Vigor Master Pty Ltd v Northern Beaches Council

[2025] NSWLEC 1520

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Vigor Master Pty Ltd v Northern Beaches Council [2025] NSWLEC 1520

Hearing dates:

7 and 10 March 2025

Date of orders:

21 July 2025

Decision date:

21 July 2025

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to development application DA2023/1932 for a senior living development located at 72 to 76 Willandra Road, Oxford Falls NSW of Lot 807, Lot 810 and Lot 811 in DP 752038, subject to the conditions of consent in Annexure A.

(3) The exhibits are to be returned following publication of the judgment except for Exs A and 1.

Catchwords:

APPEAL – development application – senior living – biodiversity impacts – statutory interpretation

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), Pts 4, 5, ss 1.7, 4.15, 7.5, 7.13, 8.7

Biodiversity Conservation Act2016 (NSW), Pts 4, 6, 7, ss 1.3, 6.2, 6.4, 6.7, 6.15, 7.5, 7.7, 7.12, 7.13, 8.4

Rural Fires Act 1997 (NSW), s 100B

Water Management Act 2000 (NSW), s 91

Biodiversity Conservation Regulation 2017, ss 1.4, 1.5, 4, 6.31

State Environmental Planning Policy (Koala Habitation Protection) 2021

Warringah Local Environmental Plan 2000, Div 4, Pt 4, cll 12, 14, 56, 58

Warringah Local Environmental Plan 2011

Cases Cited:

Adrenaline Pty ltd v Bathurst Regional Council (2015) 97 NSWLR 207; [2015] NSWCA 123

Altre Partners Pty Ltd v Northern Beaches Council [2023] NSWLEC 1145

Goldcoral Pty Ltd (Receiver and Manager Appointed) v Richmond Valley Council [2024] NSWLEC 77

Planners North v Ballina Shire Council [2021] NSWLEC 120

Platform Architects Pty Ltd v Northern Beaches Council [2020] NSWLEC 185

Save Sydney’s Koala’s (Southwest) Inc v Lendlease Communities (Figtree Hill) Pty Ltd(No 2) [2021] NSWLEC 102

Universal Property Group Pty Ltd v Blacktown Council [2020] NSWCA 106

Texts Cited:

Australian Standard for the "Construction of buildings in bushfire-prone areas” AS 3959:2018

Category:

Principal judgment

Parties:

Vigor Master Pty Ltd (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
T F Robertson SC (Applicant)
C Rose (Solicitor) (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2024/122570

Publication restriction:

Nil

JUDGMENT

Introduction

1. These proceedings arise following an appeal by Vigor Master Pty Ltd (applicant) pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (NSW) (EPA Act) against Northern Beaches Council’s (Council) refusal of its development application DA2023/1932 for the construction of a seniors’ living development at 72 to 76 Willandra Road, Oxford Falls (Lot 807, Lot 810 and Lot 811 in DP 752038) (site).

2. As the site and the surrounding privately owned bushland is designated as Category 1 Bushfire Prone Land, the development incorporates the clearing of vegetation to accommodate an Asset Protection Zone (APZ) around the built form. The proposed clearing has triggered an assessment of the biodiversity impacts of the development under the Biodiversity Conservation Act 2016 (NSW) (BC Act), and the Biodiversity Development Assessment Report (BDAR) has assessed the need for the retirement of credits for development consent to be granted: s 7.12(2) of the BC Act.

3. The weight (if any) to be placed on any provision outside the BDAR –particularly cll 56 and 58 of the Warringah Local Environmental Plan 2000 (WLEP 2000), and the character statement for the site, said to be inconsistent with the BC Act, is a central issue in the proceedings.

Decision

4. For the reasons that follow, I have determined to uphold the appeal and grant consent to the development application.

The proposal

5. The amended development comprises:

1. Construction of a seniors living development comprising 22 independent living units (“ILU”) across 3 buildings, constructed above a single basement. This will include 28 car parking spaces.

2. A community centre building to serve the residential ILU complex includes a pool, gym, theatre, meeting room/library, and kitchen/lounge/dining room. Two visitor parking spaces and garbage collection facilities are also included to service the centre.

3. Lots 807, 810 and 811 in DP752038 will now be consolidated as a single lot for the whole site area (8.65 Hectares), accommodating the proposed development together with the previously approved boarding house on Lot 811. The prior approvals for a dwelling and boarding house on Lot 810 will become redundant as these are within the building footprint of the proposed ILU’s. Remnant bushland outside the construction areas and the APZ will be retained and appropriately managed as a natural bushland setting ‘backdrop’ for the structures and other improvements on the site.

4. Bushfire protection clearing work and fire protection road upgrade.

5. Site preparation, excavation and fill works.

6. Driveway connections, ancillary site works, service connections, including retaining walls and earthworks.

7. Stormwater infrastructure, including construction of on-site detention.

8. Tree removal.

9. Fencing and landscaping works.

10. Public footpath and ancillary works along the Willandra Road frontage (subject to future ‘Section 138’ Roads Transport Act 2013 (NSW) approval).

Site and its Environs

6. The site is identified as being located within the B2 Oxford Falls Valley locality under WLEP 2000; and classified as bushfire-prone and riparian land containing threatened species and having Aboriginal heritage significance.

7. It is of irregular shape with an angled frontage which allows vehicular access from Willandra Road. The total area of 86,510m² is comprised of three allotments with a maximum depth along the northern boundary of 334.21 m; and a combined width along its western boundary of 374.59 m.

8. The topography is varied and slopes steeply from the western boundaries toward the middle of the site, including a series of rock shelves, before flattening out toward the eastern boundary.

9. Notwithstanding its description as a “vacant” site, some preliminary work has been commenced under earlier approvals, which includes: a concrete driveway entry point, some tree removal, excavation works, and a reshaping of landform.

10. The land to the east of the site is predominantly low-density residential development approved under Warringah Local Environmental Plan 2011 (WLEP 2011), in which it is noted that the Oxford Falls Valley is a “deferred matter”.

11. Dense bushland adjoins the site’s western boundary at 70a Willandra Road and, to the north, where residential occupancy at 78 Willandra Road is recorded.

12. A retirement home complex, Willandra Village, sits to the east along Willandra Road. Located south of the site at 8 Lady Penryn Drive is the Marston aged persons development comprising 34 ILUs together with a community centre.

13. A further development, 110 m south of the site, has been approved for similar ILUs accommodation; and, nearby, about 230 m from the site, stands Willandra Bungalows.

14. A Rural Fire Service building on a narrow reserve adjoins Lots 801 and 807.

Public Submissions

15. The ASOFC filed on 23 May 2025 records that the DA was notified as integrated development for a period of 28 days from 2 February 2024 to 1 March 2024. Fifteen submissions objecting to the development were received.

16. Several of the submitters attended the site view at the commencement of the hearing and gave oral evidence consistent with their written objections. They included a representative from Friends of Narrabeen and the secretary of the Garigal Landcare. Collectively, the submitters believe that the development is an overdevelopment of the site, and inconsistent with the desired future character of the locality. They oppose what they consider to be “excessive removal of vegetation” and emphasise the potential flooding and bushfire risk for the future residents of the proposed seniors’ development.

Actions of the Council

17. On 22 February the DA was referred to the Northern Beaches Design and Sustainability Advisory Panel for comment relating to Urban design, architecture and landscaping and sustainability. The development was not supported in its original form.

18. On 26 February 2024, General Terms of Approval (GTAs) were issued by the Department of Planning and Environment Water under s 91 of the Water Management Act 2000 (NSW).

19. On 3 March 2024, GTAs were issued by the Rural Fire Service under s 100B of the Rural Fires Act 1997 (NSW).

20. And, as it happened, the appeal was lodged before the Council that determined the DA.

The Statutory Framework

21. The following environmental planning legislation and instruments apply to the development application:

1. Environmental Planning and Assessment Act 1979 (NSW)

2. Biodiversity Conservation Act 2016 (NSW)

3. Biodiversity Conservation Regulation 2017 (BC Regulation)

4. Warringah Local Environmental Plan 2000

Expert Evidence

22. The following experts provided expert evidence in the proceedings:

Expertise	Applicant	Respondent	Joint Expert Report
Planning	David Ryan	Alexander Keller	Exhibit 3
Landscape	Aaron Lakeman	Torin Calf	Exhibit 4
Ecology	Michael Sheather-Reid and Dr Meredith Henderson	Brendan Smith	Exhibit 5

Contentions

23. Council has raised four contentions in its final Written Submissions filed on 25 March 2025 (CWS): Desired Future Character, Landscape Character, Ecology and the Public Interest. It also addresses an “inconsistency legal issue” raised by the applicant. 

24. The applicant filed a written reply on 4 April 2025. 

Are the WLEP 2000 and the BC Act inconsistent?

Council’s position

25. The Council contends that the development is inconsistent with the desired future character (DFC) of the area as set out in the B2 Oxford Falls Valley Locality – Narrabeen Lagoon Catchment Locality Statements of the WLEP 2000; and that the proposed “expansive area of tree removal” is not characteristic of a “low intensity, low impact” development as called up by the DFC statement. It submits that the following provisions of the WLEP 2000 preclude the grant of development consent in this case.

26. The first provision is cl 56 in Div 4, Pt 4 General Principles of Development Control, with which permissible development must be consistent (cl 12(1)(a)).

27. Clause 56 (Retaining distinctive environmental features on sites)provides that “development is to be designed to retain and complement any distinctive environmental features of its site and on adjoining and nearby land”.

28. In particular, the clause states that development is to be designed to incorporate or be sympathetic with environmental features such as rock outcrops, remnant bushland and watercourses.

29. Next, cl 58 (Protection of existing flora) provides “development is to be sited and designed to minimise the impact on remnant indigenous flora, including canopy trees and understorey vegetation – and on remnant native ground cover species”.

30. The proposal is also said to be inconsistent with cl 12(3)(b) of the WLEP 2000, which requires that the consent authority be satisfied that the development is consistent with the desired future character statement described in the relevant Locality Statement – this being the B2 Oxford Falls Valley Locality DFC Statement which provides:

“The present character of the Oxford Falls Valley locality will remain unchanged except in circumstances specifically addressed as follows.

Future development will be limited to new detached style housing conforming with the housing density standards set out below and low intensity, low impact uses. There will be no new development on ridgetops or in places that will disrupt the skyline when viewed from Narrabeen Lagoon and the Wakehurst Parkway.

The natural landscape including landforms and vegetation will be protected and, where possible, enhanced. Buildings will be located and grouped in areas that will minimise disturbance of vegetation and landforms whether as a result of the buildings themselves or the associated works including access roads and services. Buildings which are designed to blend with the colours and textures of the natural landscape will be strongly encouraged.

A dense bushland buffer will be retained or established along Forest Way and Wakehurst Parkway. Fencing is not to detract from the landscaped vista of the streetscape.

Development in the locality will not create siltation or pollution of Narrabeen Lagoon and its catchment and will ensure that ecological values of natural watercourses are maintained.”

31. It is also asserted by the Council that the proposal is inconsistent with cl 14(1) and (2) of the WLEP 2000 for Category 2 development, in that the proposed housing for older people or people with disabilities does not represent the “low intensity, low impact “characteristics as required to be maintained by the DFC.

32. Council contends; and submits that the BC Act is intended to prevail only insofar as it relates to terrestrial biodiversity (EPA Act s 1.7). It prescribes a method of assessment – the Biodiversity Assessment Method (BAM) – and a credit scheme to offset “residual values” incorporated to avoid and minimise impacts (“residual values” being the impacts after measures undertaken (BC Act: s 6.2(d)).

33. The Council submits that the BC Act does not mandate a minimum standard of avoidance or minimisation; but rather creates a hierarchy for the purposes of the Biodiversity Offset Scheme (BOS) that favours avoidance of impacts by reasonable measures over minimisation; by reasonable measures over offsets (credit retirement) (BC Act, s 6.4). Nor does the BC Act, the BOS or the BAM mandate a normative standard about the extent to which impacts are to be minimised. That, Council would have it, is up to the proponent of the development. It is their opinion that the BAM only requires that those choices are assessed in terms of their impacts on biodiversity (CWS at [14]).

34. Further, the Council argues I should accept that the assessment of likely impacts of the development under the BC Act is not exclusive of the scope of the EPA Act; and that the Court, as consent authority, has a discretion, but not an obligation, to consider likely impacts beyond the assessment contained in the BDAR: BC Act s 7.13(2).

35. The BOS operates by requiring the assessment to be contained in the BDAR, in accordance with the BAM – with, at its endpoint, the identification of species and ecosystems credits to be retired to offset the residual impacts. It is the three elements of avoidance, minimisation and offset that result in the attainment of no net loss of biodiversity. Yet, this does not mean that “no net loss” is a criterion that governs any one of the elements – no such standard is prescribed within the BAM, the BOS or the BC Act.

36. The “no net loss” criterion referred to, Council claims, does not govern prescriptively any single element but refers to a totality.

37. Accepting that the WLEP 2000 is a mandatory consideration under s 4.15(1)(a) of the EPA Act (and clearly more prescriptive), the Council contends that cll 56 and 58 – in each case – provide a normative standard, about which the Court must be satisfied in order to enliven the power to grant development consent. They are principles in Pt 4 of the WLEP 2000 which are given substantive operation through cl 12(1)(a) of the WLEP 2000. It notes that cl 12(1) of the WLEP 2000 takes the familiar form of a condition precedent on the power to grant consent – conditional to satisfaction with consistency with the principles contained in Pt 4 (CWS at [37]). They operate as a constraint on powers called up under the EPA Act s 4.15(1)(a); and not because it is a likely impact of the development (s 4.15(1)(b)).

38. Council submits that these provisions do not speak to “no net loss of biodiversity” but require development to be designed to: “retain and complement”, “incorporate” or “be sympathetic to distinctive environmental features”: cl 56; and, further, “minimise the impact on remnant indigenous flora”: cl 58.                                                                             

39. The Council insists that the offset by credits does not mandate the grant of consent. The discretion remains to refuse consent – the wording of s 7.13(3) of the BC Act is plain. Part 7 contemplates a dual assessment under both the BC Act and the EPA Act. The presumption being that Pt 7 and Pt 4 can operate in harmony together, and that s 7.5 of the BC Act has been included to cover any areas where there is a true inconsistency not expressly identified (CWS at [24-25]). That is, the section allows the Pt 4 assessment to be conducted, as required by s 7.13(2) so that it operates harmoniously, but notes, if any inconsistency arises, then Pt 7 prevails.

40. The Council submits that the approach to considering asserted inconsistency is clear; and “claims of actual contrariety between provisions emanating from the one legislative source should not be accepted unexamined …” with there being “a strong presumption that a legislative authority does not intend to contradict itself.” Universal Property Group v Blacktown Council [2020] NSWCA 106 per Baston JA at [7]) (Universal) (CWS at [20]-[26]).

41. With that in mind, the Council invites me to identify with precision the nature and scope of the supposed inconsistency – if any (Universal at [6]); and, after interrogation of the provisions, submits that I will find there is no inconsistency with Pt 7 of the BC Act. It submits that it is difficult to see a precise inconsistency between “habitat suitability” (s 1.5 BC Act) or “vegetation integrity” (s 1.5 BC Act) or the other factors listed in ss 1.5 and 1.4 (BC Regulation) with:

1. Distinctive environmental features of a site (cl 56)

2. Minimising the impact on remnant indigenous flora, including canopy trees and understorey vegetation (cl 58)

3. Future development is to be limited …low intensity, low impact uses (DFC Statement)

4. The natural landscape including landforms and vegetation will be protected and, where possible, enhanced (DFC Statement)

5. Buildings will be located and grouped in areas that will minimise disturbance of vegetation and landforms (DFC Statement)

42. The Council submits that each of the matters for consideration, in each of the instruments, are different in their own way, focussing on different elements of the environments, with some directed to outcomes (such as “low intensity low impact uses”), rather than specific biodiversity assessments. As such, the Court should conclude that cll 56 and 58 of the WLEP 2000 are not inconsistent with Pt 7 of the BC Act and that s 4.15 considerations sits alongside the considerations under Pt 7 as the Court found in Planners North v Ballina Shire Council [2021] NSWLEC 120 (Planners North) at [110]-[111].

43. The consequence of the Council’s conclusion is that there is no inconsistency between the provisions of Pt 7 of the BC Act and the EPA Act (and instruments made under the EPA Act), and that the Court should continue to make a merit assessment as required by cl 12 of the WLEP 2000 and consider the proposal’s consistency with the DFC Statement together with cll 56 and 58 (CWS at [58]).

Applicant’s position

44. The applicant asserts that none of the WLEP 2000 provisions relied upon by the Council erect barriers to approval such that would supplement the analysis of biodiversity impacts which is now the exclusive domain of Pt 7 of the BC Act.

45. The applicant contends that the provisions relied upon by the Council “are, quintessentially, matters for planning assessment on a broader scale than the detailed (tree by tree) and expert assessments of biodiversity impacts required by Part 7” (Applicant Written Submissions (AWS) at [20]). What is more, in circumstances where the planning experts have concluded in their joint report that the development satisfies them, the applicant argues that their expert conclusion should not be disturbed. In fact, it cautions the Court against allowing those provisions of the WLEP 2000 “…to bleed into the biodiversity assessment of the proposal, by applying the extreme view of cl 56 adopted by the Court in Altre…” (AWS [21]).  This interpretation, it asserts, is plainly wrong.  In Altre Partners Pty Ltd v Northern Beaches Council [2023] NSWLEC 1145 (Altre), the Court held that the word “complement” in cl 56 required an outcome that the proposal should “in some form, improve or contribute positively to the features of the site” at [49(2)]. Its meaning, it is argued, was based on the view expressed by an ecological expert in the case and contrary to orthodox principles of statutory construction.

44. In the absence of a technical definition, the applicant submits  that “to complement” in a design sense means to “fit in” rather than to “improve”; which it further asserts, is achieved in this case by a reduction of visual impacts of the development through reduced built form, separation of buildings, articulation and clever use of materials and colours and by detailed design to avoid the excavation of  rock outcrop (which was a significant problem in the Altre case).

45. The proposal, it is insisted, also incorporates management of waterways and ecological restoration through the Waterway Impact Statement (Ex A Tab 23) and Biodiversity Management Plan (BMP) (Ex A Tab 14) to additionally “…retain and complement …”.

46. It is further submitted that the reintroduction of rock forms to the site and use of local vegetation rather than typical urban landscaping to “fit in” with the rock outcrop ensures that this dominant typology of the site is preserved. In short, it contends on the evidence that the development has been designed to add a congruent form to the cl 56 features; and is, thereby, consistent with the design principle.

47. The applicant submits that cl 58 is also a design provision – encouraging development to “minimise impacts on native vegetation”; that it does not require avoiding impacts – nor could that be the intent – given that development is permissible. In such bushland locality some clearing of vegetation is inevitable; and the applicant submits, that it has taken steps to minimise clearing as spelt out in the BDAR ( Urban Design Study , Tab 3 Ex A ,Tab 4 Landscape Plan, Tab 21 SEPP Housing Design Verification Statement;  BDAR s 6.2.1- pp77-8, Ex A Tab 13 (AWS at [14])). 

48. As to the assessment of biodiversity impacts under Pt 7 of the BC Act, the applicant submits that Pt 7 prevails over inconsistent provisions in the EPA Act, and any instrument under that Act – including cll 56 and 58 and the relevant Character Statement of the WLEP 2000. Put simply, the EPA Act is subject to Pt 7 of the BC Act to the extent that it relates to the terrestrial environment: s 1.7 EPA Act. The words “subject to”, it submits, is a usual way of making clear that the unqualified provision (the BC Act) prevails (Adrenaline Pty Ltd v Bathurst Regional Council (2015) 97 NSWLR 207; [2015] NSWCA 123 at [56]). Therefore, inconsistent provisions that impose a standard, method or outcome in biodiversity assessment that departs from the biodiversity offsets scheme must be ignored. Moreover, any obligation to obtain concurrences under the EPA Act or the WLEP 2000 is overridden, if a BDAR is used to assess a DA and its consent requires the retirement of credits (s 7.12(2)). Only if the impacts of the development do not trigger Pt 7, do the WLEP 2000 provisions and Pt 4 (or Pt 5) of the EPA Act continue to apply unaffected by the BC Act.

Finding

51. For the reasons submitted by the applicant, as summarised, I find that there is inconsistency between the provisions at issue, as asserted.

52. In forming that view, it is to be noted that the EPA Act is subject to Pt 7 BC Act to the extent that it relates to the terrestrial environment: s 1.7 EPA Act. Furthermore, that the assessment of biodiversity impacts under Pt 7 of the BC Act prevails over inconsistent provisions in the EPA Act, and any instrument made under the Act: s 7.5(1) BC Act. Noting that the WLEP 2000 is such an instrument.

53. As the applicant submits, the inconsistent provisions here are those that impose a standard method or outcome in biodiversity assessment that departs from the biodiversity offset scheme, which is the intended leading provision (at [22] AWS). The objects of the BC Act, in particular objects (a), (k) and (m), are given effect by the BOS under Pt 6, by supplementing s 4.15 of the EPA Act in the assessment of development impacts on the terrestrial environment under Pt 7 of the BC Act: ss 7.5 and 7.13(2), and s 1.7 EPA Act.

54. Relevantly, s 6.2 of the BC Act describes the key features of the scheme, notably, to require assessment reports of biodiversity values and the impact of clearing and development on those values, and the measures “to offset the residual impact on biodiversity values after action that is required to be taken to avoid or minimise that impact” and to offset such impacts by “retirement of biodiversity credits or other conservation measures” s 6.2 (d) and (f) (AWS at [28]).

55. Simply stated, the biodiversity offsets scheme establishes a scientific method for assessing likely impacts on biodiversity values, calculating offsets and encouraging improvements in biodiversity: s 1.3 BC Act. Importantly, only an accredited assessor can prepare the BDAR in accord with the rules and the guidelines set out by the Minister in the BAM. In turn the BDAR’S compliance with the BAM ensures that the Government’s policy on biodiversity is implemented, as the BAM must adopt a standard that in the Minister’s opinion will result in no net loss of biodiversity in NSW (s 6.7(3)(b) BC Act). As such, I accept that there is no directive to achieve a “nature positive” outcome – or an improvement in biodiversity.

56. As the applicant points out, and contrary to the Council’s submissions, the BAM is based on a no net loss standard (s 1 para 3, s 10 para 1-3 (Ex B, Tab 14, p1, p 46)). The accredited assessor must use the data from mandated database (BAM 1.4) and the government BAM-C computer programme to assess biodiversity values. A quantitative approach to vegetation classification and integrity (BAM 3 and 4), and the undertaking of specific steps to assess the habitat suitability for threatened species (BAM 5) as well as the application of detailed guidelines on avoiding or minimising impacts by design (BAM 7) and by adaptive management cater for uncertainly (BAM 8.5) (AWS at [30]-[31]). Inevitably with development there will be residual impacts (being the impacts after avoidance and minimisation), however, the offsetting scheme offers an alternative to a refusal of consent by directing the use of the BAM-C to risk weight those impacts and classify and quantify the biodiversity credits generated to offset them (BAM 10.1.1, 10.2).

57. The applicant submits, and I accept that requiring improvements in biodiversity, as the WLEP 2000 provisions seek to do, contradicts the scheme and erects a higher bar to an approval than the standard adopted in the BAM by which biodiversity impacts of any development must be assessed. The overriding effect of s 7.5 of the BC Act depends on “contrariety”. Following the reasoning of the Court when dealing with s 8.4 of the BC Act and the State Environmental Planning Policy (Koala Habitation Protection) 2021 in Save Sydney’s Koala’s (Southwest) Inc v Lendlease Communities (Figtree Hill) Pty Ltd (No 2) [2021] NSWLEC 102 (Save Sydney’s Koalas), I find that the WLEP 2000 clauses at issue in this case have no operative effect for biodiversity as a mandatory consideration and that the assessment under s 4.15 of the EPA Act is confined to “likely impacts of the development” – with the assessment of the biodiversity impacts is to be carried out by the preparation of the BDAR s 7.7(1) BC Act.

58. In acknowledging that the Court has a discretion to consider ‘further’ likely biodiversity impacts, I accept, as the applicant submits, that this discretion would only be exercised if there were good reason to do so, and it could not be exercised by setting aside the BDAR assessment as that would be contrary to the scheme and the language of s 7.13(2) which invites “further “consideration, not consideration to displace the assessment of likely impact under the BDAR. The example put is, where the BDAR has been prepared, and a new species is then found on the site which had not been considered. In that circumstance any further impact on biodiversity might be taken into account as a matter of discretion, a circumstance that is not available on the evidence in the present case.

59. While in Planners North the Court endorsed the further consideration of biodiversity impact under s 4.15 of the EPA Act, it was only “as required and permissible respectively by s 7.13(2) of the BC Act” (at [11]), which the applicant identifies is the antithesis to the Council’s submission that the planning instruments imposing biodiversity assessment requirements “sit alongside Part 7”.

60. I accept that the assessment of the DA (through the BDAR) must demonstrate that there is “adequate avoidance etc measures” without which consent would likely to be refused. The measurement of adequacy (by reference to the BDAR with the BAM behind it) and not some criteria injected by a WLEP 2000 which has not been developed in accordance with the BAM’s scientific methodology.

61. The validity of the applicant’s BDAR has not been raised; only some aspects of the assessment carried out have been criticised by Mr Smith. Therefore, as the applicant rightly submits, the Court is bound to apply the BDAR to its assessment of biodiversity impacts for this DA: s 7.13(2).

62. In that regard, the BDAR demonstrates that the ecological impact of the development is low. The steps taken to minimise clearing are outlined in the BDAR.

63. Quite properly the BDAR does not consider “alleged past unlawful clearing” which Council’s ecologist asserts has given the applicant an unfair advantage in achieving a low VI score for existing clearing and disturbed areas. The raising of this matter in the Joint Expert Report, and Mr Smith’s search for a notional assessment of the cleared site – by assuming a situation where the site clearing had not occurred – is clearly at odds with the BC Act and the BC Regulation’s requirement for an assessment of the actual state of the site at the time of assessment – s 4 of the BC Regulation, s 6.15(1) BC Act – unless permitted otherwise under s 6.31 of that Regulation (AWS at [59]-[62]). This is consistent with the Court’s reasoning in Goldcoral Pty Ltd (Receiver and Manager Appointed) v Richmond Valley Council [2024] NSWLEC 77 (Goldcoral) that planning permission for construction and use could be granted to alter past unlawful development to allow its use and that the unlawful work of past owners is irrelevant: Goldcoral [52]-[54]. In any event, Council has not established or sought to establish that where clearing has occurred, it has been undertaken unlawfully.

64. The BDAR also has assessed that no threatened species will be impacted by the APZ for this development. The evidence is that the toadlet habitat is well preserved and will be enhanced by the management plan.

65. The other WLEP 2000 provision that the Council seeks to rely on is the character statement for the site. That said, cl 12(3) is plain in expressing that nothing in the statement is intended to create a prohibition on development as consistency with the provisions – not compliance, is required: cl 12(3)(b).

66. The applicant submits and I accept on its evidence that the development is a low intensity low impact use. In forming that view I find that “low intensity” refers to size, scale and the extent of activities associated with development and “low impact” refers to the magnitude of environmental impact which would be “unlikely to significantly change the amenity of the locality (see Platform Architects Pty Ltd v Northern Beaches Council [2020] NSWLEC 185 at [53]-[54]).

67. The planners have agreed that the redesign of the development has resolved contention 1 in respect of desired future – apart from one aspect – the APZ (JER at p 3). The assertion being that because the APZ requires some limited vegetation clearing and management, that the use has been changed to something other than low intensity and low impact and that removal of vegetation is not consistent with the character statement that “landforms and vegetation will be protected, and where possible, enhanced”. I do not accept that proposition. Leaving aside enhancement (which can be ignored as it is inconsistent with the BDAR) I find on the evidence that the development is consistent with “landforms and vegetation protection” because the proposed “building[s] will be grouped in areas that will result in the minimum amount of disturbance of vegetation and landforms”.

68. Ultimately, I accept that the words under review in the BC Act are not distinctly different to those in s 8.4(6) BC Act which intended to oust the operation of s 4.15 EPA Act and consequently the WLEP 2000 provisions related to the same subject matter: see Save Sydney’s Koalas at [137]. The same outcome follows in this case when considering the WLEP 2000 provisions including the DFC provision and the BC Act.

69. As the Council identifies these clauses are principles contained in Pt 4 and are intended to be given substantive operation through cl 12(1)(a) of the WLEP 2000 subject to Pt 7 of the BC Act: s 4.15(1)(a) of the EPA Act. To the extent that this is available I have carried out the Part 4 assessment, as required under s 7.13(2) where it can operate harmoniously. And, after careful consideration of all matters, I find on the evidence that the development is acceptable on its merits subject to the agreed conditions of consent in Exhibit G, as amended. In forming that view I have taken into account the planners’ agreed evidence which supports a conditional approval of the DA. I accept that the BDAR has assessed all relevant impacts and has reasonably avoided and minimised impacts, as Mr Sheather-Reid and Dr Henderson acknowledge.

70. The conservation outcome of a 77% retention of the existing native vegetation is as Mr Sheather-Reid and Dr Henderson state:

“…a high-level outcome which retains and protects bushland, threatened species habitat and reestablishes the canopy line. This also complements the recent bushfire that has occurred on site setting the scene for a high quality and diverse range of habitats representative of the site.” (Ex 5 p 5).

71. The experts are agreed that the inclusion of Lot 807 in the biodiversity conservation area makes an improved contribution to conservation to the public benefit by enhancing native vegetation and habitat for the locally native plant and animal species including threatened species. Similarly, the inclusion of the restoration of the bushland on the southern lot boundary to reinstate native vegetation in areas impacted by the adjoining approved development is an appropriate response. Importantly, the conditions of consent enable the implementation of the amended BMP to achieve a security for protection establishment and restoration of the conservation area (Ex 5 p 5).

72. For the reasons stated above I do not accept Mr Smiths’ evidence where it contradicts the BDAR.

73. For completeness, I address the evidence responding to the public submissions:

1. Waterways and Catchment Management:

1. A Waterway Impact Statement prepared by Martens & Associates is behind Tab 23 of Exhibit A. It concludes that the proposal seeks to protect the existing riparian corridor by managing riparian vegetation through retention and weed removal. The proposal will deliver a material benefit to the existing riparian corridor by protecting vegetation and improving water quality. Chapter 5 of the BDAR (Tab 13, 73-76) assessed the impact of the proposal on wetland communities as minimal (p. 74). The hydroline was ground-truthed and found to extend only a short distance into the site (p. 74).

2. Stormwater and Water Quality Protection:

1. Stormwater runoff from the proposed development will be treated and managed prior to release into the drainage lines. A Stormwater Management Plan is behind Tab 22 of Exhibit A. The report explains how stormwater quality and quantity will be managed to ensure that the existing hydrological conditions and water quality are maintained.

3. Earthworks and Erosion Control:

1. A sediment and erosion control plan has been developed to protect the drainage lines during construction. The plan is included in the Civil Engineering Plans, which are behind Tab 5 of Exhibit A. These works will ensure the long-term protection of riparian land and control the risk of erosion and sedimentation.

4. Pedestrian Access and Connectivity:

1. An Access Report is behind Tab 1 of Exhibit A. To facilitate access to bus services on Willandra Road, the development proposes footpath access from the subject site to the existing northbound bus stop and the use of the pedestrian refuge crossing on Willandra Road to connect to the existing southbound bus stop and footpath. Proposed conditions 33.4 and 64 refer to the distance from the site boundary to both bus stops on Willandra Road is less than 100 metres, complying with the WLEP 2000.

2. Regarding the topography, the pathway from the site boundary to the two bus stops does not exceed a gradient of 1:14 and complies with the WLEP 2000 requirements. The Court can understand the relationship between the site and regional services by referring to the Urban Design Study, Tab 3, pp 3-4. The existing bus stop adjoining the site as shown on the figure at p. 16, Tab 10 of the Access Report.

5. Bushire Risk and Management Strategies:

1. A Bushfire Report is behind Tab 15 of Exhibit A. The designed APZs comply with the minimum setbacks outlined in Planning for Bushfire Protection (PBP 2019). The proposal includes an 8-metre perimeter road in accordance with the acceptable solutions in PBP 2019.

2. Future building construction will comply with Bushfire Attack Level (BAL) 19 and the appropriate construction standards in Sections 3 and 6 of AS3959-2018, exceeding the minimum BAL 12.5 requirements. The site adjoins the RFS station and will have fire hydrants and a reticulated water supply (pp. 18-19).

6. DFC, Development Intensity and Environmental Impact:

1. The subject site is 8.65 hectares. The proposed development consists of 22 units, accommodating a maximum of 44 seniors. The proposal includes the removal of 192 trees while establishing a 5.86-hectare conservation area, representing 77% of the existing vegetation and associated high-value landscape. All rock outcrops, rocky areas, and watercourses will be retained.

7. Draft LEP and Planning Implications:

1. The proposed draft LEP has been pending Gateway Determination since June 2024. It is not a matter for consideration under s. 4.15(1)(a)(ii).

8. Impact Avoidance and Minimisation Strategies:

1. The current proposal is the result of a reduction from an earlier development application (DA 2022/0616), which originally contained 36 independent living units and a fire trail aligned with existing fire trails. That proposal involved the entire No. 76 and No. 74 Willandra Road (Lot 811 and Lot 81 O DP 752038), with a portion of No. 72 (Lot 807 DP 752038) used as an APZ.

2. The proposal will only impact 1.79ha of native vegetation. As less than 2ha was impacted, a streamlined BDAR was prepared (p. 107). During court proceedings, the earlier DA was amended to 26 units, replacing the fire trail with a perimeter road. The current proposal further reduces the number of units from 26 to 22 and includes the entirety of No. 72 (Lot 807 DP 752038) as part of the development site for conservation purposes only.

3. The BDAR assessed the avoidance and minimisation measures (Tab 13, pp. 77-81). No fragmentation of corridors or impact on breeding habitats will occur. The impact of the APZ has been minimised by reducing building footprint. Connectivity has been retained by design (p. 80).

9. Threatened Species and Connectivity:

1. A BDAR is behind Tab 13 of Exhibit A. Habitat connectivity will be maintained as the proposed development is close to Willandra Road, with the impacted area concentrated in the north-eastern part of the site. The BDAR assesses the impact on threatened flora and fauna species, and calculates the credits required to offset residual impacts.

2. It should be noted that No. 72 Willandra Road (including the portion not used as an APZ), being an environmentally sensitive property, has been incorporated into the development site for conservation purposes only.

10. BMP and Mitigation Measures:

1. A BMP is behind Tab 14 of Exhibit A. The BMP provides mitigation and management measures for the retained bushland and addresses the impact of the ongoing use of the proposed development.

Conclusion

74. Accordingly, the Court orders that:

1. The appeal is upheld.

2. Development consent is granted to development application DA2023/1932 for a senior living development located at 72 to 76 Willandra road, Oxford Falls NSW of Lot 807, Lot 810 and Lot 811 in DP 752038, subject to the conditions of consent in Annexure A.

3. The exhibits are to be returned following publication of the judgment except for Exs A and 1.

S Dixon

Senior Commissioner of the Court

Annexure A (445 KB, pdf)

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Amendments

23 July 2025 - Corrected File Number

29 July 2025 - Typographical amendments made.

30 July 2025 - Coversheet - corrected content order.

12 August 2025 - Typographical amendments made.

Decision last updated: 12 August 2025