Winifred West Schools Ltd v Wingecarribee Shire Council - [2023] NSWLEC 1799

Land and Environment Court

New South Wales

Medium Neutral Citation: Winifred West Schools Ltd v Wingecarribee Shire Council [2023] NSWLEC 1799
Hearing dates: 18, 21-23 and 25 March 2022; 7 and 11 April 2022; 10 May 2022; 17 June 2022
Date of orders: 22 December 2023
Decision date: 22 December 2023
Jurisdiction: Class 1
Before: Adam AC
Decision:
The Court directs:
(1) By 22 January 2024, the parties are to amend the conditions of consent to reflect the findings of this judgment, and file the amended conditions of consent.
(2) By 22 January 2024, the parties are to forward a Word copy of the amended conditions of consent to the Court and subject to my satisfaction that the conditions reflect my reasons for judgment I will make final orders.
(3) The matter is listed for Online Court on 22 January 2024 for the parties to confirm they have complied with directions (1) and (2).
(4) Liberty to restore the matter on 24 hours’ notice should the need arise.

Catchwords:
APPEAL – development application – consent sought for construction of student accommodation buildings, a multi-purpose hall and associated works at Frensham School – deemed refusal – amended application renotified – objectors’ submissions – commencement at Frensham School with objector submissions, inspection of site of proposal and observation of areas to south including upper Holt – whether site is core koala habitat – change to conservation status of koala – Biodiversity Development Assessment Report (BDAR) – Flood Emergency Response Plan (FERP) – impacts on platypus – water quality assessment is not required to be met – nature of vegetation on site – establishment of Asset Protection Zones – managing bush fire risk – bush fire evacuation plan – whether the proposal is appropriate given biodiversity and other values

Legislation Cited:
Biodiversity Conservation Act 2016, ss 2.1, 2.8, 2.11, 2.12, 2.14, 2.18, 6.7, 6.8, 6.10, 6.12, 6.15, Sch 1 Pt 1; Sch 2 Pt 2; Sch 5
Biosecurity Act 2015, ss 15, 21, 22
Endangered Species Act (16 USC § 1531 et seq.) (US)
Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Environmental Planning and Assessment Act 1979, ss 4.14, 4.15(1)(e), 8.7
Environmental Planning and Assessment Regulation 2000, cll 272, 273
Land and Environment Court Act 1979, s 39(6)
Protection of the Environment Administration Act 1991, s 6
Rural Fires Act 1997, s 100B
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 3, 4; ss 6.58, 6.59, 6.61, 6.62, 6.63, 6.64
State Environmental Planning Policy (Educational Establishments and Childcare Facilities) 2017, cll 8, 33, 34, 35
State Environmental Planning Policy (Koala Habitat Protection) 2019
State Environmental Planning Policy (Koala Habitat Protection) 2020, cll 3, 4, 7, 8, 9; Sch 2
State Environmental Planning Policy (Koala Habitat Protection) 2021
State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3
State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011
State Environmental Planning Policy No 44—Koala Habitat Protection
Threatened Species Conservation Act 1995
Wingecarribee Local Environmental Plan 2010

Cases Cited:
Gatacre LC Pty Ltd v Lane Cove Council [2023] NSWLEC 35
Gunlake Quarries Pty Limited v Minister for Planning [2022] NSWLEC 1570
Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning (2008) 159 LGERA 361; [2007] NSWLEC 802
Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Ltd (2010) 210 LGERA 126; [2010] NSWLEC 48
Rocla Pty Ltd v The Minister for Planning and Sutherland Shire Council [2007] NSWLEC 55
VAW (Kurri Kurri) Pty Ltd v Scientific Committee (Established under s127 of the Threatened Species Conservation Act 1995) (2003) 58 NSWLR 631; (2003) 128 LGERA 419; [2003] NSWCA 297

Texts Cited:
Community Environment Network, Land for Wildlife, accessed 13 December 2023, < Cazneaux, The Frensham book: 100 Pictures of an Australian school (1934, Art in Australia Ltd, Sydney)
Holly Kerr Forsyth, Remembered Gardens: Eight Women & Their Vision of an Australian Landscape (2006, The Miegunyah Press, Melbourne), Bk 2, ‘The Garden – a way of life: Winifred West 1881-1971’ at pp 124-47
NSW Department of Planning and Environment, Southern Highlands Shale Woodlands in the Sydney Basin Bioregion - Determination to make a minor amendment to Part 3 of Schedule 1 of the Threatened Species Conservation Act, accessed on 12 December 2023, < for Bush Fire Protection 2006
Planning for Bush Fire Protection 2019
Priscilla Kennedy, Portrait of Winifred West (1976, The Fine Arts Press, Sydney)
Susan E. Emilsen, Frensham: an historical perspective (1988, Winifred West Schools, Mittagong)
Wingecarribee Shire Council, Land For Wildlife, accessed on 13 December 2023, < West, Addresses and Talks by Winifred Mary West, C.B.E. (1973, Memorial Edition, Angus and Robertson Publishers, Cremorne, Sydney)

Category: Principal judgment
Parties: Winifred West Schools Ltd (Applicant)
Wingecarribee Shire Council (Respondent)
Representation:
Counsel:
P Larkin SC (Applicant)
R O’Gorman-Hughes (Respondent)
Solicitors:
HWL Ebsworth Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 2021/88697
Publication restriction: Nil

JUDGMENT

Introduction

The Applicant, Winifred West Schools Ltd, has appealed, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), against the deemed refusal by the Respondent, Wingecarribee Shire Council, of development application No DA 20/07747 (DA) for the construction of student accommodation buildings, a multi-purpose hall and associated works at a site with the street address of 51 Range Road, Mittagong.
For convenience in this judgment, I will refer to the Applicant as Frensham (or Frensham School) as was the frequent practice by participants in the hearing, and in submissions by objectors, except where it is necessary to give the formal name.
While the subject site has the street address of 51 Range Road, there is variation in the documentation as to the legal description in terms of Lot Number and Deposited Plan. The DA (which is included in both the Applicant’s bundle (Ex O at Tab 1) and the Respondent’s bundle (Ex 5 at Tab 7) identifies the land as Lot 1 in DP 1133695, and describes the area as ‘Sporting Fields.’ The description as ‘Sporting Fields’ was contested by a number of those who made submissions by way of objection following the exhibition of the DA. These objectors stressed that the land on which the development was proposed to occur was not currently sporting fields but rather contained a variety of vegetation that included, in their view, natural and modified natural vegetation.
The same Lot and Deposited Plan numbers were cited in the Statement of Facts and Contentions, and Statement of Facts and Contentions in Reply and their subsequent amended versions.
Frensham School includes a considerable area of land made up of a number of Lots:

Figure 1 Aerial photo of Lots outlined in red comprising the Frensham School (Ex L)

The proposed development is situated in the northern most (north of the Sporting Fields) of the red bounded areas.

Figure 2 Proposed Holt Bush Accommodation Plan (Ex. B, Tab 10 Folio 273)

After the DA had been submitted, the Respondent negotiated with the Applicant to purchase an area at the northwest corner of the subject site, at the junction of Range Road with Railway Parade and Colo Street to widen the intersection.

Figure 3 Land to be acquired – showing intersection (Ex 7 Tab 6 folio 21)

The acquired land, with an area of 2979m², became Lot 1 in DP 1277616 while the area on which development was proposed became Lot 100, with an area of 18.60 hectares. In evidence, both oral and written, the subject site was frequently referred to as Lot 1 and not Lot 100.
In the Applicant’s version of proposed draft conditions dated 8 April 2022 (and subsequent versions), the subject land is referred to as Lot 100 in DP 1277616.

Figure 4 Part of Survey plan of Lot 100 (Ex. 7)

Frensham School is a well-known and highly regarded girls’ school, situated in Mittagong in the Southern Highlands of New South Wales. The School was founded in 1913 by Winifred West - an origin reflected in the formal business name of the Applicant, Winifred West Schools Ltd.
Who was Winifred West? It is important to address this question as the spirit of Miss West was invoked by a number of objectors to support their case that the DA should be refused.
The appellation ‘remarkable’ is so frequently used today to encompass the attributes of the person being discussed that it has become almost meaningless, but in the case of Miss West it is still apposite.
Her life was reviewed in Kennedy 1976 (Priscilla Kennedy, Portrait of Winifred West (1976, The Fine Arts Press, Sydney)) from which this outline is largely drawn. (Kennedy was a niece of Miss West, who knew her aunt and other members of the family well, and, as well as memories, had access to family papers.)
Miss West was born in England in 1881 in Frensham in Surrey, then a small rural village, the daughter of the head of the local school. In 1900 she went up to Newnham College, Cambridge where she read Mediaeval and Modern Languages (but did not take a degree as, at that time, none were awarded to women). While pursuing her studies she also gained a hockey Blue, and took part in musical activities. With friends she went on country walks, maintaining her interest in natural history. After going down, she taught in Guernsey.
She arrived in Sydney in 1907, where she worked at the Australian Museum as a scientific illustrator, drawing shells of both marine and terrestrial molluscs for a number of Museum publications, and during evenings attended Julian Ashton's Art School. Her work on snails required considerable skill and attention to biological detail. In 1910 she returned to England where she taught at Harrogate Ladies College. She returned to Sydney in 1912 and in 1913 established Frensham School in a large house in Mittagong. In 1914 a hockey field was purchased, reflecting Miss West's views on the importance of sport and physical exercise. As the number of pupils increased a number of other buildings were acquired.
In 1917 a larger area of land, known as the ‘Holt’, was obtained, running north-south to the east of the then school, known at the time of purchase as ‘Murray Park’, but renamed after the purchase as the ‘Holt’. The word ‘holt’ has several meanings, including a ‘wood or grove’, ‘copse’ and ‘wooded hill’, usage which can traced to Old English pre the 10^th century. (Another meaning of ‘holt’ in English is the burrow excavated into river banks by the European Otter – the structure of these burrows is not dissimilar to those of platypuses). Kennedy records the purchase of the ‘Holt’:

“The ‘Holt’, which is an English word for wooded hill or copse, was across the road from the main house and was called ‘Murray Park’. Mr Murray gave Winifred the use of the park as early as May 1917. On October 10, the first instalment was paid; and from October 26, Winifred owned what was known from that day on as Frensham Holt. The price was five thousand pounds, with a deposit of half that amount. When Winifred offered a deposit of one hundred pounds, and 650 pounds when the next fees came in, Mr Murray agreed—he must have been almost as great a visionary himself!
After the purchase it was discovered that the Upper Holt was included in the property—250 acres of untouched and unspoilt bushland. The excitement was tremendous. As one Old Girl wrote, ‘we explored it from side to side and from end to end fighting our way up the creek through the scrub. Then we rushed full of excitement to Miss West and said—"Just think, it’s all ours!” She said—"I don’t think of it like that—I suppose there is something missing in me. I have no pride in possession.”’
She wanted it for the joy and freedom it would give to all who knew it, and for its beauty, always a prime consideration. Countless people have found that its peace has been a great source of renewal; it is a place to be alone, a place in which true values can be realised. It is a priceless possession to all Frensham people and to many others as well.
The Holt is still wild bush at the south end, beyond Range Road. Huge boulders and magnificent trees give it a completely different character from the more cultivated part to the north. Here there is space for playing fields, tennis courts, houses, gardens and a swimming pool. There are three weirs, a towing path, overhung by rhododendrons and pines, and a camellia grove. In the early days it was possible to follow the creek to its source. Some years later when canoes and boats were part of the fun of summer days in the Holt the more adventurous spirits would see how far they could canoe up the creek. Some porterage was involved, but not much, particularly in a wet summer.
There are platypus in the creek, to be seen very occasionally by the patient watcher, and birds of many kinds abound: bower birds, kingfishers, ibis and diamond sparrows, as well as the more common Australian birds. Bower birds in particular are a delight, except when they are bold enough to steal from the unwary. Anything blue has to be carefully hidden if the owner wants to keep possession of it! Bits of blue glass, blue paper or material, and even a blue toothbrush, have been seen in the bowers from time to time.
The Holt is an open-air classroom for nature study, botany, geology and geography; it is a playground for all kinds of games, picnics and barbecues; it also has an open-air theatre, made by Frensham people in a natural ampitheatre. Plays performed in this theatre became one of Frensham’s strongest and most loved traditions, particularly the Parents’ Day play at the end of the year.”
(Kennedy (1976) at 47-48)

This land was largely bush or modified bush, although there is not a detailed description of the vegetation at the time. The southern part of the site, the Upper Holt, south of Range Road, has steeper topography and tall forest vegetation, and was less disturbed than the vegetation in the Lower Holt, the northern section of the site close to the main school. Photographs by Harold Cazneaux in 1934 in his The Frensham Book: 100 Pictures of an Australian School (1934, Art in Australia Ltd, Sydney) (some reproduced in Ex C (Vol 2) Tab 22 folios 495-525, and also in Susan E. Emilsen, Frensham: an historical perspective (1988, Winifred West Schools, Mittagong)) show well-developed Pinus radiata trees and the range of activities being carried out in the area, including night gatherings around fires. “Holting” was the name given to management of the area by the girls, including weeding, pruning, removal of some pines, path making etc. (Although ‘holting’ is a word used frequently by those associated with the school, it has not yet appeared in a dictionary.) Miss West, in her introduction to Cazneaux’s book, said:

“Perhaps some explanation should be given of holting, one of the most pleasurable and useful of school activities. As one gardens in a garden, so one holts in a holt. Holting may mean mowing, scything, axeing, sawing, clearing, burning-off, digging, planting, carting or raking—and always a fire.”
(Ex C (Vol 2) Tab 22 folios 501-502)

There are also mentions, but with no details, of cattle grazing having occurred. An open-air theatre was constructed. The first play produced there was in November 1918 (Kennedy (1976)). From prior to 1917 and continuing to the present, the vegetation of the Lower Holt could not be described as untouched natural vegetation.

“There was a great deal of clearing and tidying to be done in the Holt at first, and some of the staff formed themselves into a Holt club to do this work. By 1921 the sixth form also belonged to the club, and once a week, instead of playing games, they met with axes, rakes, saws and wheelbarrows to work for an hour ‘holting’. Toasting forks and billy-cans were an important part of the equipment; a meal cooked over an open fire tasted twice as good as an ordinary meal indoors; staff and girls talked and sang together as friends. Holting has always been one of Frensham’s most enjoyable and useful activities, one that lingers in the memory long after other events have faded.”
(Kennedy (1976) at 49)

Holting and the use of the Lower Holt for a range of recreational purposes was compatible with Miss West’s view of managing the environment. In an interview later in her life she explained that “[a] childhood spent in the English countryside, and convictions concerning the unhealthy aspects of urban life, convinced her of the power of beautiful and natural surroundings as an educational force” (see p 22 and footnote 13 in Emilsen (1988)).
Miss West noted that:

“It would be difficult to find a more ideal place for our school—with the hills and gullies, the bush, the garden and the creek—and who has not felt grateful for these last perfect days, the white crisp mornings, the sparkling of the frost in the sunshine, and the beauty of the mists, the blueness of the sky and the wonderful sunsets….Unless we are artists or poets or musicians we cannot express these things in pictures, poems or music; but we must not shut our eyes to their glory—the beauty must be reflected in our lives.”
(Winifred West, Addresses and Talks by Winifred Mary West, C.B.E. (1973, Memorial Edition, Angus and Robertson Publishers, Cremorne, Sydney) at 6 (June 1^st 1917)) (The Addresses reproduced in this book were selected by Priscilla Kennedy)

With “[t]he hills and gullies, the bush, the garden and the creek… the beauty of the mists, the blueness of the sky, and the wonderful sunsets” Emilsen ((1988) at pp 22-23) considered that Miss West was of the view that activities in the bush “were as vital to an education as were books and teachers”. Miss West’s appreciation of the Holt was expressed in 1933:

“A few Sundays ago I went over to the Holt before breakfast. Birds were already busy. It was one of our autumn mornings, clear and peaceful, and made more beautiful by the song of the thrushes, the call of Dr Hinder’s peace doves, and the lovely liquid notes of the magpies. I sat down by the creek just above the bridge and watched the bees and small grey butterflies enjoying the sunshine and noticed the myriad-patterned water-weeds and the delicate shapes of the low-growing flowers and leaves on the banks, and listened to the croaking of the frogs. The horizontal rays of the sun made the dewy grass of the eastern bank a shining silver-green, while the grass on the opposite bank showed the vivid green of England. Upstream, the creek disappeared in the shadows of the trees, and below, the red bridge was reflected in the water.
A flight of noisy lowries, and away in the distance, the sound of a train emphasised the peacefulness of the Holt. It was all so beautiful that I could not help feeling that here was our inspiration—a motive force stronger than the desire for material rewards or public recognition. ‘Be still then, and know that I am God.’ Most of you must have had similar experiences in the Holt.”
(West (1973) at 46 (Address May 1933)) (The reference to ‘thrushes’ applies to the grey shrikethrush.)

Miss West was also a pioneer garden designer and laid out the formal gardens of the School. Holly Kerr Forsyth in Remembered Gardens: Eight Women & Their Vision of an Australian Landscape (2006, The Miegunyah Press, Melbourne) regarded West as an important female landscape gardener in the national context, and devoted a chapter to her work, almost exclusively illustrated by the gardens at Frensham – ‘The garden - a way of life Winifred West 1881-1971’ pp 124-47). She also dedicated a chapter to Beatrice Bligh, a former pupil at Frensham, who was greatly influenced by Miss West’s approach to garden design.

There can be no doubt that Miss West was deeply knowledgeable about the environment and in particular about plants, and that she believed that respect and care for the environment gave important benefits to humans.
A large number of people made submissions to the Respondent urging that the DA be refused (Exs 7 and 8). Many of those submissions made reference to Miss West and argued that what was proposed would have been an anathema to her.
The hearing commenced at Frensham, in the school hall, and not at the site of the proposed development in the Lower Holt. A large number of objectors were present, six of whom had been chosen to speak to their submissions.
All of the written submissions had been considered by the Respondent when assessing the DA, and I have also read all of the submissions. Moore J has recently explained how objector evidence given on site is to be considered by the Court –

“…I heard evidence given informally by seven of the objectors. This evidence was primarily given in the car‑park of the former motel near its driveway entrance from Gatacre Avenue. Evidence given on site in this fashion, to the extent that it is relevant to issues requiring to be determined in the appeal, is given as much weight as would be given had that evidence been heard, under oath or affirmation, in the courtroom. I have considered the objectors’ evidence on that basis…”
Gatacre LC Pty Ltd v Lane Cove Council [2023] NSWLEC 35 at [71]

Preston CJ discuss the importance of hearing from objectors, while explaining that objectors do not have any rights of veto in Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning (2008) 159 LGERA 361; [2007] NSWLEC 802 at [50]-[54]:

“50 … Meaningful community involvement can, of course, be beneficial in the development assessment process. It can provide members of the community with an understanding of what is happening in their area and how the proposed development may impact particularly on their interests; enable members of the community to participate by making submissions to the consent authority; inform the consent authority; and improve planning decisions.
51 Community consultation and public participation should not be viewed as being adversarial. The community and affected persons have no entitlement to be an adversary to the applicant for development consent in a contest as to whether or not development consent should be granted.
52 Community consultation and public participation under the Environmental Planning and Assessment Act are not intended to give the community or affected persons who object to development any entitlement to veto development. The planning scheme established by the Environmental Planning and Assessment Act vests in the relevant consent authority, and on an appeal this Court exercising the functions of the consent authority, the tasks of determining the matters of relevance to the development application; taking those matters into consideration as well as any submissions made in response to the consultation process; according weight to the matters as is considered appropriate; and reaching a merit determination.
53 A mere dissatisfaction with the merit outcome of a determination by a consent authority does not entitle a person who objected to be joined as a party so as to be able to continue arguing its particular submission.
54 The process of community consultation and public participation should also not be seen as an end in itself or as being more important than the ultimate merit outcome of a determination by a consent authority. The process of the community and affected persons being heard and making submissions is important, but there must be a limit to how long and detailed that process should be. Provided there is adequate opportunity for the community and affected persons to put forward issues, that concern them and those issues are addressed by the consent authority, and can be addressed by the Court on appeal, it is not necessary in the interests of justice to join a person who wishes to continue the process of objection on those issues to be a party to proceedings.”

The large number of objector submissions in the present matter includes many which are similar or have overlapping content. The purpose of providing opportunity for submissions is not to carry out a referendum but rather it is to seek information and informed analysis. The number of submissions is given far less weight than is given to the information provided. A number of submissions were from (or on behalf of) groups rather than from individuals, and a number of makers of submissions, responded to both the initial notification and to the additional notification following amendment. The contents of the second submissions added additional material to that initially provided.
Objectors are not parties to a case (unless they have successfully sought to be joined, or the matter is a designated development – which is not the case in the present matter – where a person or body who made a submission when the development application was first displayed for public comment and was dissatisfied with the outcome can mount an appeal).
Objectors who present orally in a hearing are lay witnesses, even if they speak to issues involving expert knowledge, not expert witnesses. The submissions made in Court may include a mix of factual material, the fruit of their personal experience of the site and issue, sometimes gained over many years, reference to reports and documents, and opinions held by the author of the submission.
In regard to statements about what Miss West's opinion would have been, I consider that these are speculation, notwithstanding the statements she had made about the natural environment at various times. A number of submissions stated that Miss West particularly valued wombats. She undoubtedly stressed the importance of protecting fauna but those referring to wombats did not cite particular examples of statements where she had referred to wombats, and neither of the parties drew attention to any statements specifically about wombats which Miss West had made.
Wombats are protected fauna in NSW so any impacts on wombats are matters that will require attention.
There are a number of issues raised in submissions which will require attention in this judgment, but there is one of the submissions which I do need to refer to here.
The submission by Ms Miranda Austin is at folios 56-60 in Ex 8 includes the following paragraphs (from folios 58-59):

“Historical Overlay – The founder’s original intention.
‘The art of living is knowing what to select and what to reject, and we must reject all but the best-that only is good enough. We often get faint hearted, and wonder whether, after all, it is so tremendously important to be so insistent on the best and only the best of which we are capable. It would be so much easier if we could lower our standard just a little and make a good second best do – that would pass muster; other people would not know, and we should be ‘screened by a safe majority’, but in our hearts we should know ourselves to be cowards
‘To do anything because others do it and not because the thing is good or honest or kind in its own right is to resign all moral control and captaincy upon yourself and go post haste to the devil with greater number.’ … If we, as a school are wrapped up in and bounded by our own interests, if we do not realise our place in the scheme of things, our work will be meaningless. Whether as individuals, or as a school or as a nation, we cannot live to ourselves and for ourselves. Detachment is a crime.’ West, W (1992) Winifred Mary West : Addresses & Talks Fine Arts Press : Sydney. June1st 1919 p.12,13

The founder of Frensham, Miss Winifred West, left behind her a body of writing consisting of her intentions for the school, philosophy, musings, and beliefs. Students at the school are and were systematically taught this world view and it was an important part of a Frensham education and to this day is how alumnae can understand each other. This philosophy is not intended as a collection of pretty writings but a fully formed lifestyle which was inculcated into us at the school.
From her published works we can easily ascertain that Miss West had purchased the Lower Holt ‘to be held in perpetuity for the students of frensham, the animals and the refreshment of people’ (paraphrased) This is a repeated theme in her works, and I am aware that other Alumnae have referred to this issue in their own submissions and letters.
The constitutions of Winifred West Schools Ltd forbid this land from being used in any way counter to the founder’s original intention. The founder specifically refers to this provision being made in her writings, and it can be found in the constitutions of Winifred west schools. On behalf of the students, ex-students – in good faith I believe it would be a desecration of her memory to develop this land which she held so dear.” (emphasis in original)
(Ex 8, Folio 58-59)

I was not taken by either party to the constitution of the schools, nor to any statement of Miss West’s intentions included within the constitution.
As such I can give no weight to the claim regarding breach of the constitution. Nevertheless, the general views of Miss West are well documented and were alluded to by other authors of submissions, a number of whom were alumnae, including from families with several generations of alumnae.
Neither can I assume that Miss West would have been opposed to the proposal, either in whole or part. Both in relation to the Holt and the School gardens the management conducted while Miss West was headmistress included environmental protective measures but the School expanded greatly during the period and this involved construction of both buildings and sports facilities.
Ms Austin and other authors of submissions were also extremely critical of the School’s approach to public consultation during the development of the proposal. The form of the public consultation conducted by the School was decided upon by the School. If the result is residual ill feeling and mistrust by the objectors and at the least some alumnae that is a matter for the School – it is not a matter for the Court.

Koala, Wombat and Platypus

A number of submissions raised, as what were considered as serious concerns, the possible impact of the proposed development on three species of mammal, the Koala (Phascolarctos cinereus (Goldfuss, 1817)), the Wombat (Wombatus ursinus (Shaw, 1800)) and the Platypus (Ornithoryhynchus anatinus (Shaw, 1799)). The Koala is now listed as endangered on Sch 1, Pt 1 of the Biodiversity Conservation Act 2016 (BC Act). Neither the Wombat nor the Platypus are listed as threatened species included in Sch 1 of the BC Act. However, both are protected animals in Sch 5 of the BC Act.

Schedule 5 Protected animals
Note—
Some protected animals specified in this Schedule may also be a threatened species or a part of a threatened ecological community. Provisions of this Act relating to the protection of protected animals generally also apply to animals that are a threatened species or a part of a threatened ecological community.
Any of the following that are native to Australia or that periodically or occasionally migrate to Australia (including their eggs and young)—
amphibians—frogs or other members of the class amphibia.
birds—birds of any species.
mammals—mammals of any species (including aquatic or amphibious mammals but not including dingoes).
reptiles—snakes, lizards, crocodiles, tortoises, turtles or other members of the class reptilia.

Section 2.1(c) creates an offence of harming or attempting to harm a protected animal, for which the maximum penalty is a Tier 4 penalty.

2.1 Harming animals
(1) A person who harms or attempts to harm—
(a) an animal that is of a threatened species, or
(b) an animal that is part of a threatened ecological community, or
(c) a protected animal,

is guilty of an offence.
Maximum penalty (includes additional penalty for each animal)—
(a) in the case of an animal that is (or is part of) a threatened species or threatened ecological community (other than a vulnerable species or community)—Tier 1 monetary penalty or imprisonment for 2 years, or both, or
(b) in the case of an animal that is (or is part of) a vulnerable species or vulnerable ecological community—Tier 3 monetary penalty, or
(c) in any other case—Tier 4 monetary penalty.

(2) If the act that harms an animal is the clearing of native vegetation by or on behalf of a landholder on category 1-exempt land under Part 5A of the Local Land Services Act 2013, the person does not commit an offence under this section unless it is established that the person knew that the act would be likely to harm the animal.

(The koala is a threatened species so that any penalty incurred would be Tier 3; for wombat and platypus any penalty incurred would be Tier 4.)

However, s 2.8(1) states:

2.8 Acts authorised under other legislation etc
(1) It is a defence to a prosecution for an offence under Division 1 if the person charged establishes any of the following in relation to the act that constitutes the offence—
(a) Planning approval etc
The act was necessary for the carrying out of—
(i) development in accordance with a development consent within the meaning of the Environmental Planning and Assessment Act 1979, or
(ii) development that is exempt development under that Act, or

Note—
Section 76(3) of that Act provides that development carried out in a declared area of outstanding biodiversity value or in a wilderness area is not authorised exempt development.
(iii) an activity by a determining authority within the meaning of Part 5 of that Act that was carried out after compliance with that Part, or
(iv) an activity authorised by an approval granted by a determining authority within the meaning of Part 5 of that Act after compliance with that Part, or
(v) an approved transitional Part 3A project under Schedule 6A to that Act, or
(vi) State significant infrastructure approved under Part 5.1 of that Act.

If action is undertaken prior to the works which might be approved in a development consent, then a biodiversity conservation licence may be required:

2.11 Licences to do acts that would otherwise constitute offence
The Environment Agency Head may grant a licence (a biodiversity conservation licence) to a person that authorises the doing of an act that would otherwise constitute an offence under Division 1 or under any other provision of this Act.
2.12 Applications for licences
(1) An application for a biodiversity conservation licence—
(a) is to be made to the Environment Agency Head in the form approved by that Agency Head and containing the information required by that Agency Head, and
(b) is to be accompanied by the standard application fee prescribed by the regulations.

(2) If the Environment Agency Head considers that the cost of determining a particular application for a biodiversity conservation licence exceeds the standard application fee, that Agency Head may require the applicant to pay an additional amount for the determination of the application if the additional amount is calculated in accordance with a methodology published by the Environment Agency Head and does not exceed the additional reasonable costs of determining that application.
Note—
See section 14.6 with respect to recovery, waiver or refund of fees.

(3) The Environment Agency Head may require the applicant for a biodiversity conservation licence to provide such additional information as the Environment Agency Head may require to determine the application.

Conditions might apply to the granting of a licence:

2.14 Conditions of licences
(1) A biodiversity conservation licence may be granted unconditionally or subject to such conditions as are specified or referred to in the licence or as are prescribed by the regulations.
(2) The conditions that may be imposed on a biodiversity conservation licence include—
(a) minimum standards relating to the humane treatment of animals (including minimum standards relating to the accommodation, care, rescue, rehabilitation, release or killing of animals), or
(b) the places at which animals are to be kept, or
(c) the keeping of records, or
(d) conditions on any other matter that the Environment Agency Head considers appropriate in the circumstances.

(3) The variation of a biodiversity conservation licence under section 2.13 includes the addition, removal or amendment of a condition of the licence (other than a condition prescribed by the regulations).
(4) A person who contravenes a condition of a biodiversity conservation licence is guilty of an offence.
Maximum penalty—
(a) in the case of a contravention that relates to an animal or plant that is (or is part of) a threatened species or threatened ecological community (other than a vulnerable species or community)—Tier 1 monetary penalty or imprisonment for 2 years, or both, or
(b) in the case of a contravention that relates to an animal or plant that is (or is part of) a vulnerable species or vulnerable ecological community—Tier 3 monetary penalty, or
(c) in any other case—Tier 4 monetary penalty.

(5) A defence to a prosecution for an offence under Division 1 extends to a prosecution for an offence under subsection (4).

In relation to wombats, where, in this matter, capture and temporary removal is proposed, conditions under s 2.11(2) might be applied. The consent authority, including the Court exercising the functions of the consent authority in an appeal, cannot grant a biodiversity conservation licence, which can only be granted by the Environment Agency Head.
Protected animals on the site are not property of the landholder, but of the Crown:

2.18 Protected animals (unless excluded) to be property of the Crown
(1) In this section—
excluded protected animal means—
(a) a protected animal that is, at the time of birth, in the lawful possession of any person other than the Crown, or
(b) a protected animal imported into New South Wales, or
(c) a protected animal that was, before the commencement of the National Parks and Wildlife Act 1974 on 1 January 1975, lawfully taken or in the lawful possession of any person other than the Crown and that had not been liberated before 1 January 1975, or
(d) a protected animal of a class prescribed by the regulations for the purposes of this definition.
protected animal includes an animal of (or part of) a threatened species or threatened ecological community.

(2) A protected animal (other than an excluded protected animal) is, until lawfully captured or killed, deemed to be the property of the Crown.
(3) A protected animal is, when liberated in New South Wales, deemed to be the property of the Crown.
(4) A protected animal that is deemed by this section to be the property of the Crown does not cease to be the property of the Crown merely because a person other than the Crown—
(a) takes possession of it because it is incapable of fending for itself in its natural habitat, or
(b) takes or obtains it under and in accordance with a biodiversity conservation licence that declares that any animal so taken or obtained remains the property of the Crown.

(5) The progeny of any protected animal that was born at a time when the protected animal was in the possession of a person in the circumstances referred to in subsection (4) is, at the time of birth, deemed to be in the lawful possession of the Crown instead of that person.

It will be necessary to examine in more detail the possible impacts on all three species.

Trees

The proposed development requires the removal of a relatively large number of trees, both to create the space needed for buildings and to provide for the Asset Protection Zones (APZs) required by the Rural Fire Service (RFS).
The Applicant commissioned an Arboricultural Impact Assessment of the Frensham School Holt Bush Accommodation which is at Tab 11 in Ex D. Pages 19-53 of the report contain a Tree Schedule providing details of trees growing on the site of the proposed development. The report, including the Tree Schedule, was prepared by Mr Ian Hills.

The Tree Schedule became the source of controversy and confusion during both the field inspection and later in Court.
On the site inspection it was apparent that the trees within the proposed development area had numbered metal tags - as seen in the photograph below:

Figure 5 Area of Tree 176 (18 March 2022) - Photographed by Grahame Douglas (Red circle highlighting tag added)

Mr Hills recorded in his report, at Section 3.0 Methodology, on page 5, that tree canopy spread, and trunk diameter (DBH) were determined during the site survey by Land Team Pty Ltd surveyors and confirmed using a standard arboricultural diameter tape. There was no dispute that the location of trees within the proposed development area, and DBH had been correctly recorded by the surveyors.
A great many of the trees were Pinus radiata (radiata pine / Monterey pine) and these have been correctly identified. Pinus radiata has a very restricted natural distribution on the Monterey Peninsula in California and two small islands off the Mexican coast. However, it is one of the most widely grown plantation forest trees in the world.
It was first grown in Australia in the 1850s, possibly from seed imported by miners travelling from the Californian goldfields to Australia. Trees were grown in both the Sydney and Melbourne Botanic Gardens by 1857.
The first plantation of radiata pine in New South Wales was established at Tuncurry on the mid North Coast in 1914.
The pine trees in the Holt are shown in early photographs by which time they were larger than would have been expected for any progeny of the east Australian plantations, but they may have grown from seeds or seedlings imported directly from California, or seeds developed on early established plants in Australia. The trees do not have the growth form normally associated with plantations or the spatial distribution pattern of plantation trees and were possibly planted scattered among the bush and spread through subsequent self-seeding.
Given the possible age of the oldest pine trees on the site, they might be considered for some form of heritage listing. Dr Clements, the Respondent’s plant ecology expert, made reference to radiata pines on a former brewery site to the northeast of the Frensham land and thought they might qualify as a heritage item.

“WITNESS CLEMENTS: There are pines as I go down to where the old brewery is. There's rows of pines having been planted around the outside of part of the brewery site and there's heritage study that's having been - that's been done on that brewery site itself, so the pines will be of conservation significance in terms of heritage. I don't know. I haven't read the heritage report.” (Tcpt, 22 March 2022, p 41(33-38))

Mr Hills on page 3 of his report states that Pinus radiata is classified as an environmental weed species in Wingecarribee Shire, so that removal could occur without there being a need for council consent.
Although the radiata pines appeared to have been correctly recorded, what was at issue between the parties was the identity of other species in the Tree Schedule, and, in a few cases, the recorded canopy dimensions relative to DBH appeared to be inherently unlikely.
The identification of eucalypts within the study area was a particular issue in view of the need to identify possible koala feed trees.
The three ecologists who participated in the preparation of a joint report (Ex 3) were Dr Stephen Phillips, a wildlife ecologist specialising in koala ecology, Dr David Robertson, a plant ecologist and director of Cumberland Ecology, who had been engaged by the Applicant, and Dr AnneMarie Clements who had been engaged by the Respondent. In her evidence Dr Clements referred to herself as a restoration ecologist. While I do not disagree with this description, restoration ecology is a relatively new subdiscipline in ecology and most participants moved into the field from some other branch of ecology and brought skills from earlier education and working experience. Dr Clements’ background is based in botany and plant ecology.
At earlier stages in the matter the experts for each party were different: for the Applicant, the first Biodiversity Development Assessment Report (BDAR) was prepared by Ecoplanning, while Eco was engaged by the Respondent to critique the ecological information provided by the Applicant and in submissions from the public.
The ecological and koala issues were discussed at the start of the examination of experts.

“WITNESS PHILLIPS: … there was no disagreement between the experts about the fact that koala SEPP 2020 applied to this site because it was over 1 hectare in size and because it was located in the Wingecarribee LGA. The issues that we needed to consider was firstly the matter of whether or not the site contained potential koala habitat and then indeed, if that was the case, did the site also qualify as core koala habitat, and in this context I'm talking specifically about lot 1 because that is the lot to which the development application relates and that is how the SEPP requires us to take those things into account. The matter of potential koala habitat, as has been communicated earlier, is about whether or not the trees in the taller stratum, whether 15% of those trees are tree species listed in schedule 2 of the SEPP, and in this particular instance we're mostly interested in Eucalyptus punctata, the grey gum, and the question of whether there are 15% or whether that tree species constitutes 15% of the taller strata; which is a matter of intense interest to koalas who are always wandering around with pocket calculators doing the sums and saying if it's less than 15% I don't live there. It doesn't make a lot of sense to me and it doesn't make a lot of sense to koalas, but it's nonetheless a metric that we're required to take into account. So, for this site we have agreed that the matter of potential koala habitat is about Eucalyptus punctata. We also know there's some viminalis elsewhere on the site, but outside this narrow metric that the SEPP imposes on us, we also know from the available scientific data that there are other trees that grow on that site that are preferred, preferentially utilised by koalas, and specifically I'm talking about White-topped box, Eucalyptus quadrangulata, and Eucalyptus macarthurii, the Camden Woollybutt, and without wanting necessarily to blind side Dr Clements, in an earlier discussion with David Robertson, Dr Robertson, we were aware that Eucalyptus ovata also occurs on the site. So, there's two issues here, one is the trees that are listed on the SEPP, and there's the other issue which is about the science via ecology and trees that are preferentially utilised by the species, by koalas, and clearly it makes ecological sense, if you were going to do anything about sustainably managing koalas you have to take into account the trees that are known to be preferentially utilised by the species, because it just can't function without those tree species, and that's a critical element of koala population management. As we saw during the site visit, grey gum is very patchily distributed across the site. There was a patch of very nice grey gum on the western side of the Nattai River very early on during the site inspection, and then we didn't see it again until we got on to more elevated land at the north of the site, where I took that opportunity to explain a bit more about home range use by koalas and the importance of tree species like grey gum to them. And so the question which comes back to us is are there enough grey gum on the site to qualify all on its own as potential koala habitat and the reality is that that is not the case, and so if we were to do a systematic assessment counting the number of grey gums at regular intervals across the site, we would come to the conclusion that it doesn't even meet that 15% threshold. Now, some insight into that can be gained from Dr Clements's own data, her own plot data, and in particular I'm referring under point 21 at the top of page 8 in the joint expert report, and the three of those four plots relate specifically to lot 1 and of the 44 trees that are contained within those plots only five are Eucalyptus punctata and so when you do that sum it's 11.4% and that is obviously less than the at least per cent that is prescribed by the SEPP. So, the matter of taking on board the other tree species that are known to be preferentially utilised by koalas, the presence of the listed tree species Eucalyptus punctata, the recognition by all of us, I believe that the site is potential koala habitat very much reflected a precautionary approach. It's being as safe as we can and it makes ecological sense to broaden that description because it assists us with our management objectives. The next issue that it then comes down to, if the site's potential koala habitat then the next question is, is it core koala habitat.”
(Tcpt, 21 March 2022, pp 36(25)-37(32))

Dr Phillips expressed his view, shared by the other ecologists, that State Environmental Planning Policy (Koala Habitat Protection) 2020 (SEPP 2020) took a narrow approach to categorising particular eucalypts as koala feed trees.
One feed tree regarded by the expert witnesses as a feed tree, but not included on Schedule 2 of the SEPP 2020 is Camden Woollybutt, also known as Paddys River Box, Eucalyptus macarthurii, a species with a restricted distribution in the Southern Highlands, mainly on private land. It is listed as endangered under both the BC Act and the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).
Dr Robertson added:

“WITNESS ROBERTSON: Certainly. Yeah. I have heard what Dr Phillips has said and I agree with that as a summary, and I also have discussed some of the data with him during the course of preparation of the joint expert report. The only thing that I would add would be that if you look at the tree schedule that's attached to appendix D in the koala report, you can see that there's only a relatively small number of grey gums and to a lesser extent swamp gums within that what we call the subject land, or the area of lot 1, and so I must echo what Dr Phillips said about paragraph 22 and the table attached to that and the percentage of 11% for Eucalyptus punctata on site, and I believe that the number's lower than that when you consider the overall numbers of trees that have been identified and presented in schedule D or attachment D of the joint expert report.”
(Tcpt, 21 March 2022, pp 37(44)-38(5))

Dr Clements was questioned about her assessment of the identification of the trees on the subject site.

“WITNESS CLEMENTS: Right. The schedule of the SEPP 2020 lists two koala feed tree, punctata, and that was recorded by Cumberland Ecology in plot 4, west of the Nattai. It's also recorded in Cumberland Ecology plot 6, north of the subject land on lot 1. It was recorded in plot 3, west of the Nattai by our group, and also at spots D, E and F, east of the subject land. The locations for these are shown in the joint report, I've shown them for our spots and that's on figure 3 of the joint report and my appendices I've just put down as AC appendices. I think they got subdivided into little groups. Okay, so now viminalis, that's recorded incidentally by Ecoplanning, by Cumberland Ecology and ourselves in appendix B of the BDAR and it's also recorded by us at spots C and G, east of the subject land. Also, spot C is where that oval goes across between the two ovals. So, I record the number of canopy species greater than, you know, I record species greater than 2 metres in every one of our subquadrats so I can get a count of the per cent of actual canopy trees, and in our discussions with Steve Phillips, he pointed to a whole pile of trees that are preferred koala trees, and that's in paragraph 21 of our joint report - no, at paragraph 20 of the joint report, and he emailed me that the data confirms that punctata is a preferred koala tree in the area. The data on viminalis is it's also a preferred tree, quadrangulata, macarthurii, but elata wasn't. In paragraph 20 we looked at the eucalypt taxonomy of the trees that were coming up as preferred koala trees and the preferred koala trees appear all to be in the a subgenus Symphyomyrtus of the Myrtaceae. So, of the trees that we're calling, we have amplifolia which is in the Symphyomyrtus, quadrangulata, macarthurii, viminalis and punctata all falling within that group. Using the data, I have recorded within the floristic quadrats, I get 35% in plot 1, preferred koala tree of the subgenus Symphyomyrtus, and I also get 36% of the trees recorded in plot 3. So, yes, it's not unlikely that lot 1 supports at least 15% of preferred koala trees. It doesn't strictly support things that appear in schedule 2 of the SEPP 2020, which is an out of date SEPP but brought in because of the date of lodgements. Yes, we do know that the site has trees that are eaten by koalas and it's a preference eating of those trees.
O'GORMAN-HUGHES: The figure was put by Dr Phillips, supported by Dr Robertson, that about 11.4% of the trees were ..(not transcribable).. of the subject site.
WITNESS CLEMENTS: You're only looking at four quadrats where tree counts have been done, and in plot 3 I got five Eucalyptus punctata in a 20 x 20-metre plot. In the other sites, where I have an amplifolia dominance, I don't get any trees in that. So if you just add up five out of all the trees that I've recorded in four 20 x 20-metre plots, it's a bit ridiculous in terms of sampling. Whether we've adequately sampled to be able to make any fine decisions. You know, it's just not enough sampling to make that sort of decision of 11%.
O'GORMAN-HUGHES: The relevant test of course for the Court to consider in clause 8 of the 2020 koala SEPP is it must be satisfied as to whether or not the land is potentially koala habitat, relevantly being defined as areas of valued (sic) vegetation where trees of the types listed in schedule 2 constitute at least 15% of the total number of trees in the upper/lower strata of the tree component. What do you say about whether or not the Court could be satisfied as to whether or not the land, being lot 1, meets that definition?
WITNESS CLEMENTS: If I had to do it, I'd have to work out that the eastern part and the northern part of the site appear to be areas where you would have more than 15% of the koalas, if I had accurate tree data, which I do not have. But just based on records of spots and stuff like that, I'd say, yes, the eastern bit of it is definitely making potential koala habitat, but does the entire site make potential koala habitat, well I need a bit more data. The only reliable tree data I have is done by the surveyor that says gum. Now the rest isn't giving me a lot of confidence about the accuracy of the tree identifications. Like I don't understand how Cumberland Ecology did a re-identification when I go through the table and re-identified is only 102 of the 500-odd trees, I'm a bit confused about that.”
(Tcpt, 21 March 2022, pp 38(9)-39(23))

In the Joint Report of the Ecology Experts, Schedule D sets out the reidentification of species listed in the Tree Schedule of the Arboricultural Report.
Mr O’Gorman-Hughes, counsel for the Respondent, questioned Drs Phillips and Robertson about Schedule D.

“O'GORMAN-HUGHES: Dr Phillips, schedule D that's attached to the joint report sets out re-identified species, did you - how many of those species did you personally re-identify?
WITNESS PHILLIPS: I have been reliant on the information provided by Dr Robertson and the discussions between Dr Clements and Dr Robertson. I did take the opportunity during the site view to independently I guess test or examine the extent to which that understanding matched my observations in the field, and I was actually quite comfortable that they did, and, as you might recall during the site view, it took me quite a while to get to a location where I could actually talk about grey gum because in that traverse of that landscape that we all went on, including the lower lying areas, I had been looking for two things, I was looking to clarify the presence of Eucalyptus amplifolia on the site, which is a non-koala feed tree, even though it is a Symphyomyrtus, but I was looking for grey gum so I could introduce the participants to the dynamics of grey gum and how it works in koala society, and so I'm very confident it was not present throughout the majority of the lower lying areas of the site, and indeed on those sort alluvial soils, and that's not its nature, it occurs on more elevated metasediments uplifted sites, and that quite naturally.
O'GORMAN-HUGHES: Dr Robertson, perhaps I should have addressed the question to you. With regard to annexure D to the joint koala report, you've indicated that certain species have been re-identified and is it in her evidence that you've only re-identified 102 of over 500 species. Firstly, how many of those re-identifications did you carry out personally yourself?
WITNESS ROBERTSON: I conducted a re-examination of the data that was provided by the arborist report in November last year, and I did it personally. I went to the site and I walked around the site and I looked for as many trees as I could with the numbered tags within the subject area that were covered by the data that's listed in appendix D, and I realised that there were errors in identification and that some of those errors could be corrected in a relatively straightforward way, and I give examples by which I say Acacia decurrens was a wattle that was commonly misidentified, or Acacia mearnsii, the black wattle, was misidentified as Acacia decurrens. So, within the spreadsheet that we see before the Court, many of those trees were just simply changed over.
O'GORMAN-HUGHES: Dr Robertson, if you would answer the question asked, which was a number of trees that you personally re-identification in that table, did you have any idea?
WITNESS ROBERTSON: I couldn't give you a firm number, but I'm trying to explain - I'm coming to that answer if I may. If you look at things like Pinus radiata, there's a very large number of trees within the 515 trees that appear in that data that are Pinus radiata. They're correctly identified and they don't need to be changed. Some eucalypts were actually incorrectly identified and our focus during the second round of work, and that's the identifications or re-identifications presented in this data, was done by my senior botanist Bryan Furchert, under instructions. He went back to the site and he looked particularly at trees that were identified as koala feed trees, that was the aim of this exercise. So, the work, that was done in November by me to correct the data and to check the data involved my checking in the field plus it involved looking at whole sets of species that were simply rebadged and renamed, and also reassuring myself that things like the radiata pine had simply been identified correctly to begin with. The work done by Bryan Furchert went out and looked at things like the grey gums and looked to see whether they were properly numbered, and located, and identified, and there were several other trees that were in the schedule and, I'll just give you an example, there were Eucalyptus tereticornis that were mentioned on site, they were misidentified largely as Eucalyptus amplifolia - sorry, Eucalyptus amplifolia was misidentified as Eucalyptus tereticornis and Eucalyptus tereticornis is a preferred koala feed tree, Eucalyptus amplifolia is not. There was also I think Eucalyptus viminalis that was identified within this data, and we've checked the site to see whether Eucalyptus viminalis occurs in this data set, and it doesn't. The species that it was changed to is Eucalyptus Elata which is the river peppermint and that again is not a koala feed tree. So, as well as the actual database - to a species that are in the back of the spreadsheet, I've provided two extra figures that show the locations of some trees in two figures at the back of - at the very end of appendix D. The first one of those figures shows koala habitat trees within the subject land, which is the area where development is to take place, and it shows trees to be cleared within the subject land and trees to be retained, and the second thing shows the koala feed trees to be removed based on the updated data. So, I have check a high proportion of the trees in this database and I can't tell the Court how many. The more accurate estimate of the checking of potential koala feed tree is as shown in appendix D and that was done by Bryan Furchert under my instructions.

(Tcpt, 21 March 2022, pp 39(24)-41(1))

Dr Robertson had prepared a Biodiversity development assessment report (BDAR) for the proposed development. Pursuant to s 6.12 of the BC Act, a BDAR is:

6.12 Biodiversity development assessment report
For the purposes of the biodiversity offsets scheme, a biodiversity development assessment report is a report prepared by an accredited person in relation to proposed development or activity that would be authorised by a planning approval, or proposed clearing that would be authorised by a vegetation clearing approval, that—
(a) assesses in accordance with the biodiversity assessment method the biodiversity values of the land subject to the proposed development, activity or clearing, and
(b) assesses in accordance with that method the impact of proposed development, activity or clearing on the biodiversity values of that land, and
(c) sets out the measures that the proponent of the proposed development, activity or clearing proposes to take to avoid or minimise the impact of the proposed development, activity or clearing, and
(d) specifies in accordance with that method the number and class of biodiversity credits that are required to be retired to offset the residual impacts on biodiversity values of the actions to which the biodiversity offsets scheme applies.
Note—
A biodiversity development assessment report is also used for the assessment of impacts on threatened species and threatened ecological communities, and their habitats, and other impacts under Part 7 (Biodiversity assessment and approvals under Planning Act) even though the impacts may not relate to actions to which the biodiversity offsets scheme applies.

Dr Robertson is an accredited person able to apply the Biodiversity Assessment Method (BAM). Section 6.7 of the BC Act requires the Minister to establish a BAM.

6.7 Minister may establish biodiversity assessment method
(1) The Minister is to establish a biodiversity assessment method in connection with the biodiversity offsets scheme.
(2) The biodiversity assessment method is also established for the purpose of assessing the impact of actions on threatened species and threatened ecological communities, and their habitats, and the impact on biodiversity values of other actions prescribed by the regulations (whether or not the biodiversity offsets scheme applies to the impact of those actions on biodiversity values).
Note—
See Part 7 of this Act and Division 6 of Part 5A of the Local Land Services Act 2013.
(3) When establishing the biodiversity assessment method, the Minister is to—
(a) have regard to the purpose of this Act, and
(b) adopt a standard that, in the opinion of the Minister, will result in no net loss of biodiversity in New South Wales.

This subsection does not affect the validity of a biodiversity assessment method established by the Minister.
(4) The biodiversity assessment method is to be established by order of the Minister published on the NSW legislation website.
(5) The biodiversity assessment method may be amended or replaced by further order of the Minister published on the NSW legislation website.
(6) The Environment Agency Head is to make the biodiversity assessment method available on a government website maintained by the Agency Head.
…

The BAM provides a set of rules and may specify other provisions within the BC Act:

6.8 Matters to be dealt with by the biodiversity assessment method
(1) The biodiversity assessment method is to set out rules and guidelines with respect to the matters for which biodiversity assessment reports may be prepared under this Act.
Note—
Section 6.4 enables regulations to be made with respect to offset rules (including circumstances in which the ordinary rules for determining the number and class of biodiversity credits required as biodiversity offsets may be varied).
(2) The biodiversity assessment method may include provision for—
(a) the adoption of datasets, maps and other information published from time to time by a specified person or body (or otherwise approved in a particular case), and
(b) the submission of expert reports, and
(c) the use of specified computer programs and databases for the carrying out of assessments under the method, and
(d) the assessment of the biodiversity values of land by reference to features of surrounding land.

(3) The biodiversity assessment method is to exclude the assessment of the impacts of any clearing of native vegetation and loss of habitat on category 1-exempt land (within the meaning of Part 5A of the Local Land Services Act 2013), other than any impacts prescribed by the regulations under section 6.3.
(Section 6.8 BC Act)

Persons accredited to apply the BAM do so under the provisions of s 6.10 of the BC Act.

6.10 Scheme for accreditation of persons who apply method
(1) The Environment Agency Head is to prepare a draft scheme, in accordance with this section, for the accreditation by the Agency Head of persons for the purposes of the application of the biodiversity assessment method.
(2) The Minister may, by order published on the NSW legislation website, adopt the scheme with or without any modifications the Minister considers appropriate.
(3) The Minister may, from time to time by similar order, amend or replace the scheme.
Note—
Part 9 requires public consultation in relation to the preparation of the scheme.
(4) A scheme for the accreditation of persons under this section may (without limitation) include the following—
(a) the qualifications or experience required for persons to be accredited to apply the biodiversity assessment method,
(b) the accreditation of Public Service employees or other persons,
(c) the procedure for applying for accreditation,
(d) the grant of accreditation and the conditions on which it is granted,
(e) the period for which accreditation remains in force,
(f) the renewal, variation, suspension or cancellation of accreditation,
(g) the payment of fees for applications for the grant or renewal of accreditation (including periodic fees while an accreditation remains in force),
(h) the provision of information by accredited persons to the Environment Agency Head and other persons in relation to biodiversity assessment reports prepared by the accredited persons,
(i) the integrity of biodiversity assessment reports prepared by accredited persons (including the audit of those reports and the establishment of protocols on the engagement of accredited persons to ensure the independent exercise of their functions),
(j) the information that an accredited person is required to obtain from a person requesting a biodiversity assessment report.

(5) The Minister may, from time to time, arrange for a review of the scheme.
(6) The regulations may make provision for or with respect to the contents of a scheme, giving effect to the scheme and reviewing the scheme.

Dr Robertson is an accredited person for purposes of applying the BAM. However, in a matter where several issues arise, a number of experts may be involved. In this case Dr Robertson utilised the expertise of Dr Furchert and Dr Wolf, both employees of Cumberland Ecology. Nevertheless, the preparation of the BDAR (involving the incorporation of several sources of information) must be conducted by the accredited person who also takes responsibility for the total content and the conclusions drawn in the BDAR.
Mr O’Gorman-Hughes sought to find out what proportion of the approximately 500 trees on the subject site had been checked for identification.

“O'GORMAN-HUGHES: Thank you. The expression high proportion is somewhat subjective. It may be 5%, 10%, it may be 95%. Can you narrow it down, firstly now many that you have personally checked, and I'm happy for you to give the Court a range, but it needs to be a range that you're comfortable is accurate? What percentage of 500 trees on the site have you personally checked to be the correct species?
WITNESS ROBERTSON: I have personally looked at something in the order of 80 to 100 trees, scattered across the site from the set of 500 trees, and I don't include within, but I suppose they are - there's additional trees that include the pines where, you know, the pines are not really at issue but they're abundant across parts of the site. So, I have checked 80 to 100 trees I would say and I spent a good day looking specifically at that detail.
O'GORMAN-HUGHES: Your colleague, you said Mr Furchert, how many of the over 500 trees on the site has he personally checked?
WITNESS ROBERTSON: It's indicated in the fourth column from the right-hand side in the table, and so it's a smaller proportion but it's focussed on the potential koala feed trees.
O'GORMAN-HUGHES: ..(not transcribable).. proportion are you able to indicate - you're not able to indicate off the top of your head ..(not transcribable)..?
WITNESS ROBERTSON: I have a printout beside me and I'd have to do a count, but it is actually shown, you know, where the species have been checked and then - I suppose it's that column that's of relevance, so, a high proportion haven't been checked but they haven't needed to be checked because it's really the species that needed to be checked were those eucalypts and not Pinus radiata.
O'GORMAN-HUGHES: Would it be less than 20?
WITNESS ROBERTSON: I'd have to check. I'd have to do a count, I couldn't answer that. I would say it'd be more than 20.
O'GORMAN-HUGHES: So what do you say to the proposition that in order to accurately assess; whether or not the site which has over 500 trees ..(not transcribable).. 15% of trees identified in schedule 2 of the 2020 koala SEPP that you need to check – trees?
WITNESS ROBERTSON: Look, I agree that you need to check a very high proportion of the trees in there to get a good set of data, but I'm also saying that I have done so, and if you list the trees that are of relevance and they're covered in the schedule, I have checked the acacias and made adjustments to the ..(not transcribable).. changing a lot of them. I have checked the pines which are very dominant in parts of the site and just reaffirmed that there's no need to change those names. So those, just including the pines and the acacias, gets you over sort of half of that list. I have checked the peppermints, but I haven't checked all of the peppermints because, as you've heard Dr Phillips say, Eucalyptus Radiata is not a preferred koala feed tree, that was confounded with another peppermint, Eucalyptus piperita, and we haven't gone round and systematically changed all of the peppermints, but regardless of the identification of those species they are not koala feed trees. Right, so they're just included in the numbers of eucalypts that are not koala feed trees. So, acacias, pines, peppermint gums, we're confident about the identification of all of those, and then we've gone back and looked particularly at the abundance and distribution of Eucalyptus punctata which is most certainly a preferred koala feed tree and we've got very good data for that. And so we've estimated, I think there's something in the order of 34 Eucalyptus punctata within that set of trees that numbers I think it's in the order of 515 trees. Expressed in those terms, and it's a data set that I am prepared to stand by and I'm confident with, you're looking at six or 7% of the trees are koala feed trees. So, on the basis of the SEPP's definition where this arbitrary number of 15% is used, it doesn't stack up to be potential koala feed/koala habitat. I agree with both Dr Clements and Dr Phillips and I believe in taking a, like a precautionary approach and to note that there are preferred koala feed trees on the site, so for that reason I believe that it is potential koala habitat.” (Tcpt, 21 March 2022, pp 41(3)-42(22))

The data on dimensions of trees and identification of sources of data were also discussed.

“O'GORMAN-HUGHES: In relation to an issue that was raised at the outset of the proceedings by the Commissioner, could I ask you to look at, for example, tree number 103, which is the first tree in.
WITNESS ROBERTSON: Yes, I've got it, I can look at that.
O'GORMAN-HUGHES: It says that that tree has a diameter at breast height of .2 of a metre and refers to a spread radius of 10 metres. Firstly, is the 10 metres the diameter or the radius?
WITNESS ROBERTSON: The 10 metres, it's my understanding from the arborist's use of this data, that' it's actually a radius, it's not a diameter, so you need to double that to come up with an estimate of the width or diameter of the tree.
O'GORMAN-HUGHES: This tree with the diameter at breast height of .2 of a metre would not have a diameter of 20 metres or anything like that diameter?
WITNESS ROBERTSON: No, and I - once I heard the Commissioner express that concern about that data, I was concerned myself because radius is not really a data set that I have had to regard or make use of, it's not something that's used in any way in the BDAR but I was concerned about the reliability of the data, and so, during the time that I've had available since I've checked every single tree that I could find that has a spread or radius of 10 metres in that data set, and what I've notices is that trees 103 and 104 have respectively diameters of breast heights of only .2 and .3 metres and yet they're shown as having a 10-metres spread. I also noted that in that data set those trees are shown as being 2 metres wide. So, there's clearly something wrong and what I suggest to the Court is that there's a typographical error, that should be like a 1-metre spread, or 1-metre radius. To check that I went further, I looked at all of the remaining trees that have a spread or radius being said to be 10 metres, and I can take the Court to those examples and I can tell you that there's something in the order of ten such trees and the average diameter at breast height is .78 metres, which tells me that, you know, that's the sensible - girth at chest height, and if you looked at a 20-metre spread for trees that have on average almost 80 centimetres, you know, diameter at breast height, that's a feasible thing. I have also looked at examples of trees where the diameter at breast height was .2 metres where the spread or radius was given, so other trees with .2, there are seven of those trees and the average spread or radius of all of those trees that are shown as having a .2 diameter at breast height is 4 metres, which is a much more sensible and, you know, appropriate radius. As I've said, I don't use these figures for ecological work, but I believe that there's two outliers that are associated with acacias and that those two acacias are Acacia mearnsii, they're trees 103 and 104, their diameters at breast height .2, .3 should have something like a spread or a radius on that basis of about 1 or 2 metres, not ten. So, sometimes when you enter data in spreadsheets you can add an extra zero, I'm not sure how it happened, this data comes directly from the arborist, but I can say that on average for 11 other trees for which a 10-metre spread was given, the average diameter was .78. If the Court wishes, I have all of this data that I've put onto a spreadsheet and I can also take the Court to some examples for that.
O'GORMAN-HUGHES: You've accepted that there's "clearly something wrong" with the spreadsheet, then you say that the data from the spreadsheet came from the arborist?
WITNESS ROBERTSON: Originally the data came from the arborist and there are several columns of data from the arborist which--
O'GORMAN-HUGHES: Do you know where the arborist collected the data themselves or whether they got it from someone else, like a surveyor?
WITNESS ROBERTSON: I understand that the original locations of trees, and the maps locations of the trees were done by the surveyor, as was the tagging and numbering. The surveyors also provided estimates of the spread of the trees and I've got that and I think that that same data by the surveyors is provided behind tab 5 for the Court, and if you look at the trees, I think it was 103, 104, in the surveyor's data, the spread or radius is much lower than is cited by the arborist, which the spread cited for those wattles was 6 and 5 metres in the radius for the surveyor's data; but I haven't presented the surveyor's data in this table.
O'GORMAN-HUGHES: ..(not transcribable)..
LARKIN: Dr Clements, we can hear you.
WITNESS CLEMENTS: I'm sorry.
O'GORMAN-HUGHES: I can take ..(not transcribable).. where the dimensions of the trees are clearly wrong and a large number of the eucalypt species have been misidentified, how could we have any confidence that there would be a reliable estimate of the number of trees contained in schedule 2 of the koala SEPP on site based on the fact that you've only checked 80 to 100 trees in that schedule?
WITNESS ROBERTSON: That's with respect not what I said. The trees that I have checked in the file to look at their identification were trees that I had particular interest in and they were like the eucalypts at the time. There's I think from memory something like 160 pines or more within this area that were noted but not checked, because there was no need to do so. There was also a whole array of things like acacias that were simply corrected on the spreadsheet without having to check each and every one and that was done because, firstly, I had other information coming from my own quadrat samples that I used for the BDAR and relied upon and had good confidence in. Secondly, just simply by doing a search and replace you could swap Acacia decurrens with Acacia mearnsii. So, some of those things - no acacias are eaten by koalas, so it's not of relevance, so, acacias, pines, and then there is a series of other woody weeds, the things like ligustrum are privets which are also prevalent in the area to be developed, they're not eaten by koalas either, and I haven't checked each and every one of those, I haven't - can't tell you whether the privets are large-leaf privets or small-leaf privets, but regardless neither of those species is eaten by koalas and they don't need to be checked. When you add up the species that have simply been accepted as identified correctly or broadly correctly in the spreadsheet, when you add up the numbers of trees that I have personally checked, when you add up the number of trees that have been subsequently checked in searching to correct and really be precise about the numbers of koala feed trees, the Eucalyptus punctata on site, I say to the Court that it is a good number that can be relied upon. (Tcpt, 21 March 2022, pp 42(31)-44(39))

It is clear that Dr Robertson's focus was on koala feed trees. It is clearly important to identify possible impacts on koalas, but koalas and eucalypts are only one component of the biodiversity of the site and other components may also need to be assessed.
Dr Clements was then asked:

“O'GORMAN-HUGHES: Dr Clements, has anything that Dr Robertson said in his evidence today affected your opinion about whether you could be satisfied that there could be greater than 15% of the trees being those listed in schedule 2 if you had accurate tree data?
WITNESS CLEMENTS: Well, I don't have accurate tree data. Allow me to just go through appendix D and correct some of the misinformation presented. When I look at appendix D, refer to Eucalyptus tereticornis, there was a total of 54 tereticornis that had been identified in the arborist report. The six proposed to be removed and 24 to be retained, this is under an old scenario. So, of those 54 amplifolia was 43, Eucalyptus ovata, ovata is a species that flows in wet, low lying areas, and we've got elata, we have five of those for the tereticornis collections. For the viminalis collections, I have a total of 4 viminalis identified and all four were assessed to be incorrect. I've recorded viminalis on this site and I've recorded it on lot 1, no problems whatsoever. Of the punctata, this preferred koala tree, there are 24 errors in the arborist's assessment report, this is on page 32/33 of the joint report for koalas. Of the 35 - punctatas and the 24 errors, 16 went to elata, 11 stayed as punctata, six go to amplifolia and two to ovata. So, I have no certainty about any of those identifications. In my original statement of evidence I looked at the data recorded by Ecoplanning which I was able to confirm and I go through it as if they were surveyed by the surveyor as a gum tree, that's fine, the surveyor accurately surveys the pines, acacias - wattles, deciduous trees and gum trees, so gum is his, you know, pretty close to terrific. He accurately, or appears to accurately measure the DBHs and it's his DBH records which are used by the arborist. The arborist states in the arborist report on page 5 he did his inspection on 6 to 8 November 2019, the heights were visually estimated, and I'm not sure whether that was done by the surveyor or by the arborist. The canopy spread and the tree diameter were determined by the surveyor on site. The numbers we see in appendix D we need to cross-tick those against the surveyor's sheet. So, that just is a relatively easy exercise. The DBHs the surveyor is measuring range between 0.2 and 1.4, so that means I have a consequent tree protection zone of 12 times the breast height diameter, standard arborist exercise, which means the radius of the tree protection zone varied from 2.4 metres to 1.68 metres, and to have a significant impact on a tree protection zone, it's a loss of 10% of the tree protection zone. So, I don't have any of that information in the proposal of how much of tree protection zones of gum trees are being lost, because gum is the only thing that I'm able to rely on.”

The environment of the Holt valued by the School’s founder, Miss West, and by generations of students. The current weedy state of much of the proposed development site suggests that there may have been slippage in the standard of management. The continuing and enforceable proposed conditions of consent in relation to vegetation management mean that there should be improvement in management outcomes.
The site is agreed to be bushfire prone (notwithstanding the lack of a fire history for the Holt vegetation) and the fire hazards must be addressed. The required APZ will require substantial change to the vegetation within the APZ, the long-term ecological consequences of which are not well understood. This is an issue for many developments on the rural fringe, and is one which is yet to be properly addressed. However, any development proposed, even if with a different footprint would require an APZ, and although indicating my concerns the APZ does not provide grounds for refusal. The RFS requires that the APZ be managed in perpetuity to maintain fuel loads and vegetation structure so that the risk to assets is reduced. The composition of the vegetation may be permanently changed, and the effects of reducing the height of the ground layer vegetation may be considerable. An APZ is required at many sites in the rural and rural/ urban fringe. There is nothing unique about the subject site in this regard, nor is there any evidence that there are any features of the biodiversity of the subject site which could be regarded as exceptional or as being at particular risk (with the exception of the possible sporadic occurrence of koalas). This is not to say that there may not be such features, a large component of the biota (invertebrates, cryptogamic plants and microorganisms) have never been investigated at most sites. The paucity of information could not be used to stop development in circumstances such as this. In NHVSS the lack of data on the possibility of stygofauna being present in a limestone deposit proposed for quarrying did not prevent approval being granted for a quarry, but the approval included conditions requiring monitoring and establishment of protocols for instituting protective processes in the event of any fauna being discovered within the limestone deposit. The nature of the environment that will be affected by approval does not require that such measures be mandated in the present case, but the processes required by the BDAR, if properly performed, which I must assume will be the case, will lead to an environment which is in better condition than that currently prevailing.

Koalas

Considerable time was spent discussing koalas. There is no doubt that they are a species of very great interest both within Australia and internationally that the long-term survival of koala populations is a major concern for governments at all levels.
I am satisfied that no land in the northern Holt satisfies the definition of core koala habitat. There is not a resident koala population and there was no evidence that within the time (more than a century) that Frensham School has been the landholder there has ever been a koala population (population in the sense used within the SEPP 2020) present. Nevertheless, koalas have been recorded in the subject site, although the occurrence of individuals has never been anything other than spasmodic.
Dr Clements appeared to suggest that the absence of records was due to the inability of members of the public to enter the site for natural history recording. Pupils and staff do have access to the Holt. Dr Phillips was of the view that seeing koala would be regarded as a ‘special’ event by pupils and would be recorded. Dr Clements thought that the chances of a koala being seen by a pupil would be small, owing to a lack of observational skills and the many other competing matters such that pupils would not be likely to record koalas even if they could see them. I would like to support Dr Phillips’ view, but recognise that the mobile phone screen may be of greater interest than natural history. Nevertheless, there are at least some pupils with natural history interests who have worked with Tania Clancy on rehabilitation of wombats and other species. As far as I am aware, there are no public rights of way (in the sense of public footpaths in the UK) through the Holt. I also recognise that security concerns in this day and age mean that it would be undesirable to permit free access to the school grounds, although encouraging pupils to spend more time in the Holt developing observational skills, as well as encouraging the databasing of observations, could provide long term reliable data on trends in koala occurrence.
However, while human access could and should be controlled, access by koalas should be encouraged and nothing should be done that would impair access to and through the upper Holt by koalas. The most likely access route would appear to connect through from the southwest (Mount Gibraltar) to the northwest in Nattai National Park. However, connectivity to the south is broken by Range Road while connection to the north involves crossing urban development and infrastructure.
It is not for the Applicant nor the Court to promote works outside Frensham land for the development of koala access routes. It will be for State and Local Government or amalgamation of private land holders to come up with detailed proposals and where appropriate, the Schools may be able to support an increase level of conservation.
The Applicant is proposing that there will be improved ecological conditions and a series of plans are included in the BDAR, to give teeth, to what otherwise might be just an arm-waving exercise. Mr Larkin points out that these management actions will be embodied in enforceable conditions. If the conditions are enforced, which I must assume they will be, then there will be greater long-term security than would be the case with any voluntary agreement, such as Land for Wildlife. Voluntary agreements, if successful, can develop a strong sense of community among participants, but if not successful a project may die because of lack of enforceability.

Platypus

Platypus are not currently formally recognised under NSW or Commonwealth legislation as threatened, although the IUCN Red Data List does describe platypus as near threatened. There are anecdotal data suggesting that numbers, both of individuals and populations, have declined throughout the species’ range. There is great public interest in platypus owing to their charismatic nature and biological uniqueness.
Platypus have been recorded since the early days of the Frensham School from the Nattai River, and this was highlighted in submissions, and the Applicant was aware of the concern and responded by its proposals for minimising potential impacts. The design of the drainage outlet for the runoff from the site was the subject of debate between the experts and the proposal is that the design include a grill over the outlet to prevent entry by platypus, and that the outlet pipe diameter be sufficient so as to permit a platypus to turn round if, by some chance, it had been able to enter the pipe. Mr Larkin in submissions stated:

“LARKIN: …You would be confident in those circumstances there is no credible or likely impact on platypus. You would be confident, for example, that there is no credible or likely impact on other aquatic species. The particular area to be physically disturbed is an area of the site in respect of which our submission is there is no unacceptable environmental impact.”
(Tcpt, 11 April 2022, p 15(34-39))

However, what remains of concern are the potential impacts of actual construction. It will be a essential to ensure that there is no existing platypus burrow in the area to be disturbed to create the swales and drainage outlet. There will need to be a careful survey, shortly before commencement of the works, to detect for the presence of any part of a borrow. Dr Clements suggested the borrows may extend a considerable distance from their entrance and the entrances themselves may be hard to spot. If a burrow is detected, the proposed conditions require appropriate action be taken.

Water quality – is NorBE satisfied?

I am satisfied that the evidence shows that the possible impacts of the proposed development on water quality in the Nattai River will meet the NorBE requirements, and this requires that I accept Mr Weber’s argument that movement of parts of the development is required to provide for the changed nature of the catchment vegetation which will occur as a result of the RFS requirements. Mr Weber’s contribution was important, and I would suspect that the possible consequences for hydrology of establishing APZs have rarely been considered in other sites.
There has been development in the catchment of the Nattai River and input to the river occurs from the existing developments upstream from the subject site. There will be further development in the catchment, even if it is only from infill and renovation/rebuilds, and less likely from large-scale subdivisions, and the consent authority would be required to consider whether any such proposal would satisfy NorBE.

Evacuation

Both bushfire and floods may give rise for a need to evacuate the accommodation and associated buildings.
Bushfire gives rise to limited issues of route, the issue is when should an order be given and I have determined to accept Dr Douglas’ proposal that it be when a Fire Ban day is declared. Bushfires can occur at any time of the year, but most are likely to occur in summer, so given that students would not be in residence during the summer vacation, for that period there would be no need for evacuation.
Floods can equally occur throughout the year, and in some cases with little or no advanced warning.
Risk is inevitable, and so is the possibility that individuals may not have understood instructions, or not follow them. A comprehensive risk assessment process is no guarantee that all possibilities can be covered – and this applies across all activities, not just in a school context.
I am satisfied that the proposed evacuation regime presented in the Flood Emergency Response Plan (FERP), clear presentation of information to pupils, warning mechanisms and importantly the carrying out of trial evacuations will provide the best possible outcome. The processes should be capable of responding to events with learning from experience and feedback loops established as part of a continuing adaptive management regime.
I do not consider that the proposed evacuation procedures either for fire or flood form a basis for refusing consent. There may be imperfections which when recognised can be addressed, but unfortunately nothing invented or carried out by humans, is ever perfect to the nth degree.

Dr Clements - Witness or advocate?

Mr Larkin raised, both during the hearing and in his submissions, concerns that Dr Clements was not, as an expert, acting in the service of the Court., but as an advocate for the Respondent, and Mr Larkin invited me ‘to prefer the evidence of Dr Phillips and Dr Robertson wherever it differs from Dr Clements’ (Tcpt, 11 April 2022, p 22(6-8)).
Dr Clements has frequently appeared in the Court as an expert witness. In this matter there are elements of her performance which could give rise to criticism. Some of the issues arise from the difficulties of AVL, and her evidence was affected by breakdowns in connections. However, concerns were raised by Dr Clements giving evidence from within an open plan office, with staff visibly close behind her. For her not to have appreciated that this was inappropriate was surprising, and she should either have given her evidence from a separate location or have instructed her staff to leave. Dr Clements had not sought to verify information provided with her instructions, wasting time – both on the site inspection and in Court – over the labelling of trees. Breakdown of communication between the parties and their experts and lawyers was, however, a problem for both sides.
Dr Clements did display an element of obtuseness in responding to questions and continued to provide answers to questions that had not been asked. However, as I have mentioned earlier Mr Larkin’s questioning sometimes ventured into irrelevant areas.
I recognise that Dr Clements and her team are very proficient in plant identification. I also consider that some of the questions she raised were relevant, even if the answers she gave to issues she had raised were not always satisfactory.
Dr Clements was critical of the Respondent’s performance in providing information:

“WITNESS CLEMENTS: Nothing would surprise me. Nothing would surprise me at all. This is the council that did not know the BioNet records despite having been sent them and only loaded the BioNet records when this Court case started and the community and myself were very active about getting the BioNet records recorded, so that Steve Phillips could assess those records.”
(Tcpt, 22 March 2022, p 8(33-37))

This is not the response which might be expected if she were attempting to be an advocate for her party.

Some of her evidence could be considered misguided, and at times, both she and Mr Larkin embarked on irrelevant lines of argument, but I do not consider that Mr Larkin, despite the fact that at times he was clearly, and understandably, frustrated by Dr Clements’ response to questions, established a case for her being an advocate for her client.

Conclusion

After considering the evidence and submissions I am on balance inclined to grant consent, subject to appropriate conditions being imposed.
The parties provided draft conditions of consent, most of which were agreed between them. For contested conditions, they provided competing versions; in some cases, the difference was only in part of the condition. Below I determine whether the Applicant’s or Respondent’s, or some other version, of the wording of those conditions where there are differences, is to be adopted.
The parties are to consider whether the discussion in paragraph [97] requires a new condition to be inserted.

Conditions

General – Lot 1

Any reference to Lot 1 should be amended to Lot 100 (and within any of the documents in Condition 2 which refer to Lot 1 the reference should also be changed).

Condition 2

Condition 2 requires that the development be carried out in accordance with the approved plans and supporting documents included within the table which forms part of the conditions. Condition 2 was not subject to any disagreement between the parties. Importantly, among the supporting documents included in Condition 2 are the Vegetation Management Plan (VMP), the Biodiversity Development Assessment Report (BDAR), the Biodiversity Management Plan and the Koala Management Guidelines (all documents prepared and provided by Cumberland Ecology).

Condition 7 – Monitoring of Compliance with mitigation – Koala Management Guidelines

The Respondent seeks a number of additions to Condition 7. The Koala Management Guidelines are included in the Table to Condition 2. The modifications to Condition 7 proposed by the Respondent go beyond monitoring of compliance with the Koala Management Guidelines and require actions to be performed, a number of which appear, at least in part, to be required by other conditions. (For example, Condition 7 requires both a CMP and a CMEP, which could encompass what the Respondent seeks). As the Koala Management Guidelines are included in Condition 2, the Council has an oversight role to ensure compliance.
If the Respondent was of a mind to alter plans incorporated in Condition 2, these concerns could have been raised and if the Applicant had not responded to the Council’s satisfaction, the Council could have not agreed to including Condition 2 (including the table). No argument justifying the need for the changes the Respondent seeks to Condition 7 has been provided.
The Respondent’s proposed additions to Condition 7 are not to be included.

Condition 14

The Respondent seeks to note Conditions 15A and 15B
The Applicant has to apply all the conditions of consent. There is no requirement to include the words proposed by the Respondent, and they should be omitted.

Condition 15

The Respondent to include an additional section (aa) requiring a Fauna Safety Plan with reference to a number of named species.
There are legislated requirements that address the issue, as do other plans that are part of the conditions, particularly the BMP.
Section (aa) should not be included in Condition 15.
The Respondent seeks, in 15(a)(a) to replace the VMP 2021. However, the 2021 VMP is included in the table in Condition 2, and as that was not objected to, it will be the VMP to apply. The Respondent’s change to 15(a)(a) is not accepted.
The Respondent seeks to add 15A Protection of Platypus and native water rat habitat, and 15B Protection of Wombat habitats.
The Applicant’s position is that Conditions 15A and 15B includes a number of ‘design principles’ which had been discussed during the concurrent evidence of the hydrologists and which would be addressed in the final design (see Condition 18).
Drawing specific attention to Platypus in the Conditions is appropriate and the Applicant’s version of 15A is imposed.
Wombats were a concerned raised by many of the objectors. Some of the Wombats management proposed may require the Applicant to apply for a Biodiversity Conservation Licence (BCL). If a BCL is required, it can only be issued by the Environment Agency Head, and not by the Court.
One difference between the two version of 15B proffered is that the Applicant’s version requires that in the event of a wombat being injured, it should be taken to the nearest veterinary clinic, whereas the Respondent required treatment by ‘the wildlife specialist’. The Respondent did not identify ‘the wildlife specialist’, if there is one formally designated. Neither did the parties provide information on the number of veterinary practices in the general area.
The Applicant’s version of Condition 15B is imposed but this does not preclude a veterinarian in the exercise of their professional judgement, from seeking advice from other veterinarians, if that is considered appropriate.

Condition 24 – Landscape Plan

The parties disagree as to the wording of dot point 8 of the condition.
The Applicant refers to ‘the approved VMP’ – the Respondent refers to the ‘VMP approved by the conditions of consent’.
The 2021 VMP is included in the table of Condition 2, and is thus the VMP which applies to the consent. If the Respondent’s wording would allow more than one VMP applying to a single development that would be inappropriate. (It would be possible to have separate VMPs for difference vegetation types/habitats – for example wetland and forest, but in my view a landscape plan for the whole of the site and for all issues would appropriately adopt a single VMP).
The Applicant’s wording for dot point 8 of Condition 24 is imposed.

Condition 25

Condition 25(a)(ii)

The Respondent proposed to add words required for protection of preferred Koala Habitat and feed trees. The proposed words do not provide specificity – are feed trees those identified in SEPP 2020, or would it include the additional species suggested by the experts? What criteria would apply to determining whether retention of particular trees is practicable?
I do consider that it would be appropriate to include within 25(a)(i) specification of what the Arboricultural Impact Assessment Report is to include in addition to the TPP. It could be restricted to native species. Should it specifically require identification of Koala feed trees (as proposed by the ecologists rather than SEPP 2020)?
The parties are to agree on appropriate wording.

Condition 25(b)

The Respondent proposes two additional parts which if adopted, should be (iv) and (v) (not as indicated (iii) and (iv)).

In the first of the proposed additions, there is again the issue of how preferred Koala Habitat of feed trees are defined.
Inspection is required ‘immediately prior’ – does this mean ‘the day before’ or some longer period?
Similarly, in the second proposed addition ‘information is to be submitted to Council before commencement’ – again, does immediately mean the day before? If the information is submitted to Council, what is the Council to do in response?
Given the other conditions of consent and the uncertainty of what is intended, the Respondent’s (iii) and (iv) should not be included.

Condition 25(c)(c)

The Respondent’s addition is imposed but should be worded;

‘…and should be undertaken by a suitably qualified (minimum AQF3) and insured arborist’.

In the Reason, the words ‘and native fauna’ are to be added. Koalas are members of the fauna and, while recognising they are a subject of concern, they do not need to be singled out in this context.

Respondent’s Proposed new Condition 26A and 26B

Condition 26A

The BDAR is listed in the Table to Condition 2. The BDAR is therefore a document which must be taken into account when applying the conditions of consent.
There are requirements in the conditions for preparation of a Construction Management Plan and a Construction Environmental Management Plan. Fauna Management Protocols are described in the BDAR.

Condition 26B

This would require that a ‘suitably qualified as experienced ecologist’ prepare a Vegetation Management Plan (VMP) to be submitted and approved by Council prior to the issue of any construction certificate.
What is proposed in 26A and 26B would be a VMP which would be in some instances broader in scope than the VMP listed in Condition 2. The Reason for both 26A and 26B include stipulating the requirements for the preparation of CEMP and the VMP when in the case of the VMP there is already a VMP which by dint of inclusion in Condition 2 has, de facto, been approved, and in the case of the CEMP, the document is to be produced under another condition.
There will be reasons in place which cover the proposed additions and 26A and 26B are not to be included.

Condition 34 – Bio Basins and Swales

The Applicant proposed inclusion of Koala Feed Trees, the Respondent Koala use trees. Koalas may ‘use’ almost any tree (even on Dr Phillips’ evidence, Banana trees).
While it needs to be clarified as to what constitutes a Koala Feed Tree, those words are to be used rather than Koala use trees, which term could apply to every tree on the site.

Condition 35A – Koala Management Guidelines

Koala Management Guidelines are included in Condition 2. Aspects of what are proposed in this proposed extra condition could be covered in the CEMP which is already required to be produced.
The wording proposed includes ‘no new structures; road or paths should be built…’.
If works of this nature were to be constructed on the site during the construction period for the approved structures, they would be in breach of the approval. If they were to be proposed at another time they would be assessed on their merits.

Proposed Condition 35A(e)

Proposed Condition 35A(e) would strictly prohibit dogs even if on a leash. This is generally appropriate – except that it prevents use of dogs to detect Koala scats, and circumstances may arise where such a survey is required.

Proposed Condition 35A(f)

This contains important contact information that should be available during (or beyond) the construction phase.
This paragraph should be included in an appropriate place in a document which forms part of the conditions, possibly the CMP and CEMP, but there were other appropriate locations.
The parties are directed to agree on a location for the paragraph.

Condition 57

The Applicant’s proposed (i) is to be included.
I am supportive of the underlying sentiment of the Respondent’s proposed (i). However, the staff and students should be aware of the ‘environmental aspects’ of all the Frensham site and not just Lot 100.
I will not impose the Respondent’s proposed (i) or (j). It will be a matter for the School whether it wishes to prepare documentation that would address the intent of the Respondent’s (i) for the whole of the School land.
Any recommendations in the approved Operational Management Plan are part of the Conditions so that the Respondent’s proposed (j) will take place.

Condition 58

The Applicant’s proposed wording is imposed.

Condition 59 – Use of Premises

The Respondent’s proposed additions to the title are not supported.
I support the Applicant’s proposed additional wording in the text. The Respondent’s proposed version is too restrictive and would not permit maintenance staff (who might not be employees of the School) from attending in an emergency at any time, including overnight.

Condition 60- Conservation Protection

The Reason should be to ensure biodiversity conservation (not just Koala protection).
The Applicant’s wording is imposed.
The text in the Respondent’s version may guide production of the broader environmental statement if the School is inclined to produce one.

Condition 61 – Lighting

A reporting Exterior Lighting Principles by Shelmerdines Consulting Engineers is listed in the Table to Condition 2.
There has been increasing awareness globally of impacts on fauna (including invertebrates) or outdoor lighting.
However, the impacts vary, depending on the species involved, the intensity of light, wavelength and the time (both during the night and at different seasons).
There are relatively few reported studies in the literature from Australia, so it will be difficult to set condition appropriate for local species.
The importance of downward direction is well recognised, and I also appreciate that motion sensors could be used to control when the illumination is required. However, this could result in rapid changes from on to off which might adversely impact on neighbours and wildlife.
I am not inclined to not impose the Respondent’s wording but it is an issue which should be kept under review.

Condition 62 – Landscape area (planting and maintenance)

There can be many reasons for failure to establish, including that the soil contains a pathogen to which the planted species is susceptible. If the cause of death is suspected to be a pathogen, then it would be an exercise in futility to keep planting the same species.
It would be appropriate to amend the first sentence in the condition by adding, except where presence of pathogens is suspected when planting of a different species of tree or shrub with similar form and predicted maximum height is to occur.

Condition 66

The Applicant suggests wording headed – Ongoing Environmental Management, the Respondent heads its proposed wording – Vegetation Management Plan.
The Respondent proposes that the site be managed in accordance with the VMP ‘in perpetuity’.
We are in a time of rapid environmental change. Any environmental plans should be structured so as to respond to change, and permit adaptive management.
I impose the Applicant’s version of Condition 66, but with the hope that there will be opportunities to modify over time.

Condition 69 – General Forms of Approval – NSW Rural Fire Service

My understanding was that the experts (Mr Short and Dr Douglas) has agreed on the dimensions of the APZ if the appropriate fuel load was the basis for calculation (despite Mr Short recognising the RFS version as also being valid).
I am not aware of the basis for the suggested differences between the parties in the proposed condition. The parties are to confer with the bushfire experts as to what they consider to be their agreed dimensions.

IPA Management – Dot point 2

The Respondent’s wording is adopted.

IPA Management – Dot point 3

In dot point 3 (Respondent) and dot point 4 (Applicant) the parties are referring to different things.
The Applicant retains up to 10% shrub cover – but only if not associated with any trees.
The Applicant retains trees and shrubs as clumps or islands covering up to 20%.
The Respondent also requires that vegetation be separated from doors and windows by at least 4 metres whereas the Applicant requires separation of at least twice the height of the shrubs at maturity. Depending on the identity of the shrub species this may be more than 4 metres.
The Respondent’s dot point 3 is not accepted.
The Applicant’s dot point 4 is imposed.

IPA Management Dot point 5

The ‘projected’ to be included.

The OPA – Dot point 1

Dot point 1 is to include ‘projected’.

The OPA – Dot point 2

The Respondent’s wording appears to require that shrubs be mown to a height of less than 25mm. There has been little reported on the effects of regularly mowing prostrate shrubs to this height, but for many it would be the kiss of death, particularly if it were to occur at the start of the growing season in September.
The management of the ground layer is likely to result in changes in structure and composition regardless of the height limit imposed. The parties’ fire and ecology experts are directed to consider whether a level higher than 25 mm but less per 100 mm could be specified that would not create unacceptable risk.

Condition 69(3) – Access to internal roads

Dot point 4

The Applicant’s wording of dot point 4 is accepted.

Dot point 5

Is a category I fire appliance 23 tonnes? If so, is a 10 metre turning area adequate?

Condition 69(4)

The track/road is to be upgraded. I do not know whether there is a formal distinction between track or road. If there is the word which signifies higher standard of construction should be imposed.
The bush fire experts were in agreement that the fire truck should be specified as 23 tonnes, and this should be the weight specified in the condition.

Condition 69(9)

I am not aware of the basis for this proposed addition. The Respondent is to provide reasoning for the proposal, and the Applicant is to present an alternative view if it thinks it is appropriate and I will determine whether to accept proposed 69(9).

Directions

The draft conditions should be amended to reflect my reasons as stated above and to that end, I make the following directions:

By 22 January 2024, the parties are to amend the conditions of consent to reflect the findings of this judgment, and file the amended conditions of consent.

By 22 January 2024, the parties are to forward a Word copy of the amended conditions of consent to the Court and subject to my satisfaction that the conditions reflect my reasons for judgment I will make final orders.

The matter is listed for Online Court on 22 January 2024 for the parties to confirm they have complied with directions (1) and (2).

Liberty to restore the matter on 24 hours’ notice should the need arise.

P Adam

Acting Commissioner of the Court

**********

Endnote

Decision last updated: 04 January 2024

Medium Neutral Citation:	Winifred West Schools Ltd v Wingecarribee Shire Council [2023] NSWLEC 1799
Hearing dates:	18, 21-23 and 25 March 2022; 7 and 11 April 2022; 10 May 2022; 17 June 2022
Date of orders:	22 December 2023
Decision date:	22 December 2023
Jurisdiction:	Class 1
Before:	Adam AC
Decision:	The Court directs: (1) By 22 January 2024, the parties are to amend the conditions of consent to reflect the findings of this judgment, and file the amended conditions of consent. (2) By 22 January 2024, the parties are to forward a Word copy of the amended conditions of consent to the Court and subject to my satisfaction that the conditions reflect my reasons for judgment I will make final orders. (3) The matter is listed for Online Court on 22 January 2024 for the parties to confirm they have complied with directions (1) and (2). (4) Liberty to restore the matter on 24 hours’ notice should the need arise.
Catchwords:	APPEAL – development application – consent sought for construction of student accommodation buildings, a multi-purpose hall and associated works at Frensham School – deemed refusal – amended application renotified – objectors’ submissions – commencement at Frensham School with objector submissions, inspection of site of proposal and observation of areas to south including upper Holt – whether site is core koala habitat – change to conservation status of koala – Biodiversity Development Assessment Report (BDAR) – Flood Emergency Response Plan (FERP) – impacts on platypus – water quality assessment is not required to be met – nature of vegetation on site – establishment of Asset Protection Zones – managing bush fire risk – bush fire evacuation plan – whether the proposal is appropriate given biodiversity and other values
Legislation Cited:	Biodiversity Conservation Act 2016, ss 2.1, 2.8, 2.11, 2.12, 2.14, 2.18, 6.7, 6.8, 6.10, 6.12, 6.15, Sch 1 Pt 1; Sch 2 Pt 2; Sch 5 Biosecurity Act 2015, ss 15, 21, 22 Endangered Species Act (16 USC § 1531 et seq.) (US) Environment Protection and Biodiversity Conservation Act 1999 (Cth) Environmental Planning and Assessment Act 1979, ss 4.14, 4.15(1)(e), 8.7 Environmental Planning and Assessment Regulation 2000, cll 272, 273 Land and Environment Court Act 1979, s 39(6) Protection of the Environment Administration Act 1991, s 6 Rural Fires Act 1997, s 100B State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 3, 4; ss 6.58, 6.59, 6.61, 6.62, 6.63, 6.64 State Environmental Planning Policy (Educational Establishments and Childcare Facilities) 2017, cll 8, 33, 34, 35 State Environmental Planning Policy (Koala Habitat Protection) 2019 State Environmental Planning Policy (Koala Habitat Protection) 2020, cll 3, 4, 7, 8, 9; Sch 2 State Environmental Planning Policy (Koala Habitat Protection) 2021 State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3 State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011 State Environmental Planning Policy No 44—Koala Habitat Protection Threatened Species Conservation Act 1995 Wingecarribee Local Environmental Plan 2010
Cases Cited:	Gatacre LC Pty Ltd v Lane Cove Council [2023] NSWLEC 35 Gunlake Quarries Pty Limited v Minister for Planning [2022] NSWLEC 1570 Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning (2008) 159 LGERA 361; [2007] NSWLEC 802 Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Ltd (2010) 210 LGERA 126; [2010] NSWLEC 48 Rocla Pty Ltd v The Minister for Planning and Sutherland Shire Council [2007] NSWLEC 55 VAW (Kurri Kurri) Pty Ltd v Scientific Committee (Established under s127 of the Threatened Species Conservation Act 1995) (2003) 58 NSWLR 631; (2003) 128 LGERA 419; [2003] NSWCA 297
Texts Cited:	Community Environment Network, Land for Wildlife, accessed 13 December 2023, < Cazneaux, The Frensham book: 100 Pictures of an Australian school (1934, Art in Australia Ltd, Sydney) Holly Kerr Forsyth, Remembered Gardens: Eight Women & Their Vision of an Australian Landscape (2006, The Miegunyah Press, Melbourne), Bk 2, ‘The Garden – a way of life: Winifred West 1881-1971’ at pp 124-47 NSW Department of Planning and Environment, Southern Highlands Shale Woodlands in the Sydney Basin Bioregion - Determination to make a minor amendment to Part 3 of Schedule 1 of the Threatened Species Conservation Act, accessed on 12 December 2023, < for Bush Fire Protection 2006 Planning for Bush Fire Protection 2019 Priscilla Kennedy, Portrait of Winifred West (1976, The Fine Arts Press, Sydney) Susan E. Emilsen, Frensham: an historical perspective (1988, Winifred West Schools, Mittagong) Wingecarribee Shire Council, Land For Wildlife, accessed on 13 December 2023, < West, Addresses and Talks by Winifred Mary West, C.B.E. (1973, Memorial Edition, Angus and Robertson Publishers, Cremorne, Sydney)
Category:	Principal judgment
Parties:	Winifred West Schools Ltd (Applicant) Wingecarribee Shire Council (Respondent)
Representation:	Counsel: P Larkin SC (Applicant) R O’Gorman-Hughes (Respondent) Solicitors: HWL Ebsworth Lawyers (Applicant) Marsdens Law Group (Respondent)
File Number(s):	2021/88697
Publication restriction:	Nil