Tomasic v Port Stephens Council

[2021] NSWLEC 56

Land and Environment Court

New South Wales

Medium Neutral Citation:

Tomasic v Port Stephens Council [2021] NSWLEC 56

Hearing dates:

10-14 May 2021

Date of orders:

02 June 2021

Decision date:

02 June 2021

Jurisdiction:

Class 1

Before:

Preston CJ

Decision:

The Court orders:

(1)   The appeal is dismissed.

(2)   Development application no 16-2019-266-1 for the subdivision of Lot 16 DP32005 known as 4 Kuranga Avenue, Raymond Terrace is determined by refusal of consent.

(3)   The exhibits except for Exhibits V, X and Y, are to be returned to the party tendering the exhibit.

Catchwords:

APPEAL – subdivision – refusal of development consent – proposed subdivision inconsistent with development control plan – planned local street and bus route not provided – weight to be given to development control plan – insufficient justification for inconsistency with development control plan – no reasonable alternative solution proposed in development application – unacceptable impacts on endangered ecological community and koala feed trees

Legislation Cited:

Biodiversity Conservation Act 2016 ss 7.2, 7.3, 7.13

Conveyancing Act 1919 s 88B

Environmental Planning and Assessment Act 1979 ss 3.42, 3.43, 4.15(3A)

Port Stephens Development Control Plan 2014

Port Stephens Development Control Plan 2007

Port Stephens Local Environmental Plan 2013

Port Stephens Local Environmental Plan 2000

Rural Fires Act 1997 s 100B

State Environmental Planning Policy (Koala Habitat Protection) 2021

State Environmental Planning Policy (Koala Habitat Protection) 2020

State Environmental Planning Policy (Koala Habitat Protection) 2019

State Environmental Planning Policy No 44 – Koala Habitat Protection

Cases Cited:

Botany Bay City Council v Saab Corp Pty Ltd (2011) 183 LGERA 228; [2011] NSWCA 308

Conquest Constructions (NSW) Pty Ltd v Sutherland Shire Council (2011) 184 LGERA 1; [2011] NSWLEC 52

Dogild Pty Ltd v Warringah Council (2008) 158 LGERA 429; [2008] NSWLEC 53

Nalor Pty Ltd v Bankstown City Council (1980) 2 NSWLR 630

Newbury District Council v Secretary of State for the Environment [1981] AC 578

Saffioti v Kiama Municipal Council [2019] NSWLEC 57

Sofi v Wollondilly Shire Council (1975) 2 NSWLR 614

Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472

Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88

Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30; [2004] HCA 63

Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167

Category:

Principal judgment

Parties:

Michael Tomasic (First Applicant)
James Tomasic (Second Applicant)
Port Stephens Council (Respondent)

Representation:

Counsel:
Mr M Fraser (Applicants)
Ms H Irish (Respondent)

Solicitors:
PJ Donnellan & Co (Applicants)
Local Government Legal (Respondent)

File Number(s):

2020/36596

Publication restriction:

Nil

Judgment

A residential subdivision is proposed

1. Michael Tomasic and his brother James Tomasic (the applicants) wish to subdivide their land at 4 Kuranga Avenue, Raymond Terrace (the site) into 11 residential lots, remove vegetation on the site and construct driveways to access the lots. The site is zoned R2 Low Density Residential under Port Stephens Local Environmental Plan 2013 (PSLEP). Subdivision is permitted, but only with development consent: cl 2.6(1) of PSLEP. The site is within an urban release area, triggering the need to make satisfactory arrangements for the provisions of designated State public infrastructure before development consent for the subdivision of land in the urban release area can be granted: cl 6.1 of PSLEP. The applicants lodged a development application to subdivide their land, originally into 12 lots, but later into 11 lots, with Port Stephens Council (the Council). The lots of the subdivision comply with the minimum lot sizes: cl 4.1 of PSLEP. The subdivision involves ancillary earthworks: cl 7.2 of PSLEP.

Development consent is refused for two reasons

2. The Council refused consent. The applicants appealed to the Court. Although the Council raised numerous contentions as to why development consent to the subdivision should be refused, in the end, the contentions became twofold.

3. First, the proposed subdivision does not comply with the applicable Port Stephens Development Control Plan 2014 (PSDCP 2014), as amended in 2019, primarily because the proposed driveways are not consistent with the street layout and traffic network requirements of Parts C1 and D13 and the Locality Controls Map in PSDCP 2014. The Council submits that the applicants have not advanced sufficient justification for not complying with PSDCP 2014.

4. Secondly, the proposed subdivision will impact adversely on vegetation on the site mapped as containing biodiversity value, including an area of PCT 1598 Forest Red Gum grassy open forest on floodplains of the Lower Hunter, which is a part of the endangered ecological community of Hunter Lowland Redgum Forest in the Sydney Basin and NSW North Coast bioregions (the EEC), and an area of vegetation mapped as preferred koala habitat.

5. The applicants sought to address these contentions. As to the inconsistency with PSDCP 2014, the applicants submitted that departure from PSDCP 2014 is justifiable for three reasons. First, the Court would not give material weight to PSDCP 2014 also for three reasons: the applicants purchased the property and lodged the development application before PSDCP 2014 was amended to prescribe the street layout and transport network that affects the site; the unfair process by which PSDCP 2014 was amended, which involved little consultation with the applicants who were affected by the amendment; and the street layout and transport network required by PSDCP 2014 do not reasonably and fairly relate to the site and are otherwise manifestly unreasonable.

6. Secondly, the applicants have provided sufficient justification that the variation proposed by the development application to the street layout required by PSDCP 2014 will achieve the objectives and satisfy other requirements of PSDCP 2014 for the street layout and transport network, as allowed by cl 13.2 of PSDCP 2014.

7. Thirdly, the Court should be flexible in applying the provisions of PSDCP 2014 for street layout and transport network and allow the reasonable alternative solution proposed in the development application, as this will achieve the objects of the provisions of PSDCP 2014 dealing with the street layout and transport network, as allowed by s 4.15(3A) of the Environmental Planning and Assessment Act 1979 (EPA Act).

8. As to the impacts on the EEC and preferred koala habitat, the applicants submitted that the amended subdivision layout, which identifies building envelopes in each of the lots within which future residential development will need to be confined and an area of EEC and identified koala feed trees to be retained and conserved, reduces the impact on the EEC and preferred koala habitat to an acceptable degree.

9. I have determined that the amended subdivision should be refused, on the basis of the two contentions advanced by the Council. There is material inconsistency with the street layout and transport network requirements of PSDCP 2014, departure from which is not justified in the circumstances. The proposed subdivision layout will also have unacceptable impacts on the EEC and preferred koala habitat on the site.

The subdivision’s inconsistency with the applicable development control plan

PSDCP 2014’s objectives and requirements for subdivision

10. The objectives of Part C1 Subdivision of PSDCP 2014 include the objectives of “Block and Street Layout” in C1.A:

“- To ensure local streets are well-connected to the street network with obvious pedestrian and cycle links to higher order streets

- To ensure priority is provided to residents’ needs when designing local streets to encourage usability

- To ensure pathways follow desire lines”

11. The provisions of Part C1 dealing with block and street layout set standards with respect to aspects of the development of subdivision and the development application for the development, referred to as “requirements”. One of the standards or requirements concerns “Street Layout Attributes” in C1.3, which provides:

“The street layout addresses the following:

- All street components are integrated, such as kerbing, pavement type, width, street tree planting, footpaths, on road cycleway, shared paths, lighting and seating are provided as specified in infrastructure specific – design

- Road widths accommodate the necessary movements of service and emergency vehicles

- Driveways and footpaths are provided at subdivision as part of the subdivision works

- Footpaths and shared paths follow desire lines

- Street layout is interconnected to provide a grid-like structure

- Street layout is informed by street connections for future subdivisions on adjacent lands

- Street layout enables each lot to front a street and for corner lots to face both streets

- Street layout seeks to provide a perimeter road between residential dwellings and;

- bush fire prone land

- open space defined as a regional park, district park or local park

- Street layout ensures public access to public open space is maintained and encouraged

- Street layout responds to topographical features of the site, such as:

- where land slopes at a grade of 6% or more the predominant street alignment is perpendicular to the contours

- straight or gently curved to frame vistas

Note: Development should have consideration for Port Stephens Pathways Plan.”

12. Part D13 of PSDCP 2014 prescribes the street layout and transport network for land in the Rees James Road – Raymond Terrace urban release area. The site is within this area. One of the objectives of Part D13 concerns the street layout and transport network in D13.A, which provides:

“- To ensure that a well-planned and connected street layout for the area is delivered and not compromised by development on a single site.

To achieve efficient and equitable pedestrian, cycle, public transport, and private vehicle connectivity between lots and precincts, the local centre and nearby service areas.”

13. The provisions of Part D13 dealing with street layout and transport network set standards with respect to aspects of the development of subdivision and the development application for that development, referred to as requirements.

14. The first standard or requirement in D13.1 concerns “Street Layout”:

“The street layout is generally consistent with the Locality Controls Map at Figure DX (p. D-151).”

15. The Locality Controls Map shows “indicative road connections” crossing the site. One road connection travels in a north-easterly direction from the intersection of Kuranga Avenue and Dawson Road, along but inside the boundary with 6 Kuranga Avenue to the west of the site, to the recently constructed extension of Dairyman Drive to the north of the site. A second road connection travels east to west from Rees James Road through 2 Kuranga Avenue to the east of the site, across the northern part of the site, around 30m in from and running parallel to the northern boundary, across 6 Kuranga Avenue to the west of the site, to reach the recently constructed cul-de-sac in the subdivision of the former 8 Kuranga Avenue. The Locality Controls Map also shows a “bus route” running along the roughly south-north indicative road connection through the site. The bus route runs along Dawson Road, through the site, then along Dairyman Drive.

16. Provision is made in D13.2 of PSDCP 2014 for a variation of the street layout shown in the Locality Controls Map. D13.2 provides:

“Street layout variations are permitted where an access point is provided to Rees James Road, Dawson Road or Rosie Road, or where a Development Application provides sufficient justification that a variation will achieve the above objectives and satisfy other requirements of this DCP.”

17. The second standard or requirement in D13.3 concerns “Connectivity”:

“The subdivision of a lot that proposes a road layout that prevents the effective connectivity of the wider street network will not be supported. Development Applications must:

- Provide for wider street network connectivity in a grid-like structure.

- Where possible, provide a through road to existing roads. If constraints of the site do not permit a through street, the development is to include potential connections to adjoining future subdivisions.

- Avoid the sue of cul-de-sacs as a means of lot access. Where cul-de-sacs cannot be avoided, they are to be restricted to:

- Maximum length of 75m; and

- Access to a maximum of 10 dwellings.”

18. The third standard or requirement in D13.4 also concerns “Connectivity”:

“Subdivisions that proposed street networks are to be informed by road connections to future subdivisions on adjoining land. Development Applications shall identify future road connections to adjacent land where necessary.”

19. The fourth, fifth and sixth standards or requirements in D13.5, D 13.6 and D13.7 concern “Transport Movement Hierarchy”:

“The positioning and design of the transport movement network provides priority to facilitate efficient walking, cycling and public transport networks whilst retaining and complementing natural topography, such as views and drainage.

Designated public transport routes as identified on the Locality Controls Map at Figure DX (p. D-151) are constructed as bus routes in accordance with the infrastructure specification – Design.

Access to public transport routes or to future public transport stops and should be no more than 400m walk by the most direct route.”

20. As previously noted, the Locality Controls Map identifies a designated public transport route, which is to be constructed as a bus route, through the site connecting Dawson Road with Dairyman Drive.

21. The Infrastructure Specification – Design, referred to in D13.6, identifies the characteristics of the local street that is constructed as a bus route as being a maximum carriageway width (from the lip of kerb to the lip of kerb) of 9m, minimum verge width each side of 4m, kerbing on both sides, and a footpath in the verge of 1.2m, all within a road reserve width of 16-17m (Table D1.5 Characteristics of Road).

22. There are two more standards or requirements in D13.8 on Shared Path Connections and D13.9 on Road Widening, but these do not apply to the site.

The subdivision’s inconsistency with PSDCP 2014

23. The applicants’ amended subdivision plan does not propose a local street, constructed a as a bus route, through the site, as required by PSDCP 2014. Instead, the subdivision plan proposes two, disconnected driveways, one accessing Kuranga Avenue and the other accessing Dairyman Drive.

24. The driveway from Kuranga Avenue is proposed to be 4m wide, with two passing bays and the entrance off Kuranga Avenue proposed to be 6m wide. This driveway provides access to proposed Lots 203-207 and Lot 208, which contains the existing brick dwelling, metal garage and “granny flat” (although approved as a “hobby room”). This driveway will be constructed on the access handle of Lot 208 running between the western boundary of the site with 6 Kuranga Avenue and the proposed Lots 203-207. Lots 201 and 202, fronting Kuranga Avenue, will have their own private driveways off Kuranga Avenue.

25. The driveway off Dairyman Drive is proposed to be wider, starting with the same carriageway width as the carriageway width of Dairyman Drive, but then reducing in width to 4m when it becomes the driveway access to Lots 209 and 211. This driveway off Dairyman Drive will provide access to Lots 209, 210 and 211, as well as additional access to Lot 208, where the existing dwelling, garage and granny flat are located. The driveway will be constructed on a second access handle of Lot 208 running off Dairyman Drive.

26. The two driveways do not connect through Lot 208, the driveway from Kuranga Avenue finishing at the existing metal garage and the driveway from Dairyman Drive finishing in a turning area to the north of the metal garage.

27. The proposed driveways, therefore, do not meet the requirements of PSDCP 2014 of providing a local street that is well connected to the existing street network, a through road connecting the site to the existing roads of Kuranga Avenue, Dawson Road and Dairyman Drive, and a local street constructed as a bus route with a carriageway of 9m within a road reserve of 16-17m. The proposed driveways and subdivision layout also do not enable each lot to front and have direct access to a local street. Only two lots, Lots 201 and 202, will front and have direct access from a street, Kuranga Avenue. The other lots will have access by a shared driveway from either Kuranga Avenue or Dairyman Drive.

28. The applicants, at the end of the hearing, proffered a condition of consent that the Court could impose requiring the dedication to the Council of a 17.5m wide strip of land within which the proposed driveways would be constructed. This would require the applicants to make application to modify the consent, as it would resume parts of all lots accessing the driveways. This proposed condition of consent does not solve the current inconsistency of the subdivision layout, with its disconnected driveways, with the requirements of PSDCP 2014 for a local street, constructed as a bus route, through the site connecting with existing roads.

29. The subdivision plan also does not proposed a footpath within the verge of the local street, connecting Dawson Road to Dairyman Drive, as required by, amongst other provisions, the Infrastructure Specification – Design referred to in D13.6 of PSDCP 2014.

30. The applicants did suggest, if the Court were to find the lack of a footpath to be unsatisfactory, that the Court could impose a condition of consent requiring the applicant to construct a footpath as a shared pathway/cycleway, which would provide a connection through the site from Kuranga Avenue to Dairyman Drive. The applicants provided a plan showing this suggested footpath. Starting at Kuranga Avenue, the proposed footpath would coincide with the driveway off Kuranga Avenue, 2.5m of the 4m wide driveway being marked as a shared driveway, pathway and cycleway. Upon reaching Lot 208, the pathway/cycleway would diverge from the driveway, the shared pathway/cycleway turning to the west and running between the existing metal garage and the fence on the boundary with 6 Kuranga Avenue, and the 4m driveway turning east to a turning area to the east of the metal garage. Upon reaching the turning area of the proposed driveway off Dairyman Drive, the shared pathway/cycleway would cross the driveway diagonally to the eastern side, where upon it becomes a separate 2.5m wide pathway which, when it leaves the site, connects with the recently constructed footpath in Dairyman Drive.

31. The standard of construction, marking and signage, and lighting of the shared pathway/cycleway was not specified.

32. The applicants proposed that this shared pathway/cycleway would remain privately owned, as it would be located wholly within Lot 208, being on the two access handles and the body of Lot 208, but could be registered as a right of footway under the Conveyancing Act 1919 entitling the public to access the pathway/cycleway.

33. This suggested shared pathway/cycleway is not consistent with PSDCP 2014 in a number of respects, including that it is not a separate footpath in the verge of a local street constructed as a bus route, and as such is not in public ownership, it does not facilitate efficient walking and cycling through the site, and it does not provide obvious pedestrian and cycle links to the street network.

The weight to be given to PSDCP 2014

The weight to be given to a development control plan

34. It is well established that the provisions of a development control plan need to be taken into consideration, in determining a development application, as a “fundamental element” in or a “focal point” of the decision-making process: Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 at [75], [77]. The Court, exercising the function of the consent authority to consider and determine the development application, is required to “take into consideration” any development control plan of relevance to the development the subject of the development application: s 4.15(1)(a)(iii) of the EPA Act. A provision of the development control plan that is “directly pertinent” to the development and the development application is entitled to “significant weight” in the decision-making process, although it is not determinative: Zhang v Canterbury City Council at [75].

34. Other factors will also increase the weight to be given to a development control plan. Three factors were identified in Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472 at [87]:

“- A development control plan adopted after consultation with interested persons, including the affected community, will be given significantly more weight than one adopted with little or no community consultation.

- A development control plan which has been consistently applied by a council will be given significantly greater weight than one which has only been selectively applied.

- A development control plan which can be demonstrated, either inherently or perhaps by the passing of time, to bring about an inappropriate planning solution, especially an outcome which conflicts with other policy outcomes adopted at a State, regional or local level, will be given less weight than a development control plan which provides a sensible planning outcome consistent with other policies.”

36. Although the provisions of a development control plan need to be fundamental elements and focal points in the decision-making process, there may be alternative solutions to achieve the objects of the provisions. Section 4.15(3A) of the EPA Act provides:

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

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

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

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

In this subsection, standards include performance criteria.”

37. As I have earlier pointed out, Parts C1 and D13 of PSDCP 2014 do set standards with respect to aspects of the development of subdivision and the development application for that development (termed “requirements”), and specify the objects (termed “objectives”) of these standards.

No less weight because development application made before PSDCP 2014 amended

38. Notwithstanding that these provisions of PSDCP 2014 setting the standards and the objects of the standards are directly pertinent to the applicants’ proposed subdivision of the site and the development application for the subdivision, so that the provisions are prima facie entitled to significant weight, the applicants submitted that little weight should be given to the provisions of PSDCP 2014. I have earlier flagged the three main reasons advanced by the applicants.

39. The first reason is that the applicants purchased the property in October 2018 and lodged the development application on 23 April 2019, prior to PSDCP 2014 being amended on 5 September 2019 to identify a local street and a bus route through the site. When the applicants purchased the property and lodged the development application, PSDCP 2014 identified only one local street in the Rees James Road urban release area, which was to the east of the site through 2 Kuranga Avenue. The street network that came to be constructed as part of the subdivision of the urban release area to the north of the site, now known as the Potter’s Lane Estate, was not identified in this earlier version of PSDCP 2014. In particular, neither Dairyman Drive to the north of the site nor the extension of Dawson Road to Kuranga Avenue to the south of the site was identified.

40. Nevertheless, the Council had resolved on 26 February 2019 to put the draft amendment to Part D13 of PSDCP 2014, which identified the new street network, including the local street and bus route through the site, on public exhibition and the draft amendment to PSDCP 2014 was publicly exhibited from 14 March to 11 April 2019. Letters giving notice of the public exhibition of the draft amendment of PSDCP 2014 were given to owners of property affected by the draft amendment, including the applicants, on 13 March 2019. These events occurred before the applicants lodged their development application for the subdivision of the site.

41. The Council resolved to adopt the draft amendment of PSDCP 2014 on 27 August 2019. The amendment of PSDCP 2014 commenced on 5 September 2019. There were no savings or transitional provisions that allowed for a development application that had been made but not determined before the amendment to PSDCP 2014 came into force to be dealt with under the provisions of PSDCP 2014 that applied before the amendment commenced.

42. The Council did not determine the development application for the subdivision of the site until 19 December 2019, over three months after the amendment to PSDCP 2014 came into force. The Council was obliged to determine the development application in accordance with the law and facts that applied at that time.

43. On an appeal against the Council’s refusal of the development application, the Court, exercising the function of the consent authority to determine the development application, must also apply the law and facts as they exist at the time of hearing and determination of the appeal: Sofi v Wollondilly Shire Council [1975] 2 NSWLR 614 at 622; Nalor Pty Ltd v Bankstown City Council [1980] 2 NSWLR 630 at 634-635.

44. At the time of hearing and determination of this appeal, the applicable development control plan is PSDCP 2014 as amended on 5 September 2019, not the earlier version of PSDCP 2014 that applied at the time the applicants lodged their development application on 23 April 2019. The applicants’ argument that less weight should be given to the current PSDCP 2014 because they had lodged their development application before the current PSDCP 2014 came into force is at odds with the statutory obligation to determine the development application in accordance with the law that exists at the time of the hearing and determination of the appeal. In the absence of a savings provision, the current law must be applied. To afford little or no weight to the current PSDCP 2014 would offend against this obligation to apply the current PSDCP 2014.

No less weight because of process of making amended PSDCP 2014

45. The second reason the applicants advanced for giving little weight to the current PSDCP 2014 concerns the process by which PSDCP 2014 was amended. The applicant provided a chronology of the strategic planning and development control of the Rees James Road urban release area.

46. The first applicable development control plan was Port Stephens Development Control Plan 2007 (PSDCP 2007), which commenced on 31 May 2007. Part C3 Raymond Terrace – Rees James Road of PSDCP 2007 applied to land to the west of Rees James Road, including the large lots then referred to as Moxey’s Land, which later became the Potter’s Lane Estate, and the smaller 1ha lots to the north of Kuranga Avenue, known as 2-8 Kuranga Avenue, as well as lots to the south of Kuranga Avenue but fronting Rees James Road, including 34 Rees James Road.

47. Figure C.3, which showed the extent of the land to which Part C3 of PSDCP 2007 applied, identified two proposed roads. A longer road started on the southern side of Kuranga Avenue opposite 2 Kuranga Avenue, ran through 34 Rees James Road then the western half of the lots fronting Rees James Road, before turning east to join Rees James Road. A shorter road connected this longer road to Rees James Road through the lot to the south of 34 Rees James Road.

48. Section C3.2 dealt with “Subdivision Design”. Principle C3.P4 addressed subdivision of Moxey’s Land:

“Development on Moxey’s Land should be consistent with the site planning principles and structures set out in Figure C3.4 Site Plan and Street Structure.”

49. Figure C3.3: Moxey’s Land: Site and Context Analysis included not only Moxey’s Land but also the lots fronting Kuranga Avenue, including the site at 4 Kuranda Avenue. Figure C3.4: Moxey’s Land: Site Plan and Street Structure also included both Moxey’s Land and the lots fronting Kuranga Avenue, including the site at 4 Kuranga Avenue. Figure C3.4 showed a local street extending Dawson Road from the intersection of Dawson Road and Kuranga Avenue and running in a north-easterly direction through 4 Kuranga Avenue near the boundary with 6 Kuranga Avenue, into Moxey’s Land to the north of 4 Kuranga Avenue along a route that approximates where Dairyman Drive was later constructed. This local street was designated to be constructed as a “bus route” on Figure C3.4.

50. Figure C3.4 also showed Kuranga Avenue being extended from its terminus at the driveway to 8 Kuranga Avenue to the west of that property to join a new road in Moxey’s Land in the location where a road was later constructed when 8 Kuranga Avenue was subdivided.

51. The control C3.C10 in section C3.6 Road Design provided that:

“Proposed roads as shown on Figure C3.1 Extent of DCP must be constructed to comply with Figure C3.2 Rees James Road – General Standards.”

52. Figure C3.2 specified the standards for a local street to be a minimum carriageway width of 8m and a maximum carriageway width of 9m for a local street designated as a bus route, a minimum verge width of 4m, a road reserve width of 16-20m, and a footpath width and cycleway width of 1.2m and 2m respectively.

53. Accordingly, while Figure C3.1 – Extent of DCP did not show a proposed road running through 4 Kuranga Avenue connecting Dawson Road to what would later become Dairyman Drive, Figure C3.4 Site Plan and Street Structure did show a proposed local street, designated to be constructed as a bus route, through 4 Kuranga Avenue connecting Dawson Road to what became Dairyman Drive.

54. The Rees James Road urban release area, shown in PSDCP 2007, was rezoned in May 2011 to be Residential 2(a) by Port Stephens Local Environmental Plan 2000 Amendment No 18.

55. A development application DA16-2013-707-1 for subdivision of part of Moxey’s Land, being 40 and 42 Rees James Road, that became the Potter’s Lane Estate, was lodged on 14 November 2013.

56. Port Stephens Local Environmental Plan 2013 commenced on 22 February 2014, changing the designation of the residential zone from Residential 2(a) to R2 Low Density Residential.

57. The development application for subdivision of the Potter’s Lane Estate was approved on 29 August 2014. The assessment report for the development application noted that “a Development Control Plan (C3 Raymond Terrace – Rees James Road) was prepared for the site to ensure the development responds appropriately to the constraints of the site”. The assessment report evaluated the proposed subdivision in terms of this development control plan. In relation to section C3.2 Subdivision Design, the assessment report concluded that: “The street and lot layout and access points to the subdivision are acceptable”. In relation to section C3.6 Road Design, the assessment report concluded: “The road layout and construction details have been considered in the assessment and appropriate conditions have been placed on the consent.”

58. Although the documents tendered did not include the approved plans of subdivision, there was no suggestion that the development was not carried out in accordance with the approved subdivision plans. Of relevance is the construction of Dairyman Drive, in the location shown in Figure C3.4 of PSDCP 2007, to the standard of a bus route, as required by Figure C3.2 of PSDCP 2007. To ensure “connections to any future development on the periphery of the site”, which includes any future subdivision of 4 Kuranga Avenue, Dairyman Drive was constructed to end at the boundary of 4 Kuranga Avenue where the local street shown in Figure C3.4 as traversing 4 Kuranga Avenue would end.

59. On 6 August 2015, PSDCP 2007 was replaced by Port Stephens Development Control Plan 2014 (PSDCP 2014). Part D13 Rees James Road applied to the same land as had been identified in Part C3 of PSDCP 2007, including the former Moxey’s land, now Potter’s Lane Estate, and the lots fronting Kuranga Avenue, including 4 Kuranga Avenue.

60. D13.1 Street Layout required that: “The street layout is consistent with Figure DX (p. D-149).” Figure DX: Rees James Road – Raymond Terrace Locality Controls Map showed the indicative local streets. To the south of Kuranga Avenue, Figure DX showed the same longer road and shorter road that had been identified in Figure C3.1 of PSDCP 2007. Figure DX of PSDCP 2014, however, showed the longer road as extending across Kuranga Avenue into 2 Kuranga Avenue to the north then continuing into the Potter’s Lane Estate. This was not consistent with either Figure C3.4 Moxey’s Land: Site Plan and Street Structure in PSDCP 2007 or the approved subdivision of Moxey’s Land, 40 and 42 Rees James Road.

61. By 2018, the inconsistency between D13.1 and Figure DX of PSDCP 2014 and the approved subdivisions in the Rees James Road urban release area was raising concerns. On 11 July 2018, an internal Council memorandum requested a review of PSDCP 2014 “to better reflect the requirements of Part 6 of the PSLEP and approved development applications in the urban release area (Potter’s Lane Estate and Kuranga Avenue). This aims to assist in the preparation of future DAs and resolve the issues we have been facing over the last 6 months.”

62. The applicants purchased 4 Kuranga Avenue later in 2018, exchanging contracts in October 2018. One of the applicants, James Tomasic, said that he was not aware that the Council was proposing to revise Part D13 of PSDCP 2014 until after contracts had been exchanged.

63. In December 2018, the applicants engaged a surveyor/town planner, Mr Le Mottee, to prepare a development application to subdivide 4 Kuranga Avenue. When the applicants met with Mr Le Mottee, he brought up on his computer Part D13 of PSDCP 2014 and noted that no road was shown as going through 4 Kuranga Avenue (in Figure DX). Mr Le Mottee was surprised at finding this out “because the plans used to show a proposed road going through 4 Kuranga Avenue”. Mr Le Mottee was no doubt referred to Figure C3.4 of PSDCP 2007, which showed a local street connecting Dawson Road to what became Dairyman Drive through 4 Kuranga Avenue. Mr Le Mottee was aware of PSDCP 2007 as he had acted for the proponent of the subdivision of Moxey’s Land, now Potter’s Lane Estate.

64. The applicants later in December 2018 visited the Council and were given by a duty planner a copy of Figure DX in Part D13 of PSDCP 2014. He confirmed that the road therein shown was through the neighbouring property of 2 Kuranga Avenue and not the property the applicants had purchased of 4 Kuranga Avenue.

65. The applicants thereafter set about preparing a development application for subdivision of 4 Kuranga Avenue. Mr Le Mottee said he attended a pre-DA meeting with officers of the Council on 18 February 2019, during which he was advised that the Council was proposing an amendment to PSDCP 2014, which would include a through road affecting 4 Kuranga Avenue. Mr Le Mottee discussed with the Council officers the concerns of the applicants about the impact of such amendment on their land and the Council officers indicated that they would consider those concerns. Mr Le Mottee reported on what had been said by the Council at this meeting to the applicants.

66. The Council gave notice of an Ordinary Meeting on 26 February 2019. An item on the agenda for the meeting was the proposal to exhibit a draft amendment to Part D13 of PSDCP 2014. Amongst the amendments proposed was an updated Figure DX to include the lot layout and street layout of recently approved subdivisions and the reintroduction of a local street, to be constructed as a bus route, through 4 Kuranga Avenue connecting Dawson Road to Dairyman Drive.

67. Proposed D13.1 Layout required that: “The street layout is generally consistent with the Locality Controls Map at Figure DX (p. D-151).” Figure DX, as then proposed, continued to show the longer road in the urban release area to the south of Kuranga Avenue extending across Kuranga Avenue into 2 Kuranga Avenue, but instead of continuing north-easterly into the Potter’s Lane Estate as had been shown in Figure DX of PSDCP 2014, this extended road would terminate at a T junction with a new east-west road coming from Rees James Road, across 2, 4 and 6 Kuranga Avenue to meet up with the recently approved cul-de-sac in 8 Kuranga Avenue. The proposed Figure DX also reinstated the local street, to be constructed as a bus route, through 4 Kuranga Avenue connecting Dawson Road to Dairyman Drive.

68. The Council officers’ report noted that the proposed amendment of Part D13 “seeks to update the indicative layout for future development as shown in Figure DX of the DCP, as well as reflect recent large scale subdivision approvals and include provisions to ensure it is compliant with the PSLEP requirements for Urban Release Areas. It is expected that the Amendment will provide clearer and more consistent development requirements for land owners and future developers.” The report identified key features of the amendment to include:

“-Update Figure DX to include the lot layout of recently approved subdivisions.

- Addition of requirements that relate to street connectivity to ensure the efficient movement of traffic and the orderly and economic development of the precinct. It also ensures that future development applications take into consideration road connections with adjoining future subdivisions.

- Additional transport network provisions, including public transport requirements, shared paths and road widening. These matters have been drafted with the assistance of Council’s Engineering Services.”

69. On receiving notice of the Ordinary Meeting on 26 February 2019, Mr Le Mottee, on behalf of the applicants, wrote to the Council on 26 February 2019 requesting that the agenda item for the exhibition of the draft amendment of Part D13 of PSDCP 2014 be withdrawn “until such time as the affected owners have been consulted, in particular the proprietors of 4 Kuranga Avenue.” Mr Le Mottee noted that PSDCP 2007 had shown Dawson Road extending north-easterly through 4 Kuranga Avenue but PSDCP 2014 had shown a new road in the urban release area to the south of Kuranga Avenue extending north-easterly through to Kuranga Avenue. The proposed amendment to PSDCP 2014 showed both of these roads extending north-easterly through both properties. Mr Le Mottee submitted that this arrangement to have both roads extending north-easterly is “very problematic” for three reasons:

“1. Having 2 four way intersections in such close proximity is excessive, unnecessary and costly and seems to serve no purpose other than to try and give credibility to earlier mistakes in the creation of the DCP.

2. The proprietor of 4 Kuranga Avenue has only recently purchased the land. The 149 Certificate at the time steered the proprietor to the 2014 edition of the DCP that showed NO ROAD going through that property whereas the proposed DCP shows about 25% of the property being rendered non-usable in terms of units that may have otherwise been erected on the site.

3. If it is not enough that the plans show No.4 as being dramatically reduced in area by the proposed extension of Dawson Road and this extension going smack through a very new shed, there is also a cross road shown that goes through the existing house and pool!”

70. Mr Le Mottee concluded: “These issues also impact other properties so it is considered essential that Council withdraw this item from the business paper and consult/negotiate/placate the affected owners before resolving to put it on exhibition.”

71. Mr Le Mottee provided the applicants with a copy of his submission on their behalf.

70. The Council nevertheless resolved at its meeting on 26 February 2019 to place the draft amendment of Part D13 of PSDCP 2014 on public exhibition. The draft amendment was publicly exhibited between 14 March to 11 April 2019.

71. On 13 March 2019, the Council wrote letters to owners of property potentially affected by the draft amendment of Part D13 of PSDCP 2014, including the owners of 4 Kuranga Avenue. The letter stated in part:

“Port Stephens Council has prepared a draft amendment to the Port Stephens Development Control Plan 2014 – Chapter D13 Rees James Road, Raymond Terrace (draft DCP). Council is now writing to owners of land that would be affected by the draft DCP (please see attachment 1 to the locality plan).”

74. The letter advised that the draft DCP is available for viewing online and at the Council’s Administration Building in Raymond Terrace and that submissions could be made in writing.

75. On 15 March 2019, Mr Luke Mannix, Senior Strategic Planner with the Council, emailed Mr Le Mottee advising that the draft DCP covering land at Rees James Road went on exhibition on 14 March 2019 and continued:

“We’re aware that you have clients that are landholders and that they have some concerns with the DCP. We would be willing to have a meeting with yourself and the landholders to discuss the draft DCP, just so we may provide some clarity around the objectives and intent of the DCP as well as give an opportunity to provide comments directly to Council staff prior to any possible submissions.”

76. The applicants did not avail themselves of this offer to meet with Council staff to provide comments directly.

77. On 23 April 2019, the applicants lodged the development application for subdivision of 4 Kuranga Avenue.

78. On 20 May 2019, the applicants’ solicitors, PJ Donnellan & Co, wrote to the Council making a submission in objection to the draft amendment to Part D13 of PSDCP 2014 as well as providing a response to the Council’s request for additional information on the development application for subdivision of 4 Kuranga Avenue. The letter stated that the applicants had purchased the property with a view to subdivision. At the time they purchased the property, Figure DX of PSDCP 2014 did not show a local street through the property. The applicants relied on that plan in making the decision to purchase the property.

79. The letter noted that prior to the Council resolving at its meeting on 26 February 2019 to place on exhibition the draft amendment to Part D13 of PSDCP 2014, Mr Le Mottee had raised concerns by email about the potential impacts of the proposed amendments, including on the property. The letter asserted that the effect of the draft amendments “would be to radically alter the indicative layout of streets in the locality”. The letter asserted that if the indicative roads shown in the amended Figure DX were to be constructed, they would have three impacts on the property: a dramatic reduction in the developable area of the property; demolition of existing improvements on the property (the existing dwelling, garage and granny flat); and demolition of improvements on adjoining land at 2 Kuranga Avenue (existing dwelling).

80. The letter asserted that the applicants’ development application should be assessed having regard to the current Part D13 of PSDCP 2014, and not the draft amendment of Part D13. The letter then assessed the proposed subdivision’s compliance with the current Part D13 and Figure DX of PSDCP 2014.

81. On 27 August 2019, the Council resolved to approve the amendment of Part D13 of PSDCP 2014. Prior to doing so, the Council received and noted the submissions that had been made, including the submission made by the applicants’ solicitor on 20 May 2019. That submission was summarised in Attachment 1 to the Council officer’s report to the meeting. The Council officer’s report summarised the purpose of the amendments to Part D13 of PSDCP 2014, in similar terms to what had been said in the report to the meeting on 26 February 2019. The report noted that the draft amendment had been publicly exhibited and submissions had been received from affected landholders. The report noted that:

“Following consultation, amendments have been made to respond to the matters raised in submissions, including new provisions to provide greater certainty and clarity for landholders by specifying that a development application may provide alternative road connections if the objectives of the DCP 2014 and other relevant requirements are satisfied.”

82. The report expressly noted that the applicants had lodged a development application to subdivide 4 Kuranga Avenue following the public exhibition of the draft amendment to Part D13 of PSDCP 2014. The report stated:

“Following exhibition of the draft DCP 2014, a development application was lodged in April 2019 for land in the Rees James Road Urban Release Area at 4 Kuranga Avenue, Raymond Terrace. The application is for a 1 into 12 lot subdivision (DA16-2019-266-1) and the proposed subdivision plan includes a road layout that is inconsistent with the existing constructed and approved roads and indicative road connections for future development shown in Figure DX of the DCP 2014. It is also inconsistent with the planned and substantially constructed bus route for the urban release area. It is noted that other roads in the release area do not meet the current specifications for bus routes. If Council approves the DCP 2014, it will apply to the determination of this application.

If DA16-2019-266-1 is determined prior to Council approving the DCP 2014, the application will be assessed against the requirements of the current DCP 2014, including the existing controls that set objectives for road connections and the orders and economic use of land that are consistent with the draft DCP 2014. Given this, a decision to approve the DCP 2014 is considered likely to have a minimal impact on the assessment of this application.

It should be noted that, in accordance with the EP&A Act, a DCP is only a guidance document. Should the DCP 2014 be approved, it would not introduce new statutory requirements and it remains open to the applicant to submit alternative road layouts that meet the objectives of the DCP 2014. No amendments to the indicative road layout is proposed at this stage due to the location of the bus route, which was formed in consultation with Council’s Engineering Services, the bus company and the major developer in the URA. Nonetheless, the draft DCP 2014 has also been amended following exhibition to expressly specify that a development application may be made showing an alternative road layout that meets the objectives and any other relevant requirements of the DCP 2014.

Therefore the draft DCP 2014 is not considered to have a material impact on the assessment and determination of DA16-2019-266-1.”

83. The report identified a risk that the amendment of PSDCP 2014 “will impact the assessment and determination of current applications”, but assessed this risk as having a “low” risk rating, for the following reason:

“As set out above, current applications are already subject to assessment against requirements in the existing DCP2014 that are consistent with the objectives of the draft DCP 2014. The draft DCP 2014 will not introduce new legislative requirements and alternative road layouts may be submitted if they can satisfy the objectives of the DCP 2014.”

84. On 5 September 2019, the amendment of Part D13 of PSDCP 2014, formally described as Port Stephens Development Control Plan 2014 (Amendment No 9), commenced.

85. On 19 December 2019, the applicants’ development application was refused by the Council, including for the reason that the proposed subdivision was inconsistent with the recently adopted amendment of Part D13 of PSDCP 2014.

86. The applicants contend that this process of making the current Part D13 of PSDCP 2014 supports giving less weight to its provisions for four reasons:

1. the applicants had purchased the property at 4 Kuranga Avenue and lodged the development application for subdivision of the property when the previous Part D13 of PSDCP 2014 applied, which did not show a local street or bus route through the property;

2. there was no higher level, strategic planning document which informed the amendment of Part D13 of PSDCP 2014, but rather the amendment was made to reflect the large scale subdivision approvals with lot and street layouts that were inconsistent with the previous Part D13 of PSDCP 2014;

3. there was inadequate consultation with affected land owners, particularly the applicants, before the amendment to Part D13 of PSDCP 2014 was placed on public exhibition; and

4. there was no local infrastructure contributions plan adopted by the Council, which would have provided the lawful means by which the Council could require, by condition of consent imposed under s 7.11 of the EPA Act, dedication of land for the local street shown on Figure DX of PSDCP 2014 as traversing the property.

87. I reject this contention. First, the fact that the applicants purchased the property and lodged the development application for subdivision of the property before the amendment of Part D13 of PSDCP 2014 was exhibited or adopted is not relevant. As I have earlier noted, the applicant’s development application was required to be determined by the Council and is required to be determined by the Court in accordance with the facts and the law that exist at the respective times of determination. At both times, the existing facts include the street layout and transport network that actually exist, including the extension of Dawson Road to Kuranga Avenue opposite 4 Kuranga Avenue and the construction of Dairyman Drive as a bus route from the northern boundary of 4 Kuranga Avenue into the Potters Lane Estate. The only missing link of this connector road is the local street through 4 Kuranga Avenue. At both times, the existing law includes the current Part D13 of PSDCP 2014, with the amended Figure DX showing a local street, to be constructed as a bus route, through 4 Kuranga Avenue. There is no justification for giving less weight to the current provisions of Part D13 of PSDCP 2014 merely because the property was purchased and the development application for subdivision of the property was lodged before the current provisions commenced.

88. Secondly, the purpose for which the current Part D13 of PSDCP 2014 was adopted was to bring about an appropriate planning solution. The strategic planning for the lot and street layouts of the Rees James Road urban release area was originally articulated in Part C3 of PSDCP 2007. Figure C3.3 encapsulated the site and context analysis and Figure C3.4 described the site plan and street structure for the Rees James Road urban release area. One of the local streets shown, to be constructed as a bus route, was a street in the same location as the local street shown on the current Figure DX in PSDCP 2014, being an extension of Dawson Road through 4 Kuranga Avenue to connect with what has become Dairyman Drive. Subdivision approval was granted for parts of Moxey’s Land in accordance with Figure C3.3 and C3.4 of PSDCP 2007, including requiring the construction of Dairyman Drive to the standard of a bus route.

89. The problem arose when the Council adopted Part D13 of PSDCP 2014, which contained Figure DX showing different proposed roads to those that had been identified in Part C3 and Figure C3.4 of PSDCP 2007. Development consents continued to be granted for subdivisions in the Rees James Road urban release area, but the lot and street layouts of these subdivisions were not consistent with Figure DX and Part D13 of PSDCP 2014. This resulted in a mismatch between the large scale subdivision approvals and the provisions of Part D13 of PSDCP 2014.

90. The amendment proposed in 2019 sought to address this mismatch and to realign the lot and street layouts of the subdivisions that had been approved with the provisions of the applicable development control plan. The amendment of Part D13 of PSDCP 2014, including the amendment of Figure DX to reinstate the local street and bus route through 4 Kuranga Avenue that had been identified in Figure C3.4 of PSDCP 2007, achieved this objective.

91. The result was to correct the inappropriate planning outcome that had been caused by the previous Part D13 of PSDCP 2014 so as to achieve an appropriate planning solution in the current Part D13 of PSDCP 2014. A development control plan that provides a sensible planning outcome is to be given more weight than a development control plan that results in an inappropriate planning outcome: Stockland Development Pty Ltd v Manly Council at [87].

92. Thirdly, the current Part D13 of PSDCP 2014 was adopted after consultation with affected landowners, including the applicants, and the affected community. The applicants had been given notice of the Council’s proposal to amend Part D13 of PSDCP 2014, including Figure DX to indicate a local street and bus route through 4 Kuranga Avenue, before the Council resolved to place the draft amendment on public exhibition. The applicants’ surveyor, Mr Le Mottee, who had been engaged to prepare the development application for the subdivision of the property, was informed by the Council at the pre-DA meeting on 18 February 2019 of the Council’s proposal to so amend Part D13 of PSDCP 2014. Mr Le Mottee passed on this information to the applicants. Mr Le Mottee made a submission to the Council on the applicants’ behalf prior to the Council meeting on 26 February 2019, requesting the Council to withdraw the agenda item for the exhibition of the draft amendment to Part D13 of PSDCP 2014, supported by reasons as to the adverse impact that the draft amendment would have on the applicants.

93. The applicants were given further opportunities to make a submission objecting to the draft amendment of Part D13 of PSDCP 2014 after it was put on exhibition. The Council wrote individually to affected landowners on 13 March 2019, including to the owners of 4 Kuranga Avenue, notifying them of the draft amendment that was on exhibition, providing a link to the draft amendment, and inviting submissions. A Council officer, Mr Mannix, emailed the applicants’ surveyor, Mr Le Mottee, on 15 March 2019, advising of the exhibition of the draft DCP, providing a link to the draft DCP, and inviting him and the applicants to meet with Council staff to discuss their concerns with the draft DCP. Notice of the exhibition of the draft amendment was also published in local newspapers and on the Council’s website, which advised the public generally of the draft amendment and where it could be viewed, and invited submissions.

94. The applicants availed themselves of the opportunity to make a submission objecting to the draft amendment, although they did not take up the invitation to meet with Council staff to discuss their concerns. The applicants’ solicitor wrote a letter, by way of submission on behalf of the applicants, on 20 May 2019, objecting to the draft amendment and its application to the applicants’ development application for subdivision of 4 Kuranga Avenue.

95. All submissions made on the draft amendment, including the applicants’ solicitor’s submission were noted and summarised in the Council officer’s report that was before the Council when it resolved to adopt the amendment of Part D13 of PSDCP 2014.

96. This process for the adoption of the amendment to Part D13 of PSDCP 2014 shows timely and proper consultation with affected landowners, including the applicants, and the community. A development control plan that is adopted after consultation with interested persons, including the affected community, is entitled to be given significantly more weight than one adopted with little or no community consultation: Stockland Development Pty Ltd v Manly Council at [87].

97. Fourthly, it matters not that the Council has not adopted a local infrastructure contributions plan that allows for the imposition of a condition of consent requiring the dedication of that part of the land of 4 Kuranga Avenue on which the local street and bus route is shown in the amended Figure DX in PSDCP 2014. It may be accepted that the Council could have made a contributions plan under s 7.18 of the EPA Act authorising the imposition of a condition under s 7.11 requiring the dedication free of cost of land on which the indicative road connections are in Figure DX of PSCDCP 2014 or the payment of a monetary contribution towards the cost of acquisition of such land and the construction of the indicative road connections, but it was not obliged to do so and did not in fact do so.

98. Instead, Part D13 and Figure DX of PSDCP 2014 served a strategic planning purpose of indicating the indicative road connections to existing roads that should be created as part of any approved development of the land to ensure the efficient movement of traffic and public transport and the orderly and economic development of the urban release area. A development control plan can require a new public road to be created as part of any approved development of the land: Conquest Constructions (NSW) Pty Ltd v Sutherland Shire Council (2011) 184 LGERA 1; [2011] NSWLEC 52.

99. In summary, there is nothing in the process of adoption of the amended Part D13 of PSDCP 2014 that would justify giving less weight to its provisions.

No less weight because PSDCP 2014 does not reasonably relate to subdivision

100. The third reason the applicants advanced for giving little weight to the provisions of the current PSDCP 2014 concerned the alleged unreasonableness of the provisions. The applicants relied on the judicial decisions on the test for the validity of conditions of consent, conveniently summarised in Newbury District Council v Secretary of State for the Environment [1981] AC 578 at 599-600, 607-608, 619. The second and third limbs of the test are that a condition of consent must reasonably and fairly relate to the development the subject of the development application and not be so unreasonable that no reasonable consent authority could impose it. In Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30; [2004] HCA 63 at [155], Callinan J doubted whether the third limb of the test is necessary because if, as the second limb requires, the condition must fairly and reasonably relate to the proposed development, it must be a condition which is fair and reasonable in the circumstances of the case.

101. The applicants contended that a consent authority could not impose a condition of development consent for the subdivision of 4 Kuranga Avenue requiring the construction of the local street and bus route shown on the amended Figure DX of PSDCP 2014 and the dedication of the land on which this local street is constructed free of cost to the Council. Such a condition would not reasonably and fairly relate to the subdivision of 4 Kuranga Avenue and would be manifestly unreasonable: Dogild Pty Ltd v Warringah Council (2008) 158 LGERA 429; [2008] NSWLEC 53 at [60]; Botany Bay City Council v Saab Corp Pty Ltd (2011) 183 LGERA 228; [2011] NSWCA 308 at [15]. The applicants submitted that the subdivision of 4 Kuranga Avenue does not generate the demand for a local street, constructed as a bus route, through the property to connect with the existing roads. Rather, such a connector road and bus route is needed for the large scale subdivisions in the Potter’s Lane Estate to the north of the property.

102. The applicants argued that, by analogy, Part D13 and Figure DX of PSDCP 2014 cannot reasonably require a subdivision of 4 Kuranga Avenue to make provision for the local street, to be constructed as a bus route, through the property to connect with existing roads. If it is unreasonable to require that road as a condition of consent it is equally unreasonable to require a subdivision to make provision for that road.

103. I do not agree. The two requirements are different. The principal purpose of a development control plan is to provide guidance to persons proposing to carry out development and to the consent authority for such development on three matters:

“(a) giving effect to the aims of any environmental planning instrument that applies to the development,

(b) facilitating development that is permissible under any such instrument,

(c) achieving the objectives of land zones under any such instrument.”: s 3.42(1) of the EPA Act.

104. To achieve this purpose, a development control plan can make provision to achieve particular strategic planning outcomes, such as the desired street layout and transport network, provided that those provisions are not inconsistent or incompatible with the provisions of an environmental planning instrument applying to the same land: s 3.43(5) of the EPA Act and Stockland Development Pty Ltd v Manly Council at [87] and Conquest Constructions (NSW) Pty Ltd v Sutherland Shire Council at [118], [119], [136], [141].

105. In this case, the current Part D13 and Figure DX of PSDCP 2014 make provision for the street layout, connectivity and transport movement hierarchy of the Rees James Road urban release area. The street layout and designated public transport routes are to be generally consistent with the Locality Controls Map at Figure DX. Figure DX shows the indicative connections and bus route, including the local street and bus route through 4 Kuranga Avenue.

106. These provisions of Part D13 of PSDCP 2014 have been made to achieve two strategic planning objectives: “to ensure that a well-planned and connected street layout for the area is delivered and not compromised by development on a single site” and “to achieve efficient and equitable pedestrian, cycle, public transport and private vehicle connectivity between lots and precincts, the local centre and nearby service area”: D13.A of Part D13 of PSDCP 2014.

107. These provisions of Part D13 of PSDCP 2014, which provide guidance as to the desired street layout and transport network in the urban release area, are provisions of a kind that are permitted by the EPA Act to be prescribed by a development control plan. By their nature, such provisions provide guidance on the desired strategic planning outcomes for the urban release area to persons proposing to carry out development in the urban release area. There is no restriction imposed by the EPA Act that the provisions of a development control plan must reasonably and fairly relate to particular development or particular land in the urban release area. That is not the purpose of the provisions of a development control plan.

108. Accordingly, the fact that the provisions of Part D13 of PSDCP 2014 identifying an indicative road connection and bus route through 4 Kuranga Avenue provide for a desired planning outcome, rather than directly relate to any particular development to be carried out on the property, is not a reason to give less weight to the provisions. The purpose of the provisions is to provide guidance to persons proposing to carry out development on land identified in Figure DX, including 4 Kuranga Avenue, so that they can propose development that is consistent with the provisions and hence achieve the desired planning outcomes.

109. The need for a reasonable and fair relationship with the development the subject of a development application does not arise upfront in the development application process, but only at the end of the process if the consent authority determines the development application by the grant of consent. At this juncture, the consent authority is constrained to impose conditions of consent that reasonably and fairly relate to the development the subject of the development application and that are not otherwise manifestly unreasonable. But the existence of this constraint at the later stage of the imposition of conditions of consent to the carrying out of development does not impact on the earlier strategic planning stage of a development control plan providing guidance on the planning outcomes to persons proposing to carry out development.

Insufficient justification for variation of street layout in PSDCP 2014

110. Clause D13.2 of Part D13 of PSDCP 2014 permits variations from the street layout required by Part D13.1 and Figure DX. D13.2 provides:

“Street layout variations are permitted where an access point is provided to Rees James Road, or Dawson Road, or Rosie Road, or where a development application provides sufficient justification that a variation will achieve the above objectives and satisfy other requirements of this DCP.”

111. The justification required by the second limb of this clause is twofold: first, that a variation will achieve the objectives in cl D13.A and second, that a variation will satisfy other requirements of PSDCP 2014, which include the requirements for connectivity in D13.3 and D13.4 and transport movement hierarchy in D13.4-D13.7.

112. The applicants submitted that they had provided sufficient justification as required by the clause. They relied on the evidence of their planner, Mr Leavey, in his individual expert report dated 19 April 2021. Mr Leavey’s six reasons for seeking a variation to the street layout shown on Figure DX were set out in paragraphs 47-56, 58, 61 and 62 of his report.

113. First, Mr Leavey asserted that the development application proposes “an alternative street layout”. This is not correct: no “street” is proposed to be constructed on the site but instead two, disconnected, private driveways are proposed. Mr Leavey noted that these driveways will provide vehicular access for each lot to a public road, either Kuranga Avenue to the south or Dairyman Drive to the north. Access from these public roads is provided to higher order roads such as Rees James Road, either directly in the case of Kuranga Avenue or indirectly in the case of Dairyman Drive by Harold Road to Rees James Road. Mr Leavey contended, therefore, that the two driveways will achieve the objective of connecting the lots of the subdivision to existing roads.

114. Whilst it is no doubt correct to say that the driveways enable the lots of the subdivision to access either Kuranga Avenue or Dairyman Drive, this is not the objective sought to be achieved by Part D13 or Figure DX. There is no through road provided by the proposed subdivision, so that none of the lots will be able to access both Kuranga Avenue and Dairyman Drive or the facilities and services provided for in the areas that are able to be accessed from these existing roads. The connection of the existing roads of Kuranga Avenue and Dairyman Drive to other local streets or higher order roads, such as Rees James Road, is an existing situation, unaffected by the proposed subdivision.

115. Secondly, Mr Leavey criticised the street layout in Figure DX that directly links Dairyman Drive to the north with Dawson Road to the south through the site. Mr Leavey expressed concern that this:

“would create a long and generally straight road alignment through residential areas that:

(a) does not link any apparent internal destinations, such as a centre, local shops or community facilities;

(b) has potential to be used as an internal ‘rat run’ within the area to access Rees James Road;

(c) has potential for higher vehicle speeds given the generally straight alignments of the potential links; and

(d) is not required to enable subdivision of the subject land, which has separate road access to both the north and south.”

116. Whether Mr Leavey’s concerns are valid or not, this cannot provide a justification that the variation proposed in the development application will achieve the objectives of street layout and transport network in D13.A. The justification required by D13.2 is that the variation in street layout proposed in the development application “will achieve the above objectives and satisfy the other requirements of this DCP”, not that the street layout required by Figure DX is not desirable.

117. Thirdly, Mr Leavey contended that:

“There are no apparent attractors or destinations such as a centre, local shops or community facilities in the surrounding residential areas that would give rise to the need for an additional road connection between Dawson Road and Dairyman Drive. The area served by two separate open spaces areas, as shown on the following Figure [Figure D17 – Open Space areas and surrounding area], and these are unlikely to warrant a road connection being provided through the subject land.”

118. Again, this cannot provide the justification required by D13.2 that the variation of street layout proposed by the development application will achieve the objectives and satisfy the other requirements of Part D13 of PSDCP 2014.

119. Fourthly, Mr Leavey noted that one of the functions of the road link through the site between Dairyman Drive and Dawson Road is to provide a bus route extension for the existing Route 141 bus service linking the area to the Raymond Terrace centre. The disconnected driveways proposed by the subdivision of the site would not allow for this bus route through the site. Mr Leavey contended, however, that there are alternatives to the bus route shown in Figure DX. One alternative bus route he suggested could be from Dawson Road to Dairyman Drive via Kuranga Avenue to the west of the site and then Bailey Avenue to join Dairyman Drive. A second alternative bus route was suggested at the hearing to be via Kuranga Avenue to the east of the site then along Rees James Road before turning down Harold Street to join Dairyman Drive.

120. Neither of these alternative bus routes are capable of being currently implemented. Considerable sections of the first alternative bus route along Kuranga Avenue and Bailey Avenue are not constructed within a carriageway width or to the standard required for a bus route. Similarly, Kuranga Avenue to the east of the site and Rees James Road are not currently constructed with a carriageway width or to the standard required for a bus route. Indeed, the section of Kuranga Avenue in front of 2 and 4 Kuranga Avenue is currently an unsealed dirt road. The applicants offered, if the Court were minded to grant consent to the subdivision, for the Court to impose a condition of consent that the applicants construct, or pay the Council to construct, Kuranga Avenue to the standard required for it to serve as a bus route. This might address this section of the second alternative bus route but not the balance of the route.

121. In any event, the potential for there to be alternative bus routes other than through the land to be subdivided which is designated as the bus route, does not provide sufficient justification for the subdivision of the site not allowing for the designated bus route through the site. The “variation” provided by the proposed subdivision is not to provide the designated bus route identified in Figure DX, rather than to provide any alternative bus route. Hence, it is this non-provision of the designated bus route through the site that must be shown to achieve the objectives and satisfy the other requirements of Part D13 of PSDCP 2014. This is not shown by suggesting that there might be alternative bus routes.

122. Fifthly, Mr Leavey contended that the proposed variation to the street layout meets the objectives in D13.A for the reasons he gave in paragraphs 58 and 61 of the report. He said that:

“…the proposal will maintain connectivity between local streets and the street network, with connection being provided between the Potter’s Lane Estate and existing residential areas by way of Bailey Avenue and an extension of Kuranga Avenue, and the proposal will not impact on the accessibility of residents to access the main collector Rees James Road via both Kuranga Avenue and Harold Road. Considering resident needs, there is a lack of internal attractors or destinations in the surrounding residential areas that would warrant an additional vehicular link being provided through the subject land, and the proposal would not impact on the usability of local streets for residents to access any facilities or services, or the main road network.”

123. These reasons are not materially different to the reasons Mr Leavey had given in paragraphs 47 to 56 of his report. They similarly do not provide the justification required by D13.2. The disconnected private driveways do not provide, let alone “maintain”, connectivity through the site between existing streets and the street network, or connectivity between the lots of the subdivision and both of the existing roads of Kuranga Avenue and Dairyman Drive and the facilities and services provided in the areas accessed by those roads.

124. Sixthly, Mr Leavey suggested in paragraph 62 that the variation to the street layout required by Figure DX would enable retention of the existing metal garage on the site. Construction of the local street identified in Figure DX would necessitate removal of the garage. This may be accepted, but it does not provide the justification required by D13.2, which is that the variation will achieve the objectives and satisfy the other requirements of Part D13 of PSDCP 2014. Retention of the existing garage cannot achieve these objectives or requirements.

125. For these reasons, the applicants have not provided sufficient justification that a variation will achieve the objectives and satisfy the requirements of Part D13 of PSDCP 2014.

No reasonable alternative solution to PSDCP 2014 proposed in development application

126. Finally, the applicants contended that, pursuant to s 4.15(3A) of the EPA Act, the Court should be flexible in applying the provisions of Part D13 of PSDCP 2014. The applicants submitted that the proposed subdivision is a “reasonable alternative solution” that achieves the objects of the standards in Part C1 Subdivision and D13 Rees James Road – Raymond Terrace of PSDCP 2014. Their reasons were the same as those they had advanced for submitting that they had provided sufficient justification under D13.2 of PSDCP 2014 for the variation of the street layout proposed by the subdivision.

127. I do not agree. As I observed in Saffioti v Kiama Municipal Council [2019] NSWLEC 57 at [27]-[28]:

“The ‘reasonable alternative solutions’ referred to in s 4.15(3A)(b) of the EPA Act are alternative solutions embodied in the development that is the subject of the development application. The development might not comply with certain of the standards set by the provisions of a development control plan with respect to aspects of the development but nevertheless the development might provide an alternative solution that does achieve the objects of those standards. If so, the consent authority is directed by cl 4.15(3A) ‘to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development’.

The onus is on the applicant for development consent to proffer, in the development application for the development, the alternative solutions that achieve the objects of the standards for dealing with the relevant aspects of the development. The consent authority can then evaluate whether the proffered alternative solutions are ‘reasonable alternative solutions’ that do ‘achieve the objects of those standards for dealing with that aspect of the development’.”

128. In the present case, the alternative solution proffered by the applicants was embodied in the subdivision plan proposed in the development application. The subdivision plan proposed disconnected private driveways to access the existing roads, rather than a local street, constructed as a bus route, through the site to provide the connection with the existing roads, as is required by Part D13 of PSDCP 2014. This proposed access, even if it could be described as an “alternative solution”, is not a “reasonable” alternative solution or one that achieves the objects of the standards for dealing with street layout and transport network in Part C1 or Part D13 of PSDCP 2014. My reasons include those I gave earlier in dealing with the applicants’ argument that they had provided sufficient justification that a variation of the street layout would achieve the objectives and satisfy the other requirements of Part D13 of PSDCP 2014.

129. In addition, the proposed access to be provided by the disconnected driveways will not achieve the objectives of either Part C1 dealing with subdivision generally or Part D13 dealing with the Rees James Road urban release area particularly.

130. With respect to the objectives in C1.A, the proposed subdivision does not provide the local street identified in Figure DX but instead provides disconnected driveways. These driveways are not “well-connected” to the street network, by reason of their internal disconnection. The driveways do not provide “obvious pedestrian and cycle links” to any street, let alone higher order streets. The development application does not propose any pedestrian or cycle links through the site.

131. The applicants did suggest that, if the Court considers that the non-provision of pedestrian and cycle links is unsatisfactory, the Court could impose by way of condition of consent a requirement that the applicants construct a shared pathway/cycleway and register on title a right of way entitling the public the right to use this shared pathway/cycleway.

132. As I have earlier found, this shared pathway/cycleway is inappropriate. It is not proposed to be constructed as a separate footpath in the verge of a public road, to the standard required for a public footpath, and with adequate marking, signage and lighting. In these circumstances, it does not answer the description of being an “obvious” pedestrian and cycle link.

133. The disconnected driveways will not meet all of the needs of residents of the lots of the subdivision. No lot will have access to both of the existing roads of Kuranga Avenue and Dairyman Drive or to the facilities and services in the areas accessed by these roads. The designated bus route would not be provided as required by Figure DX, so that the residents would not have the ease of access to a bus service at their doorstep. No pathway through the site is proposed in the development application, although a shared pathway/cycleway could be required by a condition of consent. However, the shared pathway/cycleway suggested by the applicants that could be required by condition of consent does not follow desire lines, but rather is shared for a large section with one vehicular driveway, skirts around the existing garage, and crosses another vehicular driveway.

134. With respect to the objectives in cl D13.A, the proposed disconnected driveways do not “ensure that a well planned and connected street layout for the area is delivered”. Instead, this desired well planned and connected street layout for the area will be “compromised by development of a single site”, being the proposed subdivision of this site.

135. The subdivision proposed in the development application does not provide pedestrian, cycle or public transport connectivity between the lots of the subdivision and precincts, the local centre and nearby service areas. The designated public transport route of the bus route identified in Figure DX through the site is not achieved by the proposed subdivision. Pedestrian and cycle links through the site are not provided in the development application, and the shared pathway/cycleway that is suggested could be required by condition of consent is inappropriate for the reasons given earlier.

136. The disconnected driveways do not provide “efficient and equitable” connectivity between the lots of the subdivision and precincts, the local centre and nearby service areas, by reason of the internal disconnection of the lots to both of the existing roads of Kuranga Avenue and Dairyman Drive.

137. For these reasons, the development application does not provide a reasonable alternative solution that achieves the objects of the standards for dealing with the street layout and transport network in Part C1 and Part D13 of PSDCP 2014.

Conclusion on inconsistency of subdivision with PSDCP 2014

138. The provisions of PSDCP 2014 dealing with the desired street layout and traffic network should be given significant weight. The applicants have not demonstrated sufficient justification for giving the provisions less weight or for departing from compliance with the provisions. The subdivision proposed in the development application is inconsistent with the provisions in material respects. In these circumstances, consent to the subdivision should be refused.

Unacceptable impact of subdivision on biodiversity

The biodiversity of the site

139. The site has significant biodiversity value in two respects. First, native vegetation on the site is part of an endangered ecological community, the Hunter Lowland Redgum Forest in the Sydney Basin and NSW North Coast bioregions (the EEC). Surveys confirmed the presence of many species characteristic of this EEC, as listed in paragraph 1 of the NSW Scientific Committee’s final determination listing the EEC, including trees, such as Eucalyptus tereticornis (Forest Redgum); grasses, including Microlaena stipoides (Weeping Grass), Cymbopogon refractus (Barbed Wire Grass), Echinopogon caespitosus (Bushy Hedgehog Grass) and Entolasia stricta (Wiry Panic); mat rushes, including Lomandra multiflora (Many Flowered Mat Rush); herbs, including Desmodium varians (Slender Tick-trefoil), Dichondra repens (Kidney Weed) and Pratia purpurascens (White Root or Purplish Pratia); and ferns, including Cheilanthes sieberi (Narrow Rock Fern).

140. Native vegetation of this EEC occurs in two vegetation zones on the site. Vegetation zone 1 has a moderately intact understorey consisting of small trees, shrubs and vines. The ground layer is dense, unmanaged and infested with weeds. Vegetation zone 1 occurs in the southern part of the site, fronting Kuranga Avenue. Vegetation zone 2 has a predominantly cleared and managed understorey, with only a few native shrubs scattered around the site. The ground layer is very sparse and contains a mix of native grasses and forbes and exotic grasses. Vegetation zone 2 forms the balance of the site, starting to the north of vegetation zone 1.

141. Second, the site has been mapped as preferred koala habitat, with many koala feed trees of Forest Redgum. Port Stephens Local Government Area Koala Habitat Map Planning Map 2007 mapped the southern half of the site as “preferred koala habitat” and the balance of the site mostly as “50m buffer over cleared” and less as “link over cleared”. The area mapped as containing preferred koala habitat coincides with the area of the EEC, the Forest Redgum being both a koala feed tree and a characteristic species of the EEC.

The regulatory framework for assessing the impacts on the site’s biodiversity

142. In relation to the EEC, the applicants’ ecologist, Mr Herbert, determined that the proposed development is likely to significantly affect the EEC or its habitat on the site, pursuant to s 7.2 and s 7.3 of the Biodiversity Conservation Act 2016. The application for development consent was thereby required to be accompanied by a biodiversity development assessment report: s 7.7(2) of the Biodiversity Conservation Act. A biodiversity development assessment report is a report prepared for the purpose and with the content required by s 6.12 of the Biodiversity Conservation Act.

143. The applicants lodged with the development application a Biodiversity Development Assessment Report for a proposed subdivision at 4 Kuranga Avenue, Raymond Terrace, prepared by Firebird ecoSultants Pty Ltd, dated 19 September 2019. This report was updated and replaced by a Biodiversity Development Assessment Report prepared by Firebird ecoSultants Pty Ltd, dated 16 April 2021. This updated report was supplemented by an Addendum BDAR for 4 Kuranga Avenue, Raymond Terrace by Firebird ecoSultants Pty Ltd, dated 12 May 2021.

144. The Court, exercising the function of the consent authority, when determining the development application, is required to take into consideration the likely impact of the proposed development on biodiversity values as assessed in the biodiversity development assessment report that relates to the application, and may otherwise further consider the likely impact of the proposed development on biodiversity values: s 7.13(2) of the Biodiversity Conservation Act.

145. If the Court decides to grant consent and the Biodiversity Conservation Act applies to the proposed development (which it does), the conditions of the consent must require the applicants to retire biodiversity credits to offset the residual impact on biodiversity values of the number and class specified in the report. The residual impact is the impact after the measures that are required to be carried out by the terms or conditions of the consent to avoid or minimise the impact on biodiversity values of the proposed development (being measures in which the report was based): s 7.13(3) of the Biodiversity Conservation Act.

146. The Court may reduce or increase the number of biodiversity credits that would otherwise be required to be retired if it determines that the reduction or increase is justified having regard to the environmental, social and economic impacts of the proposed development: s 7.13(4) of the Biodiversity Conservation Act.

147. The Court is not limited to a consideration of the measures to avoid or minimise the impact on biodiversity values of the proposed development recommended in the biodiversity assessment report, but may take into consideration:

“(a) in relation to the impact of proposed development on biodiversity values, the measures that a consent authority may require to avoid or minimise those impacts or the power of a consent authority to refuse to grant consent because of those impacts”: s 7.13(6)(a) of the Biodiversity Conservation Act.

148. In relation to koalas, the parties agreed that State Environmental Planning Policy (Koala Habitat Protection) 2020 (“Koala SEPP 2020”) applies. The applicants had lodged the development application for subdivision of the site in 2019 before Koala SEPP 2020 commenced, However, the savings provision of Koala SEPP 2020, cl 19, did not save a development application that had been made in relation to land but not finally determined before the Policy applied to the land. Koala SEPP 2020 was in turn repealed by State Environmental Planning Policy (Koala Habitat Protection) 2021 (“Koala SEPP 2021”). This time, however, the savings provision, cl 18, did provide that:

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

149. Koala SEPP 2020, therefore, applies to the land and regulates the Court’s consideration and determination of the applicants’ development application. The savings provision of Koala SEPP 2020 did have some work to do, taking a plan of management provided under State Environmental Planning Policy No 44 – Koala Habitat Protection, that was kept in force by cl 16 of State Environmental Planning Policy (Koala Habitat Protection) 2019, to be a plan of management made under Koala SEPP 2020: cl 19(a). The Council had approved the Port Stephens Council Comprehensive Koala Plan of Management 2002 (CKPoM). The parties agreed that CKPoM was a plan of management that was taken, by cl 19(a) of Koala SEPP 2020, to be a plan of management under Koala SEPP 2020.

150. Under CKPoM, the site was located within the Raymond Terrace Koala Management Unit (KMU). The performance criteria for development applications in Appendices 4 and 5 were identified as the most appropriate means of conserving koala habitat in the KMU. Appendix 4 identified the performance criteria for all developments proposed on sites that contain or are adjacent to Preferred or Supplementary Habitat, Habitat Buffers or Habitat Linkage Areas. The performance criteria include:

“a) Minimise the removal or degradation of native vegetation within Preferred Koala Habitat or Habitat Buffers;

b) Maximise retention and minimise degradation of native vegetation within Supplementary Koala Habitat and Habitat Linking Areas;

c) Minimise the removal of any individuals of preferred koala food trees, where ever they occur on a development site. In the Port Stephens LGA these tree species are Swamp Mahogany (Eucalyptus robusta), Parramatta Red Gum (Eucalyptus parramattensis), and Forest Red Gum (Eucalyptus tereticornis), and hybrids of any of these species. An additional list of tree species that may be important to koalas based on anecdotal evidence is included in Appendix 8

d) Make provision, where appropriate, for restoration or rehabilitation of areas identified as Koala Habitat including Habitat Buffers and Habitat Linking Areas over Mainly Cleared Land. In instances where Council approves the removal of koala habitat (in accordance with dot points 1-4 of the above waive clause), and where circumstances permit, this is to include measures which result in a “net gain” of koala habitat on the site and/or adjacent land;

e) Make provision for long term management and protection of koala habitat including both existing and restored habitat…”.

151. CKPoM allows the consent authority to waive the provisions of performance criteria (a), (b) and (c):

“only for the purposes of establishing a building envelope and associated works, and only if the proponent can demonstrate:

1. That the building envelope and associated works including fire fuel reduction zones cannot be located in such a way that would avoid the removal of native vegetation within Preferred or Supplementary Koala Habitat, Habitat Buffers, or Habitat Linking Areas, or removal of preferred koala food trees;

2. That the location of the building envelope and associated works minimises the need to remove vegetation as per 1 above;

3. That, in the case of subdivisions, they are designed in such a way as to retain and enhance koala habitat on the site and are consistent with the objectives of this appendix; and

4. That koala survey methods (as per the Guidelines for Koala Habitat Assessment in Appendix 6) have been used to determine the most appropriate location for the building envelope and associated works (so as to minimise the impact on koala habitat and any koala populations that might occur on the site).”

152. A map that was subsequently prepared, Port Stephens Local Government Area Koala Habitat Planning Map, identifies the southern half of the site at 4 Kuranga Avenue as Preferred Koala Habitat, most of the northern half as a habitat buffer, being “50m Buffer over Cleared”, and a smaller area in the north-eastern corner of the site as a habitat linking area, being “Link over Cleared”.

153. Returning to Koala SEPP 2020, the consent authority, in determining a development application for consent to carry out development on land to which Part 2 of Koala SEPP 2020 applies, is required to undertake the three step analysis in Part 2. Step 1 involves determining whether or not the land is a potential koala habitat: cl 8(1). “Potential koala habitat” is defined in cl 4 to mean “areas of native vegetation where trees of the types listed in Schedule 2 constitute at least 15% of the total number of trees in the upper or lower strata of the tree component”. One of the trees listed in Schedule 2 as a feed tree species is Eucalyptus tereticornis or Forest Redgum. The applicants’ ecologist, Mr Herbert, identified that Forest Redgum trees do constitute at least 15% of the total number of trees in the upper or lower strata of the tree component, at least in the southern half of the site mapped as Preferred Koala Habitat. The Council’s ecologist, Mrs Bacales, agreed. The site is, therefore, potential koala habitat.

154. The second step involves determining whether or not the land is a core koala habitat: cl 9(1). “Core koala habitat” is defined in cl 4 to mean “an area of land with a resident population of koalas, evidenced by attributes such as breeding females, being females with young, and recent sightings of and historical records of a population.” Both Mr Herbert and Mrs Bacales agreed that the site is not core koala habitat, as it does not support a resident population of koalas. As a result of the site not being a core koala habitat, the Court, exercising the function of the consent authority, is not prevented, because of Koala SEPP 2020, from granting consent to the development application: s 9(3)(a).

155. This answer to the second question means that it is unnecessary to proceed to the third step in cl 10. The restriction in cl 10(2), that the determination of the development application must not be inconsistent with the plan of management, does not therefore apply. Nevertheless, the Court, exercising the function of the consent authority in determining the development application, may (but is not required to) consider the proposed development’s consistency with the plan of management. In this case, the Court may consider the proposed development’s consistency with the performance criteria in Appendix 4 of CKPoM.

The subdivision’s impacts on the site’s biodiversity

156. The subdivision plan lodged with the development application proposed the removal of the majority of the EEC on the site, with only the most degraded areas of EEC (some trees around the existing dwelling) proposed to remain, and the removal of 16 of the 26 koala feed trees on the site. However, of the 10 koala feed trees proposed to be retained, four would be impacted by the development due to conflicts with boundary lines, stormwater piping and cut and fill earthworks. Hence, only six of 26 koala feed trees were potentially retainable.

157. The parties’ ecologists, Mr Herbert for the applicants and Mrs Bacales for the Council, conferred and produced a joint expert report. The ecologists agreed that, in order to avoid and minimise the impact of the subdivision on the EEC, before resorting to offsetting the residual impacts, a large lot should be created in the southern part of the site fronting Kuranga Avenue to allow for the retention of the area of highest condition EEC (in vegetation zone 1) and more of the koala feed trees. Ms Bacales suggested that this could be achieved by combining the then proposed Lots 202, 203 and 204, which contain most of vegetation zone 1.

158. Mr Herbert suggested an alternative lot layout in Figure 1: Biodiversity values to be avoided and added, which consolidated and reorientated the four lots fronting Kuranga Avenue, so that instead of running roughly north-south they would run roughly east-west. An area closest to Kuranga Avenue, containing 571sqm of vegetation zone 1 of the EEC, would be retained and conserved. An area closest to Kuranga Avenue to the east of the first area, containing 270sqm of vegetation zone 2 of the EEC, would be revegetated and conserved. Together, these areas would conserve 841sqm of the EEC. These two areas extend for the length of the Kuranga Avenue frontage from 2 Kuranga Avenue in the east to the proposed driveway to the west.

159. To the north of these two areas would be an area of 788sqm of vegetation zone 2 of the EEC, which would be managed as an asset protection zone (APZ). The koala feed trees of Forest Redgum would be able to be retained in the APZ, but the understory would need to be cleared. To the north of this area of APZ would be the first of the residential lots.

160. Mrs Bacales agreed that Mr Herbert’s revised lot layout would achieve a suitable level of avoidance and minimisation of impacts on the EEC.

161. Mr Herbert and Mrs Bacales also recommended the number of koala feed trees to be removed should be minimised wherever possible.

162. At the hearing, in partial response to the ecologists’ recommendations, the applicants amended the subdivision plan in an endeavour to retain more of the EEC and more koala feed trees. The amended subdivision plan retained the roughly north-south orientation of the lots fronting Kuranga Avenue, rather than reorientating the lots to be roughly east-west as Mr Herbert had recommended, and consolidated only two of the lots, not the four lots that Mrs Bacales had recommended. The two lots that were combined were the western, former Lots 203 and 204, leaving the eastern, former Lots 201 and 202 as originally proposed. The combined lot, now called Lot 203, proposed an area of retained vegetation of 418sqm that extended for the width of the lot along its frontage with Kuranga Avenue and to a depth of 16.6m from that frontage. This area of 418sqm is only half of the area of retained vegetation that Mr Herbert had recommended and Mrs Bacales agreed was the minimum area of vegetation to be retained.

163. Behind, or to the north of, this area of retained vegetation would be an asset protection zone, with the same width as the area of retained vegetation but with a depth of 8.7m. This APZ would extend into the lot to the east of the combined lot, still called Lot 202, for around three quarters of the width of that lot. The combined area of the APZ on Lots 202 and 203 would be 422sqm. Of this area of APZ, 147sqm would be vegetation zone 1, largely contained in Lot 202, and 275sqm would be vegetation zone 2, less in Lot 202 and more in Lot 203. The 422sqm area of vegetation in the APZ is again only half of that recommended by Mr Herbert and agreed to by Mrs Bacales. The management required of an APZ would result in the removal of the understorey of both vegetation zones, which is of more significance for vegetation zone 1 than for vegetation zone 2, as the former has denser and more intact understorey than the latter.

164. The amended subdivision plan identified proposed building envelopes on all lots other than the lot on which the existing dwelling, garage and granny flat are located, now called Lot 208. The identification of proposed building envelopes was intended to allow for the retention of more koala feed trees. In result, however, only one more koala feed tree was able to be retained (11 trees instead of 10 trees). Mr Herbert identified in Figure 1.2: Site Map in the addendum BDAR dated 12 May 2021, the 11 koala feed trees to be retained within the site. The subdivision plan shows the retention of those 11 koala feed trees, of which three are in the proposed area of retained vegetation on Lot 203, one is in the area of Lot 203 to the north of the APZ, one is in the APZ on Lot 202, two are in Lot 201 with a third on the boundary of Lot 201 and the property to the east of 2 Kuranga Avenue, one is in the rear of Lot 204 and two are in the front of Lot 205. Many koala feed trees are, however, still proposed to be removed. Nine trees are to be removed in Lot 203, one in Lot 202, and two in the area of the proposed driveway off Kuranga Avenue. These 11 koala feed trees are within the area of the site mapped as Preferred Koala Habitat. There are also two koala feed trees to be removed in the northern end of the site mapped as either 50m Buffer over Cleared or Link over Cleared.

165. Mr Herbert recommended in the addendum BDAR dated 12 May 2021 that the 418sqm area of retained vegetation in proposed Lot 203 be weeded of exotic flora species and revegetated with native flora species typical of the EEC and that a Vegetation Management Plan be prepared to outline how this would be achieved. The Vegetation Management Plan would be submitted to the Council for approval prior to any vegetation clearing being undertaken on the site. Mr Herbert recommended that an instrument under s 88B of the Conveyancing Act 1919 impose a restriction on the use of the land and create a positive covenant to establish and manage the area of retained vegetation in perpetuity.

166. With this amendment of the area of EEC to be cleared, Mr Herbert recalculated the ecosystem credits required to offset the loss of the EEC on the site. Mr Herbert calculated that 13 credits of PCT 1598 Forest Red Gum grassy open forest on floodplains of the Lower Hunter would be required.

167. Mr Herbert’s recommendations were incorporated in the applicants’ proposed conditions of consent. Proposed condition 2.0(8) requires the preparation of a Biodiversity Management Plan to the satisfaction of the Council and the submission of that Plan to the Council for its approval. The Plan is required to include:

1. Identification of the development site as per the Biodiversity Development Assessment Report (BDAR) and approved plans.

2. Identification of the areas of land that are to be retained as outlined in the BDAR.

1. Construction impacts must be restricted to the development site and must not encroach into areas of retained native vegetation and habitat. All materials stockpiles, vehicle parking, machinery storage and other temporary facilities must be located within the areas for which biodiversity impacts were assessed in the BDAR.

2. The Biodiversity Management Plan must include:

Measure	Timing	Responsibility
Appropriate weed control and restoration measures to be implemented by a qualified bush regeneration contractor to ensure the restoration and management of the area of Hunter Lowland Redgum Forest within Lot 203 The Plan is to include clear management objectives, performance targets, monitoring requirements and a schedule of works.	On-going in perpetuity	Owner of lot 203

168. Proposed condition 2.0(1) requires the retention of the 11 Forest Redgum trees identified as being trees to be retained in Figure 1.2: Site Map in the addendum BDAR dated 12 May 2021.

The subdivision’s impacts on biodiversity are unacceptable

169. I find that the proposed subdivision, as amended, will have unacceptable impacts on the EEC and preferred koala habitat on the site. The biodiversity mitigation hierarchy requires, in order, avoiding impacts, minimising impacts and only then offsetting or compensating for residual impacts that remain after all steps are taken to avoid or minimise these impacts. The proposed subdivision fails to take all appropriate avoidance and minimisation measures.

170. Starting with avoiding impacts, the proposed subdivision layout does not implement the avoidance measures agreed by the parties’ ecologists to create a large lot at the Kuranga Avenue end of the site to allow for the retention of the area of highest condition EEC. Mrs Bacales has recommended that this objective be achieved by combining the then proposed Lots 202, 203 and 204, which contained vegetation zone 1, while Mr Herbert had recommended that this objective be achieved by consolidating and reorientating the then proposed Lots 201 to 204 to allow for the retention of vegetation zone 1 and the revegetation of vegetation zone 2 in a 841sqm area of retained vegetation of the EEC, together with a 788 sqm area of native vegetation, largely trees, including Forest Redgums, to be managed as an asset protection zone.

171. The proposed subdivision, however, halves the areas of native vegetation to be retained, in both the designated area of retained vegetation (418sqm instead of 841sqm) and APZ (422sqm instead of 788sqm). Not only does this reduce the area of retained vegetation to be conserved, it increases the potential for edge effects on the smaller area. Furthermore, the area of highest condition EEC, in vegetation zone 1, is reduced by the inclusion of 147sqm of vegetation zone 1 in the APZ. The dense understory of vegetation zone 1 contributes to its high condition as an EEC. Management of this area as an APZ will result in the removal of this dense understory.

172. There is also a risk that some of the Forest Redgums, which are both characteristic species of the EEC and koala feed trees, may need to be removed in the APZ in order to comply with the condition of consent required to be imposed by the NSW Rural Fire Service (NSW RFS). By letter dated 24 June 2019, NSW RFS issued General Terms of Approval, under Division 4.8 of the EPA Act, and a Bush Fire Safety Authority, under s 100B of the Rural Fires Act 1997. With respect to asset protection zones, NSW RFS advised:

“The intent of measures is to provide sufficient space and maintain reduced fuel loads so as to ensure radiant heat levels of buildings are below critical limits and to prevent direct flame contact with a building. To achieved this, the following conditions shall apply:

1. At the issue of subdivision certificate and in perpetuity the entire property shall be managed as an inner protection area (IPA) as outlined within section 4.1.3 and Appendix 5 of ‘Planning for Bush Fire Protection 2006’ and the NSW Rural Fire Service’s document ‘Standards for asset protection zones’.”

173. Satisfaction of this condition may require the removal of some of the Forest Redgums, especially trees in clumps with touching canopies. Both Mrs Bacales and Mr Herbert acknowledged that some trees might need to be removed to comply with NSW RFS’s condition of consent but did not identify which or how many trees might need to be removed. The proposed plan of subdivision identifies indicative building envelopes. These are relatively small for proposed Lots 201 and 202 (500sqm and 514.5sqm respectively) and larger for proposed Lot 203 (1106sqm), and are in close proximity to Forest Redgum trees proposed to be retained. The proximity of these trees to any future dwelling increases the risk that the trees may be removed in the future, to protect the buildings from direct flame attack and critical radiant heat levels.

174. Turning to minimisation impacts, inadequate minimisation measures are proposed. The applicants did not tender a draft Biodiversity Management Plan, prepared by a suitably qualified and experienced ecologist or bushland regeneration expert, that demonstrated how the proposed area of retained vegetation comprising the EEC would be managed and conserved in perpetuity. It is not sufficient, as Mr Herbert had recommended and the applicants’ condition of consent proposed, to defer consideration of this critical issue to another time (after consent has been granted and prior to vegetation clearing being undertaken) and another decision maker (for the approval of the Council). The Court, exercising the function of the consent authority to determine the development application, must weigh up and consider all relevant matters, and having done so, determine the development application. It cannot exercise this function if it leaves a critical issue of the impact of the development on the EEC, namely whether the area of retained vegetation will be managed and conserved in perpetuity to maintain and enhance its biodiversity values as an EEC, to a time after consent has been granted and to a decision maker other than the Court: see Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88 at [91]-[96].

175. In relation to the koala habitat on the site, the proposed subdivision does not achieve the performance criteria in Appendix 4 (a) to (e) of CKPoM, as the proposed subdivision does not minimise the removal or degradation of native vegetation within Preferred Koala Habitat; minimise the removal of koala feed trees, the Forest Redgums; make appropriate provision for the restoration and rehabilitation of sufficient areas of koala habitat; or make provision for long-term management and protection of sufficient areas of koala habitat, including both existing and restored habitat.

176. There is a further issue as to the practicality of requiring one lot owner, the owner of proposed Lot 203, to manage and conserve an area of retained vegetation as an EEC. In the absence of a draft Biodiversity Management Plan, it is not possible to assess the extent, difficulty and cost of work that would be required to manage and conserve this area as an EEC. Nevertheless, the work required to revegetate and conserve the EEC could be considerable and most likely would need to be undertaken in perpetuity by a qualified and experienced ecologist or bushland regeneration expert, at an ongoing cost to the owner. As the extent, difficulty and cost of implementing a Biodiversity Management Plan increases, so does the risk that the owner will fail to comply with any condition of consent requiring implementation of the Biodiversity Management Plan. This evidently would lead to the degradation and potential loss of the EEC on the site.

177. Together, the inadequacies of the proposed avoidance and minimisation measures lead to an unacceptable risk that the proposed subdivision will have adverse effects on the EEC and preferred koala habitat on the site, justifying refusal of consent to the subdivision.

Conclusion and orders

178. The site is within an urban release area and is suitable for subdivision for residential lots. The particular subdivision proposed by the applicants, however, is not one that is an appropriate subdivision of the site. First, the subdivision layout fails to provide for a local street, constructed to the standard of a bus route, connecting Dawson Road to Dairyman Drive through the site, as required by Part D13 of PSDCP 2014. The problem is not that the applicants do not propose to construct this local street and dedicate it to the Council free of cost, it is that they have not provided such a local street at all. The disconnected driveways are not functionally equivalent to the local street required by PSDCP 2014.

179. Second, the subdivision does not avoid or mitigate to an acceptable degree the adverse effects of the subdivision on the EEC and preferred koala habitat on the site. A different subdivision layout could have avoided and mitigated those adverse effects to a greater extent.

180. The development application for the subdivision should be refused. The applicants need to prepare a different subdivision layout to address the shortcomings and the adverse effects of the current subdivision layout.

181. The Court orders:

1. The appeal is dismissed.

2. Development application no 16-2019-266-1 for the subdivision of Lot 16 DP32005 known as 4 Kuranga Avenue, Raymond Terrace is determined by refusal of consent.

3. The exhibits except for Exhibits V, X and Y, are to be returned to the party tendering the exhibit.

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Decision last updated: 02 June 2021