Wallace v Central Coast Council

Case •

[2022] NSWLEC 1674

•

06 December 2022

No judgment structure available for this case.

Land and Environment Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Wallace v Central Coast Council [2022] NSWLEC 1674
Hearing dates: 1 and 2 November 2021, 15 and 16 June 2022
Decision date: 06 December 2022
Jurisdiction:Class 1
Before: Chilcott C
Decision:

The Court directs that:

(1) the Parties are directed to prepare final settled conditions of consent, consistent with findings in this judgment, and to file these by no later than Monday 19 December 2022;

(2) the matter is listed for mention on Tuesday 20 December 2022 at 4:15pm by telephone;

(3) if the direction at (1) above is complied with, final orders will be made granting development consent and the mention on 20 December 2022 will be vacated;

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

Catchwords:

DEVELOPMENT APPLICATION – subdivision of land – bushfire prone land – potential impacts on biodiversity – potential impact on squirrel glider habitat – creation of wildlife corridor – whether Applicant’s BDAR is acceptable – whether Applicant’s proposed wildlife corridor is acceptable – consideration of proposed conditions of consent.

Legislation Cited:

Biodiversity Conservation Act 2016, Pts 4, 5, 7, ss 6.5, 6.7, 6.12, 7.2, 7.3, 7.5, 7.7, 7.12, 7.13, 7.16

Biodiversity Conservation Regulation 2017, cl 6.7

Conveyancing Act 1919, s 88B

Environmental Planning and Assessment Act 1979, Pt 4, ss 4.15, 4.16, 7.16, 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cll 55, 77

Rural Fires Act 1997, s 100B

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

State Environmental Planning Policy No. 55, cl 7

Wyong Local Environmental Plan 2013, cll 2.3, 2.6, 4.1, 6.1, 6.2, 7.9,

Texts Cited:

Central Coast Community Participation Plan 2019

Land and Environment Court of NSW COVID-19 Pandemic Arrangements Policy, April 2021

NSW Department of Planning, Industry and Environment, Biodiversity Assessment Method 2020

Wyong Development Control Plan 2013

Category:Principal judgment
Parties: Colin Wallace (Applicant)
Central Coast Council (Respondent)
Representation:

Counsel:
J Johnson (Applicant) (part – 1 & 2 November 2022)
J Doyle (Applicant) (part – 15 & 16 June 2022)
H Irish (Respondent)

Solicitors:
Fox Legal Services (Applicant)
MBM Legal + Conveyancing (Respondent)
File Number(s): 2021/51735
Publication restriction: Nil

JUDGMENT

  1. COMMISSIONER: Colin Wallace (the Applicant) has appealed the refusal by Central Coast Council (the Respondent) of his development application DA/87/2020, made with owner’s consent, seeking consent for the residential subdivision of land, as well as demolition and some associated works (the Proposed Development) at 51 and 53-73 Warnervale Road, Warnervale (the Subject Site).

  2. The Subject Site is located within an urban release area and is zoned in part R1 and part R2 pursuant to cl 2.3 of Wyong Local Environmental Plan 2013 (WLEP) and subdivision of the Subject Site is permissible with consent pursuant to the provisions of cl 2.6 of WLEP.

  3. The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The appeal is determined pursuant to the provisions of s 4.16 of the EP&A Act.

  4. A site inspection was undertaken at the commencement of the hearing, consistent with the Court’s COVID-19 Pandemic Arrangements Policy, and the balance of the hearing was undertaken via Microsoft Teams.

Notifications and objector submissions

  1. Pursuant to the provisions of cl 77 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation), and the provisions of the Central Coast Community Participation Plan 2019, the Applicant’s development application DA/87/2020 was notified between 26 February 2020 and 18 March 2020 and no submissions were received in response to that notification.

The Applicant seeks to amend its development application

  1. During the hearing, Council identified that the certificate issued by the NSW Rural Fire Service (NSWRFS) under s 100B of the Rural Fires Act 1997 may have been incorrectly constructed, and this was accepted by the Applicant.

  2. Notwithstanding this, the Applicant sought to amend its application to incorporate, and require, Bushfire Attack Level (BAL) 40 standard of construction of any buildings on the Subject Site, as well as proposing a condition of consent requiring imposition of a restriction on title, pursuant to s 88B of the Conveyancing Act 1919, for any future dwelling on proposed Lots 8 and 9 that adjoin land accommodating a public school and which provides for the retention of vegetation for the purposes of a 116m wide wildlife corridor at the rear of the school site.

  3. In response to this, and with the agreement of the Respondent Council, the Applicant sought leave to amend its development application through revision to its proposed plan of subdivision, pursuant to cl 55(1) of the EP&A Regulation.

  4. That leave was granted and the Applicant confirmed that its amended development application was subsequently uploaded to the NSW Planning Portal.

  5. By notice of motion, the Applicant was also granted leave by the Court on 25 February 2022 to rely on its amended plan of subdivision and other documents in the proceedings, with costs reserved, and subsequently ordered to be as agreed or assessed, pursuant to s 8.15(3) of the EP&A Act.

  6. The Applicant’s amended plans were said to be responsive to certain contentions concerning potential bushfire risks associated with the Proposed Development and included:

  1. an increase in the size of a proposed wildlife corridor on the Subject Site by 2204m2 to create a corridor with an area of 9065m2; and

  2. the provision of secondary access onto the Subject Site from Warnervale Road.

The Applicant further amends its application

  1. On 9 June 2022, by notice of motion, the Applicant sought leave once more to rely on further documents and reports. The Applicant submitted that these documents were responsive to matters that had arisen in the proceedings concerning bushfire and biodiversity related contentions.

  2. More specifically, the Applicant sought leave to reply upon:

  1. the following amended plans and other documents in the proceedings:

  1. concept subdivision plan revision M, Job code SUB02, proposing 23 residential lots, 1 conservation lot (Lot 24) and two residual lots (Lots 25 and 26);

  2. concept landscape plan issue F, dated 30 May 2022, prepared by Conus Landscaping and Architecture; and

  1. the following further documents:

  1. an updated Biodiversity Development Assessment Report (BDAR), referred to in the proceedings as a BDAR Addendum, dated 24 May 2022, prepared by Cumberland Ecology and which amended a previous BDAR prepared by Conacher Consulting; and

  2. a bushfire report, dated April 2022, prepared by Clarke and Dowdle.

  1. The Applicant’s further documents make the following changes to the Applicant’s development application in order to address certain of the remaining contentions within the Respondent’s further amended statement of facts and contentions filed on 28 March 2022:

  1. increase the road reserve on proposed lot 25 to 10.5m in width and dedicate it as a public road;

  2. provide a central median island to prevent right hand movements out of the road reserve on proposed lot 25;

  3. increase the width of perimeter road 1 so that it would have a carriage way width of 8m, kerb to kerb;

  4. provide a wider turning bay in line with the requirements of a certificate issued by the NSW Rural Fire Service on 25 May 2022 pursuant to s 100B of the Rural Fires Act 1997.

  1. The Applicant advised that changes made to its landscape plan and its BDAR were consequential to the changes in subdivision design outline above ([13]).

  2. The Applicant’s amended concept plan of subdivision is provided in the following figure:

Figure 1: Applicant’s concept plan of subdivision

  1. In a judgment published on 15 June 2022, the Court:

  1. noted that:

  1. Central Coast Council, as the relevant consent authority, had agreed under cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation) to the Applicant amending the application for development consent to rely on the plans and documents identified above (at [13]).

  2. the Applicant had filed the plans and documents identified above with the Court on 31 May 2022;

  1. made the following orders:

  1. the Court granted the Applicant’s request for leave to rely upon the plans and documents identified above (at [13]) in the proceedings;

  2. the Parties were to lodge the amendment of the development application on the NSW Planning Portal by 4pm, 16 June 2022 and notify the Court after it has been lodged;

  3. the Applicant was ordered to pay the Respondent’s costs thrown away in dealing its amended plans and other documents, as agreed or assessed, pursuant to s 8.15(3) of the EP&A Act.

Site context

  1. The Subject Site:

  1. is described as consisting of two lots;

  1. Lot 70 in DP 7091, which is the larger of the parcels at 53-73 Warnervale Road; and

  2. Lot 8 in DP 247082, the smaller parcel, located adjacent to the north western edge of Lot 70, and fronting Warnervale Rd and identified as No. 51 on that street;

  1. has access directly off Warnervale Road;

  2. has a total area of 46,079.5m2 with a gentle slope of less than 10% throughout the site and including the following features;

  1. site levels ranging between 15m to 22m Australian Height Datum (AHD);

  2. on Lot 70, vegetation including Warnervale Spotted Gum Red Ironbark Forest with some Narrabeen Buttonderry Footslopes Forest;

  3. in the majority, vacant and undeveloped land with Lot 8 containing a dwelling house;

  4. mapped as bushfire prone land;

  5. contains Class 5 acid sulfate soils in its south east corner;

  6. contains identified habitat for the Squirrel Glider, Petaurus norfolcensis, which is a listed threatened species; and

  7. mapped on Council’s Biodiversity Values Map.

  1. The relationship of the larger Lot 70 to the smaller Lot 8 adjacent to its north-west corner on Warnervale Road is illustrated in the figure below:


Figure 2: Configuration of lots within Subject Site

Contentions

Certain contentions resolved

  1. At the commencement of the hearing, the Respondent advised that certain matters that had been in contention in the appeal were resolved on the basis of the Applicant’s further amended development application as follows:

  1. a contention concerning the Proposed Development’s compliance with the terms of the now repealed cl 7(1) of State Environmental Planning Policy No. 55 - Remediation of Land (SEPP 55), the provisions of which now sit within cl 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021;

  2. a contention concerning compliance of the Proposed Development with the objectives of the R2 zoning of a part of the Subject Site;

  3. a contention concerning compliance of the Proposed Development with the provisions of cl 4.1 of WLEP in relation to minimum lot sizes within the subdivision;

  4. a contention concerning compliance of the Proposed Development with the provisions of cl 7.9 of WLEP in relation to vehicular access and stormwater management.

  1. Additionally, the Respondent had contended that the Proposed Development did not comply with the provisions of cl 6.1(3) of WLEP in relation to the provision of state infrastructure, but the Applicant subsequently provided a Secretary’s Certificate of Suitable Arrangements for designated State public infrastructure dated 18 May 2022, resolving the contention. The Respondent was also satisfied that the Proposed Development, as amended, complied with the provisions of cl 6.2 of WLEP (see below at [26(3)]).

  2. The Respondent also confirmed that a contention concerning bushfire matters had been resolved through:

  1. the Applicant’s amendment to the Proposed Development which provided:

  1. appropriate access arrangement from Warnervale Road to the Subject Site; and

  2. access to and egress from the Subject Site for emergency vehicles, including those that might be required in relation to bushfire management; and

  1. the NSW Rural Fire Service issuing on 22 June 2022 a bushfire safety authority for the Proposed Development, as amended, under s 100B of the Rural Fires Act 1997, including general terms of approval which the Applicant agrees should be imposed with any grant of consent in relation to its development application.

Remaining contentions

  1. Following the preparation of further expert reporting, the Parties subsequently agreed that the remaining contentions in the appeal concerned the adequacy of the Applicant’s proposals with respect to potential impacts on biodiversity, including the habitat of the Squirrel Glider, and more specifically:

  1. whether the Applicant’s BDAR had been prepared in a manner that is consistent with the requirements of the Biodiversity Conservation Act 2016 (the BC Act);

  2. whether Applicant’s Proposed Development had adequately avoided, minimised and offset potential impacts on the Squirrel Glider and its habitat on the Subject Site, in relation to which the Respondent contended that the Applicant had only considered minimising impacts and had not sought to avoid impacts on the Squirrel Glider Habitat on the Subject Site; and

  3. whether the Applicant’s proposed wildlife corridor was acceptable in relation to facilitating biodiversity movement, including that of Squirrel Gliders, across the local landscape.

  1. The Court was assisted in its considerations of these contentions by the evidence of the Parties’ expert ecologists:

  1. Dr David Robertson, for the Applicant, and

  2. Dr Chris McLean, for the Respondent.

Statutory context

Environmental Planning and Assessment Act 1979

  1. Development on the Subject Site is subject to the provisions of the NSW EP&A Act, and the following provisions of that Act are of relevance in this appeal:

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

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

(a) the provisions of -

(i) any environmental planning instrument, and

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

(iii) any development control plan, and

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

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

(v) (Repealed)

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

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

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

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

(e) the public interest.

Wyong Local Environmental Plan 2013

  1. The following provisions of WLEP are of relevance in this appeal:

  1. clause 2.3 concerning zone objectives and land use table, and in relation to which:

  1. subclause 2.3(2) requires that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone; and

  2. the Subject Site is zoned R1 and R2, the objectives of which are:

  1. in relation to land zoned R1 General Residential:

To provide for the housing needs of the community.

To provide for a variety of housing types and densities.

To enable other land uses that provide facilities or services to meet the day to day needs of residents.

To promote “walkable” neighbourhoods.

To ensure that development is compatible with the scale and character of the local area and complements the existing streetscape.

  1. in relation to lands zoned R2 Low Density Residential:

To provide for the housing needs of the community within a low density residential environment.

To enable other land uses that provide facilities or services to meet the day to day needs of residents.

To maintain and enhance the residential amenity and character of the surrounding area.

To provide a residential character commensurate with a low density residential environment.

  1. clause 6.1 applies as the Subject Site which is within an area mapped as an urban release area, that being the “Warnervale South (Part A)”, and this clause provides as follows:

(1) The objective of this clause is to require satisfactory arrangements to be made for the provision of designated State public infrastructure before the subdivision of land in an urban release area to satisfy needs that arise from development on the land, but only if the land is developed intensively for urban purposes.

(2) Development consent must not be granted for the subdivision of land in an urban release area if the subdivision would create a lot smaller than the minimum lot size permitted on the land immediately before:

(a) in relation to land identified as “Gwandalan (North)” on the Urban Release Area Map—1 September 2008, or

(b) in relation to land identified as “Louisiana Road, Hamlyn Terrace (West)” on the Urban Release Area Map—18 July 2008, or

(c) in relation to land identified as “Warnervale South (Part A)” on the Urban Release Area Map—the commencement of this Plan, or

(d) in any other case—immediately before the land became, or became part of, an urban release area,

unless the Director-General has certified in writing to the consent authority that satisfactory arrangements have been made to contribute to the provision of designated State public infrastructure in relation to that lot.

(3) Development consent must not be granted for the subdivision of the following land unless the Director-General has certified in writing to the consent authority that satisfactory arrangements have been made to contribute to the provision of designated State public infrastructure in relation to the land to be subdivided:

(a) land identified as “Gwandalan (South)” on the Urban Release Area Map,

(b) land identified as “Louisiana Road, Hamlyn Terrace (East)” on the Urban Release Area Map,

(c) land identified as “Warnervale South (Part B)” on the Urban Release Area Map.

(4) Subclauses (2) and (3) do not apply to:

(a) any lot identified in the certificate as a residue lot, or

(b) any lot to be created by a subdivision of land that was the subject of a previous development consent granted in accordance with this clause, or

(c) any lot that is proposed in the development application to be reserved or dedicated for public open space, public roads, public utility undertakings, educational facilities or any other public purpose, or

(d) a subdivision for the purpose only of rectifying an encroachment on any existing lot.

(5) This clause does not apply to land in an urban release area if all or any part of the land is in a special contributions area (as defined by section 93C of the Act).

  1. clause 6.2 in relation to public utility infrastructure which provides as follows:

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

(2) This clause does not apply to development for the purpose of providing, extending, augmenting, maintaining or repairing any public utility infrastructure.

  1. There are no provisions in WLEP in relation to biodiversity conservation.

Biodiversity Conservation Act 2016

  1. The following provisions of the the BC Act are of relevance to the current appeal:

  1. section 6.5 which concerns serious and irreversible impacts on biodiversity values, and which provides:

(1) The determination of serious and irreversible impacts on biodiversity values for the purposes of the biodiversity offsets scheme is to be made in accordance with principles prescribed by the regulations.

(2) The Environment Agency Head may provide guidance on the determination of any such serious and irreversible impacts, and for that purpose may publish, from time to time, criteria to assist in the application of those principles and lists of potential serious and irreversible impacts.

  1. section 6.7 which concerns the establishment of the biodiversity assessment method (BAM), and which provides:

(1) The Minister is to establish a biodiversity assessment method in connection with the biodiversity offsets scheme.

(2) The biodiversity assessment method is also established for the purpose of assessing the impact of actions on threatened species and threatened ecological communities, and their habitats, and the impact on biodiversity values of other actions prescribed by the regulations (whether or not the biodiversity offsets scheme applies to the impact of those actions on biodiversity values).

Note - See Part 7 of this Act and Division 6 of Part 5A of the Local Land Services Act 2013.

(3) When establishing the biodiversity assessment method, the Minister is to -

(a) have regard to the purpose of this Act, and

(b) adopt a standard that, in the opinion of the Minister, will result in no net loss of biodiversity in New South Wales.

This subsection does not affect the validity of a biodiversity assessment method established by the Minister.

(4) The biodiversity assessment method is to be established by order of the Minister published on the NSW legislation website.

(5) The biodiversity assessment method may be amended or replaced by further order of the Minister published on the NSW legislation website.

(6) The Environment Agency Head is to make the biodiversity assessment method available on a government website maintained by the Agency Head.

Note - See Part 9 and section 6.9 (Review of biodiversity assessment method) for public consultation requirements in relation to the biodiversity assessment method.

  1. section 6.12 concerning biodiversity development assessment reports, and which provides:

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

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

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

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

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

Note - A biodiversity development assessment report is also used for the assessment of impacts on threatened species and threatened ecological communities, and their habitats, and other impacts under Part 7 (Biodiversity assessment and approvals under Planning Act) even though the impacts may not relate to actions to which the biodiversity offsets scheme applies.

  1. Part 7 of the BC Act concerns biodiversity assessment and approvals under the EP&A Act which include the following provisions of relevance to the current appeal:

  1. section 7.2 which defines the circumstances in which a development or activity is “likely to significantly affect threatened species”, and which provides as follows:

(1) For the purposes of this Part, development or an activity is likely to significantly affect threatened species if -

(a) it is likely to significantly affect threatened species or ecological communities, or their habitats, according to the test in section 7.3, or

(b) the development exceeds the biodiversity offsets scheme threshold if the biodiversity offsets scheme applies to the impacts of the development on biodiversity values, or

(c) it is carried out in a declared area of outstanding biodiversity value.

(2) To avoid doubt, subsection (1)(b) does not apply to development that is an activity subject to environmental impact assessment under Part 5 of the Environmental Planning and Assessment Act 1979.

(3) Subsection (1)(a) does not apply to bushfire-affected development if -

(a) the proposed development –

(i) is the reconstruction or replacement of a bushfire-affected building or structure, and

(ii) will result in a building or structure that is the same, or substantially the same, as the building or structure that existed immediately before it was damaged or destroyed, and

(b) the development application for the bushfire-affected development is made no later than 2 years after the commencement of this subsection.

(4) This subsection and subsections (3) and (5) are repealed 2 years after they commence.

(5) In this section –

bushfire-affected building or structure means a building or structure that -

(a) was destroyed or damaged as a result of bushfire in the period starting 5 August 2019 and ending 2 March 2020, and

(b) was, immediately before it was destroyed or damaged, lawfully erected.

bushfire-affected development means proposed development involving the erection of, or repairs to, a bushfire-affected building or structure.

  1. section 7.3 which provides the test for determining whether proposed development or activity is likely to significantly affect threatened species or ecological communities, or their habitats, and which provides as follows:

(1) The following is to be taken into account for the purposes of determining whether a proposed development or activity is likely to significantly affect threatened species or ecological communities, or their habitats -

(a) in the case of a threatened species, whether the proposed development or activity is likely to have an adverse effect on the life cycle of the species such that a viable local population of the species is likely to be placed at risk of extinction,

(b) in the case of an endangered ecological community or critically endangered ecological community, whether the proposed development or activity -

(i) is likely to have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction, or

(ii) is likely to substantially and adversely modify the composition of the ecological community such that its local occurrence is likely to be placed at risk of extinction,

(c) in relation to the habitat of a threatened species or ecological community—

(i) the extent to which habitat is likely to be removed or modified as a result of the proposed development or activity, and

(ii) whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed development or activity, and

(iii) the importance of the habitat to be removed, modified, fragmented or isolated to the long-term survival of the species or ecological community in the locality,

(d) whether the proposed development or activity is likely to have an adverse effect on any declared area of outstanding biodiversity value (either directly or indirectly),

(e) whether the proposed development or activity is or is part of a key threatening process or is likely to increase the impact of a key threatening process.

(2) The Minister may, by order published in the Gazette with the concurrence of the Minister for Planning, issue guidelines relating to the determination of whether a proposed development or activity is likely to significantly affect threatened species or ecological communities, or their habitats. Any such guidelines may include consideration of the implementation of strategies under the Biodiversity Conservation Program.

  1. section 7.5, which concerns the relationship between the BC Act and the Planning Act, being the EP&A Act, and which provides that:

(1) This Part prevails to the extent of any inconsistency between this Part and the Environmental Planning and Assessment Act 1979 (or any instrument under that Act).

(2) A reference in the Environmental Planning and Assessment Act 1979 or any other Act or in any statutory instrument or document to the Environmental Planning and Assessment Act 1979 (whether an express or implied reference) is a reference to that Act as applying in accordance with this Part.

  1. section 7.7 which concerns biodiversity assessment for Part 4 development (other than State significant development or complying development), and which provides:

(1) This section applies to an application for development consent under Part 4 of the Environmental Planning and Assessment Act 1979, except—

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

(b) an application for a complying development certificate.

(2) If the proposed development is likely to significantly affect threatened species, the application for development consent is to be accompanied by a biodiversity development assessment report.

  1. section 7.12 which concerns the circumstances in which concurrence of Environment Agency Head is required if a Minister is not consent authority under Part 4 or determining authority under Part 5 of the EP&A Act, and which provides that

(1) This section applies to the following -

(a) development (not being State significant development or complying development) that requires development consent under Part 4 of the Environmental Planning and Assessment Act 1979 when a Minister is not the consent authority,

(b) an activity that requires environmental impact assessment under Part 5 of the Environmental Planning and Assessment Act 1979 when a Minister is not the determining authority.

(2) The consent authority is not to grant development consent if the development is likely to significantly affect threatened species, unless the consent authority has obtained the concurrence of the Environment Agency Head. However, concurrence is not required if -

(a) the application for development consent is accompanied by a biodiversity development assessment report in accordance with Division 2, and

(b) in a case in which the biodiversity offsets scheme applies to the impacts of the development—the conditions of the consent require the applicant to retire biodiversity credits to offset the residual impact on biodiversity values of at least the number and class specified in the report.

…

  1. section 7.13 which concerns biodiversity assessments and offsets in relation to development other than State significant development or infrastructure, and which, inter alia, provides:

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

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

(b) an application for a complying development certificate.

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

(3) If the consent authority decides to grant consent and the biodiversity offsets scheme applies to the proposed development, the conditions of the consent must require the applicant to retire biodiversity credits to offset the residual impact on biodiversity values of the number and class specified in the report (subject to subsection (4)). The residual impact is the impact after the measures that are required to be carried out by the terms or conditions of the consent to avoid or minimise the impact on biodiversity values of the proposed development (being measures on which the report was based).

…

  1. Section 7.16 which concerns the circumstances in which a proposed development or activity has serious and irreversible impacts on biodiversity values, and which, inter alia, provides:

(1) In this section, serious and irreversible impacts on biodiversity values of proposed development or activity means serious and irreversible impacts on biodiversity values as determined under section 6.5 that would remain after the measures proposed to be taken to avoid or minimise the impact on biodiversity values of the proposed development or activity.

(2) The consent authority must refuse to grant consent under Part 4 of the Environmental Planning and Assessment Act 1979, in the case of an application for development consent to which this Division applies (other than for State significant development), if it is of the opinion that the proposed development is likely to have serious and irreversible impacts on biodiversity values.

…

Rural Fires Act 1997

  1. The Proposed Development, as amended, is subject to the provisions of the Rural Fires Act 21997 (RF Act).

  2. Section 100B of the RF Act provides:

(1) The Commissioner may issue a bush fire safety authority for—

(a) a subdivision of bush fire prone land that could lawfully be used for residential or rural residential purposes, or

(b) development of bush fire prone land for a special fire protection purpose.

(2) A bush fire safety authority authorises development for a purpose referred to in subsection (1) to the extent that it complies with standards regarding setbacks, provision of water supply and other matters considered by the Commissioner to be necessary to protect persons, property or the environment from danger that may arise from a bush fire.

(3) A person must obtain such a bush fire safety authority before developing bush fire prone land for a purpose referred to in subsection (1).

(4) Application for a bush fire safety authority is to be made to the Commissioner in accordance with the regulations.

…

Biodiversity Conservation Regulation 2017

  1. The Biodiversity Conservation Regulation 2017 (the BC Regulation) makes regulations in support of the BC Act and of relevance to this appeal provides under cl 6.7 the principles applicable to the determination of “serious and irreversible impacts on biodiversity values” as referred to in s 6.5(1) of the BC Act, and provides:

(1) This clause applies for the purposes of determining whether an impact on diversity values is a serious and irreversible impact for the purposes of the biodiversity offsets scheme.

(2) An impact is to be regarded as serious and irreversible if it is likely to contribute significantly to the risk of a threatened species or ecological community becoming extinct because -

(a) it will cause a further decline of the species or ecological community that is currently observed, estimated, inferred or reasonably suspected to be in a rapid rate of decline, or

(b) it will further reduce the population size of the species or ecological community that is currently observed, estimated, inferred or reasonably suspected to have a very small population size, or

(c) it is an impact on the habitat of the species or ecological community that is currently observed, estimated, inferred or reasonably suspected to have a very limited geographic distribution, or

(d) the impacted species or ecological community is unlikely to respond to measures to improve its habitat and vegetation integrity and therefore its members are not replaceable.

(3) For the purpose of this clause, a decline of a species or ecological community is a continuing or projected decline in -

(a) an index of abundance appropriate to the taxon, or

(b) the geographic distribution and habitat quality of the species or ecological community.

(4) If the guidance published by the Environment Agency Head under section 6.5(2) of the Act is changed, a biodiversity assessment report may, during the period of 90 days after the guidance was changed, be prepared on the basis of the guidance in force before the change, but only if the report states that it has been prepared on that basis.

Biodiversity Assessment Method 2020

  1. The BAM is published by the NSW Department of Planning, Industry and Environment, and is established under the provisions of s 6.7 of the BC Act (see above [28(2)]).

  2. Section 7 of the BAM provides, inter alia, “guidance and outlines requirements to apply the hierarchy of avoid, minimise and offset for assessing direct, indirect or prescribed impacts on biodiversity values”, and notes that a BDAR must contain the matters in Appendix K of the BAM.

  3. Appendix K of the BAM notes that:

  1. the BAM has three stages:

  1. Stage 1, biodiversity assessment

  2. Stage 2, impact assessment

  3. Stage 3, improving biodiversity values; and

  1. provides checklists for the minimum information requirements for the BDAR, depending on its specific purpose, in Table 24 for the Stage 1: Biodiversity assessment and Table 25 for the Stage 2: Impact assessment stages of preparing a BDAR.

  1. Section 7.1 of the BAM outlines strategies and actions that may be taken to avoid or minimise impacts on biodiversity values during proposal planning and point 6 within section 7.1.1 states that in preparing a BDAR for a particular project, the assessor must document and justify any actions taken to avoid or minimise impacts through careful location of the proposal.

Wyong Development Control Plan 2013

  1. The provisions of Part 4 of Wyong Development Control Plan 2013 (WDCP) concerning Subdivision are of relevance in this appeal, and its objectives include:

  1. to promote development that uses, conserves and enhances the community’s resources so that ecological processes are maintained and the quality of life for both present and future generations is enhanced; and

  2. to identify, protecting and appropriately managing any threatened species, populations, endangered ecological communities and their habitats.

  1. The provisions of Chapter 6.5 of WDCP, which provides guidance for the preparation of proposals to develop land within the Warnervale South Area, also referred to as Precinct 7A, are of relevance to the Proposed Development, as amended. Chapter 6.5 has the following objectives for development of the Warnervale South Area:

  1. to provide a high quality and varied residential environment with accessible open space, convenience and community facilities;

  2. to provide attractive streetscapes which reinforce the function of a street and enhance the amenity of dwellings;

  3. to provide opportunity for a variety of housing types;

  4. to provide a safe and efficient system of roads and pathways for vehicular, pedestrian and cycle movements;

  5. to provide for the protection and enhancement of the environment;

  6. to create a mix of housing promoted with denser development responding to amenity and proximity to local services;

  7. to retain and restore flood affected bushland areas to form part of the wider vegetation corridor;

  8. to adopt water sensitive urban design that employs best practice in quality and quantity controls;

  9. to support public transport initiatives and resultant improved air quality emission/sustainability objectives;

  10. to appropriately integrate development with the existing built and natural environment.

Remaining contentions resolved

  1. The remaining contentions in the appeal were identified above (at [23]) and resolution of those contentions requires the Court to consider three questions as follows:

  1. has the Applicant’s BDAR had been prepared in a manner that is consistent with the requirements of the BC Act?

  2. has Applicant’s Proposed Development adequately avoided, minimised and offset potential impacts on the Squirrel Glider and its habitat on the Subject Site; and

  3. is the Applicant’s proposed wildlife corridor acceptable in relation to facilitating biodiversity movement, including that of Squirrel Gliders, across the local landscape?

  1. Following my consideration of these questions, and for reasons provided below, I conclude that each of these questions should be answered in the affirmative.

  2. I will address each of these principal questions in turn below, before addressing some residual matters in the appeal, including in relation to conditions of consent (see below at [92] to [94]).

Has the Applicant’s BDAR been prepared in a manner that is consistent with the requirements of the Biodiversity Conservation Act 2016?

  1. Section 7.7(2) of the BC Act (see above at [28(4)(d)]) requires that if a proposed development is likely to significantly affect threatened species, the application for development consent is to be accompanied by a biodiversity development assessment report, and:

  1. section 7.2 of the BC Act (see above at [28(4)(a)]) defines the circumstances in which a development or activity is “likely to significantly affect threatened species”; and

  2. section 7.3 of the BC Act (see above at [28(4)(b)]) provides the test for determining whether or not a proposed development or activity is likely to significantly affect threatened species or ecological communities, or their habitat.

  1. Section 6.12 of the BC Act establishes the basis for preparation of biodiversity assessment reports, including that a biodiversity development assessment report is, inter alia, a report prepared by an accredited person that assesses, in accordance with the biodiversity assessment method (BAM), the biodiversity values of the land subject to the proposed development, activity or clearing.

  2. As noted above (at [33]), Section 7 of the BAM provides, inter alia, “guidance and outlines requirements to apply the hierarchy of avoid, minimise and offset for assessing direct, indirect or prescribed impacts on biodiversity values”, and notes that a BDAR must contain the matters in Appendix K of the BAM including the minimum information requirements identified within the Appendix.

  3. The Applicant has provided:

  1. a BDAR dated September 2020, prepared by Conacher Consulting, including by its Senior Ecologist and Project Manager, Mr Jacob Manners who is an accredited BAM Assessor (Accreditation No. BAAS17099 valid from 19/12/21 to 19/12/24); and

  2. an Addendum to that BDAR dated 22 May 2022 and prepared by Cumberland Ecology, with a cover letter from its Director, Dr David Robertson, who is an accredited BAM Assessor (Accreditation BAAS17027   valid between 24/10/2021   and 24/10/2024).

  1. While not stated explicitly within these reports that the BDAR and BDAR Addendum were prepared by an accredited person, I am satisfied that the companies that prepared these documents included within their teams accredited persons in the form of Mr Manners and Dr Robertson, such that the requirements of s 6.12 of the BC Act with respect to authorship of those reports are met.

  2. The BDAR prepared by Conacher Consulting had been drafted in the context of the Applicant’s original subdivision proposal for the Subject Site.

  3. The BDAR Addendum prepared by Cumberland Ecology amended that original BDAR in response to the Applicant amending its subdivision plan to reduce the number of proposed lots within the subdivision from 27 lots to 23 lots, and to increase the area of retained native vegetation along the eastern boundary of the Subject Site while retaining the Applicant’s proposed 50m wide wildlife corridor along its southern boundary.

  4. The BDAR Addendum also included an assessment of the potential impacts of the Proposed Development on the Squirrel Glider, Petaurus nolfolcensis, in relation to serious and irreversible impacts (SAII), as identified by the Respondent in its amended statement of facts and contentions.

  5. The effect of the BDAR Addendum is to provide supplementary, and in some instances replacement, information which, when taken together with the original BDAR, form the final complete BDAR document for the purposes of assessing the Proposed Development and its potential impact on biodiversity arising from the Applicant’s amended application.

  6. The Applicant’s final, complete BDAR, being its original BDAR prepared by Conacher Consulting, as modified by the BDAR Addendum prepared by Cumberland Ecology, addresses the following matters as required under Section 7 and Appendix K of the BAM:

  1. within the BDAR’s section 1:

  1. an introduction;

  2. a description of site characteristics;

  3. a description of the Proposed Development;

  4. an outline of the ecology requirements from WDCP;

  5. a biodiversity values map;

  6. a review of relevant literature;

  1. within the BDAR’s section 2:

  1. a description of landscape features on the Subject Site;

  2. a description of site context features;

  1. within the BDAR’s section 3:

  1. identification of relevant vegetation and plant communities;

  2. identification of vegetation integrity status on the Subject Site;

  1. within the BDAR’s section 4:

  1. identification of habitat features present on the Subject Site;

  2. details concerning potential threatened species on the Subject Site along with details of survey methods and survey results for the same;

  1. within the BDAR’s section 5:

  1. consideration of avoidance and minimisation of potential impacts on native vegetation of species habitat;

  2. consideration of avoiding and minimising potential prescribed impacts;

  1. within the BDAR’s section 6:

  1. an assessment of the potential impacts of the Proposed Development;

  2. an assessment of potential serious and irreversible impacts;

  3. identification of potential impacts that do not require offsetting;

  4. consideration of actions to mitigate and manage potential impacts of the Proposed Development on biodiversity;

  1. within section 7:

  1. calculation of biodiversity offset credits required to offset biodiversity impacts of the proposed Development; and

  2. concluding remarks and recommendations.

  1. The BDAR Addendum prepared by Cumberland Ecology revises the potential impacts of the Proposed Development on plant communities to reflect the Applicant’s amended subdivision design.

  2. It also reports the conclusion of an assessment of SAII in relation to the Squirrel Glider and confirms that the glider is not a SAII candidate species. Further, the SAII assessment concludes that the Squirrel Glider species is not at risk of experiencing serious and irreversible impacts if the Proposed Development were to be approved.

  3. I am satisfied that the Applicant’s final complete BDAR has been prepared in a manner that is consistent with the requirements of the BC Act, and the BAM, noting that;

  1. the Applicant’s BDAR does demonstrate consideration of measures to avoid, minimise and mitigate potential impacts of the proposed Development, in relation to which I agree with the statement contained in the Applicant’s BDAR Addendum that the amended subdivision design represents an alternative design (compared with that originally proposed) that will reduce, and so avoid, potential impacts on biodiversity;

  2. the Applicant had agreed that its BDAR Addendum required one correction with respect to the area of plant community type (PCT) 1619 in one table for accuracy and consistency within the report, but this did not change the credit calculations undertaken by the Addendum authors with respect the offsetting requirements in relation to the PCT 1619 vegetation community on the Subject Site; and

  3. the contents of the BDAR align with the requirements of the BAM with respect to the preparation of a BDAR, and in particular the guidance provided within Tables 24 and 25 of the BAM.

Has Applicant’s Proposed Development adequately avoided, minimised and offset potential impacts on the Squirrel Glider and its habitat on the Subject Site?

  1. As noted above, the Applicant has provided a BDAR that I have already concluded has been prepared in a manner consistent with the provisions of the BC Act and the BAM, including in relation to avoiding, minimising and mitigating potential impacts on biodiversity including in relation to Squirrel Gliders.

  2. The Applicant had also tendered a proposed biodiversity management plan in support of the long-term management of biodiversity outcomes of the Proposed Development, and this included the proposed use of nest boxes to provide alternative nesting habitat for Squirrel Gliders.

  3. The Respondent had contended that the Proposed Development should not be approved because the Applicant had not adequately avoided, minimised and offset potential impacts on the Squirrel Glider and its habitat on the Subject Site.

  4. More specifically, the Respondent had submitted that:

  1. s 7.16(2) of the EP&A Act requires that a consent authority, or the Court on appeal, must refuse to grant consent under Part 4 of the EP&A Act, in the case of an application for development consent to which this Division applies (other than for State significant development), if it is of the opinion that a proposed development is likely to have serious and irreversible impacts on biodiversity values; and

  2. the Applicant’s BDAR had not adequately assessed whether the Proposed Development would give rise to SAII in relation to the squirrel glider habitat on the Subject Site.

  1. Further, the Respondent’s expert ecologist, Dr McLean, had opined that:

  1. the Applicant’s SAII assessment had not adequately considered the potential impacts of bushfires on Squirrel Gliders;

  2. the Applicant’s final complete BDAR had not adequately considered alternative subdivision designs to avoid potential impacts on Squirrel Gliders, including in relation to retention of hollow bearing trees (HBTs); and

  3. the Applicant’s proposed use of nest boxes to augment the availability of hollows on the Subject Site for use by Squirrel Gliders may be problematic as it may not accord with the heat tolerance capacities of the gliders.

  1. I will consider each of these points in turn.

Consideration of SAII matters, including potential bushfire impacts

  1. As already noted above (at [57(1)]), s 7.16(2) of the EP&A Act provides that a consent authority, or the Court on appeal, must refuse to grant consent under Part 4 of the EP&A Act if it is of the opinion that the proposed development is likely to have serious and irreversible impacts on biodiversity values.

  2. The basis for determining whether an impact from a development will have a serious and irreversible impact on biodiversity is provided within s 6.7 of the BC Regulation. This states that an impact is to be regarded as serious and irreversible if it is likely to contribute significantly to the risk of a threatened species or ecological community becoming extinct because;

  1. it will cause a further decline of the species or ecological community that is currently observed, estimated, inferred or reasonably suspected to be in a rapid rate of decline; or

  2. it will further reduce the population size of the species or ecological community that is currently observed, estimated, inferred or reasonably suspected to have a very small population size; or

  3. it is an impact on the habitat of the species or ecological community that is currently observed, estimated, inferred or reasonably suspected to have a very limited geographic distribution; or

  4. the impacted species or ecological community is unlikely to respond to measures to improve its habitat and vegetation integrity and therefore its members are not replaceable.

  1. As already noted above (at [53]), the Applicant’s BDAR Addendum had included a consideration of the potential impacts of the Proposed Development on Squirrel Gliders, including in relation to SAII matters as required under s 7.3 of the BC Act (see above at [28(4)(b)]), and as required under the BAM.

  2. Having reviewed the Applicant’s BDAR Addendum, I am satisfied that the SAII considerations are responsive to the criteria and other impact assessment provisions required in relation to the consideration of SAII matters as required under ss 7.3 and 7.16(2) of the BC Act and s 6.7 of the BC Regulation.

  3. Further, I note, and agree with, the conclusions of the Applicant’s BDAR Addendum that the Squirrel Glider is not a candidate SAII species, and that the species would not be at risk of experiencing serious and irreversible impacts if the Proposed Development were to be approved and constructed.

  4. I note that the Proposed Development was referred to the NSW Rural Fire Service which has provided general terms of approval in relation to managing and indeed minimising bushfire risks associated with the Proposed Development.

  5. The Parties’ agree that these General Terms of Approval (GTAs) should be incorporated into any final conditions of consent imposed should the Applicant’s Proposed Development be the subject of a grant of consent.

  6. Having considered the evidence of the Parties’ ecology experts and their submissions, I am satisfied that the Applicant’s consideration of SAII matters as they relate to the Squirrel Glider, as provided within its BDAR Addendum, is consistent with the principles for determination of SAII on biodiversity values as provided within s 6.7 of the BC Regulation.

  7. I am further satisfied that, to the extent that consideration of bushfire impacts arising from the Proposed Development require consideration in this appeal, including in relation to SAII matters, the referral of the Proposed Development to the NSWRFS and its provision of GTAs in response to that referral, has provided a basis for the mitigation and management of bushfire risk arising from the development.

Has the Applicant’s BDAR adequately considered alternative subdivision designs to avoid potential impacts on Squirrel Gliders, including in relation to retention of hollow bearing trees?

  1. I have previously noted (see above at [53]) that the Applicant’s final complete BDAR, including both the original BDAR prepared by Conacher Consulting and the BDAR Addendum prepared by Cumberland Ecology, has been prepared in a manner consistent with the provisions of the BC Act and the BAM, including in relation to avoiding, minimising and mitigating potential impacts on biodiversity including in relation to Squirrel Gliders.

  2. During oral evidence at the hearing, the Respondent’s expert ecologist, Dr McLean, stated that, in his opinion, more could have been done to consider the avoidance of impacts on HBTs through retention of a greater number of HBTs.

  3. In response to questions from the Respondent on this point, the Applicant’s expert ecologist, Dr Robertson, said that:

  1. the Applicant’s subdivision was not designed to avoid potential impacts on HBTs and in his opinion it was impractical to do so;

  2. the Applicant’s BDAR Addendum, including its original BDAR, had assumed that all HBTs on the Subject Site would be removed and the BDAR provided calculations for the number and type of biodiversity credits that should be purchased and retired to compensate for that loss of HBTs;

  3. notwithstanding that the Applicant’s BDAR had assumed the removal of all HBTs from the Subject Site, he agreed that, should there be opportunities to retain HBTs on the Subject Site, as part of the Proposed Development, this would be of value;

  4. the Applicant’s proposed retention of vegetation within the wildlife corridor along its southern and eastern boundary was a reflection of the fact that the Applicant had given active consideration to, and taken measure to achieve, avoidance of potential impacts on biodiversity, including in relation to Squirrel Gliders;

  5. he further agreed that the Applicant’s Biodiversity Management Plan (BMP) should be updated to:

  1. reflect the Applicant’s amended subdivision design;

  2. encourage, where possible, retention of HBTs within the proposed subdivision;

  3. provide guidance in relation to managing the potential impact of road batters across the proposed Development on any retained trees;

  1. I have considered the evidence of the ecology experts and the Parties’ submissions, and I am satisfied that:

  1. the Applicant’s design of its proposed subdivision of the Subject Site, has adequately considered measures to avoid potential impacts of the Proposed Development on Squirrel Gliders, including through the provision of a wildlife corridor to facilitate movement of wildlife, including Squirrel Gliders, across the Subject Site;

  2. the Applicant has adequately considered opportunities to retain HBTs within the development and, notwithstanding that the opportunities for this may be limited:

  1. the impact of the loss of HBTs as a consequence of the Proposed Development has been assessed and would be offset through the purchase and retirement of biodiversity credits as documented within the Applicant’s BDAR Addendum;

  2. the Applicant’s BMP should be amended to:

  1. properly reflect the Applicant’s amended design of its proposed subdivision;

  2. encourage and, where possible, identify, opportunities within the amended subdivision design to retain HBTs on the Subject Site;

  3. provide guidance in relation to managing the potential impact of road batters across the proposed Development on any retained trees; and

  4. incorporate specific recommendations for long term monitoring of the use of nest boxes and any retained HBTs by wildlife, including by Squirrel Gliders.

Does the Applicant’s proposed installation of nest boxes for use by Squirrel Gliders accord with the heat tolerance capacities of the gliders?

  1. During oral evidence at the hearing, the Applicant’s expert ecologist, Dr Robertson, said he agreed with Dr McLean, that the success of nest box use by gliders, as proposed by the Applicant as a mitigation measure for the loss of hollow bearing trees (HBTs) as a consequence of the Proposed Development, would be improved by installing nest boxes that included insulation and that were fire proof.

  2. I am satisfied that this jointly agreed assessment of the Parties’ expert ecologists should be adopted and a condition of consent imposed with any grant of consent in this appeal requiring this outcome and its incorporation within the Applicant’s final BMP for the Subject Site following any grant of consent.

Conclusion concerning the Applicant’s response to consideration of avoidance and SAII matters

  1. Having considered the evidence of the Parties’ expert ecologists and their respective submissions above, I am satisfied that the Applicant’s Proposed Development has:

  1. adequately avoided, minimised and offset its potential impacts on the Squirrel Glider and its habitat on the Subject Site, including in relation to its consideration of avoidance and SAII matters;

  2. considered alternative subdivision designs to avoid potential impacts on Squirrel Gliders, including greater retention of hollow bearing trees;

  3. included the use of nest boxes as a measure to mitigate the loss of HBTs associated with proposed tree removal and, subject to the adoption of the Parties’ expert ecologists’ agreed recommendations concerning their design, this will accord with the heat tolerance capacities of Squirrel Gliders; and

  4. adequately avoided, minimised and offset potential impacts on the Squirrel Glider and its habitat on the Subject Site.

Is the Applicant’s proposed wildlife corridor acceptable in relation to facilitating biodiversity movement, including that of Squirrel Gliders, across the local landscape?

  1. The Applicant’s Proposed Development, as amended, includes the retention of vegetation along the southern boundary of the Subject Site at a width of 50m as a wildlife corridor to facilitate the movement of biodiversity across the Subject Site.

  2. The Applicant also proposes to retain vegetation on the eastern boundary of the Subject Site that is contiguous with, and immediately north of, the 50m corridor along the southern boundary. This patch was referred to within the hearing as the panhandle portion of the wildlife corridor.

  1. The location of, and vegetation types within, the Applicant’s proposed wildlife corridor along the southern boundary of the Subject Site and extending north along its eastern boundary is illustrated in the following figure.

Figure 3: Vegetation within proposed wildlife corridor

  1. The Applicant’s proposed wildlife corridor adjoins a corridor of vegetation, also of 50m width, retained as part of the development of that adjoining lot, referred to in the proceedings as the AV Jennings development, and which when taken together would provide a vegetation corridor of some 100m width to the south of the Subject Site.

  2. The Respondent had contended that:

  1. a greater proportion of the vegetation on the Subject Site should have been retained for the purposes of biodiversity management, and more specifically, an area of 1.8Ha or 40% of the Subject Site’s vegetation should be retained;

  2. the Applicant’s proposed wildlife corridor, covering an area of 0.91Ha does not retain sufficient habitat of the Squirrel Glider on the Subject Site;

  3. the proposed corridor is narrower than is required for the purposes of supporting wildlife movement across the Subject Site; and

  4. edge effects arising from the Proposed Development would reduce the functional width of the corridor with respect to fauna movement.

  1. The Applicant had submitted that the location, size and configuration of its proposed wildlife corridor was responsive to the outcomes of the BDAR Addendum prepared by Cumberland Ecology in that:

  1. it reflected a reduction in the number of proposed residential lots from 27 to 23 lots; and

  2. the corridor had been expanded through the addition of the panhandle extension along the eastern boundary of the Subject Site, which was some 67.5m in length and increased its area from 0.7Ha to its final area of 0.91Ha.

  1. The Applicant further submitted that the vegetation retained within the proposed corridor would be sufficient to achieve an effective east-west corridor that would facilitate movement of wildlife, including the Squirrel Glider, and it would contribute to available habitat for the glider to the extent that the species remains on the Subject Site, noting that it had been last recorded on the site in 2016.

  2. Within their written and oral evidence to the hearing, the Parties’ expert ecologists, had agreed that a 100m wide corridor would facilitate east-west movement of wildlife in the area of the Subject Site, and would provide some contribution to habitat. However, they differed in their view as to the effectiveness of the corridor in supporting wildlife movement and in relation to its longer-term sustainability, in relation to which:

  1. Dr McLean had expressed concern that the quality of the vegetation within the proposed corridor and its effectiveness in supporting wildlife movement would be eroded over time as a consequence of edge effects from the Proposed Development and development on the AV Jennings site to the south; and

  2. Dr Robertson opined that the corridor of vegetation retained on the Subject Site would be of strategic benefit for wildlife within the precinct and would more likely function as a corridor supporting the east-west movement of wildlife across the Subject Site rather than providing significant habitat for foraging and breeding. He also noted that while spotted gum was an important winter food resource for the Squirrel Glider, it was not necessary to retain all of that vegetation type on the Subject Site as patches of spotted gum were retained on adjoining lands.

  1. In response to questions at the hearing, the Parties’ expert ecologists agreed that the quality of the vegetation community retained within the Applicant’s proposed corridor, as well as the effectiveness of the corridor in supporting east to west movement of wildlife, would be improved by the installation of fencing along the edge of the corridor adjacent to proposed road 4 and the residential lots to the corridor’s north.

  2. I have considered the evidence of the Parties’ expert ecologists and their respective submissions, and I have concluded that the Applicant’s proposed wildlife corridor is acceptable and will facilitate biodiversity movement, including that of Squirrel Gliders, across the local landscape, for the reasons provided by the Applicant’s expert ecologist, Dr Robertson, with which I agree and adopt.

  3. Notwithstanding that, I accept the evidence of Dr McLean, on behalf of the Respondent, that the effectiveness of the corridor is at risk of being compromised as a consequence of edge effects.

  4. The Parties have proposed an agreed condition of consent (Condition 5.22) requiring the installation of boundary fencing and signage along the frontages of proposed Lot 124. This condition confirms the type of fencing to be installed and notes that it should be vandal and corrosion resistant.

  5. Noting the concern expressed by Dr McLean, not disputed by Dr Robertson, concerning edge effects, I am satisfied that this condition should be amended to state that the fence should also be constructed such that it is also resistant to the entry of rubbish into the corridor, such as may be blown into the corridor by wind from the adjacent residential areas.

  6. Further, in addition to the Applicant’s proposed works to improve the quality of vegetation in the corridor, the Applicant’s BMP should make explicit provision for the identification, and removal of rubbish from the corridor, on a regular basis but not less than twice per year, and in perpetuity, by the entity responsible for management of proposed Lot 24.

Conclusion in relation to principal contentions in the appeal

  1. In summary, and for the reasons provided above, I find that:

  1. the Applicant’s BDAR Addendum, including its original BDAR, has been prepared in a manner that is consistent with the requirements of the BC Act for reasons provided above (at [53]);

  2. the Applicant’s Proposed Development has adequately avoided, minimised and offset potential impacts on the Squirrel Glider and its habitat on the Subject Site, for reasons provided above (at [67], [68], [72], [74], [75]);

  3. the Applicant’s proposed wildlife corridor is acceptable in relation to facilitating biodiversity movement, including that of Squirrel Gliders, across the local landscape, for reasons provided above (at [85]);

  4. as a consequence of my findings above, I am also satisfied that Subject Site is suitable for the Proposed Development, as amended.

  1. I am further satisfied that, having had regard to the objectives of the R1 and R2 zoning of the Subject Site, approval of the Applicant’s Proposed Development, as amended, is in the public interest.

Other matters

Conditions of consent

  1. Following the conclusion of the hearing, the Parties filed competing draft conditions of consent for consideration by the Court should it be minded to grant consent to the Applicant’s development application, as amended.

  2. The alternate proposed draft conditions differed with respect to the following:

  1. whether the grant of consent should be subject to two deferred commencement conditions, opposed by the Applicant, and concerning:

  1. preparation of a tree retention and removal plan; and

  2. preparation of an updated BMP;

  1. a minor difference in condition 3.13 concerning a cross reference;

  2. a minor wording difference in relation to condition 3.14 concerning implementation of the BMP;

  3. a minor wording difference in relation to condition 3.16 concerning reference or not to a Squirrel Glider Management Plan;

  4. the utility of proposed condition 6.2 concerning implementation of a Squirrel Glider Management Plan;

  5. a minor wording difference concerning the terms of proposed conditions 6.3 and 6.4; and

  6. the inclusion in both the Respondent’s draft conditions tendered at the hearing and its amended proposed draft conditions following completion of the hearing of an Annexure A being the terms of a positive covenant referenced in both Parties’ proposed condition 5.25 but which was omitted by the Applicant in its proposed draft conditions.

  1. Each of these differences in the Parties’ alternate conditions are considered below.

  1. I am satisfied that it is appropriate to impose deferred commencement conditions concerning the preparation of a tree retention plan and an updated BMP because:

  1. matters concerning the potential impact of the Proposed Development on vegetation, and biodiversity more generally, were the principal contentions in the appeal;

  2. resolution of those contentions, and the mitigation of potential impacts that would follow the grant of consent, require, in my assessment, the highest level of clarity in relation to both matters;

  3. ideally, but not the case in this appeal, these plans would have been provided in final to the Court during the hearing such they could be listed in the final conditions as plans approved with the grant of consent; and

  4. consequently, it is preferable in my assessment that these plans be finalised prior to the consent becoming operational, so that the subdivision of the Subject Suite can be effected in a manner consistent with the findings in this judgment and made following consideration of the evidence and submissions provided during the hearing;

  1. in relation to the deferred commencement condition requiring preparation of a tree retention and removal plan as proposed by the Respondent:

  1. I agree with the Applicant’s submission that this document should be a tree retention plan because:

  1. while there is clear utility in clearly identifying those trees to be retained, there is little utility in mapping trees to be removed, as these will be all trees other than those to be retained;

  2. the trees to be retained have been identified in the Applicant’s “Plan B – Trees” – Sheet 103 Rev A dated 6/7/21 prepared by SM, and I agree with the Applicant that this is sufficient to achieve the objective of maintaining a transition from the proposed area for clearing of trees within the subdivision at the front of the Subject Site to the wildlife corridor area at the rear of the Subject Site;

  1. I am satisfied that:

  1. the first sentence of the condition should more closely follow the form proposed by the Applicant, and require that:

“A tree retention plan for the whole site is to be:

prepared by a qualified arborist based on an inspection of the Subject Site;

approved by Dr David Robertson of Cumberland Ecology, who is the author of the Applicant’s BDAR Addendum dated 24 May 2022 that shows trees to be retained and protected; and

provided to Council’s nominated Ecologist.”

  1. the remainder of the condition should be in the following form which is consistent with the general wording provided by the Respondent other than in relation to a reference to the Applicant’s BDAR, and in relation to which the condition should refer to the Applicant’s BDAR Addendum which included (as an annexure), but also modified, the Applicant’s original BDAR prepared by Conacher Consulting:

“The plan is to include the protection of all native trees (and their root systems) located within the wildlife corridor/conservation area (Lot 24) in accordance with AS4970-2009 and is to demonstrate how this is to be achieved during the civil works for construction of roads and provision of other infrastructure and the effect of proposed fencing of Lot 24 on TPZs.

The trees to be retained are also to include the retained trees shown on the plan (‘Plan B – Trees’ -Sheet 103 Rev.A, dated 06.07.21 by SM) and any of those referenced within the Applicant’s BDAR Addendum (dated 22 May 2021) that are to be retained.

The tree retention and removal plan should also quantify all visible hollows (5cm or larger) and these need to be incorporated within the BMP under Deferred commencement Conditions 2. This Plan must be submitted to the Council within 2 months from the date of this Deferred Commencement Consent.”

  1. in relation to the deferred commencement condition requiring preparation of an updated BMP:

  1. I generally prefer the wording proposed by the Applicant in its proposed draft conditions of consent filed with the Court on 4 July 2022, for the reasons below that are also generally consistent with those submitted by the Applicant:

  1. the BMP should only be updated by its author to address matters issued raised in evidence and submissions at the hearing, and those identified within this judgment;

  2. the Applicant’s draft condition, in my assessment, substantively retains the proposed matters for updating of the BMP that were identified by the Respondent;

  3. I agree with the Applicant’s submission that Dr Robertson’s evidence concerning the reasonableness of installing remote cameras in nest boxes, and the data that would be generated therefrom, should be preferred, and that it would not be reasonable to require the Applicant to monitor nest boxes for a 30 year period;

  1. the following amendments should be made to the Applicant’s proposed wording of deferred commencement condition 2:

  1. the first sentence should read:

“The Biodiversity Management Plan of Cumberland Ecology dated the 7th June 2022 (BMP) is to be updated by Cumberland Ecology (with the updated BMP provided to the Council within 2 months from the date of this Deferred Commencement Consent), and is to provide for the following:”

  1. the final paragraph of the Applicant’s draft condition concerning the timing for submission of the updated BMP should be deleted, as this in inconsistent with the condition being a deferred commencement condition;

  2. the condition should also specify that the updated BMP should include those other matters identified above (at [72(2)(b)] , [74] and [89]) for inclusion in the updated BMP;

  1. in relation to proposed condition 3.13, this should read as follows:

“Comply with impact mitigation and minimisation measures as stated in the Biodiversity Management Plan approved under Deferred Condition 2 and Section 6.4 and Table 6.5 of the Biodiversity Development Assessment Report (Conacher Consulting dated September 2020). Where recommendations contained within the Biodiversity Development Assessment Report are inconsistent with these conditions, these conditions of consent prevail.”

  1. in relation to proposed condition 3.14, the Respondent’s version of this condition should be imposed as it is consistent with the form of other conditions imposed in this judgment;

  2. in relation to proposed condition 3.16, the Respondent’s version of this condition should be imposed as it is consistent with the form of other conditions imposed in this judgment;

  3. in relation to proposed condition 6.2 concerning implementation of a Squirrel Glider Management Plan, I agree with the Respondent that this should be deleted;

  4. in relation to proposed conditions 6.3 and 6.4, I agree that the Respondent’s form of these two conditions should be imposed;

  5. the Respondent’s Annexure A to its conditions of consent, being the terms of a positive covenant referenced in both Parties’ proposed condition 5.25, should be included within the final conditions imposed with the grant of consent as I am satisfied that its omission in the Applicant’s proposed conditions was an oversight rather than a proposal for its deletion.

Provisions of Wyong Development Control Plan 2013

  1. As noted above (at [36] and [37]), the provisions of Part 4 and Chapter 6.5 of WDCP are of relevance in this appeal.

  2. No contention was raised by the Respondent at the hearing in relation to the compliance or otherwise of the Proposed Development with the applicable provisions of WDCP, including those in Part 4 concerning which provides guidance in relation to the subdivision of land or Chapter 6.5 in relation to proposals for development in the Warnervale South Area.

  3. The Applicant had highlighted to the Court the provisions of section 2.14 of Chapter 6.5 of WDCP concerning ecological issues, and which has the following specific objectives:

“To protect, restore and enhance the environmental values and functions of watercourses and floodplains

To ensure that future development does not have an adverse effect on the ecology, water quality and hydrology of Porters Creek Wetland

To protect wildlife corridors, threatened species and their habitats within areas identified for protection on conservation and recreation zoned land.”

  1. I note that the Respondent’s original reasons for refusal of the Applicant’s development application included no reason associated with compliance or otherwise with the provisions of WDCP.

  2. For completeness, I am satisfied that the Proposed Development is compliant with the applicable provisions of WDCP, including those in Part 4 in relation to subdivision and Chapter 6.5 concerning development in the South Warnervale Area, and the objectives of those parts of WDCP, including those in relation to section 2.14 of Chapter 6.5, are achieved by the Proposed Development, as amended.

Conclusions

  1. On the basis of my assessment and conclusions above in this judgment, I am satisfied that, having regard to the matters in s 4.15(1)(b) – (e) of the EP&A Act, the Proposed Development can be approved because:

  1. all contentions in the appeal have now been resolved (see above at [90]);

  2. approval of the Applicant’s Proposed Development, as amended, is appropriate having regard to the objectives of the R1 and R2 zonings of the Subject Site (see above at [26(1)(b)] and [91]);

  3. differences between the Parties’ alternate draft proposed conditions of consent have been resolved such that final settled conditions of consent can be prepared;

  4. all jurisdictional matters of which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied;

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

  1. As a consequence, the Court makes the following directions.

Directions

  1. The Court directs that:

  1. the Parties are directed to prepare final settled conditions of consent, consistent with findings in this judgment, and to file these by no later than Monday 19 December 2022;

  2. the matter is listed for mention on Tuesday 20 December 2022 at 4:15pm by telephone;

  3. if the direction at (1) above is complied with, final orders will be made granting development consent and the mention on 20 December 2022 will be vacated;

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

…………………………..

M Chilcott

Commissioner of the Court

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Amendments

22 December 2022 - Correction to date of decision.

Decision last updated: 22 December 2022

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Wallace v Central Coast Council (No.2) [2022] NSWLEC 1724
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