

River-flat Eucalypt Forest on Coastal Floodplains.

Rhodemnia rubescens (Scrub Trupentine)

Syzygium paniculatum (Magenta Lilly Pilly)

Melaleuca biconvexa (Biconvex Paperbark)

Large-eared Pied Bat (Chalinolobus dwyeri)

Southern Myotis (Myotis Macropus)

Green-thighed Frog (Litoria brevipalamata)”

21. Additionally, the BSSAR asserts that five plant community types (PCTs) are found within the Stewardship site, including:

1. Blackbutt – Narrow-leaved White Mahogany shrubby tall open forest of coastal ranges, northern Sydney bioregion (PCT 684)

2. Blackbutt – Turpentine – Sydney Blue Gum mesic tall open forest on ranges of the Central Coast (PCT 1568)

3. Swamp Mahogany – Flax-leaved Paperbark swamp forest on coastal lowlands of the Central Coast associated with the threatened ecological community: Swamp Sclerophyll Forest (SSF) on coastal floodplains of the New South Wales North Coast, Sydney Basin and South East Corner bioregions (PCT 1718).

4. Cabbage Gum – Forest Red Gum – Flax-leaved Paperbark swamp forest on coastal lowlands of the Central Coast associated with the threatened ecological community: River-flat Eucalypt Forest on coastal floodplains of the New South Wales North Coast, Sydney Basin and South East Corner bioregions (PCT 1720)

5. Melaleuca biconvexa - swamp mahogany – cabbage palm swamp forest of the central coast, associated with the threatened ecological community: Swamp Sclerophyll Forest (SSF) Forest on coastal floodplains of the New South Wales North Coast, Sydney Basin and South East Corner bioregions (PCT 1723)

22. An email from the Credits Supply Taskforce at the Department of Planning and Environment dated 28 March 2023 (Exhibit B, Tab 2) confirms the application for the BSA was successful, and advises of certain arrangements required for its enactment.

A Biodiversity Management Plan is proposed

23. The Biodiversity Management Plan (BMP) (Exhibit M, Tab 5) identifies land in certain locations on the site that are proposed for regeneration, across Stage 1 and Stage 5 of the development. In broad terms, the locations, known as the BMP lands, include:   

1. A corridor along the unnamed creek in the area zoned C3, in which a natural channel is to be reinstated;

2. Areas to the north of the site in the vicinity of Deep Creek, between land zoned R5 and C2, including an area proposed to be modified to achieve vehicle crossing;

3. An area located to the south west of the site for the proposed translocation of two species; Magenta Lilly Pilly and Scrub Turpentine; and

4. A 10m buffer zone to the perimeter of the site (10m buffer).

24. While more detailed maps are contained within the BMP, the locations and staging of the BMP lands are most simply illustrated in Figure 9 of the Biodiversity Development Assessment Report (BDAR) prepared by AEP (Exhibit M, Tab 1), re-produced below:

Figure 1: Map depicting the Biodiversity Management Plan Stages.

25. The BDAR describes the intent of the BMP is to improve the overall quality of the vegetation by removing activities such as grazing by horses and cattle, and by proposing such activities as planting and weed management so as to arrest the degrading of the site. (Exhibit M, folio 173)

26. Stevens proposes that the BMP Lands be managed for a period of 20 years, with full Council involvement after that time when the system will be in a state of natural regeneration providing ecological benefits to the lower reaches of the Tuggerah catchment.

The site and its context

27. The site is commonly known as 414 Old Maitland Road, Mardi, and comprises a total of eight (8) allotments, including:

1. Lot 1, DP 120512

2. Lot 1, DP 554423

3. Lot A, DP 396415

4. Lot 1, DP 229970

5. Lot 1, DP 229971

6. Lot 101, DP 604655

7. Lot 36, DP 755249

8. Lot 41, DP 123953

28. There are two waterways on the site, the character and classification of which are disputed, that ultimately drain into the Wyong River. These are:

1. Deep Creek, which runs diagonally across the site from the south west to the north east through what is predominantly zoned C2 land.

2. Creek B, otherwise known as the ‘unnamed creek’, which runs through R5 zoned land until it connects to Deep Creek in the north east of the site.

29. As a result of a planning proposal, the site was rezoned on 20 July 2018 under an amendment to the Wyong Local Environmental Plan 2013 (WLEP).

30. At the same time a planning agreement on the site was executed that, at the time the appeal was filed with the Court, was in effect. The Planning agreement, dated October 2016 (Exhibit A, Tab 18) identifies the following arrangement and requirements:

“(a) Taking the necessary assessments, actions, arrangement, applications and processes to assess and secure land under a Biobanking Agreement in the Mardi area using the Biobanking Assessment Methodology (or other NSW Government Offsetting Scheme);

(b) Undertake the necessary assessments, actions, arrangements, applications, and processes to obtain consent from relevant stage government agencies for any biodiversity impacts arising from the Development of the land;

(c) Undertake any works required to the local road network/infrastructure impacted by the Development required by a Development Consent;

(d) Construction and/or upgrade of the Potters Gully Fire Trail;

(e) Construction and/or upgrade of the Mardi Dam West Fire Trail where it is located on the Proponent’s land or a Crown Paper Road;

(f) Provision of a monetary contribution to Council to construct the Mardi Dam West Fire Trail where it is located on Council land;

(g) Prevention of unauthorised access to Mardi Dam and environs; and

(h) Granting of access to the Land by Council and the NSW Rural Fire Service to carry out bushfire protection and risk reduction activities.”

31. As a consequence of the rezoning at [29], the site is identified having three zone designations under the land use table in the WLEP. These are:

1. R5 Large Lot Residential

2. C2 Environmental Conservation

3. C3 Environmental Management

32. An area of 49.5 hectares of the site is located within the R5 Large Lot Residential zone, as defined by the WLEP in which development such as subdivision and road development are permitted with consent, where consistent with the objectives of the R5 zone that are:

•  To provide residential housing in a rural setting while preserving, and minimising impacts on, environmentally sensitive locations and scenic quality.

•  To ensure that large residential lots do not hinder the proper and orderly development of urban areas in the future.

•  To ensure that development in the area does not unreasonably increase the demand for public services or public facilities.

•  To minimise conflict between land uses within this zone and land uses within adjoining zones.

33. An area of around 140 hectares of the site is located within the C2 Environmental Conservation zone, in which environmental protection works are permitted with consent, with the objectives for development in the zone being as follows:

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

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

•  To protect endangered ecological communities, coastal wetlands and littoral rainforests.

•  To enable development of public works and environmental facilities if such development would not have a detrimental impact on ecological, scientific, cultural or aesthetic values.

34. An area of around 12 hectares of the site is located within the C3 Environmental Management zone, in which Environmental protection works, Flood Mitigation works, Recreation areas and Roads are permitted with consent, and where the objectives for development in the zone are:

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

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

35. The proposed arrangement of development on the site when overlaid on the applicable land use zoning is best depicted on the following plan (Exhibit B, Tab A):

Figure 2: Proposed arrangement of development and zoning on the site.

36. It is also relevant to record here that the development also proposes certain services necessary to service the development within the road reserve along Collies Lane, Mardi Road, Macpherson Road, Gavenlock Road and Old Maitland Road, and the upgrade of an intersection at the entry to the proposed subdivision on Old Maitland Road.

37. I note the alignment and proposed installation method for sewer and water mains within the services corridor, whether by trenching or underboring, and including launch and retrieval pits, is depicted on plans prepared by Northrop (Exhibit A, Tab N)

38. The total area of road reserve initially identified as part of the development is 13.3 hectares, of which around 4.11 hectares consists of native vegetation (Exhibit M, Vol 3, Tab 2).

Public submissions

39. The original DA was publicly notified between 20 August-24 September 2021, in response to which 53 submissions were received, of which I note 39 objected to the proposal and 14 were in support.

40. The Council’s bundle (Exhibit 2) records all public submissions received by the Council, including from September 2021, and those received between March and December 2022, again in 2023, and six received in 2024.

41. The Council summarises the public submissions in the following categories:

“o Significant adverse impact on biodiversity.

o Stormwater - water quality impacts.

o Use of neighbouring properties for the retention of water.

o Sewer pump station concern if fails what impacts from overflow.

o Traffic volumes.

o Traffic safety (80km speed limit and no turning lanes) accident history in vicinity of site.

o Major change to the existing land use as NSW Department of Planning Central Coast Regional Strategy 2006- 2031 stated that "the strategy will limit expansion of the urban footprint by protecting land west of the F3 (now M1) Freeway from further residential development..." and (page 7) "the western half land supports agricultural production and contains water supply catchments which must be protected from urban and residential uses..."in which all rural land west of the M1 was to be protected from subdivision. No suburban development west of the freeway due to environmental impacts.

o Adverse environmental impact on flora and fauna – Swamp Mahogany, Blackbutt Trees, koala habitat.

o Removal of critically endangered Scrub Turpentine.

o Indirect impacts to adjoining C2 zone (e.g. myrtle rust spread).

o Clearing/Modification of River Flat Eucalypt Forest, Swamp Sclerophyll, Freshwater Wetlands.

o Removal of Melaleuca bioconvexa, Removal of Magenta Lily Pilly.

o Removal of threatened fauna species foraging habitat.

o Previous DA objections from the RFS and the 100 year flood levels and habitat loss have been dismissed.

o Climate Change threatening all our infrastructure. No more clearing.

o Explosion of development in the past few years on the Northern end of the Central Coast resulting in acres of bushland wiped out for residential housing.

o Cannot guarantee stewardship will protect the bush. Instead, it will introduce more population next to bushland creating more usage, more rubbish, more pets, people unknowingly impacting on threatened species.

o Threat to the vulnerable Green-thighed Frog. Three breeding locations have been identified within the development footprint and one just beyond the development edge. Removal of floodplain breeding habitat connectivity be cut across the valley floor.

o Flooding occurs on the site. Evacuation is an issue.

o Further studies required to ensure no environmental impact.”

42. The hearing commenced with an onsite view at which the Court, in the company of the legal representatives, the landowner and experts, heard an oral submission from a representative of the Central Coast Community Better Planning Group (Exhibit 9) after which the Court was taken to five locations on the site, by both vehicle and by walking of the site between certain locations.

The biodiversity values of the site

43. While the Site’s biodiversity values are disputed, it is commonly held that the following plant community types (PCT’s) are found on the site the subject of the proposed subdivision:

1. Blackbutt – Narrow-leaved White Mahogany shrubby tall open forest of coastal ranges, northern Sydney bioregion (PCT 684)

2. Blackbutt – Turpentine – Sydney Blue Gum mesic tall open forest on ranges of the Central Coast (PCT 1568)

3. Swamp Mahogany – Flax-leaved Paperbark swamp forest on coastal lowlands of the Central Coast associated with the threatened ecological community: Swamp Sclerophyll Forest (SSF) on coastal floodplains of the New South Wales North Coast, Sydney Basin and South East Corner bioregions (PCT 1718).

4. Cabbage Gum – Forest Red Gum – Flax-leaved Paperbark swamp forest on coastal lowlands of the Central Coast associated with the threatened ecological community: River-flat Eucalypt Forest on coastal floodplains of the New South Wales North Coast, Sydney Basin and South East Corner bioregions (PCT 1720)

5. Melaleuca biconvexa - swamp mahogany – cabbage palm swamp forest of the central coast, associated with the threatened ecological community: Swamp Sclerophyll Forest (SSF) Forest on coastal floodplains of the New South Wales North Coast, Sydney Basin and South East Corner bioregions (PCT 1723)

6. Typha rushland, associated with the threatened ecological community: Freshwater Wetlands on coastal floodplains of the New South Wales North Coast, Sydney Basin and South East Corner bioregions (PCT 1737)

44. I note here that the Typha rushland cited above was initially excluded from the assessment of PCTs on the site given the location of such vegetation was within water bodies defined as former farm dams, which are not considered part of the PCT. However, for reasons that are not pertinent here, Typha rushland has been included, but for which offset within the Stewardship site is not necessary. Instead, Stevens proposes that the regeneration of a naturalised drainage channel will reinstate an aquatic ecosystem with bends, pools and riffles that would function similar to that of PCT 1737. (Exhibit M, folio 171)

45. It is also relevant to record those plant community types (PCT’s) found on the site the subject of the proposed services and intersection works, described at [36]-[38], that include:

1. Swamp Mahogany – Flax-leaved Paperbark swamp forest on coastal lowlands of the Central Coast (PCT 1718)

2. Melaleuca biconvexa - swamp mahogany – cabbage palm swamp forest of the central coast (PCT 1723)

3. Blackbutt – Turpentine – Sydney Blue Gum mesic tall open forest on ranges of the Central Coast (PCT 1568)

4. Blackbutt – Rough-barked Apple – Turpentine – ferny tall open forest of the Central Coast (PCT 1564)

5. Rough-barked Apple – Forest Oak – Grey Gum grassy woodland on sandstone ranges of the Sydney Basin (PCT 1557)

46. Of those PCTs identified by Stevens on the site, two are endangered ecological communities (EECs):

1. Swamp Sclerophyll Forest (SSF), and

2. River Flat Eucalypt Forest (RFEF).

47. Of particular relevance to these proceedings is the likely impact on three species:   

1. Rhodemnia rubescens, or Scrub Turpentine

2. Melaleuca biconvexa, or Biconvex paperbark,

3. Syzygium paniculatum, or Magenta Lilly Pilly.

Regular slashing of the site occurs

48. The Council contends that as the effects of slashing areas of open grassland is evident from aerial photography, such activity reduces the Vegetation Integrity on the site in a manner not addressed in the Biodiversity Development Assessment Report (BDAR) that accompanies the DA.

49. As a result, the Vegetation Integrity Score (VIS) is artificially suppressed by such activity and offset credits, assessed under the Biodiversity Conservation Act 2016 (BC Act), are under-estimated, and so Stevens would obtain a benefit by activity that is, or was, unlawful.

50. Floristic surveys undertaken by Stevens in areas of cleared land record the representation of native vegetation at less than 15% (Exhibit M, Tab 1, folio 23), which ultimately informed the extent of further surveys and determined the VIS.

51. The affidavit of Lawrence John Denton dated 29 July 2024, read unopposed, attests that:

1. The land has been used for the agistment of cattle since 1997.

2. On or about April 1998, the agreement with the owner of the cattle agisted on the property was terminated, after which the landowner populated the site with its own cattle until 2005, during which the property was slashed on an annual basis.

3. Around 2005, the landowner entered into another agreement to agist cattle on the property. From 2005 to 2009 or 2010, a portion of the property was regularly slashed until a change in directorship of the landowner arrangements coincided with a further agistment agreement in November 2012 that continued until 2017. Slashing continued throughout this period, as did mulching of the land between 2017 and 2018.

4. Between 2018 and 2022, slashing continued on the site, undertaken by others, after which the landowner has continued to slash.

5. In summary, the property has been slashed on a regular basis between 2017 and today, at intervals of between 9-12 months.

52. Furthermore, the evidence of Mr Denton is that the purpose of the slashing and mulching of the property has been for the purpose of reducing fire risk, to maintain or improve the quality of the pasture available to stock, and to manage safety risks associated with the management of the pasture and stock. For example, as holes, drainage lines and other obstacles occur on the site, it is important that grass on the site is managed to avoid accidents that have occurred in the past.

53. The Council contends in the Amended Statement of Facts and Contentions (Exhibit 11) that slashing of the sort deposed is visible on aerial photography of the site since at least 2010, prior to the site being rezoned as R5 Large Lot Residential, C2 Environmental Conservation and C3 Environmental Management, and that aerial photography suggests that the slashing occurs on a regular basis.

54. The zoning of land as R5 Large Lot Residential, C2 Environmental Conservation and C3 Environmental Management means that Part 5A of the Local Land Services Act 2013 (LLS Act) no longer applies and instead Part 2.2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 applies in relation to clearing and vegetation protection, with no savings provision for Part 5A of the LLS Act to continue.

55. Chapter 3.6 of the Wyong Development Control Plan 2013 (WDCP), in force at the time of lodgement, applies to land zoned R5, C2 and C3 and applies to the protection of vegetation. The exemptions listed under Section 3.2 of the WDCP largely do not apply to the slashing activities on the site.

56. Furthermore, as the site is not within 50m of a dwelling, what is commonly known as the ‘10/50 rule’ does not apply.

57. The upshot of all this is twofold:

1. Firstly, that Stevens has not provided an approval pathway in which the slashing is able to occur. As such, the Applicant is not able to obtain benefit from the unapproved works.

2. Secondly, the BDAR must assess the site in a condition as if the slashing had not occurred. This will result in the need to consider higher Vegetation Integrity Scores (VIS) in some, if not all, areas captured by the BDAR to ensure that no benefit is obtained from the unapproved slashing works.

Stevens’ submissions on slashing works

58. The primary submission of Stevens is that the site was largely cleared from at least 1941 when the earliest aerial images are taken, and remained in that state until 1991, when aerial images contained in the First Wilkie Affidavit (Exhibit F) depict the land in a similar state, but for some re-growth.

59. The particular relevance of this history to the clearing on the site is twofold;

1. Firstly, that clearing and slashing of the land was not undertaken by Stevens, to the extent a benefit is now sought in respect of consent for development on the land; and

2. Secondly, because the relevant legislative framework that applies to land deems agricultural use of the land to be an existing use under s 4.66 of the EPA Act, in which slashing is permitted.

60. While Stevens set out a detailed chronology in the evolution of the legislative framework, the following summary would appear to suffice:

1. Successive aerial images taken between 1941 and September 1991 support a view that the land has been substantially cleared throughout that time for the purposes of agriculture.

2. The use of the land for grazing remained permissible without consent until 20 July 2018 when the current zoning came into force with the enactment of the WLEP.

3. However, the continued use of the land for agriculture, involving grazing and slashing of the land, was an existing use that has remained in effect as a common thread through all of the various permutations of legislative change, that has not be derogated by operation of State Environmental Planning Policy No 46 – Protection and Management of Native Vegetation (Native Vegetation SEPP), or by the Native Vegetation Conservation Act 1997 (Native Vegetation Act) that otherwise required consent for clearing on land to which the Act applied when it came into force on 1 January 1998.

4. The transitional provisions contained in the Native Vegetation Act saved exemptions contained in the Native Vegetation SEPP so that the Native Vegetation Act did not operate to require consent for the clearing of vegetation otherwise permitted by the Native Vegetation SEPP.

5. On 1 December 2005, the regime changed again with the commencement of the Native Vegetation Act 2003 (the 2003 Act) that prohibited clearing of native vegetation without consent. However, s 9(2)(b) of the 2003 Act permitted the clearing of native vegetation where that vegetation was re-growth that had re-grown since 1 January 1990.

6. Stevens submits that images contained in the Wilkie Affidavit depict vegetation that had regrown since 1 January 1990.

7. On 25 August 2017, the 2003 Act was repealed, and the management of native vegetation became the preserve of the Local Land Services Act 2013 (the LLS Act), which sought to designate land as either exempt land (Category 1) or regulated land (Category 2) under Part 5A of the LLS Act, so defined at s 60D.

8. As the designation suggests, s 60E provides that Category 1 land is land where the clearing of native vegetation is not regulated.

9. Section 60F(1) of the LLS Act establishes certain transitional arrangements that are in place prior to the publishing of a ‘Native vegetation regulatory map’, and where the categorisation of land is to be construed, at subs (4), by what a reasonable person would believe about the land being designated in that category.

10. Stevens relies on a map titled ‘Transitional Native Vegetation Regulatory Map’, published by the Department of Environment and Heritage in August 2017, as evidence the site is category 1 land that is exempt from regulation in respect of land clearing (Exhibit B, Tab 10).

11. Section 60H(1)(a) provides that category 1 land is so designated if the land was cleared of native vegetation as at 1 January 1990, or at (b) the land was lawfully cleared of native vegetation between 1 January 1990 and the commencement of Part 5A of the LLS Act or, at (2)(a), the land contains low value conservation value grasslands.

12. Whilever the land carries the designation of Category 1 land, the land is exempt land and the proscriptions at Divisions 4, 5 and 6 of the LLS Act do not apply.

13. Further change was on the way yet, and as stated at [29], on 20 July 2018, the land the subject of the development application was zoned R5, C2 and C3 by adoption of Amendment No.17 of the WLEP. In being so designated, the land fell within the definition of urban areas of the state to which State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Non-Rural Vegetation SEPP) applied, at that time, pursuant to s 60A(a) of the LLS Act, and was no longer subject to the provisions of the LLS Act.

14. That said, Stevens submits that exceptions applied under the Non-Rural Vegetation SEPP such that no permit or other approval was required for reasons that follow:

1. Part 5 is entitled ‘Clearing of native vegetation on primary production land in Zones R5, C2, C3 and E4 that does not require permit or approval’. Clause 30 states that if the land, firstly, was identified on the ‘Allowable Clearing Map’ and secondly, if that land was used for primary production as defined at s10AA the Land Tax Management Act 1956 (LTM Act), and fell within the zones nominated, then clearing of native vegetation for maintenance of fences and farm tracks, water supply and other purposes was permitted without a permit or approval by virtue of those provisions contained at cll 31-35.

2. The provision at cl 36 of the Non-Rural Vegetation SEPP is virtually identical, and applies to clearing in zones R5, C3 and E4 if likewise shown on the Allowable Clearing Map and is land subject to the LTM Act. The provisions at cll 37-40 permit clearing of native vegetation for environmental

3. Stevens submits the site meets both criterion because:

1. The site is located within the area shown to the west of the M1 Motorway and identified as ‘Allowable Clearing land’ on the ‘Allowable Clearing Map’ (Exhibit B, Tab 9).

2. The use of the site for the grazing of cattle is clearly consistent with the definition of land used for primary production at s 10AA of the LTM Act – a submission supported by an affidavit read, unopposed, on the final day of the hearing, sworn by Mr Denton (the Second Affidavit).

4. Next, Stevens submits that, in the alternative, even absent the exceptions to a permit or approval under Part 5 of the Non-Rural Vegetation SEPP, the continuing use of land is an existing use under s 4.65(a) of the EPA Act that is not prevented from continuance by s 4.66(1) of the EPA Act.

61. I accept the chronology of events at the centre of submissions by Stevens, and the argument advanced that the slashing of the land is a function of primary production that has continued on the site following its clearing sometime at or before 1941.

62. In written submissions from the parties, the Court is asked to follow the decision in White v Ballina Shire Council [2021] NSWLEC 1468 (White), citing Telstra Corporation Ltd v Hornsby Shire Council (2006) 67 NSWLR 256; [2006] NSWLEC 133 to summarise the circumstances in which the precautionary principle might be applied.

63. Nevertheless, Stevens submits that the factual circumstances in White are clearly distinguishable. In that case, unlike here, the applicant had pleaded guilty to the unlawful clearing. It was the applicant’s own wrong, in that they had sought to benefit from the unlawful clearing by assessing the impacts of a proposed upgraded track from a baseline set by their own unlawful clearing.

64. Notwithstanding its position at [57(1)] that may infer otherwise, in closing submissions, the Council confirms that it does not assert that the clearing undertaken on the site was unlawful, nor rely on the decision in White due to any unlawfulness.

65. Instead, the Council merely submits that a consequence of the clearing is the suppression of the VIS, and the Court should give significant weight to Dr McLean’s opinion that the precautionary principle is appropriately invoked to weigh against the grant of consent because the Court does not have an accurate assessment of the vegetation integrity before it. Such is the contention summarised at [57(2)].

66. Stevens also submits that any assessment of the site that assumes slashing had not occurred can only be a speculation on an assumed, and not an actual, state of affairs.

67. I accept the history of this land is one of farming, including the grazing of cattle and of land management practices consistent with that use, and that the VIS arises from that chronology and use.

68. A consequence of that chronology and use is the degrading of the vegetation on the site in those areas that have been cleared for a substantial period of time, and has so degraded the PCT that may have historically occupied those areas.

61. In arriving at this conclusion, I accept the summary provided by AEP in a letter dated 7 March 2024 (Exhibit A, Tab V) that the Native Vegetation Extent in the Biodiversity Assessment Method (BAM) plots recorded an assessment of less than 15%, and is dominated by exotic grasses.

The Biodiversity Development Assessment Report does not accurately quantify the extent of native vegetation on the site

70. In addition to the Council’s contention that Stevens has not correctly calculated the VIS for the site the subject of the proposed subdivision, the Council also argues that the ecosystem credits in respect of flora and fauna required to offset the impact of development on biodiversity are likewise in error.

71. The executive summary of the Subdivision BDAR records the following credits accruing due to flora species on the site:

• Biconvex Paperbark – 714 credits

• Scrub Turpentine – 195 credits

• Magenta Lilly Pilly – 20 credits, notably exceeding the agreement of the experts that a condition of consent requiring the retirement of 11 credits be applied (Exhibit 12, par 7)

72. The BDAR lists four fauna species recorded within the subject site that will generate credits to be retired under the Biodiversity Offset Scheme. Those species are:

1. Green-thighed frog – 372 credits

2. Large-eared Pied Bat – 1069 credits

3. Southern Myotis – 297 credits

4. South-eastern Glossy Black Cockatoo – 17 credits

73. I note here that the South-eastern Glossy Black Cockatoo was initially detected on the site, but as breeding behaviour for the Cockatoo was not found, the BDAR records the advice of the Biodiversity Conservation Trust resulted in the removal of the species from the calculation of Biodiversity Offset Credits. Nevertheless, the credits are retired.

74. As stated earlier, two BDARs have been prepared in support of the proposal. One BDAR assesses the characteristics and impact of the site proposed for subdivision (Exhibit M, Tab 1), and another assesses the characteristics and impact resulting from the services required by the site, that are proposed to be undergrounded in the road reserve as cited earlier at [36]-[38].

75. The Subdivision BDAR records the following ecosystem credits accruing by virtue of the residual impacts of the proposed services corridor and intersection works:

1. Blackbutt – Rough-barked Apple – Turpentine – ferny tall open forest of the Central Coast (PCT 1564): 9 credits

2. Blackbutt – Turpentine – Sydney Blue Gum mesic tall open forest on ranges of the Central Coast (PCT 1568): 53 credits

76. A Biodiversity Credit Assessment Report, prepared by AEP (Exhibit M, Appendix G), supports the BDARs and calculates the biodiversity offset credits associated with the proposal, and that are to be retired in stages.

77. In s 6.12 of the BC Act, a BDAR is described as follows:

6.12 Biodiversity development assessment report

For the purposes of the biodiversity offsets scheme, a biodiversity development assessment report is a report prepared by an accredited person in relation to proposed development or activity that would be authorised by a planning approval, or proposed clearing that would be authorised by a vegetation clearing approval, that—

(a) assesses in accordance with the biodiversity assessment method the biodiversity values of the land subject to the proposed development, activity or clearing, and

(b) assesses in accordance with that method the impact of proposed development, activity or clearing on the biodiversity values of that land, and

(c) sets out the measures that the proponent of the proposed development, activity or clearing proposes to take to avoid or minimise the impact of the proposed development, activity or clearing, and

(d) specifies in accordance with that method the number and class of biodiversity credits that are required to be retired to offset the residual impacts on biodiversity values of the actions to which the biodiversity offsets scheme applies.

78. A BDAR is to be considered by the consent authority, or the Court on appeal, when assessing the likely impact on biodiversity values, in accordance with s 7.13 of the BC Act in the following terms:

7.13 Development other than State significant development or infrastructure

(1) This section applies to an application for development consent under Part 4 of the Environmental Planning and Assessment Act 1979 that is required under Division 2 to be accompanied by a biodiversity development assessment report, except—

(a) an application for development consent for State significant development, or

(b) an application for a complying development certificate.

(2) The consent authority, when determining in accordance with the Environmental Planning and Assessment Act 1979 any such application, is to take into consideration under that Act the likely impact of the proposed development on biodiversity values as assessed in the biodiversity development assessment report that relates to the application. The consent authority may (but is not required to) further consider under that Act the likely impact of the proposed development on biodiversity values.

…

79. In summary, the Council contends that:

1. The extent of native and exotic vegetation is incorrectly mapped in the BDAR.

2. Plant species nominated for removal are misidentified.

3. An assessment of the likely impact of tree removal along Creek B that is proposed to be realigned is proposed to be deferred to later detailed design, precluding a proper assessment of the likely impact.

4. Surveys of fauna such as for the large forest owls, Squirrel Glider, Common Planigale, Green-thighed frog, Gang Gang Cockatoo and Little Lorikeet are incomplete.

5. Assessment of the extent of incursion by the proposed development into the tree protection zones (TPZ) of existing trees proposed for retention is so unclear that those trees likely to require removal would result in a shortfall in the number of ecosystem credits.

80. In considering the biodiversity values of the site, the Court was assisted by the following experts in ecology and arboriculture:

• Dr Chris McLean, ecologist on behalf of the Council

• Ms Natalie Black, ecologist on behalf of Stevens

• Mr Warwick Muir, arborist on behalf of Stevens

81. The experts conferred, to varying degrees, in the preparation of three joint expert reports.

82. Stevens objected to the tender of the ecology joint expert report (Exhibit 5) on the grounds that the Council’s ecology expert had not conformed to the Court Policy on joint conferencing, had not entered into a genuine dialogue within the conclave, and that data on which the Council’s expert relies was provided to the experts for Stevens so late as to be prejudicial.

83. After hearing submissions on the objections taken, the Court directed that those paragraphs within the joint report that flowed from unilateral actions taken by the Council’s expert in the form of individual investigations, taken within the period of the conclave, be struck, but also considered other aspects objected to, to be within the scope of the contentions as drafted.

84. The Court directed that the experts, who had not conferenced in person, so do and file and serve a further supplementary joint report prior to commencement of the hearing the following day.

85. A further supplementary joint report was served but not filed the following day, and recorded areas of agreement between the experts. However, it also contained paragraphs acknowledged by the Council to have been excluded by the Court’s directions on the day prior.

86. In any event, as stated earlier, the Court adjourned part heard with leave granted to Stevens to prepare an amended BDAR, BMP, AIA and certain other documents. What also flowed from the amending of those documents were directions made on 24 September 2024 for experts to confer further and file and serve a further supplementary joint expert report on 4 November 2024.

87. It was necessary to rule on further objections made by Stevens, with certain paragraphs agreed between the parties to be struck from what was then marked Exhibit 12.

88. It is commonly held that the preparation of the BDARs and the BSSAR should be undertaken independently, so that the assessment of biodiversity impact and assessment of resultant offset credits can be considered independently.

89. Preparing a BDAR requires assessment of flora and fauna using a methodology set out in the BAM Manual, which is supported by an operational manual, and requiring interface with an online tool known as ‘BAM-C’.

90. For what might be called ‘quality assurance’ reasons, the BAM-C is a secure portal. Users of the portal are registered, and access can be provided to consent authority on a ‘read only’ basis, as it is in this case inasmuch as the Council is able to access the ‘back end’ of inputs into the BAM-C by those preparing the BDAR.

91. Where questions arise in using the BAM-C tool, the Department of Environment and Planning (the Department) offers users a ‘help desk’ known as the BOS Helpdesk (the help desk) and publishes Circulars to advise assessors on updates and provide guidance on frequently asked questions.

92. Dr McLean is of the view that insufficient independence was brought to the preparation of the BDAR for subdivision and the BSSAR because data from the BAM-C suggests BAM plots used in the BDAR and BSSAR were undertaken by the same individuals.

93. In both her written and oral evidence, Ms Black explains a process by which work initially undertaken by a different ecology practice was transferred, in the case of the BSSAR, to a Mr Ian Benson, while responsibility for the preparation of the BDARs was given to Ms Black.

94. While this was the case, it is Mr Benson’s name that appears as lead input into both the BSSAR and BDAR on the BAM-C software interface. Ms Black explains assistance was sought from the help desk. On the basis of email correspondence at par 486 of the supplementary joint report (Exhibit 12), I accept the most likely reason for the identical names being entered into the BAM-C program is the reason provided by Mr Phil Wood in an email dated 5 July 2024, which is due to a setting in the software interface that was not selected.

The extent of native and exotic vegetation is incorrectly mapped in the BDAR.

95. The Subdivision BDAR records the chronology of field surveys and BAM plots completed on behalf of Stevens. Field surveys informed the location and number of BAM plots, with initial mapping of PCTs updated following ‘ground-truthing’ depicted in the Subdivision BDAR at Figure 13, reproduced below.

Figure 3: Map showing updated zones of Plant Community Types.

96. The ecology experts engage at length, in both their written and oral evidence, on the topic of BAM plots undertaken on the site.

97. In general terms, Dr McLean queries the veracity of outputs from a number of BAM plots. This is variously because differing values were derived from BAM plots undertaken close to one another, as was the case in BAM plot No.38 or because records varied from the observations made by Dr McLean, as in the case of BAM plot No.39 or No. 43, being the same plot for reasons that are not relevant, and in a number of other BAM plots Dr McLean completed (Exhibit 12, p 18).

98. In one BAM plot undertaken by Dr McLean, a VIS of 14.8 is recorded, noted by Dr McLean to be a figure close to a score of 15, after which ecosystem credits are generated, and so it is speculated that areas in the vicinity of the BAM plot undertaken by Dr McLean might also achieve a VIS of 15. Furthermore, Dr McLean also notes that if BAM plot outputs completed by him are averaged across an area of land, a VIS greater than 15 results.

99. It would also appear to be the case that field sheets were not always shared, and that BAM plots were not positioned in a manner consistent with the BAM Manual – notably charges laid by both parties.

100. In my view, Ms Black’s evidence as to the rationale for the location and the veracity of the outputs recorded in the BAM plots is preferred and accepted over the doubts expressed by Dr McLean. I accept, as do the experts, that BAM plot data that has been collected over a period of around five years, dating from 2019 to 2024, is subject to variability. As the subject of BAM plots is intrinsically natural, it follows that the data collected by a BAM plot is also subject to the natural variability of climate and seasons, as well as by the intensity of grazing and other land management practices employed in the maintenance of the land.

101. BAM plots are also recorded for the Services Corridor.

102. Dr McLean’s evidence is that the Services BDAR identifies vegetation as exotic and may well record a low VIS, but even so credits may accrue, such as for the Southern Myotis. (Exhibit 12, pp 25-26)

103. Ms Black’s evidence is that five PCTs are identified, as are habitat uses within the road reserve and ecosystem credits have been applied. By way of illustration, Ms Black cites the Scrub Turpentine that has been identified and impacts wholly avoided.

Rhodemnia rubescens

104. It is commonly held by the experts that Rhodemnia rubescens, otherwise known as Scrub Turpentine, is a critically endangered species, largely because of a fungal disease known as Puccinia psidii, or Myrtle Rust.

105. As such, the Scrub Turpentine is a species requiring consideration of whether serious and irreversible impacts of a kind described at cl 6.7 of the Biodiversity Conservation Regulation 2017 (BC Regulation).

106. A total of 340 individuals stand on the site, including 300 that are located within the Stewardship Site. Stands, or patches, of Scrub Turpentine are depicted on Figure 29 of the BDAR, including seven individuals that are impacted by the proposal.

107. The proposal includes the translocation of 33 Scrub Turpentine to the BMP Lands, and a trial program for treatment of the myrtle rust.

Biconvex paperbark

108. The Subdivision BDAR records the survey and mapping of Biconvex Paperbark equating to around 1.29 hectares within the development footprint on the site. A further 12.41 hectares is mapped within the BSA land, and an additional area of 0.54 hectares is mapped within the 10m buffer and the BMP land.

109. Stands, or patches, of Biconvex Paperbark on site are depicted on Figure 27 of the BDAR.

110. The Scientific Committee, established under the Threatened Species Conservation Act 1995, has found that Biconvex Paperbark, determined to be a vulnerable species, occurs in coastal area of NSW from Jervis Bay to Port Macquarie, and in concentrated populations in the Gosford/Wyong area, where most occur on private land or in the road reserve. Due to the propensity to grow in multiple stems from single rootstock, an estimate of population size is not possible from visual inspection alone (Exhibit 14).

111. More distant from the site, the BDAR notes 415 records of the Biconvex Paperbark within a 10km range of the site over the last 20 years, including some records within close proximity to the site.

Magenta Lilly Pilly

112. Eight individual Magenta Lilly Pilly are identified within the site proposed for development. Figure 30 of the Subdivision BDAR shows three individuals are directly impacted and are proposed for translocation to the BMP Lands. Three are retained with encroachment resulting in credits being accrued, and two are located within the Stewardship Site.

113. More distant from the site, thirty-two records of the Magenta Lilly Pilly are recorded within 10km of the site, according to the BDAR over the last 20 years.

114. It is relevant to record here that an initial survey undertaken by Travers Bushfire and Ecology in 2020 recorded a greater number of 60 individuals on the site. The BDAR explains that follow up surveys determined the species was incorrectly identified, and where relevant, distinguished from two other species.

115. The ecology and aboricultural experts agree that it is likely all individual Magenta Lilly Pilly have been detected within the vicinity of the vehicle crossing over Deep Creek, but that it is appropriate to increase credits associated with the species to factor in appropriate buffer distances proposed by Dr McLean.

116. Magenta Lilly Pilly is also vulnerable to Myrtle Rust. However, unlike Rhodemnia, or Scrub Turpentine, Magenta Lilly Pilly is cultivated in eastern Australia as an ornamental garden plant. (Exhibit Q, p13)

Surveys of fauna are incomplete

117. The ecology experts are apart on the adequacy of surveys undertaken on site in respect of fauna.

Adequacy of owl surveys

118. There is no dispute between the relevant experts that surveys have been undertaken for three kinds of large forest owls; the Powerful Owl, the Sooty Owl and the Masked Owl.

119. However, Dr McLean is of the view that the surveys undertaken are inadequate, such that the impacts likely from the development are not correctly assessed nor properly offset.

120. On the basis of the methods agreed between the parties to apply, Dr Mclean’s written evidence is that adequate surveys for nest trees must be completed, and where such trees are found, a buffer of 100m must be provided or species credits retired.

121. Dr McLean’s oral evidence is that nesting trees are distinguished by openings of 200mm in diameter, a discoloration known as ‘whitewash’, as well as the remains of mammals that form part of the diet for the Powerful Owl. Furthermore, hollow bearing trees that have died, known as ‘stags’ are also distinct and easily identified.

122. Monitoring a ‘stag tree’ is known as stag watching – a process that is generally timed to coincide with dusk when the Powerful Owl is likely to be active.

123. Ms Black notes the surveys, undertaken by both Travers Ecology and AEP, are those recorded on Table 14 of the BDAR (Exhibit M, folios 90-91) and include:

1. Hollow bearing tree and Habitat assessment on 1 August 2019, and on 14-16 December 2020.

2. Spotlighting, Stagwatching and Call Playback on 25-26 June 2019, 01 August 2019 and on 2-3 September 2019

3. Songmeter, on 25 June 2018 to 14 July 2018

124. Table 14 also records the survey period identified by the BAM-C as May – August. Surveys in September and December clearly fall outside this period, a fact acknowledged by Ms Black. However, none of the habitat assessment methods identified the presence of a nesting tree or roosting tree for Powerful Owl, Sooty Owl, or Masked Owl in either the development site, or the C2 zoned land. As such, no polygons centred on a nesting or roosting tree have been generated.

125. Dr McLean’s evidence is that just as the Glossy Black Cockatoo has been identified to be potentially breeding in the vicinity of the site and credits retired accordingly, there is likewise potential for the Sooty Owl and Powerful Owl to be breeding in the vicinity of the site, and credits deserve to be retired also.

126. Ms Black’s evidence is that the identification of a Powerful Owl in the call-playback by Travers accords with AEP data, but at no time did Travers or AEP identify a nesting or roosting tree.

127. To the extent the Travers assessment relies on work undertaken by Mr John Young, a noted naturalist, Dr McLean uses his own experience of participating in a study known as ‘Birds in Backyard’ to question whether the stag watching conducted by Mr Young on 2-3 September 2019 was unsuccessful because Owl chicks left the nest prior to Mr Young’s study.

128. Dr McLean has reviewed data derived from the ‘Birds in Backyard’ project to suggest there is an equal chance that chicks leave the nest from 16 August to 16 September, and the timing of a survey such as that conducted by Mr Young should be guided by specialist expertise in addition to the timeframe suggested by the BAM-C.

129. Separately, the breeding behaviour of the Sooty Owl and Marked Owl is less predictable, so surveys made at only a single point during the year on 2-3 September is also inadequate, according to Dr McLean. Instead, surveys across several months are advised.

130. Given such an absence of knowledge about the potential location of trees used by the large forest owls for breeding purposes, Dr McLean concludes proper consideration has not been given to avoidance and minimisation of impacts and a buffer of 100m applied to any such trees.

124. However, as I understand it, the conclusion of the surveys undertaken is that trees to which such a buffer could be applied have not been identified. As such, there is not an absence of knowledge so much as what might be described as knowledge as to the absence of nesting and roosting trees.

Adequacy of Squirrel Glider surveys

132. Similarly, Dr McLean maintains that the surveys undertaken fail to demonstrate the Squirrel Glider is not present on the site.

133. To the extent the surveys cited in the BDAR are consistent with the Central Coast Council Flora and Fauna Guidelines (2019) (Council Guidelines), those guidelines, of which Dr McLean is an author, are not suited to the scale and complexity of the subject site.

134. Ms Black’s written evidence is that absent more relevant guidelines, the Council Guidelines were used as a base, with surveys involving detailed camera trapping by 55 cameras deployed across the site for 4 weeks between late December 2020 to late January 2021, comprising a total of 1746 trap nights. Cameras were set both at a height greater than 3m, and of around 500mm, with at least 4 cameras in the first hectare of suitable habitat followed thereafter by 2 additional cameras for each hectare.

135. Such a duration and intensity exceeds the minimum of two weeks recommended in the Council Guidelines. Additionally, nocturnal surveys were conducted across 14 nights and songmeters deployed.

136. Ms Black also describes the preparation of baits consisting of rolled oats, peanut butter and honey designed to lure a Squirrel Glider.

137. Ms Black agrees the site is suited to the habitat of the Squirrel Glider, but none were found.

138. Dr McLean’s own experience is that radio tracking yields superior results to remote cameras, recording or spotlighting, and cites research not provided to the Court as to the probability of detection from such cameras at either 14% or 16%.

139. Additionally, the cameras that were deployed on the site were not located in the vicinity of winter flowering trees and rely on camera trigger times ranging from around 0.2 second to 1 second, with a shutter speed of around 0.5-0.6 seconds. Such speeds rely on bait to maintain the interest of the animal for long enough to record.

140. I note here the experts agree that the Services BDAR included outputs from camera traps and spotlights to which Dr Mclean’s evidence at [138] also applies. In addition, Dr Mclean’s experience is that even when radiotracking is used, Dr McLean could only observe an animal on around 30% of occasions. Such is the difficulty involved in survey work.

141. Ms Black cites references taken from the BDARs in which the type of survey, and date on which the surveys were undertaken (Exhibit 12, p 42). These surveys include the use of cameras, visual habitat assessment during daylight and nocturnal periods, use of songmeter, call playback and the like. The methods and frequency of such survey and assessment exceeds requirements according to Ms Black.

Little Lorikeet and Gang Gang Cockatoo

142. Dr McLean extends his criticism to the effort made to assess the likely impact of the proposal to the habitat of the Gang Gang Cockatoo and Little Lorikeet.

143. In particular, surveys were not undertaken in Spring when breeding is likely to be detected, and the identification of hollow-bearing trees does not include consideration of use by such fauna.

144. Ms Black considers it more accurate to state the period for surveys of such species is October to January – a period in which the surveys were undertaken. Furthermore, the Gang Gang Cockatoo is distinctive and loud so it is difficult to miss, and again the number of surveys exceeds the number required.

145. The Little Lorikeet is recorded in the area over the last two decade, and while no evidence of breeding was found, foraging was noted and so ecosystem credits have been applied.

Findings on adequacy of surveys

146. As stated at [94], I consider that material within the BDARs that is derived from use of the BAM-C software to be sufficiently independent and data-driven.

147. For the reasons set out at [100], I find the BAM plots, and surveys undertaken in respect of flora and fauna have been prepared with appropriate diligence, are well documented and, in my view, are able to be adequately defended against the assertions of Dr McLean.

148. BAM plot data that has been collected over a period of around five years can be reasonably expected to vary in its outputs, given variation in climatic conditions, density of grazing stock and other land management methods commonly deployed in farm activities.

149. I accept Ms Black’s evidence that the number and type of assessment and surveys undertaken are sufficient, and may exceed requirements, and that attention was paid to ensure a variety of survey types and technologies have been used to provide every opportunity for fauna to be recorded in the subject site.

150. This included reliance on BAM plots and not on rapid data points alone. Ms Black’s oral evidence included a description of how BAM plots completed in the services corridor were tailored to the constrained geometry of the road reserve. Nowhere in oral evidence was Dr McLean able to identify the incorrect identification of a PCT.

151. The standard for Stevens to achieve is not Dr Mclean’s standard. Nor is it the standard Dr McLean may have derived from the thesis or studies by others. It is instead whether the survey methods adopted are reasonable, absent agreed or published guidelines on the subject. Those guidelines authored by Dr Mclean cited at [133], when followed and supplemented with additional monitoring, are considered by Dr Mclean as inadequate or inappropriate. Where models relied on by Stevens vary from those developed by Dr Mclean, Dr Mclean is suspect, for reasons that are, at times, speculative or vary from his own adopted practices.

Impacts of proposed fill

152. As the extent of earthworks proposed on the site and the diversion of the watercourse, and potential impacts of it on the biodiversity values of the site are at issue, it is necessary to consider those matters within the gamut of whether impacts are adequately avoided or minimised in the manner proposed.

153. Stevens submits that the proposed earthworks and works proposed to Creek B are interrelated and essential to achieving development of a kind sought in the WDCP.

154. Chapter 6.25 of the WDCP deals with Rural Residential Development on certain land within Mardi (Exhibit 2, folios 673-683), including the subject site.

155. One purpose of the WDCP is to set out requirements for subdivision and development for the site following the rezoning of the land for residential development described at [29].

156. The objectives of the DCP are:

“• To provide guidance for the orderly subdivision and development of the site.

• To appropriately integrate development with the existing built and natural environment.

• To enable development of the land to proceed in a manner that is sensitive to the environmental characteristics of the area.

• To ensure that the land is adequately serviced.”

157. An objective of Section 2.1 Subdivision Design is “to ensure that any future subdivision of the site is sympathetic to site constraints.” The Council contends the subdivision is not sympathetic to the site constraints given the extensive earthworks proposed which have resulted in significant vegetation removal and environmental impacts created by the road location necessitating the realignment of the creek and proposing culvert crossings instead of bridge crossings to access the Stage 5 lots.

158. The proposal seeks to alter site levels by the importation of fill to achieve levels of up to 5m above those evident on the site today. A total of 256,629m³ of material is proposed to be imported on to the site.

159. Stevens submits the proposed subdivision and the associated fill is a response to the low-lying land on the site and the requirements at Chapter 6.25, Section 2.5(e) of the WDCP for a development proposal on the site to include alterations to existing watercourse, and the provision of riparian zones including, at a minimum, one riparian corridor within the central portion of the R5 zone of the subject site to be retained under the ownership of a Community Association.

160. Experts in flooding, engineering and ecology conferred in the preparation of a joint expert report dealing with the inter-related issues between the disciplines (Exhibit 6) and reach substantial agreement.

161. In respect of fill, the experts agree that the engineering design has generally sought to minimise the volume of imported fill to achieve the flood planning requirements and drainage grades. (Exhibit 6, par 70)

162. The Council also relies on the objectives and requirements at Chapter 6.25, Section 2.4 of the WDCP which deals with biodiversity protection management.

163. There are two primary issues that arise from the extent of fill proposed on the site:

1. Visual impact of the proposed development when viewed from Old Mardi Road, and

2. Watercourses are proposed to be diverted.

Visual Impact

164. The Council contends that the proposed development should be refused as the degree of earthworks described at [158] is excessive and results in a development inconsistent with a rural setting.

165. In consideration of the planning contentions, of which visual impact is a part, the Court was assisted by experts in town planning and visual impact assessment including:

• Mr Dan Brindle, Town Planner, on behalf of the Applicant

• Mr Ben Shoo, Visual Impact assessment, on behalf of the Applicant

• Mr Gerard Turrisi, Town Planner, on behalf of the Council

166. The experts conferred in the preparation of a joint expert report (Exhibit 3), and in a supplementary joint expert report, directed at the completion of the on site view so as to consider the evidence of Mr McMonnies, bushfire expert on behalf of the Applicant who participated in the conclave so as to consider the inter-relationship between bushfire behaviour and the landscape proposed.

Landscape design to Lots 7-17

167. In his oral evidence, Mr Shoo explained that the photomontage images (Exhibit A, Tab Y) had been prepared in consultation with Stevens’ landscape expert to ensure the imagery faithfully depicted the landscape planting at 5 year and 10 year maturity.

168. In particular, the experts considered the view looking north west when travelling north along Old Maitland Road, in the direction of the proposed lots at Lots 7-17.

169. I note here that while the Lots encompass all lots between Lot 7 and 17, Lot 13 does not front Old Maitland Road. Rather, Lot 13 addresses an internal road.

170. Lot 17 is proposed for the purpose of a flood evacuation centre to be managed by the proposed Community Association in accordance with a flood evacuation management plan.

171. The planting arrangement and species selection shown on Landscape drawings L305 (Exhibit A, Tab Y) consists of an 8m landscape buffer of open grass and a 4m strip of low shrubs and ground cover. Together, these areas respond appropriately to the 12m wide easement along the frontage of the site.

172. Beyond this landscape treatment, a 5m strip of canopy trees provide screening at an upper level.

173. A post and rail fence is proposed to the frontage with Old Maitland Road, that Mr Shoo considers consistent with a rural character, beyond which no additional fencing is proposed that would obstruct a sightline.

174. As this landscape treatment presents to Old Maitland Road, the Council submits that a cohesive management approach to the frontage would ensure consistency. Such an outcome can only be achieved if the landscape treatment is managed by the Community Association, while ownership remains with the lot owner.

175. A condition to this effect, or restriction on title, is largely supported by the experts.

176. Guidelines prepared by Mr Shoo (Exhibit A, Tab Y) identify building envelope zones, setbacks and landscape treatment around dwelling footprints.

177. The experts agree that no landscape is shown within Asset Protection Zones (APZ). Mr McMonnies states that the landscaping to Lots 7-17 is wholly outside the APZ and, while this is seemingly at odds with the Bush Fire Safety Authority (BFSA) issued by the NSW RFS, that otherwise required the whole of the site to be considered an Inner Protection Zone, the Court may exercise the functions and discretions of the NSW RFS and vary any terms contained within the BFSA (Exhibit A, Tab 29).

178. On the basis of a proposed condition of consent that requires the landscape strip to be managed by the Community Association, I do not otherwise find the visual impact likely to result from the fill on the land, or the nature of development proposed, to be out of character with the area when the nature and degree of landscape treatment is properly understood, along with the natural undulation of topography in the area.

The order of the watercourses

179. The two watercourses on the site described at [28] give rise to contentions addressed by the evidence of water engineering experts Ms Louise Collier, on behalf of the Council, and Mr Chris Thomas, and Mr Chris Piper on behalf of Stevens. Mr Angus Brien also conferred on behalf of Stevens in respect of the site survey on which the watercourse engineers relied.

180. The experts conferred in the preparation of a joint expert report (initial joint report) (Exhibit 6), along with the experts in ecology, that resulted in the majority of contentions being resolved by agreement or agreed to be capable of resolution by conditions of consent.

181. Those matters remaining were the subject of supplementary joint expert reporting (Exhibit 8), that also considered supplementary survey information prepared by Mr Brien’s firm, ADW Johnson.

182. A primary focus of the dispute between the water engineering experts lies in the classification of Creek B.

183. It is helpful at this point to describe various agreed features of Creek B as it traverses the site from its entry point in the south west of the site, to its eventual exit in the north east of the site.

1. Dam 1 is located to the west of the site, on higher country.

2. The land falls gently from Dam 1 to Dam 2 across largely open grassland.

3. A channel of some sort runs between Dam 2 and the confluence of reach 1, 2 and 3, (the confluence).

184. The three reaches cited above are defined by the experts in Figure 2 of the initial joint report (p 32), re-produced below:

Figure 4: Overlay of the three reaches and confluence point on the site.

185. The experts agree that Reach 1 is a second order watercourse, and that Reach 3 is a first order watercourse, however the experts are divided as to the characteristics of Reach 2 and distil the scope of their disagreement in the following terms, adopting those features at Figure A1 below:

1. Ms Collier believes two upstream inflows are evident in to Dam 1 towards the upper extent of Reach 2 that should be considered a second order watercourse.

2. Neither Mr Thomas or Mr Brien can identify a defined watercourse extending upstream from Dam 1, and so consider the watercourse between Dam 1 and Dam 2 to be properly characterised as a first order watercourse, with watercourse features becoming evident in the vicinity of the location marked ‘P2A’.

Figure 5: Watercourse features superimposed on to the site.

186. As it is put by Ms Collier, the behaviour of water on the site can be said, at its most basic, to include a steep area of land that conveys water down its slopes to a flat area that feed into a narrow portion of land.

187. Such behaviour is evident from survey data, contours and LiDAR information.

188. Ms Colliers explains her understanding of the terrain in the vicinity of Creek B in Annexure E of the initial joint expert report, summarised as follows:

1. The Controlled activities – Guidelines for riparian corridors on waterfront land, published by the Department of Planning and Environment (Exhibit 6, Annexure D) relies on the Strahler stream order that, when applied to the site, shows stream order 1 and 2 present on the site.

2. Inspection of the site indicated features that varied from those on topographic and digital hydroline spatial databases. Assisted by inputs such as aerial imagery, surveys, field inspection, photographs and measurements, and the Strahler analysis tool in QGIS, Ms Collier located features consistent with watercourses in the vicinity of Dam 1, and an ephemeral channel between Dam 1 and Dam 2.

3. The results of the QGIS tool, depicted in a number of figures within Annexure E, shows what Ms Collier considers first order streams that are not mapped as hydro lines, but are depicted by her as pink dashed lines, where water flows can be expected, but which vary from that depicted in the assessment undertaken by AEP of the Aquatic Ecology (BDAR, Exhibit M, Appendix J, Figure 6).

4. Downslope of Dam 3, Ms Collier believes a watercourse, albeit discontinuous, extends towards the Confluence, although is not joined by the hydro line otherwise shown intersecting with it in Ms Collier’s Figure E16.

189. Mr Thomas’ evidence is that while the topography above Dam 1 is steep and serves to convey water to Dam 1, the topography is not consistent with the features of a watercourse when the detailed survey prepared by ADW Johnson in July 2024 (July Survey) (Exhibit 8, Attachment A) is matched to field observations.

190. Instead, the July Survey suggests the land form in the vicinity of Dam 1 includes a side-flow spillway from the south-western corner of the dam wall, and a channel that extends a distance of about 30m to the south west of the dam, consistent with the spillway. Such a feature is likely to have been dug by a landowner for such a purpose, and to also receive water from upslope as a ‘funnel’, but cannot be properly described as a natural watercourse.

191. Such observations include the lack of a bed or embankment expected of a watercourse, obviously lacking in Figure 7 and 8 of the supplementary joint report, according to Mr Thomas, and the accumulation of leaf litter that appears to have been transported and deposited by sheet flow, and not a stream.

192. In contrast, Ms Collier provides marked images at Figure 3 and 4 of the supplementary joint report that indicate linear depressions or channels upslope of Dam 1.

193. According to Mr Thomas, the channels identified by Ms Collier are most likely desire lines formed by cattle or other forms of depressions of a kind seen commonly on the land, that may have their origin in historical tree removal, and which hold standing water due to the underlying clay in the soil substructure.

194. I state here that I agree with the observations made by Mr Thomas. I accept that the July survey is likely to be a more robust and ‘ground-truthed’ data set than the GIS-based tool, and which additionally accords, in my assessment, with observations made during the onsite view.

195. The experts are also apart on how the area between Dam 1 and Dam 2 is properly characterised.

196. According to Ms Collier, the July Survey validates her observations and opinions expressed in Annexure E of the initial joint report, and summarised at [188], and is consistent with the QGIS mapping prepared by her at Figure E10 of Annexure E.

197. Mr Thomas agrees that watercourse features become evident between Dam 1 and Dam 2, at the point marked P2A, and extend to the Confluence with Reach 3. However, Mr Thomas is also of the view that the depression is characteristic of a drainage channel dug by backhoe, as indicated by the mounds positioned to one side that are not otherwise seen in the landscape.

198. I state here that I agree with Mr Thomas. I accept the proportions and almost vertical sides of the channel appear consistent with excavation by a narrow backhoe, and does not appear to be a natural channel or even a natural channel that has been artificially improved. As such, the drainage channel at this point does not answer the description of a river, and so the land is not waterfront land by virtue of this drainage channel.

199. The next area of contest between the experts is an area that spans from the ridgeline to the south above Dam 3 to the idea identified in Figure 5 above as the ‘confluence’.

390. The Council proposes a condition at Condition 6.25(d) as to regular inspections of artificial hollows and nesting boxes at an interval of 24 months for the first 5 years, and for repair and replacement over the 20 years period of the BMP.

391. Stevens argues that an annual inspection of artificial hollows and nesting boxes for the first 5 years and thereafter every second year for years 6-10 and the full replacement of all nest boxes at year 10 is sufficient.

392. The terms proposed by Stevens make no provision for inspection, repair of maintenance for years 11-20, being within the duration of the BMP and so the condition proposed by the Council at Condition 6.25(d) is preferred to align more directly with the period of the BMP.

393. Council also seeks to impose a condition at Condition 6.25(g) to the effect that no bushland is to be removed or modified, including for bushfire asset protection purposes, without the consent of Central Coast Council.

394. Stevens submits that to require such a covenant has the effect of setting aside the detailed bushfire management regime prepared in support of the development application, and is wholly unreasonable, and equates to all but a refusal of the application. Even if not inconsistent with the DA and consent, such condition is unnecessary and unreasonable as obligations contained elsewhere in the conditions are sought to be duplicated by a property covenant.

395. As the conditions sought by the terms of the BFSA are incorporated into the conditions of consent, and the detailed survey sought by the Council at Condition 6.3 is adopted (for reasons at [439]), which allows distances between structures and vegetation sought by the RFS to be verified, I accept Stevens’ submission that the terms of Condition 6.25(g) as proposed by Council are susceptible to ambiguity and are deleted.

396. Stevens further submits that the requirement proposed by the Council at Condition 6.30 that Council’s ecologist should approve, or not approve, a report documenting inspections of artificial tree hollows is also problematic, and the oversight is more appropriately vested in the project ecologist to prepare a report on the “condition, functionality and fauna usage” of those hollows. Council’s preferred text would unreasonably vest power in Council’s ecologist to determine progress of development.

397. While I agree that there are grounds for the BMP to be submitted to the Council’s ecologist, reports prepared on those aspects of the BMP are, in my view, appropriately oversighted by the Project ecologist. Accordingly, Stevens’ preferred text at Condition 6.30 is adopted.

Bus servicing

405. As stated at [374], the development demonstrates the internal road network is suited to the bus movements through the site.

406. The Council proposes a condition requiring that provision be made to accommodate a suitable bus route and associated transport infrastructure such as bus bay/stop/shelters and the like within the site prior to the issue of the Subdivision Works Certificate for Stage 4 and 5 works.

407. While Stevens seeks to qualify the provision with the text “where demand from the development warrants the need”, the Council argues, and I agree, that such a qualifier is impossible to enforce as in introduces uncertainty.

408. Stevens has already demonstrated the site makes provision for bus movements around the site, and appears to have made progress on such provision by virtue of the correspondence from the Red Bus Services (Exhibit A, Tab R) which includes a possible route through the internal road network and which appears to meet with the approval of the possible provider. Council’s preferred form of Condition 3.13 is adopted.

409. The Council also proposes a condition requiring a safe accessible pedestrian path of travel from the development site to bus stops that service both ‘to and from’ trips at Stage 1.

410. Steven’s argues that as there is no internal bus service in Stage 1, but that future bus stops are proposed internal to the site, those footpaths are proposed throughout the development.

411. I understand the Council to require no more than the provision of pathways to a future service, at a time prior to the need arising. The provision of a path to a bus stop is not, in my mind, necessarily shackled to the timing of the bus service itself. Rather, such a condition ensures a footpath is installed ahead of, and not after, the bus service is made active. Council’s preferred form of Condition 6.28 is adopted.

Landscape strip fronting Old Maitland Road

412. As stated at [178], the landscape frontage to Old Maitland Road is acceptable subject to the terms of a condition as to its maintenance and management.

413. At condition 3.14, the Council proposes terms that require amendments to the approved plans that must detail:

• The Landscape strip fronting Old Maitland Road being included in the Association property under the plan of subdivision.

• Landscaping detailed design plans for the landscaping along Old Maitland Road nominating all proposed species to be planted and existing trees to be retained and protected within the buffer area.

• Post and rail fencing shall be erected on the front property boundary along Old Maitland Road and along the easement line at the 14m setback. Fencing plan showing the landscape buffer along Old Maitland Road within each proposed lot along this site frontage.

414. That said, Council also accepts that the landscape strip can remain in private ownership but should be managed by the Community Association. Allowing owners to fail at managing the main interface with the public domain before the Community Association steps in is unacceptable.

415. I do not accept that the terms of the Community Management Statement (Exhibit A ,Tab A9) adequately provides for owners of Lots 7-17 to manage their portion of the landscape strip fronting Old Maitland Road.

416. By-law 7.1 of the Community Management Statement limits the responsibility of the Community Association to Community Property. Stevens objects to the landscape strip being included as Community Association property under the plan of subdivision.

417. While landscape plans adequately document the arrangement of landscape in this frontage, and depict a post and rail fence, the condition does not seek to address the nature of the landscape as installed, but the means by which it is maintained.

418. Having considered the expert evidence at [167]-[177], the terms of a condition that most accurately reflects the agreement reached is as follows:

Stage 1 Submit amendments to the Community Management Statement that must designate the landscape strip fronting Old Maitland Road as an area under the control, management, operation, maintenance and repair property under the plan of subdivision.

419. As the landscape strip also serves a bush fire function, the Council seeks to impose a condition requiring a ‘Restriction on the use of Land’ over lots 7 to 17 restricting the erection of any structure within the Inner Protection Area, landscaping area and easement area which extends 14m from the front (eastern) property boundary.

420. As stated at [169], Lot 13, within the sequence otherwise referred to as ‘Lot 7-17’ does not front Old Maitland Road, and does not have land to which the landscape strip applies.

421. Stevens does not object to the condition, other than to propose substituting the term ‘structure’ with the term ‘dwelling’ so that the condition does not preclude the installation of fences, water features and ponds, minor landscaping structures, bird feeders, sheds, cabanas and the like.

422. When the terms of the BFSA, and the requirements of an Internal Protection Area are properly understood, it is my view that a clear and unambiguous condition that precludes obstructions within the IPA to be the preferred position of the RFS.

423. As such, I consider it appropriate to substantially adopt the text preferred by the Council in Condition 6.24(l), but for the lot references, seeking to create a ‘Restriction on the use of Land’ over lots 7-12 and 14-17 restricting the erection of any structure within the Inner Protection Area, landscaping area and easement area which extends 14m from the front (eastern) property boundary.

424. Consequentially, condition 6.25(a) is also to be amended to read:

a) The Community Association shall manage the 5m landscape buffer across Lots 7-12 and 14-17

Evacuation centre on Lot 17

425. The Council proposes a condition at Condition 3.15 requiring, prior to the issue of the subdivision works certificate for Stage 4, that a development application must be submitted and approved, and an occupation certificate issued for the proposed flood evacuation centre on Lot 17. The evacuation centre must be sized to have a minimum floor area of 350 m² for flood refuge and must be permanently equipped with at least four toilets and four showers (with at least one disabled bathroom/shower facility), a battery powered generator, defibrillator, first aid kit and bottled water. The building shall include a permanent metal plaque near the front door that is legible to explain that it is a flood evacuation centre. A positive covenant is to be applied to the building such that its purpose as a flood evacuation centre is managed in perpetuity.

426. Stevens seeks to insert within the condition certain provisions allowing for its use as a community centre outside of emergency flood events.

427. However, the Council submits that an insertion of such text would have the effect of approving the use of the emergency evacuation centre as a separate and distinct use, being a community centre, absent a proposal in the development application for such a use.

428. I accept the submission that passing reference to use of the flood evacuation centre as a community centre outside of those periods when the flood evacuation centre serves that purpose infers a use for which consent is entertained, absent a Plan of Management as to the terms of such a use.

429. The Council’s preferred form of Condition 3.15 is adopted.

430. It is relevant to note here that the proposed evacuation centre is not a dwelling, but is proposed to be managed as a structure for the purposes of the Internal Protection Area.

Dilapidation Report of the approved haulage route along Council roads

431. Consistent with the Council’s position at [256], a condition is proposed to require a dilapidation assessment to assess the additional impacts arising from the proposal, and for that report to be prepared across the haulage route in the LGA.

432. The terms initially proposed by the Council are amended in response to submissions by Stevens that seek to distinguish between Council assets and those roads that are not Council assets.

433. The Council’s preferred text, as amended, reads:

Submit to Council, for approval, details of proposed haulage routes to and from the site, within the vicinity of the development Council LGA. Approval of haulage routes may be subject to the provision of a dilapidation report of all or part of the approved haulage route along Council roads Any dilapidation document is to provide photographs that clearly depict any existing damage to the road, kerb, gutter, footpath, driveways, water supply, sewer works, street trees, street signs or any other Council assets in the vicinity of the development.

434. Whether the quantum of truck movements are those set out at [255], or the lesser number that would result from the measures at [260], I accept that construction related impacts are not excluded from those impacts of the development likely to be characterised as off-site impacts. As such, those impacts are matters of relevance to the development the subject of the development application under s 4.15(1)(b) of the EPA Act.

435. A dilapidation report of a kind proposed by the Council merely seeks to assess and record the state of local roads and associated infrastructure prior to the imposition of those truck movements required to deliver fill. As such, the Council’s amended form of the condition proposed at Condition 4.13 is adopted.

436. Relatedly, I note the without prejudice conditions of consent make provision for certain matters to be the subject of a revised Construction Traffic Management Plan (CTMP). However, those recommendations at [260] are not currently listed among the matters to be incorporated into a CTMP. As I have accepted those recommendations will assist in achieving acceptable acoustic levels to residents along Old Maitland Road, it is necessary to include those at Condition 4.10.

Survey

437. Prior to the issue of any Subdivision Certificate, the Council seeks to require certification prepared by a Registered Surveyor certifying that all construction has been effected within the appropriate property, easement boundaries and rights of carriageway. The certification must be accompanied by a copy of the final subdivision or easement plan, with the distances from the boundaries to the edges of these structures endorsed in red and signed by the surveyor.

438. Stevens argues that, absent a reason to impose such a burden, the condition should require no more than a survey certifying that all infrastructure has been constructed within the appropriate lots and, where required, are appropriately addressed by suitable easements and rights of carriageway.

439. The essential difference is the extent of aspects to be surveyed, and the information contained on the survey. I do not consider the extent proposed by Council to be burdensome as asserted by Stevens, and provides for a greater degree of certainty as the construction of elements on the site as an appropriate prerequisite to the issue of a Subdivision Certificate. The Council’s preferred text at condition 6.3 is adopted.

Pet ownership

440. The Council seeks to impose conditions precluding cats from the development while Stevens seeks to rely on terms within the Community Management Statement that includes a requirement that cats be kept indoors and/or in enclosed outdoor cat runs. Such a requirement is enforceable and, an outright ban is excessive and unreasonable.

441. The Council argues that the containment of cats is impossible and so cannot be permitted in a location adjoining a stewardship site, particularly where opening of doors in the summer months is common.

442. While it is reasonable to expect residents to comply with conditions of consent, I accept the balancing act necessary when considering the terms of residential development on a site adjoining the Stewardship site with the aim of successful regeneration of a native ecosystem, and a BMP that likewise seeks to restore a VRZ along the alignment of Creek B. In considering that balancing act, and the reasonable expectation that owners will comply with conditions of consent, I also accept that the ecological values of the site and the area are served by adopting Council’s preferred text at Condition 6.24(s).

Emergency Access

443. The Council seeks the proposed emergency access road to be constructed and operational, by which it means the road should be capable of use, prior to the release of the Subdivision Certificate for Stage 1.

444. Stevens argues that the emergency access road cannot be operational prior to the issue of a Subdivision Certificate. I accept Council’s clarification of the term ‘operational’ and, so understood, I find no reason to amend the condition proposed by the Council at Condition 6.21.

Terms of the VPA in Conditions

445. The Council seeks the imposition of terms at condition 4.3 to ensure that the biobanking site, or the Stewardship Site, is secured prior to works commencing. Absent this provision the securing of the land under a biobanking agreement is not attached to any other obligation. A VPA has not been finalised with Council. This condition ensures the land is secured.

446. Stevens submits the condition is otiose as the issue is address by the terms of Condition 2.2. Condition 2.2 is as follows:

Prior to the commencement of any works associated with stages 1 to 5 of the Community Plan of Subdivision, the proposed Biodiversity Stewardship Site that occurs over the adjacent C2 zoned land on part Lot 1/DP554423, Lot 36/DP755249, Lot 41/DP123953, Lot 1/DP229971, Lot 1/DP229970, part Lot 1/ DP120512 and Lot 101/DP604655 as identified in the draft Biodiversity Stewardship Site Assessment Report (BSSAR), prepared by Anderson Environment and Planning (internal ref: 1910.06, BOAMS case BAAS18147/21/00025873) must be fully operational. This includes the retirement of all ecosystem and species credits, the establishment of the Total Fund Deposit and the commencement of management actions identified in the BSSAR.

447. I agree with Stevens that the issue would appear dealt with by the terms of Condition 2.2. However, I also accept that the terms of Condition 4.3 are not inconsistent with those at Condition 2.2 and no harm arises by its inclusion.

General Terms of Approval – Natural Resources Access Regulator

448. While not a matter in dispute, as stated briefly at [232], the Natural Resources Access Regulator (NRAR) issued general terms of approval dated 21 September 2021. Those terms are as follows:

“TC-G001 Before commencing any proposed controlled activity on waterfront land, an application must be submitted to Natural Resources Access Regulator, and obtained, for a controlled activity approval under the Water Management Act 2000.

TC-G004   A. The General Terms of Approval (GTA) only applies to the proposed controlled activity described in the plans and associated documents found in Schedule 1, relating to Development Application DA765/2021 CNR-26521 A-30957 provided by Council to Natural Resources Access Regulator.

B. Any Amendments or modifications to the proposed controlled activity may render the GTA invalid. If the proposed controlled activity is amended or modified, Natural Resources Access Regulator, must be notified in writing to determine if any variations to the GTA will be required.

TC-G005   A. The application for a controlled activity approval must include the following:

i. Site plans indicating the demarcation of waterfront land, designated riparian corridors and identifying any areas of encroachments and offsets

ii. Detailed civil construction plans with an average 20m riparian zone;

iii. Drainage Plans;

iv. Erosion and sediment control plans;

v. Vegetation management plan

vi. vii. (sic) Construction streamworks plans; viii. Construction watercourse crossing design plans;

B. The plan(s) must be prepared in accordance with Natural Resources Access Regulator’s guidelines located on the website

activities/guidelines-for-controlled-activities”

449. The letter accompanying the General Terms of Approval (GTAs) states that Council’s statutory obligations under s 4.46 of the EPA Act requires any consent to be consistent with the general terms of approval proposed by an approval body. Consistent with the Natural Resources Access Regulator request that the GTAs set out above are included in any proposed development consent, condition 1.3 of the without prejudice conditions of consent require Stevens to comply with the GTAs set out above.

Orders

450. The Court orders that:

1. The Applicant is granted leave to rely on those amended plans and other documents listed in Annexure A, subject to paying the costs of the Respondent thrown away as agreed or assessed in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979.

2. The appeal is upheld.

3. Development application DA/765/2021 for community title subdivision, carried out in five stages, to create 182 residential lots including associated servicing works, roadworks, earthworks, demolition and landscaping at 414 Old Maitland Road, Mardi is determined by the grant of consent, subject to those conditions of consent at Annexure B.

4. All Exhibits are returned, except for Exhibits A, B, E, M and 9.

T Horton

Commissioner of the Court

**********

57547.23 Annexure A (107 KB, pdf)

57547.23 Annexure B (590 KB, pdf)

Decision last updated: 30 May 2025