White v Ballina Shire Council

[2021] NSWLEC 1468

Land and Environment Court

New South Wales

Medium Neutral Citation:

White v Ballina Shire Council [2021] NSWLEC 1468

Hearing dates:

14-16 September 2020; 3-4 December 2020

Date of orders:

29 October 2021

Decision date:

29 October 2021

Jurisdiction:

Class 1

Before:

Adam AC

Decision:

See orders at [572] below.

Catchwords:

DEVELOPMENT APPLICATION – dwelling house – site of proposed new dwelling deferred matter in otherwise current Local Environmental Plan (LEP) – permissibility of new dwelling under the relevant LEP – decommissioning of existing dwelling house – height of building – visual impacts – whether approval can be granted for onsite wastewater facility – reconstruction of track – previous unauthorised works – reference date for assessment – drainage of access track – impacts on first-order stream – adequacy of proposed drainage and sedimentation control – nature of vegetation in 2016 – Lowland Rainforest Endangered Ecological Community – does rainforest include stream and species within stream – threatened species likely to be affected – whether Biodiversity Development Assessment Report (BDAR) required – whether species are likely to experience Serious and Irreversible Impacts (SAII) – whether alternatives were considered – possible alternative road access– mitigation measures – safety of access track – inadequate information

Legislation Cited:

Ballina Local Environmental Plan 1987, cll 2, 5, 8, 9, 12, 14, 17, 23, 25

Ballina Local Environmental Plan 2012, cl 1.3

Biodiversity Conservation Act 2016, ss 1.3, 1.5, 6.2, 6.3, 6.4, 6.5, 6.7, 6.12, 7.2, 7.3, 7.7, 7.13, 7.16, 14.7, Sch 2, Pt 2

Biodiversity Conservation Regulation 2017, cll 6.1, 6.7, 7.1

Biodiversity Conservation (Savings and Transitional) Regulation 2017, cll 27, 28

Biosecurity Act 2015

Byron Local Environmental Plan 1988, cl 45

Conveyancing Act 1919, s 88B

Environment Protection and Biodiversity Conservation Act 1999 (Cth)

Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 8.7

Environmental Planning and Assessment Model Provisions 1980, cll 8, 30

Environmental Planning and Assessment Regulation 2000, cll 272, 273B

Fisheries Management Act 1994, s 3, Schs 4, 4A

Hawkesbury Local Environmental Plan 2012, cl 2.8

Land and Environment Court Act 1979, s 34AA

Local Government Act 1993, s 68

Rural Fires Act 1997, s 100B

Snowy River Local Environmental Plan 2013, cl 7.6

State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004, cl 28

State Environmental Planning Policy (Seniors Living) 2004, cl 27

State Environmental Planning Policy No 1—Development Standards

Threatened Species Conservation Act 1995, Sch 1, Pt 3

Uniform Civil Procedure Rules 2005, Pt 31 Div 2, Sch 7

Cases Cited:

BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399

Bottomline Group Pty Ltd v Snowy Monaro Regional Council [2020] NSWLEC 1115

Bulga Milbrodale Progress Association Inc. v Minister for Planning and Infrastructure and Warkworth Mining Ltd (2013) 194 LGERA 347; [2013] NSWLEC 48

Central Coast Council v 40 Gindurra Road Somersby Pty Ltd (No 2) (2019) 241 LGERA 133; [2019] NSWLEC 171

Codlea Pty Ltd v Byron Shire Council (1999) 105 LGERA 370; [1999] NSWCA 399

Commonwealth of Australia v Randwick City Council [2001] NSWLEC 79

Crighton Properties Pty Ltd V Kiama Municipal Council (2006) 146 LGERA 271; [2006] NSWLEC 297

Friends of Tumblebee Incorporated v ATB Morton Pty Limited (No 2) (2016) 215 LGERA 157; [2016] NSWLEC 16

Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99

Kouflidis v Corporation of the City of Salisbury (1982) 29 SASR 321; (1982) 49 LGERA 17

Marshall Rural Pty Ltd v Hawkesbury City Council [2015] NSWLEC 197

Mullaley Gas and Pipeline Accord Inc v Santos NSW (Eastern) Pty Ltd [2021] NSWLEC 110

Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council (2010) 210 LGERA 126; [2010] NSWLEC 48

Newton v Federal Commissioner of Taxation [1958] UKPCHCA 1; (1958) 98 CLR 1

Ralph Lauren Pty Ltd v New South Wales Transitional Coastal Panel; Stewartville Pty Ltd v New South Wales Transitional Coastal Panel; Robert Watson v New South Wales Transitional Coastal Panel (2018) 235 LGERA 345; [2018] NSWLEC 207

Rose Bay Marina Pty Limited v Woollahra Municipal Council [2013] NSWLEC 1046

Statewide Planning Pty Ltd v Blacktown City Council [2019] NSWLEC 1397

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

Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140

Visionary Investment Group Pty Ltd v Wollongong City Council [2019] NSWLEC 1234

Whittaker v Northern Beaches Council (No 3) (2018) 235 LGERA 5; [2018] NSWLEC 143

Texts Cited:

Alexander G Floyd, Australian rainforests in New South Wales (1990, Surrey Beatty & Sons in association with National Parks & Wildlife Service of New South Wales, Chipping Norton NSW)

Arthur N Strahler, “Hypsometric (Area-Altitude) Analysis of Erosional Topography” (1952) 63 Geological Society of America Bulletin 1117

Australian Standard 4970-2009 Tree Protection on Development Sites

Ballina Development Control Plan 2012

Ballina Shire Council On-site Sewage and Wastewater Management Strategy 2017

B D Lewis and D A Rohweder, “Distribution, habitat, and conservation status of the Giant Barred Frog Mixophyes iteratus in the Bungawalbin catchment, northeastern New South Wales” (2005) 11 Pacific Conservation Biology 189

Brian J Preston & Paul Adam, “Describing and listing threatened ecological communities under the Threatened Species Conservation Act 1995 (NSW): Part 1 – The assemblage of species and the particular area” (2004) 21 Environmental and Planning Law Journal 250

Brian J Preston & Paul Adam, “Describing and listing threatened ecological communities under the Threatened Species Conservation Act 1995 (NSW): Part 2 – The role of supplementary descriptors and the listing process” (2004) 21 Environmental and Planning Law Journal 372

H J Frith, Wildlife Conservation (1973, Angus & Robertson, Sydney)

John Kanowski, Carla P Catterall & Wendy Neilan, “Potential value of weedy regrowth for rainforest restoration” (2008) 9(2) Ecological Management & Restoration 88-99

Local Land Services, “North Coast Regional Strategic Weed Management Plan 2017-2022” (Version 2)

Local Land Services, “Weeds of the North Coast of NSW: A guide to identification and control” (3rd ed, 2021)

Macquarie Australian Dictionary (8th ed, 2020)

Mark Taylor and Robert Stokes, “Up the creek: what is wrong with the definition of a river in New South Wales?” (2005) 22 Environmental and Planning Law Journal 193

NSW Department of Planning, Industry and Environment, ‘Biodiversity Assessment Method Assessor Update 28’ (December 2019)

NSW Department of Planning, Industry and Environment, ‘Guidance to assist a Decision-maker to determine a Serious and Irreversible Impact’ (2019)

NSW Department of Primary Industries, “Key Fish Habitat Maps”

NSW Department of Planning, Industry and Environment, “Saving our species hygiene guidelines – protocols to protect priority biodiversity areas in NSW from Phytophthora cinnamoni, myrtle rust, amphibian chytrid fungi and invasive plants ‘(April 2020)

NSW Rural Fire Service, Planning for Bush Fire Protection (2006)

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

Paul Adam, “Ecological communities – the context for biodiversity conservation or a source of confusion?” (2009) 13 Australasian Journal of Natural Resources Law and Policy 7

Paul Adam, New South Wales Rainforests: The Nomination for the World Heritage List (1987, National Parks and Wildlife Service of New South Wales, Sydney)

Shannon Baunach-Greenfields (ed) 2017 The Big Scrub rainforest: A journey through time. Rous County Council and Big Scrub Landcare, Lismore

Category:

Principal judgment

Parties:

Jason White (First Applicant)
Joanne White (Second Applicant)
Ballina Shire Council (First Respondent)
Martin Kenny (Second Respondent)

Representation:

Counsel:
M Astill (Applicants)
M Harker (Solicitor) (First Respondent)
T To (Second Respondent)

Solicitors:
McCartney Young Lawyers (Applicants)
Lindsay Taylor Lawyers (First Respondent)
Ryan Kruger Lawyers (Second Respondent)

File Number(s):

2020/25062

Publication restriction:

Nil

table of contents

Introduction

Relevant controls

Contentions

Amended plans

Issues and evidence

Planning evidence

Is approval of a dwelling house permissible?

Decommissioning the existing dwelling

Conclusion in relation to the Second Respondent’s Contentions 1 and 3

Height of the proposed dwelling

Visual issues – the proposed development from afar

Wastewater treatment

Alternatives discussed by the planners

The alternative proposed access from Midgen Flat Road

The history of rainforest and of the access track

Ecology and biodiversity

What was the nature of the vegetation cleared by the 2016 works?

Lowland Rainforest EEC

Rainforest regeneration

The stream

Issues with individual species

Isoglossa eranthemoides

Rhodamnia and Rhodomyrtus

Does either species occur on the site?

Mixophyes iteratus - the Giant Barred Frog

Conclusion on SAII species

Impacts on Lowland Rainforest EEC

Engineering

Safety of the track

Drainage works

The ecologists and arborists

Vegetation Management Plan (VMP)

Discussion

Was a BDAR required?

Avoidance and minimisation

Conclusion

Orders

Judgment

Introduction

1. Mr and Mrs White, have appealed under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the First Respondent, Ballina Shire Council (Council), of Development Application No. DA 2018/381 for the decommissioning of an existing dwelling and construction of a new two-storey dwelling and swimming pool and the upgrading of an existing internal access way at Lot 2 DP 1065811 also known as No. 404 Old Byron Bay Road, Newrybar.

2. The Notice of Determination (Ex 1 Tab 14 folio 574) gave as reasons for the decision:

“1 The proposed development is inconsistent with the objectives of the 7 (d 1) Environmental Protection (Newrybar Scenic/Escarpment) Zone under the Ballina Local Environmental Plan 1987

2 The impacts of the proposed development do not meet the requirements of the Ballina Shire Development Control Plan 2012.”

3. The matter was allocated by the Court on 17 February 2020 to a conciliation and hearing under s 34AA of the Land and Environment Court Act 1979 (LEC Act).

4. On 15 July 2020, Mr Kenny of 420 Old Byron Bay Road, the neighbour immediately to the north of the entrance to the subject site sought, through a Notice of Motion, to be joined to the proceedings. Leave was granted by the Court. Mr Kenny is a party for all purposes to the proceedings, but particularly wished to raise planning and engineering matters.

5. When the development application (DA) was first before Council on 28 November 2019, it was approved on the recommendation of Council officers subject to conditions, including a condition requiring the Applicants to submit for approval a Culvert Rectification Plan (CRP). The purpose of the CRP was to “ensure the natural flow regimes of the creek which traversed the approved internal driveway are restored to their predevelopment state” (Ex 1 Tab 15 folio 581).

6. However, at the Council Meeting on 19 December 2019, a recission motion was passed, and Council then voted to refuse the application.

7. Mr Astill, barrister for the Applicants, in his submissions, at footnote 1, stated that:

“the professional staff of the Council comprehensively assessed the DA and recommended approval of it, but the elected representatives refused to follow that recommendation presumably due to lobbying from objectors or some other impetus”

and in par 7 of the submissions continued:

“7. However, to illustrate how a rationale and comprehensive assessment of the DA should be (and in fact was) undertaken outside the adversarial setting of the Court process the Applicant relies on the careful and comprehensive assessment of the professional staff…”

8. The Council officers’ report is included within the Council bundle (Ex 1 Tab 16 and Tab 17 – the s 4.15 assessment) and is part of the factual matrix of the case.

9. The appeal is against the decision of the full Council so the outcome will be determined by assessment of the reasons for the decision, the contentions and the evidence presented by the parties, within the framework established by the relevant planning law.

10. The subject site has an area of 36 ha. The Lot has an irregular shape, shown in the figure below taken from the Council’s assessment report (Fig 2 – Ex 1 Tab 16 folio 585).

11. The subject site is Lot 2 DP1065811 which was created by subdivision of the original Lot 1 in 2002 when DA 2002/1132 was granted approval by the Council. The remaining Lot 1 is situated to the north of Lot 2. When subdivision occurred, a panhandle was created extending north to Midgen Flat Road. There is a s 88B instrument under the Conveyancing Act 1919 in favour of the Council applying to the northern end of the panhandle which prohibits access from Midgen Flat Road. The figure shows the location, in yellow, of the existing dwelling. This is to be decommissioned. Also shown in black is the site of the proposed new dwelling. The Lot drops from the west on Old Byron Bay Road to a creek and then rises to a ridge of the Newrybar escarpment, which runs roughly north-south. The site of the proposed new dwelling is just to the east of the ridgeline. From the ridgeline, the property slopes steeply down towards the coastal plain.

12. When the original Lot 1 was subdivided, the new Lot 1 (which is to the north of Lot 2) was identified as being capable of supporting a dwelling and a building envelope within which a potential dwelling might be situated was delineated. The building envelope is shown in Fig 4 in Ex E (the joint expert report of the planners). The building envelope, which is far larger than the footprint of any building which might eventually be constructed within it, occupies nearly all of the ridgeline within Lot 1 DP 1065811.

13. The s34AA conciliation commenced on site at the entrance to the property from Old Byron Bay Road, at the start of the access track. Present were the parties, their legal representatives and experts.

14. The inspection continued along the access track, with particular attention being given to the culvert crossing, and the environment of the stream, both upstream and downstream of the crossing. The track was then followed up to the ridge and the location of the proposed new dwelling.

15. The weather during the inspection was fine, and the view from the ridge was extensive, with clear views of Lennox Head to the south-east and of the coastal plain. Dr Robertson, the Applicants’ ecology expert, pointed out the patches of woody vegetation on the lower slopes below the proposed dwelling site and in the panhandle.

16. Conditions during the inspection made the attractions of the site for a residence clear. However, the issues raised in the case require the Court to consider consequences of occasions when the weather is much less clement.

17. After inspection of the proposed house site, observations were made from properties to the south, 382 and 400 Old Byron Bay Road (see Ex 5). This enabled observation of the rainforest downstream of the culvert crossing. At Ms Cramp’s property (No 400), the stream was observed and Dr McLean (the expert ecologist for Council) pointed to what he regarded as deposits of recent sediment in the creek, which he attributed to erosion arising from the access track and its construction.

18. The party then moved north of the subject site to ‘Four Winds’, a residence and tourist villas, at 448 Old Byron Bay Road. Mrs and Mr De Leede, who own and operate the property, were concerned that the proposed new dwelling and swimming pool “would impact heavily on the scenic amenity of our property, our privacy, and indeed on the viability of our tourism business” (Ex 5 p 29).

19. The view from ‘Four Winds’ looking south along the ridgeline to the proposed site of the new dwelling is shown in the photograph below:

(Ex F Attachment C Photo 11 – Photo by Mr Grech)

20. In the photograph above, the proposed house site is to the left of the clump of eucalypt trees in the middle distance, to the left of the second from the left of the four trees forming a line in the nearer distance. Between the second and third of the four trees, the access track can be seen.

21. Mr Roberts’ evidence was concerned not only by the visual impacts of the dwelling but also those of the swimming pool, which would be to the north of the dwelling. He raised concerns about the possible use of the pool at night, in relation to both noise and lighting.

22. He also raised that there was a possibility of another residence being constructed between ‘Four Winds’ and the proposed new dwelling the subject of these proceedings. This would be on Lot 1 DP 1065811 within the delineated building envelope (see [12] above). No details were provided of what and when development might be proposed, and so this cannot be further considered (but see [136]-[137] below).

23. The proposed access to the dwelling site is from Old Byron Bay Road. However, the potential for the panhandle to be used to provide access to the site from Midgen Flat Road had been suggested by the Second Respondent. The party moved from ‘Four Winds’ to the northern end of the panhandle at Midgen Flat Road (illustrated in Ex 2R2), and walked southwards. Dr Robertson, the Applicants’ ecologist, pointed out that crossing a number of small creeks would involve considerable environmental impacts, both to the creek systems themselves and to the associated riparian woodland community.

24. The site inspection only looked at the panhandle; a possible route for a trafficable track from the foot of the slope to the ridge top was not identified.

25. The site inspection was completed at Midgen Flat Road and the conciliation was adjourned to Ballina Shire Council Chambers where discussion between the experts continued. At the end of the afternoon, it was clear that there was little possibility of an agreement between the parties. Accordingly, I terminated the conciliation. As the matter was allocated to s 34AA of the LEC Act, it therefore proceeded to a hearing forthwith (s 34AA(2)(b)(i)), so that on the next morning the hearing commenced in Court in Sydney.

26. It is important to note what was not visited during the site inspection. Mr Astill in his submissions (at par 5) said:

“5. The second respondent (Objector) by definition objects to the development by virtue of his perception of personal impacts on his own property although strangely, the Court was not invited to view the development site from his property.” (emphasis in the original)

27. However, the Court was also not invited to inspect the existing residence on the subject site. Objectors had suggested that an alternative location for a new dwelling existed on the site of the existing residence. Mr Astill adopted for the purposes of his submissions (at par 16) the observations in assessment of the Council officers (Ex 1 Tab 16) which included (submissions at par 16(e), taken from Ex 1 Tab 16 folio 591):

“… It is not an unreasonable expectation of the applicant to be able to construct a dwelling of this scale and appearance in the proposed location. This is particularly so when a swimming pool is proposed in association with the building. The limited size and shape of the land adjacent to Old Byron Bay Road is not conducive to construction of a dwelling and swimming pool such as that which is proposed”.

28. The Second Respondent and the Applicants made choices as to how their cases were run, and if this has resulted in the Court not being informed of certain matters, I cannot draw inferences about the reasons for these choices nor can I make assumptions about what might have been revealed if additional locations had been inspected.

Relevant controls

29. Mr Harker, solicitor for the Council, commenced his analysis of relevant controls (Tcpt, 15 September 2020, p 5(46) et seq) with discussion of the application of the Biodiversity Conservation Act 2016 (BC Act). This has an important part to play in this case and will be discussed extensively later, but I will start first with the planning instruments which apply to the site.

29. The parties are in agreement that the Ballina Local Environmental Plan 2012 (BLEP 2012) does not apply to the parts of the subject site subject of the application, because of cl 1.3 of the BLEP 2012 and the Land Application Map in BLEP 2012.

1.3   Land to which Plan applies

(1)  This Plan applies to the land identified on the Land Application Map.

(1A)  Despite subclause (1), this Plan does not apply to the land identified as “Deferred matter” on the Land Application Map.

LAP_001 from BLEP 2012 - Ex 1, folio 346

31. The subject land is within the red bounded polygon in the north-west of the map, which contains Newrybar, Knockrow and Brooklet. This means that the subject land is identified as “Deferred Matter” (DM) so that BLEP 2012 does not apply, rather it is the provisions of Ballina Local Environmental Plan 1987 (BLEP 1987) which control development of the site and is therefore the applicable LEP.

32. Notwithstanding that the site falls outside the coverage of BLEP 2012, the applicable development control plan is Ballina Development Control Plan 2012 (BDCP 2012). Chapter 1 Section 1.2 states:

“This DCP applies to land in the Ballina Shire Local Government Area.

This DCP applies to development that requires development consent”.

The subject land is within the local government area (LGA) and the proposed development requires development consent. For the purposes of applying the BDCP 2012, a table of equivalences is provided in Chapter 1 Section 1.5A; Zone 7(d1) in BLEP 1987 is the equivalent of Zone E3 Environmental Management in BLEP 2012. The eastern slope and the flats below of 404 Old Broken Head Road is, however, outside the DM area and is zoned RU1 Primary Production under BLEP 2012 (see Plan 4.1 Zoning included in the DA prepared by Planners North included in the Class 1 Application – Ex A). However, the DA before the Court does not involve any development within the RU1 Zone, so that the Land Use Table for the zone need not be considered.

33. The aims and objectives of BLEP 1987 are provided in cl 2:

2   Aims, objectives etc

(1)  The general aims of this plan are to encourage the proper management, development and conservation of natural and man made resources, to promote the social and economic welfare of the community and to provide a better environment.

(2)  The particular aims of this plan are—

(aa)  to protect and promote the use and development of land for arts and cultural activity, including music and other performance arts,

(a) to divide land into the zones referred to in clause 8 and to achieve in respect of land within each of those zones the objectives specified for that land in the Table to clause 9,

(b)  to encourage the council to make development control plans regulating the carrying out of development in any zone—

(i)  by restricting the carrying out of that development to a specified area within the zone, or

(ii)  by fixing standards or specifying requirements in respect of any aspect of that development,

(c)  to promote the efficient utilisation of land, services and support facilities in existing urban areas and to provide for the orderly growth of new urban areas which promise a high level of residential amenity,

(d)  to recognise and provide for the variety of agricultural, recreational, residential, natural and other land uses which form the rural environment of the Shire of Ballina,

(e)  to contribute to continued economic growth of the Shire of Ballina by encouraging a pattern of development which will help to diversify and increase local employment opportunities,

(f)  to take account of the physical nature of the environment of the Shire of Ballina so that development is in harmony with scenic and ecological resources,

(g)  to co-ordinate the economic and equitable provision and utilisation of community facilities and services,

(h)  to provide for appropriate and efficient transportation and utility services, and

(i)  to encourage further development of tourist and recreational activities within the Shire of Ballina, while minimising its adverse impact on the natural attractions and amenity enjoyed by permanent residents.

34. Mr Harker identified the aim in cl 2(2)(f) as being the most relevant consideration for the application – although the general aims (cll 2(1) and 2(2)(d)) are also important.

35. BLEP 1987 preceded the introduction of the standard template format for LEPs. The range of zones to which land was allocated (cl 8) was different from those in BLEP 2012. The subject land is zoned 7(d1) Environmental Protection (Newrybar Scenic/Escarpment Zone). The land within the 7(d1) zone is discrete and occupies a relatively small area.

(Ex E p 7)

36. Clause 9 of BLEP 1987 provides the zone objectives and the Development Control Table (the equivalent to the Land Use Table in standard template LEPs). Clauses 9(1)-(7) provide background against which the zone objectives are applied.

9   Zone objectives and development control table

(1)  The objectives of a zone are set out in the Table to this clause under the heading “Objectives of zone” appearing in the matter relating to the zone.

(2)  Except as otherwise provided by this plan, in relation to land within a zone specified in the Table to this clause—

(a)  development for a purpose specified under the heading “Without development consent” may be carried out without development consent,

(b)  development for a purpose specified under the heading “Only with development consent” may be carried out only with development consent,

(c)  development for a purpose specified under the heading “Advertised development—only with development consent” may be carried out only with development consent granted after the provisions of subclauses (3)–(5) have, except as provided by subclause (6), been compiled with, and

(d)  development for a purpose specified under the heading “Prohibited development” may not be carried out.

(3)  The provisions of section 84, 85, 86, 87 (1) and 90 of the Act apply to and in respect of development (not being designated development) referred to in subclause (2) (c) in the same way as those provisions apply to and in respect of designated development.

(4)  A development application to carry out development (not being designated development referred to in subclause (2) (c) shall be accompanied by an environmental impact report which contains—

(a)  a full description of the development proposed by the development application,

(b)  a statement of the objectives of the proposed development, and how those objectives relate to the objectives of the zone,

(c)  a full description of the existing environment likely to be affected by the proposed development, if carried out,

(d)  identification and analysis of the likely environmental interactions between the proposed development and the environment,

(e)  analysis of the likely environmental impact or consequences of carrying out the proposed development,

(f)  justification of the proposed development in terms of environmental, economic and social considerations,

(g)  measures to be taken in conjunction with the proposed development to protect the environment and an assessment of the likely effectiveness of those measures,

(h)  any feasible alternatives to the carrying out of the proposed development and reasons for choosing the latter, and

(i)  consequences of not carrying out the proposed development.

(5)  In the preparation of an environmental impact report referred to in subclause (4), the person preparing the report shall consult with the council and shall, in completing the preparation of the report, have regard to any requirements notified to the person in writing by the council in respect of the form and content of the report.

(6)  Where development (not being designated development) referred to in subclause (2) (c) involves only alterations or additions to existing development, being alterations or additions of a minor nature which do not to any significant extent change the scale, size or degree of the existing development, subclauses (3)–(5) shall not apply to the development or the application in respect of the development.

(7)  Except as otherwise provided by this plan, the council shall not grant consent to the carrying out of development on land to which this plan applies unless the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out.

37. Mr Harker drew attention to cl 9(2) which makes the Development Control Table subject to other provisions in the Plan. Mr To, barrister for Mr Kenny, the Second Respondent, drew my attention to other subclauses in cl 9, to which I will need to return. He pointed out that cl 9(7) requires a positive determination by the consent authority that the development proposed is consistent with the zone objectives. This is a different formulation from that which now applies in the standard instrument LEP which requires that zone objectives be considered. He suggested (Tcpt, 15 September 2020, p 23(14-28)) that if the consent authority was not satisfied that the development was consistent with the objectives of the zone, then the effect would be to preclude the ability to grant consent.

38. The Development Control Table provides that:

Zone No 7 (d1) Environmental Protection (Newrybar Scenic/Escarpment) Zone

1   Objectives of zone

A  The primary objectives are—

(a)  to protect and enhance areas of particular scenic value to the local government area of Ballina, and

(b)  to encourage the productive use of land within the zone and enable development ancillary to agricultural land uses, particularly dwelling-houses, rural workers’ dwellings and rural industries, and

(c)  to ensure development within the zone maintains the rural character of the locality and minimises any detrimental scenic impact, and

(d)  to ensure development within the zone is of a scale and nature that will not adversely impact on the existing amenity of the area.

B  The secondary objectives are—

(a)  to minimise soil erosion from escarpment areas and prevent development in geologically hazardous areas and areas of excessive gradient, and

(b)  to ensure that development within the zone does not create unreasonable or uneconomic demands, or both, for the provision or extension of public amenities or services.

C  The exception to these objectives is development of public works and services, outside the parameters specified in the primary and secondary objectives, but only in cases of demonstrated and overriding public need and subject to the visual impact being minimised as much as is reasonably practicable.

2   Without development consent

Agriculture (other than feed lots, piggeries, poultry farms, stock homes and other intensive keeping of animals, and not including the erection of buildings).

3   Only with development consent

Agriculture (other than agriculture allowed without development consent as specified in item 2); bush fire hazard reduction; community buildings; dwelling-houses; home industries; roads; roadside stalls; rural industries; rural workers’ dwellings; telecommunications facilities; tourist facilities comprising only bed and breakfast establishments or holiday cabins, or both; utility installations.

4   Advertised development—only with development consent

Nil.

5   Prohibited development

Any development other than development included in item 2 or 3.

39. Dwelling houses are permitted within the zone only with development consent.

40. I note that the phrase “particular scenic value” in 1A(a) is not defined in cl 5 (Interpretation) of BLEP 1987, and so must take a meaning determined by the common use of the words.

41. Clause 12 sets conditions for the erection of dwelling houses within the zone. It was agreed between the parties that the land was not vacant land given the presence of the existing house.

12   Dwelling-houses within Zone No 1 (a1), 1 (a2), 1 (b), 1 (d), 1 (e), 7 (a), 7 (c), 7 (d), 7 (d1), 7 (f), 7 (i) or 7 (l)

(1)  This clause applies to land within Zone No 1 (a1), 1 (a2), 1 (b), 1 (d), 1 (e), 7 (a), 7 (c), 7 (d), 7 (d1), 7 (f), 7 (i) or 7 (l).

(1A)  For the purpose of this clause, a reference to a dwelling-house includes a reference to a dwelling-house operated as a bed and breakfast establishment.

(2)  The Council shall not consent to the erection of a dwelling-house on land to which this clause applies except in accordance with this clause.

(3)  A dwelling-house may, with the consent of the council, be erected on vacant land to which this clause applies only where that land—

(a)  has an area of not less than—

(i)  in the case of land within Zone No 1 (a1) or 7 (i)—20 hectares,

(ii)  in the case of land within Zone No 1 (a2), 1 (b), 1 (d), 1 (e), 7 (a), 7 (c), 7 (d), 7 (d1), 7 (f) or 7 (l)—40 hectares,

(b)  is an existing holding,

(c)  is an allotment created by subdivision to which development consent has been granted in accordance with clause 11,

(d) is an allotment created by a subdivision to which development consent has been granted in accordance with clause 13 as in force when consent for the subdivision was granted but before the gazettal of Ballina Local Environmental Plan 1987 (Amendment No 36), or

(e)  is an allotment created by a subdivision to which development consent, or approval, was granted by the Council in accordance with the provisions of Interim Development Order No 1—Municipality of Ballina or Interim Development Order No 1—Shire of Tintenbar before the appointed day, not being development consent, or approval, that was granted subject to a condition that a dwelling could not be erected on the allotment.

(f)    (Repealed)

(3A)    (Repealed)

(3B)  The council may consent to the erection of a dwelling-house on vacant land to which this clause applies that would have complied with subclause (3) but for the fact that part of the land has been acquired by a public authority for a public purpose.

(4)  A rural workers’ dwelling may, with the consent of the council, be erected on an allotment of land, being an allotment having an area of not less than—

(a)  in the case of land within Zone No 1 (a1) or 7 (i)—10 hectares for the first rural workers’ dwelling and 30 hectares for each subsequent rural workers’ dwelling, and

(b)  in the case of land within Zone No 1 (a2), 1 (b), 1 (d), 7 (a), 7 (c), 7 (d), 7 (d1), 7 (f) or 7 (l)—20 hectares for the first rural workers’ dwelling and 60 hectares for each subsequent rural workers’ dwelling,

if the council is satisfied that—

(c)  the erection of each such additional dwelling will not impair the suitability of the land for agriculture,

(d)  the needs of existing agriculture genuinely require that rural workers reside on the land, and

(e)  any other rural workers’ dwellings on the holding are being used by persons substantially engaged in agricultural employment on that land.

(5)    (Repealed)

42. Clause 14 defines the circumstances in which dual occupancy might be permitted within the zone.

14   Dual occupancy

(1)  This clause applies to land within Zone No 1 (a1), 1 (a2), 1 (b), 1 (d), 1 (e), 2 (a), 2 (b), 2 (t), 7 (a), 7 (c), 7 (d), 7 (d1), 7 (f), 7 (i) or 7 (l).

(2)  Where, in pursuance of this plan, development for the purposes of a dwelling-house may be carried out on an allotment of land to which this clause applies, a person may, with the consent of the council—

(a)  alter or add to a dwelling-house erected on the allotment so as to create 2 dwellings, or

(b)  erect 2 attached dwellings on the allotment,

if, but only if, there will be no more than 2 dwellings on the allotment after the development has been carried out (excluding the dwellings of workers engaged in rural activities on the allotment).

(3)  A person must not subdivide land on which development has been carried out in pursuance of this clause if the subdivision would permit the separate ownership of each dwelling.

43. Clause 17 imposes a limitation on building height.

17   Limitation on building height

(1)  In this clause height, in relation to a building the topmost floor of which has a ceiling, means the distance measured vertically from any point on the ceiling of the topmost floor of the building to the ground level immediately below that point.

(2)  Except as provided by subclauses (2A), (4), a person shall not, only any land to which this plan applies, erect a building taller than 6.4 metres in height unless the council is satisfied that the building will not—

(a)  adversely affect the existing or future amenity of adjoining properties by overshadowing or causing loss of privacy,

(b)  significantly obstruct views from adjacent buildings and public places,

(c)  have an adverse impact on the scenic or landscape quality of the locality, or

(d)  exceed 2 storeys.

(2A)  Notwithstanding subclause (2) (d), a person may, with the consent of the Council, erect a building containing more than two storeys on land on which the Ballina Racecourse operates, being allotment 3 DP 820688 Racecourse Road, Ballina.

(3)    (Repealed)

(4)  A person may, with the consent of the council, erect a building on land in the central business district of Ballina shown hatched green on the map only if the building does not exceed 16 metres in height.

44. Height is identified (cl 17(1)) as being the height of the ceiling measured from the ground level to the lower surface of the ceiling. It makes no reference to the height of the top of the roof which will obviously, regardless of roof form, be higher than that of the ceiling of the upper floor.

45. Clause 23 deals with destroying trees (except trees which were planted for commercial (which is not relevant in this case) or landscaping purposes), and altering the surface level of land without consent.

23   Development within Zone No 1 (d), 7 (c), 7 (d), 7 (d1), 7 (f), 7 (i) or 7 (l)

A person shall not, on land within Zone No 1 (d), 7 (c), 7 (d), 7 (d1), 7 (f), 7 (i) or 7 (l)—

(a) notwithstanding clause 8 of the Environmental Planning and Assessment Model Provisions 1980, cut down, top, lop or otherwise destroy a tree (other than a tree planted for commercial or landscaping purposes), or

(b)  clear, fill or otherwise alter the surface level of land,

without the consent of the council.

46. The clause makes reference to the Environmental Planning and Assessment Model Provisions 1980 (Model Provisions) of which cl 8 was the standard tree protection order which does not include a definition of “tree” (nor did the definitions included in the EPA Act, as made, include a definition). However, the BDCP 2012, in Chapter 1, Appendix 2 Dictionary, includes a definition of “tree” as:

“…a perennial plant with a woody self supporting stem or trunk/s having a height of more than 3 metres and a trunk circumference of more than 300 millimetres when measured from 1 metre above ground level.”

47. Clause 25(3) requires the consent authority to make an assessment of whether or not it should apply conditions relating to height and location of the building, and colours of material used for the building.

25   Development within Zone No 7 (d), 7 (d1) or 7 (i)

(1)  This clause applies to land within Zone No 7 (d), 7 (d1) or 7 (i).

(2)  A person shall not erect a building on land to which this clause applies without the consent of the council.

(3)  The council shall not grant consent to the erection of a building on land to which this clause applies unless it has made an assessment as to whether it should impose conditions relating to—

(a)  the height and location of the building, and

(b)  the colour of materials, so as to ensure that the building blends with the surrounding landscape and other development and preserves or enhances the scenic quality of the land.

48. The BDCP 2012 provides more detailed provisions which apply to the DA. Chapter 2 General and Environmental Considerations addresses development on ridgelines and scenic areas – matters which are of particular relevance and reads:

“3.2 Ridgelines and Scenic Areas

3.2.1 Application

Applies to:
Location/s:	Land identified on the Ridgelines and Scenic Areas Map
Development Type/s:	All development

3.2.2 Planning Objectives

a. Protect and enhance those areas of particular scenic value to the Ballina Shire;

b. Encourage development that minimises intrusion into the skyline when viewed from public land;

c. Encourage retention of prominent vegetation along ridgelines and visually prominent areas; and

d. Encourage development that maintains the rural character of the locality and minimises any adverse scenic impacts.

3.2.3 Development Controls

i. Development must be designed to be compatible in appearance with the natural environment and scenic qualities of the land and the immediate locality;

ii. Buildings and works should not be sited on ridgelines unless it can be demonstrated that no suitable alternative location is available. Where it can be clearly demonstrated that there is no suitable alternative site for the building or works, the following measures are to be incorporated into the design of the development to minimise its potential visual impact:

• Site selection should focus on areas that avoid the need for vegetation removal;

• Buildings should be clustered in less visually prominent areas of the site when viewed from public land;

• Buildings should not intrude into the skyline when viewed from public land;

• Building materials and colours are to mitigate potential adverse visual impacts. Materials should be non-reflective and earthy colours and tones are to be used; and

• Landscaping comprised predominately of native species endemic to the subject locality should be used to screen the buildings or works from public land and surrounding properties. Where existing vegetation will not adequately screen the development, a landscaping plan shall be submitted detailing proposed planting to augment existing vegetation.”

49. Note Planning Objective 3.2.2(b) Development Controls 3.3.3 (ii) dot points 2, 3 and 5 refer to views from public land. “Public land” is defined in the Dictionary in Appendix 2 to Chapter 1 of the BDCP 2012 as:

“public land means land owned by or in the care, control or management of Council and includes roads, road reserves, public reserves and foreshore areas.”

50. Dot point 1 of BDCP 2012 Section 3.2.1 refers to vegetation which is defined as “a plant or mass of plants growing in a particular place” (BDCP 2012, Chapter 1, p 21).

51. “Native vegetation” is defined in BDCP 2012 as:

“native vegetation means vegetation that existed in New South Wales before European settlement and includes:

a) trees (including any sapling or shrub, or any scrub),

b) understorey plants,

c) groundcover (being any type of herbaceous vegetation),

d) plants occurring in a wetland,

but does not include any mangroves, seagrasses or any other type of marine vegetation to which section 205 of the Fisheries Management Act 1994 applies”

(BDCP 2012 adopts the Dictionary in BLEP 2012, but adds additional terms in its own dictionary)

52. BDCP 2012 Chapter 2 Section 3.3 is relevant to the considerations required.

“3.3 Natural Areas and Habitat

3.3.1 Application

Applies to:
Location/s:	Land shown on the Natural Areas and Habitat Map and Wildlife Corridors Map.
Development Type/s:	All development

3.3.2 Planning Objectives

a. Protect and enhance ecologically significant areas;

b. Provide for development that is compatible with ecological values and that minimises risk to ecologically sensitive environments; and

c. Encourage development that contributes to the maintenance, enhancement or rehabilitation of environmental values and ecologically sensitive areas.

3.3.3 Development Controls

i. Development is to be sited, designed and managed to avoid or mitigate potential adverse impacts on natural areas and habitat;

ii. All development (except dwellings, basic agricultural buildings and routine agricultural management activities) must demonstrate a net environmental benefit;

iii. A development application for land containing a wildlife corridor (as identified on the Wildlife Corridors Map), must demonstrate a long term net benefit to the operation and retention of the wildlife corridor. Compliance with this provision may also meet the requirements of (ii);

iv. Where development is unable to be sited, designed and managed to avoid potential adverse impacts on natural areas (as identified on the Natural Areas and Habitat Map), a proposal to remove habitat may be considered. If habitat is proposed to be removed or impacted as part of a development, an offset for the loss of biodiversity may be considered by Council provided it can be demonstrated that the proposed offset will maintain or improve biodiversity outcomes and values.

v. Development applications relating to land to which this section applies are to be accompanied by an ecological assessment report prepared by an appropriately qualified and experienced professional.”

All the land on the subject site within the 7(d1) zone but not that area within the RU1 zone, is included within the Natural Areas and Habitats Map (Ex 1 Tab 11 folio 477). About half the subject site is included on the Wildlife Corridors Map (Ex 1 Tab 11 folio 478) reproduced below:

Contentions

53. The Respondents both submitted Statements of Facts and Contentions (Ex 6 from the Council, dated 20 March 2020 and Ex 2R1 Amended Statement of Facts and Contentions from the Second Respondent dated 3 September 2020). These are outlined below – omitting particulars.

54. In summary the Council's contentions were:

1. Inadequate Biodiversity Development Assessment Report (BDAR)

“The Court must not grant consent to the DA if the BDAR submitted with the DA does not substantially comply with the requirements for a valid BDAR.”

2. Serious and irreversible impact

“The BDAR has failed to adequately assess whether the DA will have serious and irreversible impacts on the biodiversity values of the Site such that the Court cannot be satisfied that it has power to grant consent to the DA.”

3. Riparian impacts have not been adequately assessed

“The riparian impacts of the construction of a culvert over the stream on the Site have not been adequately assessed.”

4. Other ecological impacts have not been adequately assessed

“The BDAR submitted with the DA does not take into account the impacts of clearing for the access way such that the Court cannot be satisfied that the development will not have an adverse ecological impact.”

5. Ecological impacts of the development are not adequately avoided or mitigated

“The clearing of 0.1 ha of Lowland Rainforest has not been adequately avoided or mitigated onsite, such as through proposed implementation of restoration activities.”

6. Access to proposed development

“Development consent should not be granted as the proposed access from Byron Bay Road to the proposed dwelling is not lawful, reliable, or appropriate.”

55. The Second Respondent's contentions are:

1. The proposed dwelling house is not permitted pursuant to cl 12 of BLEP 1987

“Development consent for the erection of a dwelling house on land zoned 7 (d1) Environmental Protection (Newrybar/Scenic Escarpment) Zone may only be granted in accordance with clause 12 of LEP 1987. Clause 12(3), which is the only provision in clause 12 relevant to the proposed development, is not engaged because the Site is not vacant land.”

2. Inconsistent with the aims and objectives of BLEP 1987

“The proposed development is on land zoned 7(d1) Environmental Protection (Newrybar/Scenic Escarpment) Zone. The proposed development is inconsistent with a number of clauses of the LEP 1987 regarding the aims and objectives.”

3. Use of existing dwelling

“The site contains an existing useable dwelling. Although dual occupancy is not requested with this DA, the application would be refused in circumstances where it is unclear what is being proposed and whether this meets the requirements of the LEP 1987.”

4. Height and location

“The height and location of the proposed dwelling is unacceptable.”

5. Inconsistent with BDCP 2012

“The proposed development is inconsistent with the following controls within the Ballina Shire DCP 2012.”

6. Insufficient information

“The information submitted with the DA is not adequate. The DA does not propose tree removal, however, the proposed use and extension to the unapproved driveway access works requires assessment based on adequate engineering and arboricultural information. The additional information required is also necessary to ensure a complete ecological assessment is undertaken.”

7. Public interest

“Pursuant to s 4.15(1)(e) of the Environmental Planning and Assessment Act 1979, the Second Respondent contends that the proposed development application should not be approved having regard to the matters raised in this SOFAC.”

56. The Second Respondent also added additional particulars to the Council’s contentions:

1. Serious and irreversible impact

“The proposed additional works rely on works on an internal accessway completed without formal approval. The accessway traverses an area containing a Lowland Rainforest EEC and crosses a first order stream.

The engineering plans do not identify existing vegetation, no trees are identified in the survey plan and no Tree Protection Zones (TPZs) are outlined. The site is mapped bushfire prone in accordance with Council’s mapping and the proposed dwelling will require an APZ between 20m – 45m around the building footprint. Consequently, a complete assessment of the impact on existing vegetation has not been made.”

2. Access to proposed development

“The proposed use of the unapproved accessway off Old Byron Bay Road is not in a suitable location and was not previously approved in the location. The existing unapproved accessway is on a steep (often 1:4 slope gradient) area of the site, over riparian areas and EEC for the length of over 450m. The proposed accessway has a longitudinal grade of up to 26.38% before upgrading and just under 25% after upgrading. Other locations available on site include:

- The existing useable dwelling on site with existing access off Old Byron Bay Road that has the potential to accommodate renovations and a pool subject to council approval.

- The north east boundary of the site is a 30m wide approximately 550m long battle-axe with road frontage to Midgen Flat Road. This area of the site sits below the scenic escarpment, has a gentle slope and varying pockets of vegetation (not Biodiversity Values mapped), with approximately 15 other properties gaining access off Midgen Flat Road. The site is burdened by a 0.5m easement over the width of the battleaxe boundary (from east to west) to Midgen Flat Road. The Section 88B restriction identifies “no vehicular access shall be permitted from Midgen Flat Road to Lot 2 across the part of Lot 2 marked A on the title diagram”. Council is identified as the authority benefited and the authority to vary, release or modify the restriction. Should council believe that the site is suitable for construction of a new dwelling, council are able to allow access from Midgen Flat Road.”

57. Both Respondents raised in particulars the fact that Lowland Rainforest is listed as an Endangered Ecological Community (EEC) on the Schedules of the BC Act, and as a Critically Endangered Ecological Community (CEEC) on the Schedules of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).

58. This is an issue which frequently arises in proceedings before the Court. There are important implications for an applicant if their land contains species or communities listed under the EPBC Act, but raising it as an issue before the Court in this matter, is, with respect, to introduce a red herring for two reasons – one general and the other specific.

59. The Land and Environment Court has no role to play in regard to the EPBC Act (Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council (2010) 210 LGERA 126; [2010] NSWLEC 48 (NHVSS) at [77], Statewide Planning Pty Ltd v Blacktown City Council [2019] NSWLEC 1397 at [72]). If, however, the Court did have a role to play in the application of the EPBC Act, it would not apply to the particular circumstances of this case. Whether or not a particular stand of Lowland Rainforest is eligible for the protection afforded by a listing under the EPBC Act requires certain condition standards to be met and the rainforest on the subject land does not meet these requirements.

Amended plans

60. At the end of the first day of the hearing, the parties agreed that Mr Lucena, the engineering expert for the Applicants, and Mr Hoban, the engineering expert for the Second Respondent should continue to confer, to produce a further joint report. It would then be necessary for the ecology experts and for the arborists to convene to consider the new engineers’ report, and address any implications for ecological issues in a supplementary joint report.

61. The engineering experts prepared a joint report which became Ex 8. The Applicants’ experts included Mr Giles as a drainage expert. Due to COVID-19 restrictions, he had been unable to visit the site but based his evidence on his professional experience and the plans. The experts were extensively cross-examined when the hearing resumed on 3 December 2020.

62. Mr Astill formally applied for leave to be granted for the Applicants to rely on the amended plans included within Ex 8. Neither Mr Harker nor Mr To objected to this. I granted leave to rely on the drawings in Ex 8, Attachment C, engineering drawings C1– C5 Rev B dated 30 October 2020.

Issues and evidence

Planning evidence

63. The Second Respondent raised a number of contentions to planning issues. Discussion of the first (permissibility of the dwelling house) is conveniently discussed along with the third (decommissioning of the existing dwelling), and the second (inconsistency with the aims and objectives of BLEP 1987) is applicable to all the planning contentions.

Is approval of a dwelling house permissible?

64. The planning issues were the subject of a joint report of the Applicants’ planning expert, Mr Roberts, and Mr Grech for the Second Respondent, who also gave concurrent oral evidence on the first day of the hearing.

65. The Second Respondent’s first contention is that the proposed dwelling house is not permissible pursuant to cl 12 of BLEP 1987. If that is correct, then that would be the end of the matter but, if I did not find for the Second Respondent on contention 1, Mr To nevertheless argued that I would find, on the merits, that it should not receive consent for a number of reasons (Tcpt, 15 September 2020, p 27(1-2)).

66. The experts were in agreement that the resolution of contention 1 was a matter for legal argument over the correct construction of cl 12, and not a matter for planning evidence.

67. There is an existing dwelling on the Lot. There was no evidence presented as to when it was constructed. However, in Ex 5 at folio 4, there is a letter from Mr Alan Heathcote, a previous owner of Lot 1 prior to its subdivision in 2002. Mr Heathcote was not the owner of the property when it was purchased by the Whites. In the third paragraph of the letter, he refers to a dam from which he drew water, “which was used to irrigate the rainforest planting that I undertook to the north and south of the house.” This indicates that in 1998 there was a house on the subject land. (Mr Heathcote provided no information as to when the house was built, whether it is still the building present or whether it has been replaced in the interim.) At the time of subdivision in 2002, the dwelling on the much larger original Lot 1 became the dwelling on the new Lot 2. (Hence, presumably, the reason for delineating a building envelope on the new smaller Lot 1.) There is also situated on Lot 2, against the southern boundary of the Lot below the escarpment, a farm building.

68. Dwelling houses are permissible with consent within the 7(d1) zone but cl 12(2) (see [41] above) prevents Council from consenting to the erection of a dwelling house, except as provided for elsewhere in cl 12. Clause 12(4) permits the erection of rural workers’ dwellings, but that is not what is being applied for. The permissibility of rural workers’ dwellings reflects the objects of the 7 (d1) zone, including the maintenance of rural uses of the land.

69. It is well accepted that when construing planning instruments, words should be given their normal meaning (unless the dictionary to an instrument dictates otherwise) and that clauses should not be subjected to a fine-toothcomb analysis in recognition of the fact that planning instruments were not drafted with the rigour required in the drafting of legislation. Accepting this, it has to be said that there are aspects of both BLEP 1987 and of BDCP 2012 which cannot easily be interpreted and where there may be residual ambiguity.

70. Clause 12(3) provides an example of the problems which can arise – where the interpretation is clear to both Mr Astill and Mr To, except that they arrive at diametrically opposed interpretations.

71. One of the potential uncertainties arises from the use of “vacant”. Is “vacant” to be interpreted as meaning devoid of any signs of use – such that any signs of agricultural use like tracks, fences, stockyards farm buildings or sheds would preclude land being regarded as vacant – or does “vacant” refer to absence of human habitation? Given that all parties agreed that the land contained a dwelling, they also agreed that the land was not vacant, so that any distinction between agricultural and residential use need not be debated.

72. However, what is the consequence of there being an existing dwelling house on the land?

73. Mr To argued that the effect of cl 12 is to limit a consent authority’s ability to grant consent for erection of a dwelling house to the circumstances set out in cl 12. This constrains the permissibility of dwelling houses otherwise provided for by cl 9 of BLEP 1987 and the Development Control Table.

74. Clause 12(3) permits the granting of consent for erection of dwelling houses in the circumstances provided for in pars (a)-(e). However, Mr To argues that cl 12(3) is engaged only if the proposed dwelling site would be located on vacant land, and the land in question is not vacant, so cl 12(3) is not engaged and cl 12(2) precludes the granting of consent (Mr To – submissions at pars 25-31).

75. The Applicants argue to the contrary that the Second Respondent’s contention 1 “raises a legal issue that can be readily addressed and dismissed” (Applicants’ written submissions at par 129).

76. Mr Astill agrees that the land is not vacant, and that cl 12(3) is not engaged. If the clause is not engaged, that is “the end of the matter as no criteria are imposed on land not identified by the clause” (Applicants’ written submissions at pars 133-134).

77. In Mr Astill's view of cl 12(3), he says:

“that dwelling houses may only be erected on vacant land in certain circumstances. It does not say that dwelling houses may not be erected on land that is not vacant. If that was the intention the form of the words would have been (but is not)

A dwelling-house may, with the consent of the Council, be erected on vacant land to which this clause applies only where the land is vacant and…

or

A dwelling-house may, with the consent of the Council, only be erected on vacant land to which this clause applies and where…”

(Applicants’ written submissions at par 136)

78. In cl 12(3), the qualification “vacant” defines the land to which the listed restrictions apply. In the hypothetical alternative clauses, Mr Astill presented, being vacant is the qualification for being able to erect a dwelling (Applicants’ written submissions at par 137).

79. Mr Astill supports this interpretation by reference to a number of decisions of higher courts that discuss principles of statutory construction of legislation.

80. What is of concern here is not the construction of legislation but the interpretation of an environmental planning instrument. Mr Astill cites (submissions at par 142) Whittaker v Northern Beaches Council (No 3) (2018) 235 LGERA 5; [2018] NSWLEC 143 at [28], where it was argued that the principles of statutory construction applicable to primary and delegated legislation were the same.

78. Mr To argued (submissions at par 38):

“38.   The plain terms of clause 12(2) must be given effect. The applicant’s approach seeks to read into the clause words which would expand the circumstances to which it applies beyond ‘vacant land’. This is contrary to settled principles of statutory interpretation: see, for example, Central Coast Council v. 40 Gindurra Road Somersby Pty Ltd No. 2 [2019] NSWLEC 171 at [51]-[54] (Pain J).”

82. In Central Coast Council v 40 Gindurra Road Somersby Pty Ltd (No 2) (2019) 241 LGERA 133; [2019] NSWLEC 171, Pain J at [53] said that “additional words should not lightly be implied in legislation.” Mr Astill (in submissions at par 136) was construing cl 12(3) in accordance with the ordinary meaning of the words used, and not seeking to imply inclusions of other words or change the structure of the sentence so as to meet his favoured interpretation. The two hypothetical clauses he suggested in par 136 were what he considered needed to be implied if the interpretation favoured by Council were to be supported.

83. Council’s interpretation is made clear in the email letter of advice dated 17 August 2017 from Council (through Ms Lee, a town planner) given in response to a query regarding 420 Old Byron Bay Road, which forms folio 1 of Ex 2R6. (The addressee of the email is only identified in the email address as “m2m” and the terms of the original enquiry are not provided). The response is in relation to 420 Old Byron Bay Road, not to 404, but offers a general interpretation applicable within the 7 (d1) zone. The second and third paragraphs of the email appear below:

“…

As defined in the Environmental Planning and Assessment Model Provision 1980, a dwelling-house means “a building containing 1 but not more than 1 dwelling”. The erection of a dwelling-house is permissible with consent within the 7(d1) zone, but only on vacant land (i.e. no existing dwelling-house on the property). The land must also meet the requirements of Clause 12 within BLEP 1987 in order to enjoy a ‘dwelling entitlement’:

the above property contains an existing dwelling-house, an additional dwelling-house is therefore not permitted on the property. Notwithstanding, Clause 14 within BLEP 1987 states that attached dual occupancies are permissible with consent within the 7(d1) zone:

...”

(Ex 2R6 folio 1)

84. Council’s interpretation is that the erection of a dwelling house would only be possible on vacant land (and vacant land means an absence of an existing dwelling). Council’s interpretation thus accords with that of Mr To.

85. Mr Astill (in submissions at par 140) argues that “Legislation has the meaning that the Courts find it has, irrespective of what the Legislature let alone the Executive arm of government including in the context what the Council may think.”

86. Clause 12(3) does not mean that there is a restriction to there being only one habitable building on a lot. Provision is made for farm workers’ accommodation (which is not applicable in this case) and cl 14 sets requirements for consideration of dual occupancy.

87. The planners (Ex E) agreed a dual occupancy is not proposed (and the Second Respondent does not accept, given the provisions of cl 14, that dual occupancy would be permissible – Mr To’s submissions at par 78; see Mr Grech’s opinion in Ex E at par 50, contrasted with Mr Roberts’ view in Ex E at par 49).

Decommissioning the existing dwelling

88. There is an existing dwelling on the site. What is to become of it? A decommissioning plan has been proposed – there is some doubt as to whether it is part of the application, but for the purposes of his submissions, Mr To accepted that it was. The Applicants’ proposal for decommissioning the existing house is Ex D Tab 2. Certainly, the Council officers, in their report, discussed decommissioning of the existing dwelling in 5.3.2 in folios 605-608 of Ex 1, Tab 14 at some length.

89. The Second Respondent’s contention 3 in regard to use of the existing dwelling proposes that “the application be refused in circumstances where it is unclear what is being proposed or whether this meets the requirements of LEP 1987.” – amongst the particulars, the Second Respondent identified that the re-notified DA contained no mention of decommissioning of the existing building but the plan discussed by the Council officers involved removal of all kitchen and laundry plumbing, but that the building would be retained for the storage of farm equipment and machinery with the garage retained for storage and backup electricity source.

90. Council officers consider that the proposed work was insufficient to conclusively surrender the habitable status of the building, and if approval were granted, would impose conditions requiring removal of certain internal walls (as shown in Fig 12 in folio 608 of Ex 1 Tab 14). The use of the decommissioned dwelling was to be as an uninhabitable building, the use of which was to be ancillary to the agricultural use of the land and ancillary non-habitable purposes associated with a new dwelling.

91. No information was provided as to the nature of any agricultural machinery and equipment which might be used on the property, let alone whether it might fit in the building.

92. The Council officers’ report on the decommissioning (Ex 1 Tab 14 folio 607) includes the speculative comment:

“The applicant's desire not to fully demolish the building may also relate to the potential for detached dual occupancy to become permissible on the land in future should Council integrate the DM areas into the BLEP 2012.”

93. There is nothing in evidence which provides an indication of the Applicants’ intentions, nor was their planner, Mr Roberts, questioned about this. There was no indication as to whether Council would, and if so when, incorporate DM into BLEP 2012 (a change which would remove any reliance on BLEP 1987). (Mr Roberts in Ex E at par 27d referred to the Department of Planning’s Review (see [136]-[137]).

94. The planning experts were in agreement that the existing dwelling was not suitable for storing farming equipment (Ex E par 37) and, that the proposed new dwelling was to be off-grid self-sufficient in terms of electricity supply and would be serviced by solar/batteries (Ex E par 38). No provision was made in the plans before the Court for electricity connection between the existing dwelling and the new dwelling.

95. Mr Astill (in submissions at pars 145-146) suggests that cl 14 was being interpreted by Council as meaning that dwelling houses may not be erected on land if the erection would result in there being more than one dwelling house on a lot. He suggested that there is little which would support this interpretation, but nevertheless it appears to be the way in which Council has, in fact, applied cl 14. Where there is any existing dwelling, the Council has approved a new dwelling on conditions which require the existing dwelling to be decommissioned as such, and not used for a dwelling – see the consent for 423 Old Byron Bay Road in 2008 in which condition 23 required:

“23. Render building uninhabitable

All other dwellings or buildings used for residential accommodation upon the land shall be removed or vacated and rendered uninhabitable by the removal of all domestic fittings (including the kitchen sink and all cooking facilities). Such work shall be completed prior to occupation of the new building.”

(Ex 2R6 folio 72)

and the Consolidated Notice of Determination of a Development Application (Amendment No 11) for 54 Old Byron Bay Road in 2018 in which Condition 13 committed temporary residential occupation of stables within the property while a new dwelling was constructed, but upon occupation of the approved new dwelling, the stables were to be decommissioned (Ex 2R6 folio 104).

96. 54 Old Byron Bay Road is at the southern end of the 7(1d) zone. It was mentioned during the site inspection by Mr Astill, who invited members of the party to observe it as we drove past on the return journey to Ballina (which I did).

97. If the DA were to be approved and an appropriate condition were drafted requiring a greater extent of decommissioning of the existing dwelling house at 404 Old Byron Bay Road, with a prohibition on further residential occupation, it would be enforceable. I must assume regularity, so that in that circumstance I must assume the requirements would be met, and, in the event of breaches, action could be taken by the Council.

Conclusion in relation to the Second Respondent’s Contentions 1 and 3

98. Clause 12 applies to a number of zones within the deferred areas within which BLEP 1987 continues to apply, including the 7(d1) zone. Clause 12(2) prevents Council (or the Court standing in the shoes of Council) from consenting to the erection of a dwelling house. Clause 12(3) permits approval of a dwelling house on 7(d1) land in certain circumstances. There are differences between the parties as to how cl 12(3) is to be applied. In my view, the interpretation advanced by Mr To, and the view held by the Council as expressed by a Council planner (Ms Lee, at [83] above) is to be preferred to that of Mr Astill. The difficulties of interpretation arise from the drafting of cl 12(3), and, in particular, the inclusion and placing of the word ‘only’, which create potential ambiguity. Mr Astill (see [77] above) agrees that cl 12(3) provides for the erection of a dwelling house in the 7(d1) zone in a limited range of circumstances, and also agrees that these grounds do not exist in the particular circumstances of the case. However, he argues that the clause does not say that dwelling houses might not be built on land that is not vacant (Applicants’ submissions at pars 133-135).

99. On the Second Respondent’s interpretation, if cl 12(3) is not engaged, cl 12(2) precludes the granting of consent. Clause 12(2) applies to all the land in the 7(d1) zone, not just land that is vacant and satisfies the specific exemptions provided for in cl 12(3). As the land is agreed not to be vacant, then under cl 12(2) Council cannot grant consent for the construction of a dwelling house, as the “except in accordance with this clause” can only operate if cl 12(3) is engaged.

100. Not only do I consider that the Second Respondent’s interpretation better reflects a straightforward reading of cl 12(3), but it also better reflects the objectives for the 7(d1) zone. The zone objectives are presented in BLEP 1987 in a somewhat unusual form in that they are described as primary (A) and secondary (B). The relevant objectives in the present context are the primary objectives, so I do not need to consider whether the distinction between primary and secondary implies that secondary objectives are to be given lesser weight.

101. There is an element of internal tension between the intent of primary objectives A(a) and A(c). Objective A(a) is “to protect and enhance areas of particular scenic value to the local government area of Ballina”. Mr To drew attention to the inclusion of “protect and enhance” which, in his view, “unquestionably embrace a positive outcome, as distinct from a negative or adverse outcome for areas of particular scenic value” (submissions par 46).

102. Objective A(c) is “to ensure development within the zone maintains the rural character of the locality and minimises any detrimental scenic impact”. This acknowledges that maintaining the rural character does not preclude impacts on scenic values, but any development should minimise detrimental impacts. It would be a matter for the consent authority to assess on a case by case basis whether a proposed development has minimised detrimental impact.

103. Objective A(b) is to ‘encourage productive use of land’ and ‘enable development ancillary to agricultural land uses’, where ancillary includes ‘particularly dwelling houses, rural workers’ dwellings and rural industries’. Many forms of agriculture (specified in the Land Use Table at 2) require development consent – the only forms of agriculture permitted without consent would be grazing and possibly cropping, although this does not currently occur on the land, and no suggestion was made that there was any possibility of cropping being proposed in the future.

104. While construction of dwelling houses is permitted with consent in the 7(d1) zone, the consent authority is constrained by cl 12, which sets a prerequisite to be met before consent can be granted. The zone objectives promote agricultural use, maintenance of the rural character of the locality and the need to ensure that the scale and nature of what is proposed minimises detrimental scenic impact (object A(c)).

105. The intent is to limit proliferation of dwelling houses while reducing loss of agricultural land, maintaining rural character and minimising visual impacts.

106. Rural workers’ dwellings are permitted on the land subject to the restrictions, which are numerous, in cl 12(4). These include that the needs of existing agriculture genuinely require that rural workers reside on the land. The reference to existing agriculture means that changes in the nature of agriculture practised on the land, as for example, from grazing to cropping, each of which would be permissible without consent within the zone, are not possible under cl 12(4).

107. The Applicants’ proposal is, to my mind, contrary to the intent of the zoning and a straightforward reading of cl 12(3), and reaching this conclusion does not require rewriting cl 12(3) in one of the ways suggested by Mr Astill.

108. I conclude, therefore, that cl 12(3) does not provide for the granting of consent for a dwelling house and that cl 12(2) does not permit a dwelling house so that the development application must be refused.

109. The arguments advanced by Mr To and Mr Astill are finally balanced. In the event that I am wrong in my conclusion, I will therefore consider the other contentions raised by the Respondents.

110. If I am correct in my finding, the Applicants would still be able, subject to merits assessment, to make a proposal for the decommissioning or demolition of the existing dwelling and its replacement with a new dwelling. If this avenue were pursued, then it would not be an invitation for a proposed new dwelling anywhere on the whole Lot, but there could be possibilities for relocation within the existing cleared area associated with the present dwelling. This might permit continuing occupation of the existing dwelling until completion of the new dwelling, although this would be a matter for a future consent authority that could be addressed by conditions.

111. Use of the existing dwelling site area would have advantages of: not requiring loss of existing grazing land; not involving building of a new dwelling in part of the Lot where it would become an exception to the existing pattern of dwelling site location in the neighbourhood; and not requiring a wastewater treatment facility to be built on a new part of the Lot so the existing wastewater treatment facility could be retained with or without a need for upgrade. Additionally, the emergency access would be shorter and the distance between the house to the public road would not be increased. The RFS would therefore not need to grant an exemption from its normal requirement that where there is only a single access to a property, the access road not exceed a length of 200 m.

Height of the proposed dwelling

112. The experts expressed some doubt as to the accuracy of the surveys, so that there was possible uncertainty as to the exact height of the building proposed. Nevertheless, even though there was no resurvey to establish levels to the agreement of the parties, the experts were of the view that any exceedance of height limits was small, but:

“61. While the contravention of the height standard is numerically minor and does not result in external amenity impacts, we agree that compliance with the development standard would be appropriate in this case.”

(Ex E p 20 par 61)

113. In addition, Mr Roberts noted in pars 62a and 63a:

“62. In addition to the above PG notes:

a. Given the size of the site and the possible opportunities for different sites to locate a dwelling house (as I discuss in response to Contention 4) I cannot see any basis to support a variation to the height standard for a new site.

…

63. In addition to the above DR notes:

a. Further detail in the form of a NSW registered surveyor providing a spot level of the existing ground level at the south-eastern corner of the proposed building would provide an exact figure on whether the proposal complies with the numerical aspect of clause 17 of BLEP 1987. DR agrees that if the dwelling is in fact greater than the 6.4m (as defined by the control) that it should be amended to comply.”

(Ex E)

114. This was not adopted by the Applicants, Mr Astill arguing (in submissions at par 155):

“155. This minor exceedance (100mm) is not sufficient to warrant refusal of the DA in light of the potential concessions available under cl 17(2) which allow exceedance where the building satisfies any one of the following, namely that it will not-

(a) adversely affect the existing or future amenity of adjoining properties by overshadowing or causing loss of privacy,

(b) significantly obstruct views from adjacent buildings and public places,

(c) have an adverse impact on the scenic or landscape quality of the locality, or

(d) exceed 2 storeys.”

although suggesting (at par 159) that:

“159. In the alternative to all this a condition could be imposed requiring the plans to be amended prior to CC that the building not exceed 6.4m calculated in accordance with the LEP.”

115. Clause 17 of BLEP 1987 differs from clauses with the same or similar objective of regulating building height in template LEPs, in that it does not set a standard which could only be varied by satisfying the provisions of State Environmental Planning Policy No 1—Development Standards or, if the LEP contains the standard provisions, cl 4.6. Rather, as Mr Astill pointed out, cl 17, which includes subcll (2)(a)-(d) provides a route that, if applicable, would permit the consent authority to relax strict adherence to the 6.4 m height limit.

116. The Second Respondent's position in relation to the subclauses in cl 17(2) is:

“67.   The second respondent does not say sub-clauses 17(2)(b) or (d) are not satisfied.”

(Mr To’s submissions at par 67)

117. There is no doubt that cl 17(2)(d) is satisfied as the application is for a two-storey building.

118. Whether cl 17(2)(b) is satisfied depends on the interpretation of ‘significantly obstruct views’. The Applicants argued that:

“157. Criterion (b) is satisfied as, whilst the building may be visible from certain points, it could not reasonably be said to “significantly obstruct” any views; rather it is barely visible.”

(Applicants’ written submissions at par 157)

119. The nearest existing buildings are some distance away; if obstruction is assessed by the proportion of the view obscured by the proposed dwelling (without taking into account any other factors such as colour or reflectivity), the fraction of the view obscured would be small and would not offend against this clause.

120. The parties are diametrically opposed in relation to cl 17(2)(c).

121. The Second Respondent’s position is:

“68.   However, it is clear, on the evidence, that sub-clause 17(2)(c) cannot be satisfied. This is because the clause requires satisfaction that the building “will not .. have an adverse impact”. That is, any impact. This is deliberately high hurdle, designed to be triggered when a building exceeds a predetermined height in an environment protection zone designed to protect scenic values.

69.   The remarks of the Court in Marshall Rural Pty Ltd v. Hawkesbury City Council [2015] NSWLEC 197 at [112]-[117] (Moore AJ, as he then was) are apposite. When the height limit is exceeded, development is prohibited unless the exception (a satisfaction of no adverse impact) is engaged. The Court here must approach the consideration and determination against this deliberately ‘very high hurdle’ with a marked degree of precision and caution.”

529. Relying on Mr Parker's letter, Mr Astill argues that the track west of the stream was dominated by ‘weeds’ and the vegetation was not a threatened community and did not support any individually threatened species; at best, it had some ‘poor quality regrowth’ (submissions par 34). The quality of regrowth is not to be assessed at a single instant of time, but should also take into account its potential for continuing recovery, particularly if an appropriate management regime was in place (see my discussion at [324]-[328] above).

530. Does the remote sensing imagery studied by Dr Robertson (Ex 4 par 8) advance our understanding beyond the ‘weeds’ referred to by Mr Parker? Unfortunately, the remote sensing data available do not readily permit identification of individual species, but do allow conclusions to be reached regarding the structure of the vegetation.

531. The track cleared by Mr Heathcote in 1998 was visible as an opening in the canopy cover until at least 2006, but “sometime thereafter weedy forest regeneration” regrew (Dr Robertson Ex 4 par 9) but some gaps were still visible until 2009 (Ex 4, par 11 and the reproduced Google Earth Pro image) but were not visible on the 2013 and 2016 (prior to the clearing) images (Ex 4 par 12). Dr Robertson concludes (par 11) “it is reasonable to assume that the regeneration present in the location of the road prior to the construction comprised regrowth and thinner vegetation compared to surrounding areas.”

532. Dr Robertson was circumspect in his language and did not directly assign the regrowth to the Lowland Rainforest EEC, but as I discussed above at [334], I consider that the regrowth should be regarded as a stage in the development of the EEC.

533. The track could still be detected in the LiDAR image analysed by Dr Robertson (individual expert report, Ex D Tab 5 Fig 9 (image dated 2010) and text discussion on p 8). This showed that the woody vegetation on the 1998 track was mostly less than 5 m tall, but there were patches of woody vegetation between 5 to 10 m – six years later in 2016 the woody vegetation would have been taller. The images in Ms Cramp’s submission (Ex 5 folios 23-24) taken after the 2016 clearing, show that there had been felling of small trees along the track, and damage to larger trees adjacent to the track.

534. Neither Dr Robertson’s imagery nor the images in Ms Cramp’s submission permit identification of species. However, in the report of the arborists in Ex 4, Mr Nowell (the Second Respondent’s arborist) documents 12 trees beside the track between chainage 0.0-140 (that is beside the track constructed by Mr Heathcote and cleared of vegetation again in 2016) which “had been detrimentally impacted allegedly by machine strike” (Ex 4 par 177). He provided photos which appear to show that clearing works (in 2016) were not in accordance with Australian Standard 4970-2009 Tree Protection on Development Sites, as structural root zones had been excavated and/or trunks damaged, indicating lack of protective barriers at the time of the clearing (par 180). The damaged trees included both Cupaniopsis anacardioides (Tuckeroo) and Guioa semiglauca, both rainforest trees likely to occur within the EEC.

535. The 2016 clearing involved both clearing regenerating Lowland Rainforest EEC along the track, and damage to larger trees, which were part of longer established rainforest EEC, adjacent to the track.

536. To argue, as Dr Robertson does, that what is proposed is ameliorative does not mean that consideration of the impacts of the 2016 clearing is not required.

537. The Final Determination for the Lowland Rainforest EEC includes an extensive list of species which are regarded as characteristic of the EEC. The EEC has an extensive latitudinal distribution and not all the characteristic species are found throughout the range of the EEC. The Final Determination also includes a list of threatened species known to occur within stands of the EEC. Not all have natural occurrences across the entire geographic range of the EEC, nor does every stand of the EEC contain threatened species. Absence of threatened species in a particular stand of the EEC does not signify the stand is of lesser conservation value than one with threatened species.

538. Nevertheless, there was considerable discussion about the possible impacts of the proposed development on particular species.

539. The assessment of impacts on threatened terrestrial species and communities, would, if a proposal were initiated today, be through the BC Act. The BC Act commenced in August 2017, well after the 2016 works. Mr Astill (submissions par 46) points to the “simple fact that it [the BC Act] was not in force at the date of the 2016 works and so no question of thresholds or credits under the BC Act can possibly arise”.

540. If an application for consent for the 2016 works had been made before the work had been carried out, assessment would have been made under provisions of the TSCA, the EPA Act and BLEP 1987, including cl 23 – which applies to land in zone 7(d1) so that any person proposing to ‘cut down, top, lop or otherwise destroy a tree’ would be required to obtain Council consent. The BLEP 1987 provision continues to apply to the current proposal.

541. Mr Astill asserts (submissions par 69(a)) that the development proposed “involves no clearing at all”. Given uncertainty as to the final form of the engineering works required, this is not necessarily the case for the ‘new’ works, but the assumption is flawed. The 2016 works are to be treated as if they had not occurred – the current development application is to be considered on the basis that the land on which development is sought is in its pre-late 2016 condition. To do otherwise would be contrary to the principle established in Kouflidis and re-emphasised in Ralph Lauren, as it would mean that the Applicants would benefit from past unauthorised activity. The consent authority must consider that the development application includes a proposal for the clearing that occurred in 2016.

542. Mr Astill submitted:

“68. As addressed in detail above, at law no BDAR is required and so the contention is legally misconceived and may be rejected out of hand.

69. Further to this the Council’s contention is factually confused as it is based on Dr McLean’s fatally flawed ignorance of the facts resulting in his approach to assessment of the proposed development being as follows-

(a) it rejects consideration of the actual proposed development, which involves no clearing at all, and instead,

(b) suggests consideration of some hypothetical and theoretical situation whereby assumptions must be made that all of the following are the case-

(i) the access track is not cleared,

(ii) the DA proposes therefore to clear it,

(iii) that a BDAR is now legally required, and

(iv) the access track contains threatened species likely to be significantly affected.

70. In fact, none of these are true. The first three are factually and patently wrong, and the Jonah Principle, properly applied, does not authorise these assumptions.”

(Applicants’ written submissions pars 68-70)

544. As the development application is to be assessed on the basis that the 2016 clearing had not occurred, then clearly the proposal included both clearing that had occurred in 2016 and any additional clearing associated with road widening and other work that is proposed does involve clearing. Dr McLean had been in error through being unaware of Mr Heathcote’s clearing in 1998, but the 2016 clearing involved clearing of regenerating rainforest which had grown since c2000. Despite Mr Astill’s position being that there was no requirement to produce a BDAR, his client had nevertheless commissioned not one but two BDARs. The first was prepared by Mr Parker (Ex 1 Tab 25) and the second by Dr Robertson (Ex D Tab 4). For purposes of the proceedings, it was Dr Robertson's BDAR that was relied upon.

Was a BDAR required?

545. Despite the Applicants having included a BDAR in their tendered evidence, was it required? Section 7.7(2) of the BC Act specifies that if a development application is likely to significantly affect threatened species, it is to be accompanied by a BDAR. Assessment of the development application must take into account the 2016 clearing. Threatened species for the purpose of this clause includes threatened ecological communities. Did the 2016 works significantly affect threatened species? For purposes of the BC Act, “significantly affect threatened species” is defined in s 7.3 of the BC Act (the five-part test of significances in s 7.3 is analogous to the seven-part test which previously applied in the EPA Act). The test applies to threatened species, threatened ecological communities and their habitats.

546. The impacts on biodiversity values to which the BOS applies (BC Act, s 6.3) are those resulting from clearing of native vegetation (s 6.3(a)) and loss of habitat, and impacts of the actions prescribed by the regulations (s 6.3(b)).

547. The proposal includes the impacts of the clearing in 2016; I have determined that this involved the loss of vegetation (in the form of regenerating Lowland Rainforest EEC) which, in itself, constitutes the habitat of a large number of species.

548. Clause 6.1 of the BC Regulation prescribes additional actions as impacts that were to be assessed the biodiversity offsets scheme. Two of these are relevant to this matter.

6.1 Additional biodiversity impacts to which scheme applies (sections 6.3 and 6.6(2)) 

(1) The impacts on biodiversity values of the following actions are prescribed (subject to subclause (2)) as biodiversity impacts to be assessed under the biodiversity offsets scheme— 

(a) the impacts of development on the following habitat of threatened species or ecological communities— 

…

(iv) non-native vegetation,

549. Clause 6.1(1)(a)(iv) identifies clearing of non-native vegetation as a prescribed action. If I had accepted Mr Astill’s interpretation that the vegetation on the access track in 2016 was just ‘weeds’ rather than early stages of Lowland Rainforest EEC regeneration, this would not preclude non-native vegetation being habitat for native fauna including threatened species. Mr Parker documented that the flora on the track included Lantana, Cinnamomum and Ligustrum spp., all of which produce fleshy fruit, utilised as food by native frugivorous birds, including potentially a number of threatened species. There were no data provided which allowed assessment of the consequences for frugivores of the 2016 clearing.

550. More important is cl 6.1(1)(d) which relates to the stream.

(d) the impacts of development on water quality, water bodies and hydrological processes that sustain threatened species and threatened ecological communities (including from subsidence or upsidence resulting from underground mining or other development)

551. Mr Harker, in submissions (pars 27-31), drew attention to this subclause, stressing that little attention has been given to it.

552. Section 7.16 of the BC Act provides that:

7.16   Proposed development or activity that has serious and irreversible impacts on biodiversity values

(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.

553. Section 7.16(1) refers to impacts that remain after measures provided to avoid or minimise impact being applied. In the case of the current proposal, very little attention was given to avoidance. Section 7.16(2) raises a jurisdictional hurdle – consent must be refused if the consent authority is of the opinion that the proposed development is likely to have serious and irreversible impacts on biodiversity values.

554. Clause 6.7(2) and (3) of the BC Regulation provide criteria for determining whether an impact is to be regarded as serious and irreversible.

555. The Applicants’ drew attention to the fact that the Biodiversity Values Map was amended during the course of the proceedings, following a request, the Biodiversity Values Map was reviewed by the OEH, and revised to exclude the area of the existing access way (Ex 1 Tab 11). However, other areas of the subject land remain on the Biodiversity Values Map, importantly including the riparian zone of the stream both up and downstream of the culvert. The BOS threshold is exceeded, and hence a BDAR is required if the application involves clearing of land on the Biodiversity Values Map or, involves an action prescribed by BC Regulation cl 6.1. Relevantly in the circumstances cl 6.1(1)(d) the development involves action which may impact on water quality and hydrology. As I have concluded that the stream is relevantly a component of the Lowland Rainforest EEC, cl 6.1(1)(d) is engaged. The works proposed by the engineers involve construction of level spreaders, contour banks, and as a last-minute addition raised by the ecologists, check dams. The location of any of these proposed works has not been finally determined, so whether they would necessitate clearing of any vegetation is not known.

556. Dr Robertson acknowledged when questioned by Mr To that use, in effect, of the stream as a retention basin for sediment was not best practice (see [459] above).

557. Dr Robertson's BDAR (Ex D Tab 4) was prepared before the full scope of the engineering works became apparent and their specific details remain unknown.

558. The requirement to produce a BDAR has several consequences for my decision. Firstly, it sets a jurisdictional requirement in s 7.16(2) of the BC Act:

(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.

559. It is not necessary that impacts be predicted precisely, but whether the impacts are assessed to be likely to be serious and irreversible – likely does not mean more likely than not, rather that there is a real chance or possibility (NHVSS at [84]). The applicant in any appeal seeking consent for development bears the persuasive burden of proof. Australian Protein Recyclers Pty Ltd v Goulburn Mulwaree Shire Council [2006] NSWLEC 641 at [2] per Preston CJ:

“…an applicant for development consent always bears a persuasive burden of proof: the applicant must persuade the consent authority, whether it be the council at first instance or the Court on appeal, that development consent ought to be granted. This persuasive burden includes providing information and arguments that relevant environmental impacts can be satisfactorily addressed.”

560. Given the uncertainty as to what is proposed and what the impacts may be, the Applicants have not persuaded me that they have met the necessary persuasive burden of proof.

561. Section 7.13 of the BC Act addresses the consequences that arise from there having been a requirement for a BDAR. Firstly, s 7.13(2) requires that the Court must consider the likely impact on biodiversity values of the development as assessed in the BDAR.

(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.

562. Secondly, s 7.13(3) requires that biodiversity credits be retired to offset the residual impacts that cannot be avoided or minimised. The number of credits to be retired as assessed in the BDAR is agreed by Dr Robertson and Dr McLean to be small – this calculation was not on the basis of the proposal as it currently stands, and was affected by Dr Robertson's erroneous belief that the major impacts had already occurred prior to the development application, and these earlier 2016 impacts could not be addressed in the BDAR for an application made several years later (Ex 4 pars 2 and 7). If consent were to be granted, a recalculation of the credits to be retired would be required.

Avoidance and minimisation

563. The BC Act requires that in consideration of likely serious and irreversible impacts, mitigation measures are to be applied after avoidance and minimisation have been considered. Consideration of avoidance necessarily requires identification of possible viable alternatives.

564. It is for the Applicants to suggest possible alternatives and argue the case for why the option advanced in the development application is preferable, and not for the Respondents to initiate such discussion. To justify the proposed development in the light of mitigation measures proposed such as the VMP without having considered alternatives is not to have correctly applied the mitigation hierarchy (Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Ltd (2013) 194 LGERA 347; [2013] NSWLEC 48 at [147]-[158]).

565. There may be potential for approval subject to conditions. However, the conditions must provide certainty of outcome. As the matter progressed, the changes to the drainage works proposed, although partly responsive to concerns of the ecologists, left a situation in which there was no final understanding of what works might be constructed and what their ecological might be. Setting conditions to achieve a particular outcome, without knowing the starting point or whether the end point is achievable would not provide certainty. The proposal is not for the development of a major subdivision or to construct a large facility, rather it is for a single dwelling. While an adaptive management regime, to be executed over an extended period of time, might be appropriate for a major development, it would not necessarily be a proportionate solution for a small proposal, potentially imposing large ongoing commitments upon the landowner (any approval would run with the title, so the obligation would apply to the Applicants and any successors in title). When conditions are imposed, the consent authority assumes they will be observed, but there are also potential costs on the local authority in monitoring compliance.

Conclusion

566. Dr Robertson argued that because the access way had already been constructed prior to the 2016 works the works proposed in the development application will not have an adverse ecological impact. The access way is within the 7(d1) zone under BLEP 1987. Within the zone cutting down or destroying trees and any alteration to the surface levels of land, both of which occurred during the 2016 works to create the access track, require Council approval (BLEP 1987, cl 23) which had not been obtained.

567. Agriculture can be carried out within the 7(d1) zone without consent, but this is subject to BLEP 1987 cl 9(2) which qualifies the development permissible in the land use table ’except as otherwise provided by this plan’ – with the effect that cl 23 prevails and consent for the 2016 works would have been required.

568. The basis of both Dr Robertson's assessment and the BDAR was incomplete as it did not properly assess the 2016 works, and so the conclusions regarding impacts and the calculations of any biodiversity credits to be retired cannot be accepted as complete. Although the wording of the required tests is expressed prescriptively – likely to have (s 7.3(2), s 7.16(2) of the BC Act), in particular circumstances of this matter. Some of the works assessed had already occurred in 2016. I have concluded that the vegetation on the track in 2016 was regenerating Lowland Rainforest EEC, the qualification ‘regenerating’ does not serve to remove the area from consideration as being the EEC.

566. The proposal requires clearing of native vegetation and hence triggers the BOS (BC Act, s 6.3(a)). The proposal also includes works which impact on the stream and hence are a prescribed impact under BC Regulation cl 6.1(1)(d), also providing a trigger for application of the BOS. The proposed works on drainage will have impacts on stream hydrology and sedimentation but remained in a state of evolution and there is insufficient information to make a proper assessment of the consequences.

567. The requirement to consider alternatives to the proposed development in cl 9(4)(h) of BLEP 1987 has not been met. This need not have been a major additional burden on the Applicants, but it did require more than either not addressing the issue or stating that the proposed option was the best, and asserting that the area around the existing dwelling is not a potential site for a new dwelling.

568. In light of the conclusions above, I find that consent for the development application cannot be granted because:

• BLEP 1987 cl 12(2) does not permit granting of development consent for the proposed dwelling (see [108] above).

• The arrangements required by Model Provisions cl 30 have not been made, so that there is no power to approve the development application (see [198] above).

• In regard to Rhodamnia rubescens and Rhodomyrtus psidiodes, the proposed development is likely to have serious and irreversible impacts on biodiversity values and therefore, pursuant to s 7.16(2) of the BC Act, consent cannot be granted (see [365] above).

• For the Giant Barred Frog (Mixophyses iteratus), sedimentation is likely to have serious and irreversible impacts on biodiversity values (see [399] above). Pursuant to s 7.16(2) of the BC Act, consent cannot be granted (see [400] above).

• For the Lowland Rainforest EEC (including the stream), the impacts on the ecosystem are likely to be serious and irreversible impacts. Pursuant to s 7.16(2), consent cannot be granted (see [569] above).

Orders

572. The Court orders that:

1. The appeal is dismissed.

2. Development Application DA 2018/381 for the decommissioning of an existing dwelling construction of a new two-storey dwelling and swimming pool and the upgrading of an existing internal access way at Lot 2 DP 1065811, also known as 404 Old Byron Bay Road, Newrybar is determined by refusal.

3. Exhibits may be returned except for A, B, C, D (Tabs 1, 3, 4), 1 (Tabs 14, 36), 4, 5, 6, 8, 2R1.

……………………

P Adam

Acting Commissioner of the Court

**********

Decision last updated: 29 October 2021