UPG 72 Pty Ltd v Blacktown City Council

[2025] NSWLEC 29

Land and Environment Court

New South Wales

Medium Neutral Citation:

UPG 72 Pty Ltd v Blacktown City Council [2025] NSWLEC 29

Hearing dates:

13, 14, 15 and 16 May 2024 and 20, 22 May and 20 December 2024 and 28 January 2025 (further written submissions)

Date of orders:

1 April 2025

Decision date:

01 April 2025

Jurisdiction:

Class 3

Before:

Pepper J

Decision:

See orders at [224].

Catchwords:

COMPULSORY ACQUISITION: proper characterisation of the public purpose – whether council empowered to acquire land for the public purpose of precinct land release for housing – whether council empowered to acquire land for the purpose of the provision of trunk drainage infrastructure – public purpose that of the provision of drainage channel and Green and Golden Bell Frog habitat – applicable principles in determining the public purpose – determination of the underlying hypothetical zoning of the acquired land – zoning is both E2 Environmental R2 Low Density – valuation methodology – direct comparison approach – whether betterment – calculation of market value – disturbance – respondent to pay the applicant’s costs.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 3.9, 3.21, 3.32, 3.33, 3.34, 3.35, 3.36, 3.37, 3.41, 3.42, 3.43, 3.44, 3.45, 3.46

Environment Protection and Biodiversity Conservation Act 1999 (Cth), ss 146, 146B

Growth Centres (Development Corporations) Act 1979, ss 5, 14, 17, 23C

Land Acquisition (Just Terms Compensation) Act 1991, ss 3, 4, 42, 54, 55, 56, 66

Local Government Act1993, ss 21, 22, 23, 24, 186

Roads Act 1993, ss 146, 177

Threatened Species Conservation Act 1995, s 126G

Environmental Planning and Assessment Regulation 2000, cl 276

Cases Cited:

Bligh Consulting Pty Ltd v Ausgrid [2016] NSWLEC 75; (2016) 217 LGERA 258

Boland v Yates Property Corporation Pty Ltd [1999] HCA 64; (1999) 167 ALR 575

Coffs Harbour City Council v Noubia Pty Ltd [2024] NSWCA 19; (2024) 258 LGERA 351

Everest Project Developments Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 [2010] NSWLEC 88; (2010) 177 LGERA 43

Goldmate Property Luddenham No 1 Pty Ltd v Transport for New South Wales [2024] NSWCA 292; (2024) 262 LGERA 24

Housing Commission of New South Wales v San Sebastian Pty Ltd [1978] HCA 28; (1978) 140 CLR 196

Keller and Keller v Blacktown City Council [2023] NSWLEC 133

Marroun v Roads and Maritime Services [2012] NSWLEC 199

Michele Melino and three others in their capacity as executors of the Estate of the late Costanzo Melino v Roads and Maritime Services [2017] NSWLEC 118; (2017) 226 LGERA 337

RD Miller Pty Ltd v Roads and Maritime Services NSW [2020] NSWCA 241; (2020) 103 NSWLR 234

Richardson v Roads and Traffic Authority (1996) 90 LGERA 294

Roads and Traffic Authority (NSW) v Mosca [2006] NSWCA 159; (2006) 146 LGERA 335

Roads and Traffic Authority (NSW) v Perry [2001] NSWCA 251; (2001) 116 LGERA 244

Spencer v Commonwealth [1907] HCA 82; (1907) 5 CLR 418

State of Queensland v Springfield Land Corporation (No 2) Pty Ltd [2009] QCA 381; (2009) 171 LGERA 38

Sydney Metro v G & J Drivas Pty Ltd [2024] NSWCA 5; (2024) 258 LGERA 197

Turner v Minister of Public Instruction [1956] HCA 7; (1956) 95 CLR 245

Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5; (2008) 233 CLR 259

Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156

Category:

Principal judgment

Parties:

UPG 72 Pty Ltd (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
T To with L Nurpuri (Applicant)
M Astill (Respondent)

Solicitors:
Macpherson Kelley (Applicant)
Maddocks Lawyers (Respondent)

File Number(s):

2022/310394

Publication restriction:

Nil

JUDGMENT

Blacktown City Council Compulsorily Acquires UPG’s Land

1. On 10 December 2021 (“the acquisition date”), the respondent, Blacktown City Council (“the Council”), compulsorily acquired Lot 31 in DP 1246761 (“the acquired land”). The land was acquired for the stated purposes of SP2 Drainage, which included both drainage infrastructure and the creation of habitat for the Green and Golden Bell Frog (“GGBF”).

2. On 14 September 2022 the Council offered the applicant, UPG 72 Pty Ltd (“UPG”), compensation in the sum of $2,494,984.44 as determined by the Valuer General under s 42(1) of the Land Acquisition (Just Terms Compensation) Act 1991 (“Just Terms Act”), which comprised $2,460,000 for market value and $34,984.44 for losses attributable to disturbance.

3. UPG objects to the amount of compensation offered by the Council pursuant to s 66 of the Just Terms Act. It commenced a Class 3 appeal against the determination on 18 October 2022.

4. UPG seeks compensation in the sum of $7,035,521.20, which is based upon a market value calculated principally by reference to R2 Low Density Residential (“R2”) zoning with subdivision potential for 18 housing lots totalling approximately $7 million with disturbance losses in the amount of $35,521.20.

5. By contrast, the Council contends for nil compensation.

6. For the following reasons I have determined that compensation for the compulsory acquisition of UPG’s land is payable in the sum of $1,235,521.20.

7. The finalisation of this decision was delayed while the Court and the parties awaited the determination of the appeal in Goldmate Property Luddenham No 1 Pty Ltd v Transport for New South Wales [2024] NSWCA 292; (2024) 262 LGERA 24.

UPG Purchases the Land

8. On 8 July 2020 UPG became the registered proprietor of Lot 7 Section N in DP 712 (“Lot 7”). UPG purchased Lot 7 for $7,500,000.

9. By plan of redefinition registered on 27 November 2020, DP 712 was replaced by DP 126129, pursuant to which Lot 7 became Lot 100 in DP 126129, with an area of 2.025 ha (“original lot”):

10. Pursuant to development consent DP 1246761 was registered on 19 April 2021, which subdivided the original lot to create 31 lots and 3 future public roads:

11. As at the acquisition date, UPG had sold some of the lots but remained the registered proprietor of Lots 4, 5, 11, 14, 17, 19, 20, 22, 24, 25 and 30 in DP 1246761 (“adjoining land”), marked in green in the below annotated version of DP 1246761:

Planning History

12. On 9 December 2004 the NSW Government announced the proposed release of land for urban purposes in Western Sydney, stating that:

1. “at least 150,000 homes will be built in Sydney’s sprawling outer suburbs”. The $8 billion project was aimed to “overcome Sydney’s chronic land shortage”;

2. the land release would create 80 new suburbs in the areas comprising the North West Growth Centre and the South West Growth Centre in Western Sydney; and

3. the establishment of a new body, namely, the Growth Centres Infrastructure and Planning Commission (later established as the Growth Centres Commission) (“GCC”), to manage and expedite the urban release across both growth centres.

13. With the announcement, the NSW Government published a series of “Fact Sheets”. Fact Sheet 1, entitled “A New Approach to Land Release” stated the following:

The NSW Government’s Plan for Land Releases in the North West and South West Sectors of Sydney is one of the major chapters in the Metropolitan Strategy.

. . . .

New release areas will accommodate 30 to 40 per cent of this growth over the next 30 years, the majority of which will be located in the North West and South West sectors. The remaining growth will be accommodated in the existing Sydney area.

Releases in the North West and South West sectors will provide for 160,000 homes over the next 30 years, which will accommodate at least 250,000 people.

14. Fact Sheet 6, entitled “The Growth Centres Commission” stated:

A Growth Centres Commission will be established under the Growth Centres (Development Corporations) Act (1974). It will be accountable to the Minister for Infrastructure, Planning and Natural Resources and the Treasurer.

The Commission will coordinate the orderly rollout of land release and infrastructure.

It will work with Local Councils in developing the plans for the Growth Centres which will be included in Local Environmental Plans.

. . .

Councils will work cooperatively with the Commission to provide the best planning and infrastructure solution for Growth Centres.

Councils will also work with the Commission to prepare plans for individual precincts as they are released for urban development. This work will result in new detailed zoning provisions in each council’s local environmental plan to reflect new land uses in these areas (such as residential, commercial and industrial lands). Councils will also identify local infrastructure requirements in these areas (such as local parks, drainage and local roads) and prepare local developer contribution plans.

15. Precinct Plans were not formalised through local environmental plans, but instead were adopted as appendices to the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (“Growth Centres SEPP”).

NSW Government Land Release

16. By June 2005 the NSW Government had further developed the policy announced by it in December 2004, as outlined in the following documents published by it:

1. Managing Sydney’s Growth Centres;

2. Planning Report for the North West Growth Centre; and

3. Infrastructure Report on the Growth Centres.

17. Managing Sydney’s Growth Centres included the following information:

1. under “Land Release Plan” it said:

In December 2004, the Government released an innovative plan outlining the future of land releases in the North West and South West of Sydney. It will see the development of an estimated $7.8 billion of infrastructure, including roads, rail, bus networks, educational and health services, linked to the staged release of land for new homes.

The Government is planning for growth in Sydney of up to 1,000 people a week. Combined with the trend of fewer people in each house, this means planning for an additional 23,500 homes every year.

New communities of 100,000 new dwellings in the South West, including Edmondson Park, and 60,000 new dwellings in the North West, will be released over the next 25 to 30 years. Combined with other sites on existing land release programs or under investigation, this will provide 220,000 dwellings over 25 to 30 years.

This will provide for 30 to 40% of new housing in new release areas, and 60 to 70% in existing parts of Sydney.

2. under “The Assessment, Release and Approvals Process” it stated:

A Land Release Advisory Committee (comprising representatives from the Cabinet Office, the Department of Infrastructure, Planning and Natural Resources — DIPNR, local councils, an industry representative, a probity adviser and a Sustainability Commissioner) recommended the initial areas to be released in each growth centre.

These recommendations were then assessed and endorsed by the NSW Cabinet.

The Growth Centres Commission will be responsible for the identification of subsequent release areas. The staging and release of future precincts will be then subsequent release areas. The staging and release of future precincts will be the subject of strict probity requirements including the involvement of the Land Release Advisory Committee. The Growth Centres Commission, through the Minister, will make the recommendation to Cabinet for its endorsement.

In the North West, the first new land release areas will be North Kellyville, Riverstone and Alex Avenue precincts (17,750 dwellings). Lots are expected to be released in 2006/7.

3. under “The New Land Release SEPP” it provided that:

A new planning process will be implemented in the South West and North West growth centuries through a new Land Release State Environmental Planning Policy (SEPP) co-ordinated by the Growth Centres Commission.

The key planning instruments will be the new Land Release SEPP, Precinct Plans which will be incorporated into LEPs, and development applications or plans of subdivision…

The Government will approve land sequencing based on the North West and South West Structure Plans and Infrastructure Plans and land release criteria set out in the SEPP.

4. under “Planning for Released Precincts” that:

The SEPP will introduce a new planning process for precincts that have been released by the Government…

The Growth Centres Commission will be responsible for submitting a plan for each precinct designated for release, to the Minister. The SEPP will incorporate the Precinct Plan into the existing LEP. The Precinct Plan will amend or replace the existing LEP[.] The Precinct Plan will be prepared more quickly than the traditional council LEP process because it will not need to revisit issues that were resolved or agreed to through the development of the Structure Plan, for example, threatened species and heritage. . .

5. under “Future Urban and Future Industrial Areas” it stated:

The growth centres cannot be released for development all at once and will be developed over a 25-30 year period. Accordingly, each Growth Centre has been divided into a number of precincts so that their release can be appropriately staged.

6. and under “The Role of Local Government” it noted that:

Councils will work cooperatively with the Growth Centres Commission to provide the best planning and infrastructure solution for growth centres. A key feature of the Growth Centres Commission is the establishment of two Executive Committees – one each for the North West and South West growth centres, comprising elected members of the local councils.

Councils will also work with the Growth Centres Commission to prepare plans for individual precincts as they are released for urban development. This work will result in new detailed zoning provisions in each councils local environmental plan to reflect new land uses in these areas (such as residential, commercial and industrial lands). Councils will also identify local infrastructure requirements in these areas (such as local parks, drainage and local roads) and prepare local development contribution plans.

18. The Planning Report for the North West Growth Centre stated:

1. under “Overview” that:

The North West and the South West growth centres are the two last remaining areas available within the Sydney basin for new urban development. They represent an opportunity to deliver well designed urban development for future generations.

In December 2004, the NSW Government announced the new Land Release Plan for the North West and South West growth centres of Sydney. This is a key element of the Government’s Metropolitan Strategy, which is dealing with Sydney’s growth and change over the next 25 to 30 years. New communities of around 100,000 new dwellings in the South West, including Edmondson Park, and 60,000 new dwellings in the North West will be accommodated over the next 25 to 30 years.

Combined with other sites on existing land release programs or under investigation, this will provide 220,000 new dwellings over the next 25 to 30 years.

The North West growth centres includes Riverstone, Marsden Park, Vineyard, Box Hill, Riverstone East, North Kellyville as well as Alex Avenue and Schofields

2. under “Riverstone” that:

The Riverstone development precinct was identified as a first release area in the Government’s announcement in December 2004.

3. and under “Environment / Natural Habitats” that:

By identifying land for possible regeneration within areas containing biodiversity, it was possible to allow some isolated fragments of habitat to be removed to produce urban areas large enough to achieve a viable urban structure. The Developable Areas Plan consolidates and expands fragments of habitat into areas that are large enough for them to regenerate in the longer term. They usually take the form of corridors with a minimum width, necessary for particular ecosystems, and are often along streams.

19. The Infrastructure Report on the Growth Centres said:

The land releases in the South West and North West will provide for future urban growth in a way that is very different from what has traditionally been carried out in urban fringe areas.

Regional infrastructure including roads, public transport, water, sewer, education, health, emergency services and open space will be provided when required by the new communities. The infrastructure will be provided sequentially to support precinct release and the delivery requirements will be reviewed periodically to reflect market conditions.

20. On 1 July 2005 the NSW Government created the GCC by gazettal of the Growth Centres Commission Order (“GCC Order”) under ss 5 and 23C of the Growth Centres (Development Corporations) Act 1979 (“Growth Centres Act”).

21. Prior to gazettal of the Growth Centres SEPP, the GCC published a document entitled “Fact Sheet 4 – the Planning Process” that relevantly said the following:

As part of the Metropolitan Strategy, the Department of Planning released the draft Growth Centre Plans in June 2005 for exhibition until October 2005. Following the community's feedback, substantial changes were made to the plans, which were re-exhibited with the draft State Environmental Planning Po/icy [sic] — Sydney Region Growth Centres 2006 (also known as a SEPP) in early 2006.

The SEPP, when gazetted, is the legal instrument that establishes the planning rules and objectives for the Growth Centres. Approval authorities, such as local councils, must apply this policy when they make planning decisions about land within the Growth Centre areas.

The Growth Centres Commission will take over the detailed planning of the Growth Centres following gazettal of the SEPP. A Development Code will be released in the coming months to ensure consistent application of best practice in planning and sustainability.

The Development Code will set out the planning rules to guide new development from the initial staging for release to the design of a precinct to how a neighbourhood will look on the ground. It is intended to be a reference work to generate ideas and provide a guide to best practice.

The Development Code will guide and inform Precinct Planning and the Development Control Plans in the Growth Centres. It is the link to the SEPP and the Structure Plan to make sure that the principles and design elements set at the strategic level are in place to improve the built environment and the way in which communities are shaped. It applies to the regional, neighbourhood, block and lot level.

22. On 28 July 2006 the Growth Centres SEPP was gazetted.

23. The same day, the Environmental Planning and Assessment Amendment (Sydney Region Growth Centres) Regulation 2006 was promulgated (“EPA Regulation Amendment”).

24. The Explanatory Note to the EPA Regulation Amendment included:

The object of this Regulation is to make provision with respect to the release of precincts for residential, employment and other urban development in the North West and South West growth centres of the Sydney Region (including with respect to development assessment during the precinct planning process) in order to support State Environmental Planning Policy (Sydney Region Growth Centres) 2006.

25. The EPA Regulation Amendment introduced cl 276 into the Environmental Planning and Assessment Regulation 2000 (“EPA Regulations”):

276 Growth Centres SEPP—release of precinct for urban development and planning process for the precinct

(1) The Minister may, for the purposes of the Growth Centres SEPP, declare any precinct (or part of a precinct) to be released for urban development. The declaration is to be published in the Gazette and in such other manner as the Minister determines.

(2) The Minister is to make arrangements for the following:

(a)    the preparation of a development code that provides guidelines (in conjunction with the relevant growth centre structure plan) to assist environmental planning in precincts released for urban development,

(b)    the preparation of an infrastructure plan relating to the infrastructure requirements of the growth centres.

(3) The Minister is to consult the Growth Centres Commission, relevant councils and such public authorities as the Minister considers appropriate about the making of declarations and arrangements under this clause.

26. A Fact Sheet published on the GCC website following the making of the Growth Centres SEPP stated:

The NSW Government formally established the Growth Centres Commission under the Growth Centres (Development Corporations) Act 1974 in July 2005 to coordinate the release of greenfield land and the provision of infrastructure in Sydney’s North West and South West Growth Centres.

The Commission is accountable to the Minister for Planning through its independent Board. The Growth Centres will eventually provide around 181,000 dwellings and $7.5 billion in infrastructure for about half a million new residents.

The Commission is responsible for working with infrastructure agencies, industry, local councils, landowners and the community to make the plans for the Growth Centres a reality

27. In October 2006 the GCC published the Growth Centres Code (“Code”). This outlined an 11 step process, taking up to 36 months, from the beginning of precinct planning to the rezoning of a precinct:

28. In respect of the Riverstone Precinct, Step 1 commenced on 4 December 2006, when the Minister for Planning (“the Minister”) made a declaration under cl 276 of the EPA Regulations to release the Riverstone Precinct for urban development.

29. Section 14 of the Growth Centres Act required the GCC to furnish the relevant Minister with a “scheme” that it proposed to implement (“the scheme”). Once approved under s 17 of that Act, the GCC is to “cause the scheme to be implemented by the exercise of its powers under the Act”.

30. The GCC issued its scheme in December 2006 which:

1. identified its aims as follows, namely, to:

coordinate the release of land for urban and employment development in the North West and South West Growth Centres of the Sydney Region;

enable the Minister from time to time to designate land in those Growth Centres as ready for release for urban development;

provide development controls in order to protect the health of the waterways in those Growth Centres.

2. described its charter as:

The Growth Centres Commission’s charter is to coordinate land releases in Growth Centres in Western Sydney, carry out Precinct Planning to effect rezoning of the land, to coordinate the infrastructure required for the rezoned land in a timely fashion and collect a contribution from the rezoned land to part fund the infrastructure.

Under the State Government’s Metropolitan Strategy greenfield development will provide 30 - 40% of new housing over the next 25 – 30 years. The Commission has a leading role in assisting the State Government in meeting this target. The Commission will coordinate planning and infrastructure provision to ensure the efficient release of land to the market.

3. and outlined certain Precinct Planning Principles, including:

Precinct Planning involves the preparation of written documents and plans consisting of information, maps and diagrams relating to the future development of land within a precinct. The outcome of the precinct planning process will be:

1 . Rezoning as an amendment to State Environmental Planning Policy (Sydney Region Growth Centres) 2006;

2.    Development Control Plan; and

3.    s.94 Contributions Plan.

31. In February 2007 the GCC exhibited a Draft Growth Centres Conservation Plan (“Conservation Plan”).

32. Significantly, one of the recommendations contained in the Conservation Plan was the:

…investigation of a threatened population of Green and Golden Bell Frog to provide for its management and protection within the Growth Centres.

33. Part 6.3 of the Conservation Plan, dealing with “Threatened Fauna” referred to the GGBF as follows:

Of the 22 species identified, the conservation of all but one will be supported through the Growth Centre protected land and offset package. The remaining species, a potential population of Green and Golden Bell Frog at Riverstone, will require additional management consideration and actions to meet the Maintain or Improve test, as follows:

1.   Investigate the potential Riverstone population during precinct planning;

2.   If the species or suitable habitat is confirmed, then either:

a.   protect the habitat via the precinct plan; and/or

b.   support management of any habitat or population that is on public land at Riverstone (e.g. school grounds), and/or on private land via conservation agreements; and/or

c.   seek to confirm the presence of the species or suitable habitat within the Growth Centres protected lands (e.g. Air Services site).

Outcome: implement the above recommendations to ensure an Improve or Maintain outcome for the Green and Golden Bell Frog.

34. On 14 December 2007 a Biodiversity Certification Order (“BC Order”) was published in the Government Gazette which conferred biodiversity certification on the Growth Centres SEPP under s 126G(1) of the Threatened Species Conservation Act 1995 (“TSC Act”).

35. The BC Order stated that:

Pursuant to section 126H of the Act, the biodiversity certification of the SEPP is subject to the conditions listed in Schedules 1, 2, 3 and 4 below. The conditions are necessary to ensure that the SEPP and other relevant measures will lead to the overall improvement or maintenance of biodiversity values, including the limiting of certification to specified lands, procedures for the allocation of conservation funding for offsets, and mechanisms for the on-going review of progress in delivering offsets.

36. The explanatory note to the BC Order observed as follows:

A   Nothing in this biodiversity certification order:

(i) restricts any future decisions that may be made by the Minister under Part 7, Division 5 of the Act,

(ii)    removes, alters or over-rides any requirement to obtain any necessary approvals under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999.

B In accordance with section 126K of the Act, following any review of the SEPP under the Environmental Planning and Assessment Act 1979 or any rezoning of land to which the SEPP applies, the Minister is to reassess the grant of biodiversity certification to determine whether it should be maintained or modified.

37. Measure 18 in Schedule 1 of the BC Order provided as follows:

38. An area shown in “black hatching on the biodiversity certification maps” included the original lot and is shown below as “Non-Certified Area subject to further investigation in accordance with Conditions 14, 17 and 18 of the Biodiversity Certification Order”:

39. In the pursuit of precinct planning, the GCC commissioned three separate reports:

1.1.1 Part 1 of 3: Ecological Assessment

1.1.2 Part 2 of 3: Riparian Corridor Assessment

1.1.3 Part 3 of 3: Water Sensitive Urban Design and Flooding Assessment (“WSUD Assessment”).

40. The Riparian Corridor Assessment was undertaken by GHD in July 2008. It recommended the “Removal and/or incorporation into WSUD strategy of category 3 drainage lines T4”. “Drainage line T4” was the watercourse traversing the acquired land.

41. The WSUD Assessment in its Executive Summary said:

A WSUD strategy for management of stormwater quality, quantity and flooding has been developed for the precincts, that nominates vegetated swales and precinct scale co-located detention / bio-detention basins at key locations. These systems would essentially comprise a dry basin (to provide detention function) combined with bio-retention (to provide water quality treatment function) situated in the invert of the basin.

42. It went on to say under the heading “WSUD Management Strategy – General – Principles”:

In general the principles for stormwater management at the sites should aim to retain as much stormwater as possible on site, transport as little stormwater as possible to receiving waters, ‘lose’ as much stormwater as possible along the treatment train and slow the transmission of stormwater to receiving waters.

43. In November 2008 the GCC published a Precinct Planning Report, which was informed by the three separate reports referred to above:

1. the Executive Summary observed that:

The Riverstone Precinct is located in the North West Growth Centre and is approximately 1,150 hectares in size. The Precinct currently supports a number of existing urban areas in Riverstone and Schofields including an existing Industrial Area and Town Centre. The Precinct presents a number of challenges to Precinct Planning due to unique characteristics including the highly fragmented nature of the Precinct, the existing urban areas, extensive areas of flood prone land, large tracts of Cumberland Plain Woodland and existing native vegetation, small lot subdivision within the Riverstone Scheduled Lands to the north and a possible Green and Golden Bell Frog habitat to the South.

2. the Background Section noted that:

The Minister for Planning will progressively release Precincts within the North West and South West Growth Centres. Once a Precinct is released, Precinct Planning enables the land to be developed. This includes rezoning of the land through an Amendment to State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (the Growth Centres SEPP), preparation of a Development Control Plan (DCP), a Section 94 Contributions Plan (s. 94 Plan) and coordination of infrastructure planning and funding.

3. in relation to the GGBF, the Report stated under the headings “4 Specialist investigations” and “4.2 Biodiversity” that:

While Green and Golden Bell Frogs were not recorded by recent studies, the close proximity of a known breeding population and the presence of a potential habitat make it impossible to rule out their existence within the Riverstone Precinct. It is appropriate to adopt the Precautionary Principle in this instance.

GHD concludes that their presence is most likely in this area however the exact location of the frog’s habitat cannot be identified. As a result, further studies during the frog’s active period (Spring/Summer) need to be carried out and appropriate management strategies must be adopted.

Given that it is likely that GGBF may be encountered within the Riverstone Precinct, it is recommended that development proposals assess the potential of this species to occur under the protocols of the Commonwealth EPBC Act.

4. and at Part 7, the Report made the following reference to the GGBF:

Further investigation of the potential for Green and Golden Bell Frogs is to be undertaken prior to gazettal…

DECC be involved in and notified of the findings of the Green and Golden Bell Frog studies in the black hatched area.

44. In relation to the drainage functions of the Precinct, in section “4.4.1 Riparian Assessment”, the Precinct Planning Report stated:

The report addresses the various legislative requirements of the WMA and contains recommendations relating to the classification of streams and the preparation of a 'preferred riparian corridor network'. The analysis of available information and negotiation with DWE has resulted in a preliminary agreement to the proposed riparian corridor network in Figure 10. Further negotiation is now required to gain complete approval and identify an appropriate management regime. This proposed network, the classification of streams and their associated riparian corridors have been incorporated into the Riverstone draft ILP.

. . .

The report specifies the following buffer widths in accordance with the WMA:

Category Three Stream — minimum width of 10 metres

Category Two Stream — minimum Core Riparian Zone (CRZ) of 20 metres and vegetated buffer of a further 10 metres

Category One Stream — minimum CRZ of 40 metres and a vegetated buffer of a further 10 metres.

The provision of these buffers could potentially have an effect on developable land adjacent to creek lines and may increase bushfire risk due to revegetation. Advice from DWE indicates that a number of uses may be located within the vegetated buffer but not within the CRZ. These activities include pedestrian and cycle facilities, drainage and stormwater management functions, APZs and playing fields. The preliminary stream classification proposed by GHD for the Riverstone Precinct provides a sustainable balance between development opportunities and environmental outcomes within an urban setting. The function of the corridor network will be supplemented by WSUD initiatives.

45. Figures 10 and 11 in the Precinct Planning Report showed the acquired land as a proposed “Basin” with a “Drainage Path” leading to it from the west.

46. Further, in relation to the drainage functions of the Precinct, under the headings “4 Specialist Investigations / 4.4 Water Cycle Management / 4.4.2 Water Sensitive Urban Design”, the Precinct Planning Report stated as follows:

GHD Pty Ltd undertook a WSUD and flooding assessment of the Alex Avenue and Riverstone Precincts. The study relates to the water cycle and flooding management of the Precinct including the managing of surface water, flooding and general water cycle based on the principles of WSUD. A key objective of the study was to establish an integrated natural environment management strategy, based on WSUD principles, that:

Is acceptable to stakeholders and meets water quality objectives

Meets identified stormwater targets

Effectively manages the quality and quantity components of stormwater runoff within the catchments

Meets potable water supply conservation targets and identifies sustainable options for water supply, wastewater and stormwater servicing

Optimises the land take to implement the above strategies with consideration for urban design, salinity risk and riparian corridor protection measures

Includes an implementation plan to ensure the provision and effective ongoing management of services and facilities

Address environmental site management issues likely to arise during the construction phase.

…

Without WSUD the Riverstone Precinct would have the following impacts:

Increased stormwater runoff, which will effect sensitive aquatic habitats, water quality and wetting cycles

Reduction in rainwater infiltration and decreased groundwater recharge

Disturbance of groundwater flow due to site compaction, landscaping and earthworks.

47. Under the heading “Implications for Precinct Planning” in the Precinct Planning Report the need to mitigate potential flooding was discussed:

The need to mitigate flooding has been dealt with by the ILP through an open channel system of vegetated drainage swales, culverts and detention basins located in the open space network and land set aside for drainage purposes. GHD has prepared preliminary sizings for these features and has determined that swales will generally range in width from 10 to 30 metres. Culverts under the Rail Line in the west will need to be investigated to ensure that they have the capacity to cope with projected flood levels. It is anticipated that the upgrade of many of these culverts will take place with TIDC's upgrade of the Richmond Rail Line.

Where possible, the indicative road layout has been adjusted according to the topography of the site in order to incorporate surface flows into the streetscape. Generally flows have been directed towards the catchments in the east and the west where they are held in detention basins before being discharged into the creeks. Gross pollutant traps and other structural measures are required before discharge into these detention systems. Additional measures to control flooding are contained within the Riverstone DCP and the Water Cycle Management Strategy will be adopted for all development within flood prone areas.

48. To address Measure 18, the GCC commissioned a report from Eco Logical Australia dated April 2009 (“Eco Logical Report”).

49. The Eco Logical Report identified “Habitat areas of the GGBF mapped within the study area” (see Figure 5 of the Report). This included the acquired lands.

50. The acquired land is within the ‘L’ shaped area identified in the Eco Logical Report, as shown below:

51. The Eco Logical Report made various findings and recommendations about GGBF habitat:

The area with greatest potential for being good ephemeral breeding habitat is the large ‘L’ shaped patch of Cumbungi that covers a drainage depression bunded by earthworks (Sites 2 and 3). This vegetation patch is located on the north west side of the end of Regent Street (south).

…

It is here further recommended for consideration that the existing high quality habitat areas within the study area, identified herein, be set aside from any proposed development footprint (‘L’ shaped area mapped and depicted in Figures 5 and 9 and the ill-defined overland flow path connecting the habitat area downstream) and that habitat enhancement initiatives be employed to improve the extent of the various habitat components present in this habitat element in this locality in accord with DECC 2008.

52. An update on biodiversity certification published by the NSW Department of Planning (“the Department”) in mid 2009 noted that:

Biodiversity Certification has been granted over State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (the Growth Centres SEPP). This balances the protection and management of environmental areas with the efficient supply of land for urban development in Western Sydney. It is a first for New South Wales.

. . .

Certification only takes effect once land in 'Certified Areas' in the Growth Centres Precincts is rezoned under the Growth Centres SEPP.

53. In April 2010, following precinct planning for the Riverstone Precinct, the Department prepared a brief to the Minister for the rezoning of the Precinct by making the State Environmental Planning Policy (Sydney Region Growth Centres) Amendment (Alex Avenue and Riverstone Precincts) 2010 (“Growth Centres SEPP Amendment”).

54. The Explanatory Note to the Growth Centres SEPP Amendment stated:

The proposed SEPP seeks to rezone land in the Alex Avenue and Riverstone Precincts for residential, business, infrastructure and public recreational uses. Parts of the Riverstone Precinct will also be rezoned for environmental conservation and light industrial purposes. The proposed SEPP also specifies development controls, such as residential density, height of buildings and floor space ratio, which will apply to development on land in the Alex Avenue and Riverstone Precincts.

To ensure that development on land in the Alex Avenue and Riverstone Precincts does not adversely impact on environmentally sensitive and natural areas, the proposed SEPP identifies native vegetation retention areas and prohibits the clearing of certain existing native vegetation in the Alex Avenue and Riverstone Precincts. The proposed SEPP also includes a provision to protect the Green and Golden Bell Frog and its habitat in the Riverstone Precinct in accordance with the relevant biodiversity measures in Part 7 of Schedule 7 of the Threatened Species Conservation Act 1993.

…

(c) Changes to land zoned for drainage and local open space purposes

The exhibition draft Precinct Plans for Riverstone and Alex Avenue zoned land SP2 Infrastructure (for drainage purposes) and REI Public Recreation (for local parks). The area of land required for these purposes was a significant contributor to higher than acceptable section 94 contribution rates. Since exhibition, the Department has been working, with input from Blacktown Council, to reduce the area of land required for drainage and local parks, that would be acquired by Council under the terms of the Precinct Plan and the Land Acquisition (Just Terms Compensation) Act 1991.

55. The revised Indicative Layout Plans for the Precincts reduced the area of land required for uses across the precincts, and consequently, increased the amount of land available for development. Revisions to the drainage strategy and provision of local open space resulted in amendments to the boundaries of land zoned SP2 Infrastructure and REI Public Recreation. Impacts on individual properties varied, with some properties being less encumbered by these zones than in the exhibition draft, some retained similar zone boundaries and some properties were more affected. On balance, across the precincts, the total area of land that was available for development increased from 732 ha in the exhibition draft Growth Centres SEPP Amendment to approximately 750 ha in the amended Precinct Plan.

55. The documents before the Minister included:

1. the Post-Exhibition Planning Report (“Post-Exhibition Report”); and

2. an Explanatory Note in relation to the Growth Centres SEPP Amendment.

57. The Post-Exhibition Report stated that the rezoning of Alex Ave and Riverstone Precincts was “to facilitate urban development” and noted that:

Drainage lands in the Riverstone and Alex Avenue Precincts have been set aside to treat and retain water flowing from the urban parts of the Precinct before it is discharged into creeks and rivers. Drainage land includes all land that is required to implement the trunk drainage strategy across the Precincts, including stormwater basins, channels and swales and creek corridors that operate to drain water from the Precincts. Some drainage land also serves a passive or active open space function, such as where sports fields are co-located within stormwater detention basins, or where passive recreation facilities are to be provided adjacent to a creek corridor or water quality basin.

58. The Department commissioned GHD to provide a Report for Riverstone and Alex Avenue Precincts Post-Exhibition Flooding and Water Cycle Management (including Climate Change Impact on Flooding) (“the GHD Report”). The GHD Report noted at 5.2.12 that:

Catchments F28, F29 and F32 lie in the centre of the Riverstone Precinct, adjacent to First Ponds Creek. The catchments drain in an easterly direction to the creek.

In the exhibited stormwater plan, basins were located in Catchments F28, F29 and F32. Through the rationalisation process, the storage volume and bio-retention area of Basins F28 and F32 have been re-sized to offset stormwater quantity treatment for Catchments F28a, F28b, F29b and F29c. Raingardens have been located in Catchments F28a, F29b and F29c to treat stormwater quality from those catchments. Stormwater quality treatment for Catchment F28b has been offset in Basins F28 and F32. On-lot treatment will be utilised for stormwater quality and quantity at the proposed school sites in Catchment F28S.

These catchment rationalisation measures negate the need for a basin in the Catchment F29, and Previous Basin F29 has been removed from the stormwater management plan

59. Part 7.5 of the GHD Report, under the heading “Opportunities for Online Basins”, stated:

In order to further rationalise the drainage infrastructure, the option of providing more online basins was considered. The main advances of providing online basins are:

Less reliance on offsetting catchments with larger detention basins in other catchments;

A reduction in the total number of basins with a number of offline basins being consolidated into a larger online basin; and

Basins are located in flood prone land and hence there is a reduction in the land-take of the trunk drainage infrastructure.

…

Online Basin F28

This basin would be located First Ponds Creek at the location where catchment F28 discharges to First Ponds Creek. Basin F28 would no longer be required and a raingarden would need to be provided at the location of the basin, as well as providing a green and gold bell frog habitat in the area. This basin would utilise a low flow channel for regular rainfall events. The basin was simulated and shown to meet the design criteria for stormwater quality.

60. GHD prepared a NSW Department of Environment, Climate Change and Water (“DECCW”) approved concept plan dated May 2010, depicting the above proposal at Figure 2.1 of the Riverstone Development Control Plan 2010 (“2010 Riverstone DCP”).

61. The “summary of planning outcomes” (Table 1-1) for the Riverstone Precinct showed the various areas that were rezoned for the various purposes listed, including 191 ha for drainage, parks and conservation areas and 614 ha for residential, out of a gross precinct site area of 875 ha. It included other lands such as 39 ha of “other non-developable land”.

62. Part 4.3.1 “Land Zoning” observed:

Numerous submissions objected to the proposed zoning of land under the draft SEPP Amendments, in particular where land is proposed to be zoned for drainage or open space purposes. A review of drainage and open space provision has been undertaken across both the precincts since exhibition, with the intent of reducing the area of land occupied by these uses to reduce section 94 contributions. This has resulted in some changes to the zoning of land, including land that was proposed to be zoned for open space or drainage now to be zoned residential.

63. The “Indicative Layout Plan” in Part 4.9 was in the following relevant terms:

Land identified for the purposes of parks and sports fields, school sites and drainage have been identified based on the projected population for the whole precincts, as indicated in the Precinct Planning Report. These sites have been identified based on future demand for these facilities within each precinct and locations have been chosen based on land suitability and accessibility. Opportunities including the collocation of sports fields and schools, and location of some sports fields outside the Precincts within flood affected land, have been utilised to create more developable land within the Precincts.

As a result of changes to the ILPs since public exhibition, the residential net developable area of the Precincts has increased by approximately 82 hectares.

64. The Post-Exhibition Report described the controls proposed in the Growth Centres Amendment SEPP for the protection of the GGBF in Riverstone as follows:

A new clause has been inserted (clause 6.9) in relation to the creation and protection of habitat for the Green and Golden Bell Frog on certain lands in Riverstone. This clause was required by the Department of Environment, Climate Change and Water (DECCW) to ensure protection of habitat in accordance with condition 18 of the relevant biodiversity measures, as set out in Part 7, Schedule 7 to the Threatened Species Conservation Act, 1995. The clause applies only to land that condition 18 applies to.

65. This was expanded upon under the heading “Biodiversity and Ecology Issues”:

In their submission on the draft Plans, DECCW raised issues regarding Biodiversity Certification – Measure 18 regarding the location of Green and Golden Bell Frogs. Post-exhibition work has been conducted further investigating the location of the species within the Riverstone Precinct. The Riverstone Precinct Plan has been updated to reflect the findings, and to provide suitable habitat for the Green and Golden Bell Frogs based on the findings of the field investigations.

A separate report has been prepared on the Green and Golden Bell Frog assessment and is included as an annex to the Assessment of Consistency between the Relevant Biodiversity Measures of the Biodiversity Certification Order and Alex Avenue and Riverstone Precincts, contained in Volume 2 Technical Studies. Provisions have been included in the Alex Avenue and Riverstone Precinct Plan (clause 6.9) and in the Blacktown Growth Centre Precincts DCP (Schedule 2 – Riverstone Precinct) to ensure the creation and ongoing protection of habitat for the Green and Golden Bell Frog, in accordance with DECCW requirements.

66. An Assessment of Consistency between the Relevant Biodiversity Measures of the Biodiversity Certification Order and Alex Avenue and Riverstone Precincts report (“Consistency Report”) was prepared in April 2010.

67. The Consistency Report discussed compliance with Measure 18 of the BC Order as follows:

Since exhibition, additional targeted surveys have been undertaken on land to which this condition applies to determine the presence of the Green and Golden Bell Frog (refer to report at Annex D). The survey identified the species within the subject lands and identified areas of habitat for protection, in accordance with Option 1.

Consultation with DECCW in relation to the findings of the additional GGBF assessment concluded that the most appropriate means of protecting habitat for the GGBF is to integrate areas of suitable habitat with trunk drainage infrastructure on the subject lands. A concept design has been prepared and agreed to by DECCW. Provisions are proposed in the Alex Avenue and Riverstone Precinct Plan to require protection of GGBF habitat to be considered when assessing development applications (refer to Annex C). [P]rovisions are also included in the Blacktown Growth Centre Precincts DCP (Schedule Two – Riverstone Precinct) to ensure the design, construction and maintenance of trunk drainage works creates and protects suitable habitat for the GGBF and that surrounding development does not impact on the long term viability of the habitat.

The Department intends to request the Minister to amend the boundaries of the area subject to certification to reflect the findings of the additional investigations described above.

68. The GGBF survey referred in the Consistency Report is a reference to the Eco Logical Report.

69. The introduction to the 2010 Riverstone DCP set out controls affecting the Blacktown City Council Growth Centre Precincts Development Control Plan 2010 (“2010 Blacktown Growth Centre DCP”). It:

Establishes controls applying to certain lands in Riverstone where habitat is required to be established and protected for the Green and Golden Bell Frog, to satisfy conditions of the relevant biodiversity measures under the Threatened Species Conservation Act 1995.

70. Section 2 of the 2010 Riverstone DCP identified specific controls for GGBF habitat protection:

Objectives

To ensure that drainage works are designed and maintained to provide suitable habitat for the Green and Golden Bell Frog in accordance with the relevant biodiversity measures under Part 7 of Schedule 7 to the Threatened Species Conservation Act 1995;

To ensure that development on land that drains to any drainage basin that also provides habitat for the Green and Golden Bell Frog does not have a significant detrimental impact on the quality of water that enters the habitat area.

Controls

1. The design and construction of development, including drainage and flood mitigation works, on land that is zoned SP2 Drainage and is within land to which clause 6.9 of the Alex Avenue and Riverstone Precinct Plan applies is to be consistent with the Best Practice Guidelines Green and Golden Bell Frog Habitat (DECC 2008).

2.   The design process is to include consultation with the Department of Environment, Climate Change and Water and to incorporate comments from the Department on the design (where provided) prior to the granting of any consent.

3.   The design of any development on land referred to in control 1 above is to be generally consistent with the preliminary concept design shown on the Basin Design – Green and Golden Bell Frog Habitat figure.

4.   Prior to constructing development to which control 1 above applies, Blacktown Council is to prepare a management plan for the subject drainage lands that specifies measures to be undertaken by Council to ensure the ongoing maintenance and management of the drainage works to preserve suitable habitat for the Green and Golden Bell Frog. The management plan is to include measures relating to:

a.   Specifications for any devices necessary to manage the quality of water entering the basin such as gross pollutant traps and other measures to reduce concentrations of sediment and contaminants in stormwater prior to entry to the basin.

b.   The detailed design of habitat features within the drainage basin, including plant species selection, the design of other habitat features for refuge and foraging, and the design and operation of systems to manage the flow of water within the ephemeral and permanent ponds in the basin.

c.   Regular inspection and maintenance works to ensure protection of the habitat features of the pond, including monitoring of plant health, water quality, the condition of foraging and refuge habitats, any signs of vandalism or other disturbance, the presence of invasive or threatening flora or fauna species, sediment accumulation and removal.

71. The preliminary concept design referred above was Figure 2.1 of the 2010 Riverstone DCP:

72. The Growth Centres SEPP Amendment was gazetted on 17 May 2010. It introduced the Alex Avenue and Riverstone Precinct Plan 2010 at Appendix 4 to that SEPP (“Precinct Plan”).

73. Prior to the promulgation of the Growth Centres SEPP Amendment, the original lot (which included the acquired land) and surrounding lands were zoned Rural 1(a) (“Rural”) under the Blacktown Local Environmental Plan 1988 (“BLEP”).

74. The Growth Centres SEPP Amendment rezoned the acquired land to SP2 – Local Drainage. Surrounding lands, including the balance of the original lot was zoned for a range of urban uses, shown in the Land Zoning Map below:

The Acquisition

75. Clause 5.1 of the Precinct Plan identified the Council as the “authority of the State” required to acquire land zoned SP2 and marked “Local Drainage” for the purposes of Pt 2, Div 3 of the Just Terms Act. As a consequence, upon the Minister making the Growth Centres SEPP Amendment, the Council was required to resume the acquired land.

GGBF Protections

76. Clause 6.9 of the Precinct Plan dealing with GGBF applied to the Non-Certified Land subject to Measure 18 of the BC Order.

77. Clause 6.9(3) and (4) dealt with development on rezoned SP2 land within the Non-Certified Land area, which included the acquired land:

(3)    Consent must not be granted for any development on the land to which this clause applies that is within Zone SP2 Infrastructure and marked “Drainage” unless the consent authority is satisfied that the development is consistent with any recovery plan (within the meaning of the Threatened Species Conservation Act 1995) for the Green and Golden Bell Frog or, if no such plan has been prepared and approved under that Act, the draft recovery plan for that frog prepared by the Department of Environment and Conservation dated February 2005.

(4)    Consent must not be granted for development on land to which this clause applies unless the consent authority is satisfied that the development will not adversely affect the quality and condition of any habitat of the Green and Golden Bell Frog on the land to which this clause applies that is within Zone SP2 Infrastructure and marked “Drainage”.

78. The Commonwealth Minister for the Environment and Heritage (“Minister for the Environment”) had listed the GGBF as a “vulnerable” species for the purposes of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (“EPBC Act”) on 11 July 2000. The effect of this listing was to protect GGBF under the EPBC Act. Protection of such species are “matters of national environmental significance” under Pt 3, Div 1 of the EPBC Act.

79. On 11 November 2009 the Commonwealth and the NSW Government entered into a strategic agreement under s 146 of the EPBC Act with respect to development in the Growth Centres. The terms of reference that accompanied the agreement included “preventing impacts on matters of national environmental significance”.

80. In November 2010 the NSW Government commissioned the Sydney Growth Centres Strategic Assessment – Supplementary Report (“Strategic Assessment - Supplementary Report”), where it was observed with respect to GGBF that:

1. under “Adequacy of Conservation within the Growth Centres”:

The key matters of national environmental significance that are relevant to the Program are:

…

four threatened fauna species, including the Swift Parrot, Green and Golden Bell Frog, Large-eared Pied Bat and Grey headed Flying-fox…

2. under Section 6.2 – Outcome for Each Matter of NES (being matters of national environmental significance that were likely to, or had the potential to, be impacted through implementation of the Sydney Growth Centres Program), the Report noted that:

Green and Golden Bell Frog

The Green and Golden Bell Frog has been recorded in the North West Growth Centre at Riverstone, and there are numerous records outside of the Growth Centres within the broader Western Sydney region. There are no records for the species within the South West Growth Centre.

The habitat supporting the two records of Green and Golden Bell Frog in the Riverstone Precinct occurs within a non-certified area under the Growth Centres Biodiversity Certification. The final Precinct Plan requires protection of Green and Golden Bell Frog habitat to be considered during the assessment of development applications. Controls require that consent must not be granted for the subject land unless the consent authority is satisfied that the development is consistent with any Recovery Plan for the species and that the development will not adversely affect the quality and condition of any habitat

Additional provisions are also included in the Blacktown Growth Centre Precincts Development Control Plan (Schedule Two – Riverstone Precinct) to ensure the design, construction and maintenance of trunk drainage works creates and protects suitable habitat for the Green and Golden Bell Frog and that surrounding development does not impact on the long term viability of the habitat. However, given the existence of areas of similar habitat elsewhere within the Riverstone Precinct (along much of the flood prone areas) and the wider North West Growth Centre there is some potential for impacts to the species outside of the non-certified area. Major drainage lines and associated vegetation throughout the Growth Centres will be retained through the development controls placed on flood prone areas. It is considered that these measures will provide adequate protection for potential Green and Golden Bell Frog habitat.

81. Following the Strategic Assessment - Supplementary Report, the Minister for the Environment made an endorsement decision under s 146 of the EPBC Act. The Minister’s press release at the time stated:

The Australian and NSW governments have signed off on a program which paves the way for 30 years of sustainable growth in western Sydney.

…

“Sydney now has a framework for urban growth for the next 30 years that cuts red tape and provides planners, developers and the community with long-term certainty”.

82. In January 2012 an addendum to the Strategic Assessment - Supplementary Report was published by the NSW Government (“Addendum”). In the Addendum the NSW Government observed that:

The matters of national environmental significance discussed below are focused on those matters for which conservation activities are considered necessary…These include… [the] Green and Golden Bell Frog.

83. Under the heading “Threatened Fauna – Green and Golden Bell Frog”, a table in the Addendum contained the following:

Commitments	Actions	Responsibility	Timing
34. Protection and enhancement of potential and known habitat for the Riverstone element of the Western Sydney key population of the Green and Golden Bell Frog	a) Incorporation of habitat protection and enhancement features (as per the agreed concept design) in the Riverstone Precinct Development Control Plan for the trunk drainage land. b) Inclusion of provisions in the Riverstone Precinct Plan and Development Control Plan to require the design and assessment of development on subject lands to be consistent with any recovery plan for the species and the Best Practice Guidelines for Green and Golden Bell Frog Habitat (DECC 2008b).	DoP & DECCW	Development control plan finalised in May 2010 Zoning and development controls finalised in May 2010

84. On 28 February 2012 the Minister for the Environment approved an endorsed program under s 146B of the EPBC Act (“EPBC Act approval”) for:

All actions associated with the development of the Western Sydney Growth Centres as described in the Sydney Growth Centres Strategic Assessment Report (NSW Government, November 2010).

85. The Explanatory Note for the EPBC Act approval said:

This approval decision is made under section 146B of the EPBC Act which provides for the Minister for the Environment to approve actions, or classes of actions, undertaken in accordance with a policy, plan or program. An approval under section 146B of the EPBC Act has the same effect as an approval given under Part 9 of the EPBC Act, therefore actions approved under this decision will not require separate referral, assessment or approval under the EPBC Act in order to be taken.

86. On 4 March 2015 the Minister amended the boundaries of certified land in the BC Order to include the previously non-certified land which encompassed the original lot.

Development of the Original Lot

87. On 22 August 2017 development application 2017-01754 (“2017 DA”) was lodged in respect of the original lot. The 2017 DA sought consent to subdivide the lot into 34 residential lots, with approval for earthworks, construction of public works, drainage works and tree removal.

88. On 27 June 2019 Council issued development consent for the 2017 DA (“2019 consent”).

89. The 2019 consent subdivided the original lot into 31 lots, comprising:

1. Stage 1 – for 29 residential dwelling house lots (“dwelling lots”); and

2. Stage 2 – five residual lots (“residual lots”), which included Lot 31 (that is, the acquired land).

90. One of the residual lots was Lot 30 (1,206 m²), which was approved on the northern side of one of the proposed roads, Pina Rd. Lot 30 was identified on the approved site plan as accommodating a future temporary on-site detention (“OSD”) basin as part of Stage 1 of the subdivision.

91. On 11 September 2020 UPG lodged modification application 2020-00406 in respect of the 2017 DA, seeking changes to the subdivision layout and lot sizes to include Stage 2.

92. On 20 November 2020 the Council modified the 2019 consent. The approved subdivision plan identified the footprint area of Lot 30 as accommodating a further five residential dwelling lots upon the completion of the regional trunk detention basin at First Ponds Creek.

The Evidence of the Parties

93. UPG relies upon the following evidence:

1. a hydrology report prepared by Dr Daniel Martens, dated 9 August 2023 (“Martens Report”);

2. an ecology report prepared by Nathan Garvey, dated 11 September 2023 (“Garvey Report”);

3. a town planning report prepared by Paul Grech, dated 14 September 2023 (“Grech Report”); and

4. a valuation report prepared by Michael Dyson, dated 12 April 2024 (“Dyson Report”).

94. In response, the Council relied upon the following evidence:

1. a hydrology report prepared by Martin Giles, dated 1 August 2023 (“Giles Report”);

2. an ecology report prepared by Michael Sheather-Reid, dated 12 September 2023 (“Sheather-Reid Report”);

3. a town planning report prepared by Anthony Rowan, dated 21 December 2023 (“Rowan Report”); and

4. a valuation report prepared by Grahame Hollinshead, dated 18 April 2024 (“Hollinshead Report”).

95. The following joint expert reports were tendered:

1. a joint hydrology report prepared by Dr Martens and Giles, dated 26 September 2023 (“Joint Hydrology Report”);

2. a joint ecology report prepared by Garvey and Sheather-Reid, dated 4 October 2023 (“Joint Ecology Report”);

3. a joint town planning joint report prepared by Grech and Rowan, dated 20 February 2024 (“Joint Town Planning Report”);

4. a quantity surveying report prepared by Stephen Bolt and Niall McSweeney, dated 25 March 2024 (“Joint QS Report”);

5. a supplementary quantity surveying report prepared by Bolt and McSweeney, dated 24 April 2024 (“Supplementary Joint QS Report”);

6. a joint valuation report prepared by Dyson and Hollinshead, dated 7 May 2024 (“Joint Valuation Report”); and

7. a supplementary valuation report prepared by Dyson and Hollinshead, dated 14 May 2024 (“Supplementary Joint Valuation Report”).

Principal Issues for Determination

96. The issues that arose for determination were essentially four-fold:

1. first, what was the public purpose for which the acquired land was acquired;

2. second, whether the underlying zoning of the acquired land absent the public purpose would have been R2 (as contended for by UPG), or Rural or E2 Environmental Conservation (“E2”) (as contended by the Council);

3. third, if the land was zoned R2, then:

1. would the first order watercourse be removed;

2. could the first order watercourse be piped; and

3. were there other ways in which water could be conveyed through and off the land; and

4. fourth, in determining the market value of the acquired land did the issue of betterment under s 55(f) of the Just Terms Act arise?

97. The quantum of the claim for disturbance to which UPG is entitled was agreed to by the parties in the amount of $35,521.20.

Legislative Framework

98. The power of the Council to acquire the land is conferred by s 186(1) of the Local Government Act1993 (“Local Government Act”):

A council may acquire land (including an interest in land) for the purpose of exercising any of its functions.

99. The “functions” referred to in s 186(1) include those set out in ss 21, 22, 23 and 24 of that Act:

21   Functions under this Act

A council has the functions conferred or imposed on it by or under this Act. …

22   Other functions

A council has the functions conferred or imposed on it by or under any other Act or law. …

23    Supplementary, incidental and consequential functions

A council may do all such things as are supplemental or incidental to, or consequential on, the exercise of its functions.

24    Provision of goods, services and facilities and carrying out of activities

A council may provide goods, services and facilities, and carry out activities, appropriate to the current and future needs within its local community and of the wider public, subject to this Act, the regulations and any other law.

100. The objects of the Just Terms Act are set out in s 3(1) of that Act. Relevantly, s 3(1)(a) and (b) state:

(1)   The objects of this Act are—

(a)   to guarantee that, when land affected by a proposal for acquisition by an authority of the State is eventually acquired, the amount of compensation will be not less than the market value of the land (unaffected by the proposal) at the date of acquisition, and

(b)     to ensure compensation on just terms for the owners of land that is acquired by an authority of the State when the land is not available for public sale …

101. UPG is entitled to compensation in such amount that will justly compensate it for the acquisition (s 54(1) of the Just Terms Act):

The amount of compensation to which a person is entitled under this Part is such amount as, having regard to all relevant matters under this Part, will justly compensate the person for the acquisition of the land.

102. In determining the amount of compensation to which UPG is entitled, regard must be had to the matters set out in s 55(a)-(f) of the Just Terms Act:

55    Relevant matters to be considered in determining amount of compensation

In determining the amount of compensation to which a person is entitled, regard must be had to the following matters only (as assessed in accordance with this Division)—

(a)    the market value of the land on the date of its acquisition,

(b)    any special value of the land to the person on the date of its acquisition,

(c)    any loss attributable to severance,

(d)    any loss attributable to disturbance,

(e)    the disadvantage resulting from relocation,

(f)    any increase or decrease in the value of any other land of the person at the date of acquisition which adjoins or is severed from the acquired land by reason of the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired.

103. The only matters that are relevant in the present case are the “market value of the land” as at the date of its acquisition (s 55(a)), betterment (s 55(f)), and the loss attributable to disturbance (s 55(d)).

104. For the purposes of the Act, the “market value of land” is defined in s 56(1)(a) of the Just Terms Act to mean:

1. Market Value

2. In this Act:

market value of land at any time means the amount that would have been paid for the land if it had been sold at that time by a willing but not anxious seller to a willing but not anxious buyer, disregarding (for the purpose of determining the amount that would have been paid):

(a)   any increase or decrease in the value of the land caused by the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired,…

105. In s 4(1) of the Just Terms Act, the term “public purpose” is defined to mean “any purpose for which land may by law be acquired by compulsory process under this Act.”

Fundamental Principles

106. These provisions, when read together, involve finding a sufficient relationship between the purpose for which the land has been acquired and a change in the value of that land. It requires, first, determining the extent of the “public purpose”, and second, a causal analysis of the impact on the value of the land by the carrying out of, or proposal to carry out, that public purpose.

107. It is settled law that the market value of the land must be determined on the basis of the highest and best use of the land as at the date of acquisition (Turner v Minister of Public Instruction [1956] HCA 7; (1956) 95 CLR 245 and Boland v Yates Property Corporation Pty Ltd [1999] HCA 64; (1999) 167 ALR 575).

108. The land must be valued in the condition in which it existed as at the acquisition date having regard to its potential for redevelopment (Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 175-176). The parties are assumed to be “perfectly acquainted with the land, and cognizant of all circumstances which might affect...value” (Spencer v Commonwealth [1907] HCA 82; (1907) 5 CLR 418 at 441). They are taken to be “fully informed” and as having made “all proper inquiries” (Everest Project Developments Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 [2010] NSWLEC 88; (2010) 177 LGERA 43 at [58]).

109. In determining the market value of land under the Just Terms Act, it is necessary to disregard acts done in the period leading up to the acquisition which are “part of a series of actions leading up to, and done in contemplation of, the making of the decision” (Roads and Traffic Authority (NSW) v Perry [2001] NSWCA 251; (2001) 116 LGERA 244 at 253) to acquire the land for the purpose for which it was ultimately acquired, and which result in “any alteration to the value of the land” (Housing Commission of New South Wales v San Sebastian Pty Ltd [1978] HCA 28; (1978) 140 CLR 196).

110. In determining the market value of the acquired land it is accepted that the Court must give the benefit of any doubt to the dispossessed landowner (Richardson v Roads and Traffic Authority (1996) 90 LGERA 294).

The Public Purpose and Zoning

111. It was not a matter of contention that as at the date of acquisition:

1. the acquired land was zoned SP2 Local Drainage (“SP2”); and

2. the balance of the original lot, including all of the adjoining land, was zoned R2,

under the provisions of the Growth Centres SEPP.

112. That zoning took effect on 17 May 2010, upon the promulgation of the Growth Centres SEPP Amendment which appended the Precinct Plan to that SEPP. The acquired land is within the Riverstone Precinct.

113. Prior to the Growth Centres SEPP Amendment, the original lot and surrounding land in the Riverstone Precinct was zoned 1(a) – General Rural under the provisions of the BLEP.

114. UPG contends that but for the public purpose, the acquired land would have been zoned R2. This is resisted by the Council, who contends that the zoning would have been Rural or E2.

115. The task of ascertaining the hypothetical zoning necessitates a determination on the actual scope of the public purpose having regard to the authorities dealing with the level of particularity or generality at which the public purpose is to be characterised.

Identifying the Public Purpose

116. There are no clear rules to determine how the relevant public purpose at the appropriate level of generality is to be determined (Perry at [100] per Hodgson JA). Suffice it to say, as was observed by Pain J in Bligh Consulting Pty Ltd v Ausgrid [2016] NSWLEC 75; (2016) 217 LGERA 258, “the public purpose must not be defined too narrowly or too broadly” (at [33]). Rather, “factors to be taken into account include the degree of continuity and consistency of various elements of what is proposed and done, and fairness to both the claimant and the acquiring authority” (Coffs Harbour City Council v Noubia Pty Ltd [2024] NSWCA 19; (2024) 258 LGERA 351 at [62] per Payne JA).

117. In addressing fairness to both the claimant and the acquiring authority, recourse must be had to the legislative purpose of the Just Terms Act set out in s 3(1) of that Act (Noubia at [64]-[65] per Payne JA):

64   In addressing fairness to both the claimant and the acquiring authority, the legislative purpose of the Just Terms Act is important. Section 3(1) sets out the objects of the Act…

65 No doubt the reference in paragraph (a) to the “market value of the land (unaffected by the proposal)” is a reference to s 56(1)(a) but s 3(1)(a) does not indicate what sorts of effects of the proposal are to be taken into account. Of more significance is paragraph (b), which refers to ensuring “compensation on just terms”. That intention is further manifest by s 54(1) of the Act, which provides that the amount of compensation to which a person is entitled “is such amount as, having regard to all relevant matters under this Part, will justly compensate the person for the acquisition of the land”. It is that which is the “dominant test”: Leichhardt Council v Roads & Traffic Authority (NSW) (2006) 149 LGERA 439; [2006] NSWCA 353 at [37]. As has been said in a related context, “[c]ompensation prima facie means recompense for loss”: Nelungaloo Pty Ltd v Commonwealth (1948) 75 CLR 495 at 571; [1947] HCA 58. A key purpose of the Just Terms Act is to provide just recompense for loss. Whilst there will often be a contest about what amounts to just recompense for loss, s 3(1)(b) provides an important touchstone in applying Hodgson JA’s dictum and properly identifying the public purpose of the acquisition at the appropriate level of generality.

118. When read with s 3(1), s 56(1)(a) of the Just Terms Act requires a direct causal connection between any decrease or increase in the value of the land and the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired; an “indirect relationship” is not sufficient (RD Miller Pty Ltd v Roads and Maritime Services NSW [2020] NSWCA 241; (2020) 103 NSWLR 234 at [180] per Preston J and Noubia at [59]-[67] per Payne JA).

A brief survey of the case law

119. It is convenient at this juncture to briefly consider the principal authorities dealing with the proper characterisation of the public purpose.

120. In Perry, at issue was whether the provision of fill from a quarry for a project that resulted in the acquisition of land was an increase in value caused by the carrying out of the public purpose. This required determination of whether the public purpose was the whole of the public highway upgrade from Sydney to Queensland (broad) or just the Perry’s Hill extension (narrow). The Court held that the public purpose was neither that broad nor that narrow. The Court opined as follows (at [100] per Hodgson JA):

100   I do not think there are any clear rules determining how the relevant purpose or the appropriate level of generality is to be determined. Factors to be taken into account would, in my opinion, include the degree of continuity and consistency of various elements of what is proposed and done, and fairness to both the claimant and the acquiring authority. In the present case, I think it unlikely that the relevant public purpose could be as wide as the upgrading of the Pacific Highway between Sydney and the Queensland border; while on the other hand, assuming there have been a number of versions of the Perry's Hill extension, I think it unlikely that the public purpose could be as narrow as just the last of those versions. The public purpose could be as wide as the Raleigh Deviation generally, encompassing all the variations of that project including all versions of the Perry's Hill extension, or it could be somewhat narrower.

121. The High Court established in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5; (2008) 233 CLR 259 that the public purpose is determined by reference to the acquiring authority and its intended use of the land (at [53] and [54], footnotes omitted):

53   The Foreshore Authority submitted that (i) the statutory definition required what might be called a Spencer's Case valuation in the sense explained above; but (ii) this was to be followed by any disregard which par (a) required; and (iii) the reference in par (a) of the objects set out in s 3(1) to eventual acquisition indicated that the proposal might predate by a significant period the acquisition of the land in question; (iv) but (iii) did not render applicable to s 56(1) the proposition drawn from San Sebastian as to the sufficiency of an “indirect relationship” where the maintenance of the planning restriction by the Council is seen as “a step in the process of resumption”; (v) this is because the market value disregard in par (a) looks to the public purpose for which the Land might by law be acquired by the Foreshore Authority by compulsory process under the Compensation Act and to “the proposal” to carry it out; (vi) “the proposal” here was not that of the Council as the proposed resuming authority, or some aggregation over time of the policies of the Council and later of the Carr Government; (vii) to give the statutory expression that operation, as had the primary judge in fixing upon “unity of purpose displayed by the two arms of government”, was an error of law.

54 This reasoning should be accepted. The construction of the market value disregard in par (a) for which the Foreshore Authority correctly contends, links “the proposal” to that of the resuming authority. It puts aside anterior discussions or agitations by the Council and others in favour of classifying the Land as public space. In this way there is reflected in the terms of par (a) of s 56(1) a policy to require a disregard only of that increase or decrease (as in this case) in value for which the resuming authority is responsible.

122. The construction of s 56(1)(a) of the Just Terms Act was in issue in Sydney Metro v G & J Drivas Pty Ltd [2024] NSWCA 5; (2024) 258 LGERA 197. There the Court of Appeal noted that the provision concerns a causation inquiry. The establishment of causation in this context is purposive and involves the attribution of legal responsibility (at [32] and [33] per Kirk JA):

32   Section 56(1)(a) involves a causation inquiry: the court is to disregard any increase or decrease in the value of the land caused by the carrying out of, or the proposal to carry out, the public purpose in question. Here, the immediate causes of the found decrease in value of the Parramatta site were the Discontinue and Stop Work Decisions made by the respondents. Those decisions were caused by the suspicion (for the Discontinue Decision) then knowledge (for the Stop Work Decision) that Sydney Metro would move to acquire the site. The relative loss of value found by the primary judge – or, more strictly, the failure to increase in value – was thus indirectly caused by the possibility of acquisition, where the subsequent acquisition was itself a consequence of the public purpose of Sydney Metro undertaking the Sydney Metro West project. In that sense, there is a “but for” causal link between the public purpose and the relative loss in market value of the kind found by the primary judge.

33 Establishing causation in a legal context typically involves attribution of legal responsibility. It is “always purposive”: Comcare v Martin (2016) 258 CLR 467; [2016] HCA 43 at [42]. Assessing legal causation commonly involves considerations beyond a purely factual “but for” inquiry: see eg Travel Compensation Fund v Robert Tambree t/as R Tambree and Associates (2005) 224 CLR 627; [2005] HCA 69 at [28]-[29] and [45]-[49]; Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19 at [11]. In terms of identifying the further considerations which may apply to limit the attribution of causal responsibility, where the causation requirement is established in a statutory regime “notions of ‘cause’ … are to be understood by reference to the statutory subject, scope and purpose”: Allianz Australia v GSF Australia (2005) 221 CLR 568; [2005] HCA 26 at [99]; also Comcare v Martin at [42].

160. In respect of any possible Rural zoning of the acquired land, this was eschewed by UPG on the basis that, first, the Riverstone Precinct release would have occurred in any event. The planning for the release of the Precinct would not have stopped in 2010, a matter about which both town planners were in agreement (T108:19-38). Second, the acquired land possessed no other attributes to suggest it would be zoned Rural. And third, the absence of any functional breeding habit for the GGBF on the acquired land and the potential to locally recreate habitat in an area to the east of the acquired land that was being developed by the Council as a wetland.

161. It was UPG’s contention that the evidence supported an underlying R2 zoning. This was because, first, both town planning experts agreed (including Rowan, although his primary position was in favour of an underlying E2 zoning) that R2 was feasible and that land in the Riverstone Precinct would have been released for housing. Second, the R2 zone was most likely when viewed in the context of the Growth Centres program, with its explicit consideration of maximising urban land, minimising infrastructure costs and reducing development contributions. These were all factors motivating the redesign of the drainage system. There was no reason to think that the same considerations, and therefore the same zoning outcomes, would not apply to the area where the acquired land was located.

The acquired land would not have been zoned Rural

173. I agree with UPG that the acquired land was unlikely to have been zoned Rural for the reasons that it gives. In short, having regard to the Growth Centres planning chronology outlined above, it is abundantly clear that the Riverstone Precinct was to be the first of the precincts released in the North West centre by the NSW Government. Ignoring the proposed trunk drainage, there is no doubt that another drainage scheme would have been created to facilitate the release of land. I agree with UPG that “there is no possibility” whatsoever that planning for the release of Riverstone Precinct would have stayed in stasis for over a decade prior to the acquisition. Such a conclusion would be antithetical to the stated intention of the NSW Government to promote urban land release within the identified Growth Centres. So much so was acknowledged by the town planning experts (T108:19-38).

The acquired land would have been zoned E2

174. Ignoring the public purpose, would the land have been zoned E2 as alternatively contended for by the Council? In my view, it would have been. Whether the hypothetical rezoning is approached on the basis of the actual information before the Minister (preferable) or on a merit based assessment, the result is the same.

175. First, the need to protect GGBF habitat was made tolerably clear by the Riverstone Precinct planning documents that were before the Minister. GGBF habitat had been identified as existing in the Riverstone Precinct, including on the acquired land. For example:

1. the 2007 Conservation Plan identified a potential GGBF population at Riverstone. The purpose of the Plan was to confirm assessments made under s 126G of the TSC Act which enabled the relevant Minister to confer biodiversity certification under the Growth Centres SEPP, thereby forgoing the need for detailed species impact assessments pursuant to the EPAA at the development application stage. Measure 18 of the BC Order excluded the certification of land in the Riverstone Precinct where GGBF potential was nominated. The BC Order affirmed to the satisfaction of the relevant Minister that the Growth Centres SEPP would result in the overall improvement or maintenance of biodiversity values. This included an obligation to protect 2000 ha of native vegetation with the Growth Centres. Measure 18 excluded the certification of land in the Riverstone Precinct where GGBF potential was identified, mandating surveys to detect their presence and habitat protection to DECCW’s satisfaction. The land to which Measure 18 applied included all of the acquired land. The GGBF in the Riverstone Precinct was the only animal protected by the BC Order in the Growth Centres;

2. the Precinct Report found that it was “likely” that the GGBF was present in the area encompassed by the Measure 18 Order. The Precinct Report suggested that further studies be carried out to locate with precision GGBF habitat and manage them appropriately in consultation with DECCW;

3. the subsequent Eco Logical Report in 2009 mapped GGBF habitat identified in the Riverstone Precinct (the ‘L’ shaped area), describing it as “the area with the greatest potential for being good ephemeral breeding habitat” and that this “high quality habitat…be set aside from any proposed development footprint” (emphasis added). A portion of the “high quality habitat” identified in the Eco Logical Report was located on the acquired land;

4. the Consistency Report in 2010 reviewed compliance with Measure 18 of the BC Order, noting that the survey had identified the areas of habitat for protection and that “the most appropriate means of protecting habitat for the GGBF is to integrate areas of suitable habitat with trunk drainage infrastructure on the subject lands”;

5. the Post-Exhibition Report which was before the Minister referenced the Consistency Report in discussing the GGBF. It noted that the Precinct Plan had been updated to reflect the findings of further investigations of the location of the animal species within the Riverstone Precinct and “to provide suitable habitat for the Green and Golden Bell Frogs based on the findings of field investigations.” It further noted that as a consequence protective provisions had been included in the 2010 Blacktown Growth Centre DCP “to ensure the creation and ongoing protection of habitat for the Green and Golden Bell Frog, in accordance with DECCW requirements”;

6. additional documents before the Minister reinforced the importance of the protection of the GGBF and its habitat (see, for example, correspondence from DECCW and the Explanatory Note to the Growth Centres SEPP); and

7. the NSW Government was seeking endorsed program approval of the Growth Centres SEPP from the Minister for the Environment under s 146B of the EPBC Act to ensure that development within Riverstone Precinct would not be a controlled action under that Act. Approval was obtained in respect of the GGBF because arrangements were made for the delivery of drainage solutions in frog habitat areas which would provide or augment GGBF habitat. These areas included the acquired land.

176. It is manifestly clear on the material before the Minister that in the proposed development of the Riverstone Precinct the identified GGBF habitat, which was present on the acquired land, required protection. This militates strongly against an R2 zoning.

177. It was for these and other reasons that Rowan opined that the zoning would, in the alternative to Rural, be E2 and not R2.

178. Balanced against these considerations, however, is the fact that:

1. it is clear from the planning documents that the intent was to protect larger areas of high quality habitat to ensure connectivity and not promote fragmentation, which, given that the surrounding land is zoned SP2, would not occur if the acquired land was zoned E2;

2. there was an absence of any functional GGBF breeding habitat on the acquired land as identified in the Eco Logical Report;

3. there was a proposal to clear existing GGBF habitat to create new bespoke GGBF habitat elsewhere in the Riverstone Precinct;

4. there was an absence of any existing suitable native vegetation mapped on the acquired land;

5. the acquired land was not part of any riparian corridor that was either mapped or required for retention;

6. the acquired land was subject to cl 6.9 of the Growth Centres SEPP prohibiting consent unless, among other things, the Council was satisfied that there was no adverse effect on the GGBF habitat and the development had to be consistent with a recovery plan under the TSC Act. Therefore, by dint of the operation of cl 6.9, GGBF habitat in the Riverstone Precinct identified on the Land Use Zoning Map was to be protected;

7. not all areas mapped as GGBF habitat in the Eco Logical Report were planned to be managed as GGBF habitat, with one area of habitat zoned R2;

8. R2 zoning would not necessarily impede the establishment of GGBF habitat in conformity with Measure 18. Steps could be carried out to satisfy Measure 18 of the BC Order regarding the GGBF. For example, the relocation of basin F28;

9. GGBF habitat could be accommodated to the east of the acquired land within the balance of the proposed drainage reserve in close proximity to First Ponds Creek, which Garvey considered to be a superior location in any event, and where the REF indicated that the majority of the GGBF habitat was to be constructed;

10. as indicated on the Land Use Zoning Map forming part of the Growth Centres SEPP, the land adjoining the acquired land was zoned R2. It was therefore logical to infer that the acquired land would have enjoyed similar zoning; and

11. the explicit desire evident in the context of the Growth Centres land release program to maximise development for housing in a cost-effective manner.

179. Nevertheless, the fact remains that prior to the date of the acquisition, there were multiple recorded sightings of the GGBF in close physical proximity to the acquired land across multiple locations. For example, the GGBF was sighted along the Regent St drainage line which traverses the acquired land. This demonstrates that the land forms part of a connected pathway of GGBF habitat. Both ecologists agreed that that frog habitats near drainage areas facilitate connectivity.

180. Sheather-Reid concluded that the acquired land provided important overwintering habitat. In doing so, he relied upon BioNet records from 1969 and 10 December 2021. These are publicly available records that can be readily accessed by the hypothetical parties transacting the acquired land. It may therefore be inferred that the parties would be on notice that the GGBF was recorded as being present either side of the acquired land five months prior to the acquisition.

181. There can be no doubt, therefore, that the acquired land provided habitat for the GGBF.

182. The acquired land additionally provided potential breeding habitat for the GGBF, albeit of low-quality because, according to Garvey, there were features of the acquired land that were inimical to breeding habitat, viz, it was impacted by the Plague Minnow and was significantly shaded by the Cockspur Coral Tree. As Garvey noted, ecological studies that had surveyed the Riverstone Precinct had concluded that there was no functional breeding habitat. But, as Garvey accepted, these factors did not preclude breeding; they merely rendered the land less desirable for this purpose. Moreover, as the parties agreed, the habitat on the acquired land was identified as being within the area with the greatest potential for being good ephemeral GGBF breeding habitat.

183. Furthermore, I agree with the Council that the habitat did not have to include breeding habitat to warrant protection. In recommending that the ‘L-shaped’ area and the acquired land be protected in 2009, Eco Logical was not concerned with the breeding functionality of the habitat. The acquired land was singled out because it was the highest quality habitat that had been identified for the GGBF in the Riverstone Precinct.

184. Although UPG submitted that the quality of the vegetation on the acquired land meant that an E2 zoning could not be justified, the fact remains that the GGBF is listed as a threatened species under the EPBC Act and the TSC Act, with its protection a matter of national environmental significance under Pt 3 of the EPBC Act. In addition, the GGBF in this location within the Riverstone Precinct was the only animal protected by the BC Order in respect of the land released in the Growth Centres precincts.

185. Although as at the date of the acquisition the acquired land formed part of biodiversity certified land (that is, biocertification), meaning that an assessment of the likely impact of development on the acquired land on the GGBF was not required for the purpose of Pt 4 of the EPAA, it is not the case that this obviated the need to consider the likely impact of development on the GGBF in the Riverstone Precinct. On the contrary, even if cl 6.9 of the Precinct Plan was disregarded in light of the findings made above in respect of the public purpose, cl 6.9(4) would nevertheless continue to apply to the acquired land insofar as it applies to development on SP2 zoned land in order to protect GGBF habitat. In other words, the impact of development on land zoned SP2 that would impact GGBF habitat on the acquired land would nevertheless be required to be considered. While UPG submitted that cl 6.9(4) of the Precinct Plan did not impose any relevant constraint on the development of the acquired land, this does not mean that it can be ignored and it is another contextual factor weighing in favour of E2 zoning. As the ecologists agreed in the Joint Ecology Report, the draft GGBF Recovery Plan provided insufficient guidance to a hypothetical purchaser of the acquired land in this regard.

186. It is true, as UPG observed, that the imposition of E2 zoning in the Riverstone Precinct planning process involved the clearing of native vegetation and adverse biodiversity impacts resulting in the need for a 2,000 ha offset. But in my opinion, the particular features of the acquired land discussed above made it highly likely that the land would be zoned E2 to protect the known GGBF habitat on it irrespective of whether or not, as UPG submitted, the quality of the vegetation on the acquired land was sufficient to warrant E2 zoning or whether or not an endangered ecological community was present on it. While UPG was correct to submit that during the planning process the E2 zone was primarily directed in its application to land possessing these qualities, the acquired land was somewhat unique with respect to the potential presence of the threatened GGBF and its habitat, including potential breeding habitat.

187. The fact that, as Grech noted, the surrounding land to the north and south of the acquired land was zoned R2 (see the Land Use Zoning Map in the Growth Centres SEPP), while material, is not decisive, especially given the characteristics of the acquired land as providing overwintering and potential breeding habitat for the GGBF.

188. Moreover, while there was no specific requirement in the Growth Centres SEPP or the 2010 Blacktown DCP that GGBF habitat be created within or in close proximity to the drainage lines or channels, the experts agreed that this “would be the best strategy to establish habitat connectivity for dispersal purposes and maintain landscape connectivity”.

189. In my view, and notwithstanding some disagreement between the ecologists as to whether the acquired land provided functional breeding habitat for the GGBF, there was sufficient compelling evidence to indicate that the acquired land provided an opportunity to either preserve or recreate habitat within an existing GGBF population area and that, at the very least, it formed part of a much larger breeding area.

190. While it is undoubtedly possible that the GGBF habitat could have been located in alternative locations within the Precinct, I do not accept, for the reasons explained above, that this was the most likely scenario from a zoning perspective. Rather, subject to one qualification, I find that the protection of GGBF habitat on the acquired land would have been required by any hypothetical development of it and that as a consequence, the land would have been zoned E2.

191. The one qualification is whether a small flood-free portion of the acquired land could have been be zoned R2 in order for a building entitlement to be available on it. While neither town planner opined specifically on this question, this does not prevent this Court in Class 3 of its jurisdiction from considering and determining the issue.

192. There was evidence in support of the acquired land being zoned both E2 and R2 in the comparable sales evidence. In the Joint Valuation Report, Hollinshead’s E2 sales evidence included properties where there was R2 residential land to the front with a building entitlement with the remainder of the land zoned E2.

193. Having regard to the hydrology evidence, Dyson conceded that it was possible that some of the acquired land could be zoned R2 thereby permitting a building entitlement. As Dyson acknowledged, this results in an optimal outcome for the owner and would be consistent with the acquired land’s highest and best use. Tellingly, Dyson acknowledged that he was unable to locate any sales of E2 land in isolation.

194. After reviewing the analysis above at [175] to [193] and, in particular, having regard to the considerations at [178], I find that the land would most likely have been zoned predominantly E2 for the reasons earlier given, but with a portion of the land (approximately 500 m² according to the valuers) zoned R2 sufficient to enable an entitlement to a single dwelling.

Drainage Solution if the Above Finding is Incorrect

195. For the sake of completeness, and as a contingency in case the finding above with respect to zoning is incorrect, it is nevertheless useful to set out what my findings would have been with respect to the likely drainage solution required for any R2 zoned development. Given the considerable agreement between the valuers with respect to market value dependant upon the various hypothetical zoning scenarios ignoring the SP2 zone (including Rural, R2 and E2), there is merit in doing so. However, in light of my conclusions above, this analysis will be appropriately brief.

196. The hydrologists agree that there is a first order water course that traverses the acquired land. It is a tributary to First Ponds Creek to the west. The watercourse is diverted onto Regent St on the western boundary of the acquired land by a bund. It was not in dispute that in any viable development scenario the consent authority would require the removal of the bund and a drainage solution engineered to mitigate any offsite impact on Regent St. Thus, for example, during the planning process for Riverstone Precinct, it was recommended that the watercourse be replaced with a WSUD solution to retain as much stormwater as possible onsite and to slow its transmission to receiving waters.

197. According to Dr Martens for UPG, the most likely drainage solution was a piped channel with drainage offsite. There were two options: first, a 2 x 900 mm piped scheme with a vegetated swale costing, the QS experts agreed, $1,035,000; or second, a 2 x 1,350 mm pipes with a vegetated swale, totalling $1,432,000. Both schemes had a development yield of 6,563 m².

198. By contrast, Giles, on behalf of the Council, contended that in any redevelopment the natural watercourse would be maintained within a vegetated riparian corridor, either with a bund or without a bund (preferred). The agreed cost of the former was $1,672,813 yielding 3,503.50 m² of developable area, whereas the cost of the latter was $1,461,827 with a development yield of 4,101 m².

199. In my view, UPG have not made a compelling case for the adoption of Dr Martens’s piped swale drainage scheme. This is because:

1. as Dr Martens conceded, his proposed piped scheme is non-compliant with WSUD principles (T80:35-81:07). Rather, it is dependent upon compliant offsite drainage infrastructure (the current trunk drainage scheme);

2. the scheme is also not compliant with the Blacktown DCP;

3. if the pipes became blocked during a large flood event this could become problematic given, as Giles observed, the volume of water that would be required to pass through them. It was Giles’s opinion that the consent authority would not allow deviation from the Blacktown DCP to permit the piped solution proposed by Dr Martens;

1. the scheme relies upon a privately funded urban drainage system that collects overland water on the acquired land and which then traverses the adjoining land into First Ponds Creek. This requires the coordination and cooperation of adjoining land owners in a larger flood mitigation and residential development scheme (T81:45-82:03). This would only serve to increase the time, cost and risk of finalising any development on the acquired land; and

2. Dr Martens made no allowance for an OSD basin, which Giles considers would be 9% of the developable area thereby reducing the maximum development yield of the piped scheme to 5,972 m².

200. It follows that I prefer the vegetated riparian corridor drainage solution posited by Giles. Were I required to, as a matter of fairness to UPG I would adopt the unbunded scheme (preferred in any event by Giles), costing $1,461,827 with a development yield of 4,101 m².

201. Finally, to this cost should be added the sum of $561,000 which the QS experts allowed for reconstructing Regent St and “potentially resurfacing full width of road”. On a direct comparison approach, which is the preferred method of calculating the market value of the acquired land, as explained below, this has yet to be accounted for.

202. However, to reiterate because I have determined that the putative underlying zoning would be E2, and not R2, this analysis may be ignored for present purposes.

Market Value

203. The final competing positions of the parties on compensation were set out in the Joint Valuation Report read together with the Supplementary Joint Valuation Report. Although there was a significant degree of agreement between the valuers with respect to the valuation of the acquired land irrespective of which hypothetical zone applied to the land or which drainage solution was adopted, there remained several key areas of dispute.

204. The Council submitted that the direct comparison approach was the most appropriate methodology to determine the market value of the acquired land. This may be contrasted with the hypothetical development method of assessment premised upon Dr Martens’s piped drainage scheme that Dyson undertook on behalf of UPG as his primary method of valuation, with the direct comparison approach used as a comparator.

205. Because both valuers accepted that either methodology would yield similar results if properly applied, and because it is generally preferable to use the direct comparison approach where there are sufficient comparable sales (Marroun v Roads and Maritime Services[2012] NSWLEC 199 at [196]), having regard to the more speculative nature of the hypothetical development method of assessment I have adopted the former rather than the latter in determining the market value of the acquired land. The correctness of this approach is reinforced by the fact that Dyson reverted to the direct comparison approach in his final analysis because the hypothetical development method of assessment yielded a similar but slightly lower amount.

206. The valuers agreed that if the entirety of the acquired land was zoned E2, then it would have a value of $100 per m², based on the analysis of sales 1 to 3 in the Hollinshead Report. On this basis, the market value of the acquired property would be $700,000.

Betterment Under s 55(f) of the Just Terms Act

207. The remaining issue in dispute concerns the use of the “before/after” methodology by Hollinshead to value the acquired land on the basis that, according to the Council, there was land adjoining the acquired land that was in the ownership of UPG as at the date of the acquisition (Lot 30). In the ‘before’ scenario, the acquired land comprised original land that was subdivided into 31 lots including 29 small residential lots, the temporary OSD lot (Lot 30), and the acquired land (Lot 31).

208. In the absence of Precinct trunk drainage infrastructure, as at the date of acquisition, in addition to the acquired land, UPG was the owner of 14 of the small residential lots and the OSD lot, which would be required to be retained as a permanent undevelopable OSD, (together, the adjoining land). In the ‘after’ scenario UPG remained the owner of the adjoining land, but because of the Precinct wide drainage system now in place, Lot 30 would be available for development.

209. Consequently, according to Hollinshead, while the market value of the land was $700,000, the public purpose increased the value of the OSD lot in the ‘after’ because it could be developed into five residential dwelling lots - drainage/OSD being a permissible use in the E2 zone. The total uplift in value after deducting the construction costs associated with the OSD lot would be $1,780,000, which was more than the value of the acquired land. It follows that the compensation payable to UPG under s 55(a) and (f) of the Just Terms Act was nil.

210. However, the acquired land (Lot 31) and the OSD on Lot 30 are separated by Pina Rd. Pina Rd was dedicated to the Council prior to the date of acquisition. Does this make them “any other land…which adjoins…the acquired land” for the purpose of s 55(f) of the Just Terms Act? UPG submitted that the two lots did not adjoin each other in a manner that engaged the provision.

211. In response, the Council submitted that physical contiguity was not a mandatory prerequisite for any other land that adjoins the acquired land for the purpose of s 55(f) of the Just Terms Act. It relied upon s 146(1)(f) of the Roads Act to argue that land separated by a dedicated public road was still adjoining land that fell within the meaning of s 55(f) of the Just Terms Act.

212. Section 146(1)(f) of the Roads Act provides that:

(1)   Except as otherwise provided by this Act, the dedication of land as a public road—

…

(f)   does not prevent any lands that were previously considered to be adjoining lands for the purposes of the Land Acquisition (Just Terms Compensation) Act 1991 from continuing to be so considered.

213. By contrast, UPG, relying upon the opinion of Dyson, argued that there was no adjoining land (Lot 30) that could be taken into account.

214. Ultimately, however, the question of whether s 55(f) of the Just Terms Act is engaged is a matter for the Court and not properly the subject of expert evidence.

215. In my view, Lot 30 and Lot 31 adjoin each other for the purpose of s 55(f). First, it has been held that land need not be contiguous to be adjoining for the purpose of s 55(f) of the Just Terms Act (Michele Melino and three others in their capacity as executors of the Estate of the late Costanzo Melino v Roads and Maritime Services [2017] NSWLEC 118; (2017) 226 LGERA 337 at [108]). Second, the fact that the other land is a distinct parcel of subdivided land does not immunise it from being adjoining land under the Act (State of Queensland v Springfield Land Corporation (No 2) Pty Ltd [2009] QCA 381; (2009) 171 LGERA 38 at [56]). Third, the fact that the lots are separated by Pina Rd does not cause Lots 30 and 31 to cease to be adjoining land, as s 146(1)(f) of the Roads Act makes plain.

216. But this does not mean that betterment arises on the facts of the present case in respect of the OSD on Lot 30. This is because accepting as the Court has UPG’s narrower formulation of the public purpose as the provision of a drainage channel and GGBF habitat, the Riverstone Precinct would have been released with trunk drainage located on and adjacent to First Ponds Creek (including basin F28) and Lot 30 would remain a temporary OSD basin with no increase in its value.

217. Furthermore, I accept the submission of UPG that, if the temporary OSD basin on Lot 30 became permanent, a prudent owner of the acquired land and the adjoining OSD basin land would relocate the permanent OSD basin onto the acquired land, assuming that it was in conformity with the drainage channel and the GGBF habitat, in order to fully develop the adjoining land because the acquired land was the least valuable land (T144:15-145:05). This is what occurred on the adjoining subdivision to the west of the acquired land at 155 Regent St (see the evidence of Rowan and Dyson). The logical corollary of this inference is that Lot 30 would not have been used as a temporary OSD and would have been available to yield five lots in the ‘before’ and would remain available for the same purpose in the ‘after’, and therefore, as Giles conceded (T145:26-146:06), no betterment arises.

218. Alternatively, just as the location of a temporary OSD basin in the southern portion of the 155 Regent St subdivision appears, according to Hollinshead, to have been influenced by the project, that is, the public purpose, and must therefore be disregarded (T142:10-143.22), so too was the location of the temporary OSD basin on Lot 30. When accommodation is made for the drainage channel and the GGBF habitat (see Figure 2.1), it becomes apparent that the temporary OSD basin would not have been developed on the acquired land. Therefore, ignoring the influence of the public purpose, Lot 30 would not have been utilised for a temporary OSD basin. Rather, it would have been available for the development of five urban lots in the both the ‘before’ and ‘after’ and again no betterment arises.

Single Dwelling Entitlement

219. Finally, the valuers agreed that if some of the E2 zoned acquired land was zoned R2 thereby allowing a single dwelling entitlement, then the total market value of the acquired property was $1,200,000. This quantum was supported by sales 1 to 3 in the Hollinshead Report, with which Dyson did not cavil.

220. In light of my findings above, it follows that the market value of the acquired land is $1,200,000.

Disturbance

221. The parties agreed on the quantum of disturbance, namely, $35,521.20.

Compensation Payable

222. Accordingly, for the reasons given above, the compensation to which UPG is entitled pursuant to the compulsory acquisition of its land is $1,235,521.20.

Costs

223. Although UPG has been awarded compensation in a sum less than the amount claimed by it and less than that offered by the Valuer General, the amount is more than the compensation offered by the Council during these proceedings. Accordingly, the Council should pay UPG’s costs of the proceedings. However, because the matter was not the subject of argument, the parties ought to be given the opportunity of making further submission on the issue if they wish.

Orders

224. The orders of the Court are as follows:

1. compensation under the Land Acquisition (Just Terms Compensation) Act 1991 for the acquisition on 10 December 2021 of land comprising Lot 31 in DP 1246761 is determined in the sum of $1,235,521.20; and

2. the Council is to pay UPG’s costs of the proceedings unless, with 14 days, either party approaches the Court to seek an alternative costs order.

**********

Decision last updated: 01 April 2025