Timpag Investments Pty Limited v Liverpool City Council [2018] NSWLEC 1296 (20 June 2018)

Last Updated: 20 June 2018

Land and Environment Court New South Wales

Case Name:	Timpag Investments Pty Limited v Liverpool City Council
Medium Neutral Citation:	[2018] NSWLEC 1296
Hearing Date(s):	20, 27 February, 15 March and 21, 22 May 2018
Date of Orders:	20 June 2018
Decision Date:	20 June 2018
Jurisdiction:	Class 1
Before:	Adam AC & Douglas AC
Decision:	The Court orders: (1) The appeal is dismissed. (2) Development application DA 1250/2016, as amended, for the clearing of vegetation, site levelling and earth works for a warehouse, is refused. (3) The exhibits, except for Exhibits 1, B, C, D and E may be returned.
Catchwords:	DEVELOPMENT APPLICATION - characterisation of development - impact on threatened species and communities - assessment of impacts - offsets - biodiversity credits - proposed change in zoning, public interest
Legislation Cited:	Biodiversity Conservation Act 2016 Biodiversity Conservation (Savings and Transitional) Regulation 2017 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 1979 Environmental Protection and Biodiversity Conservation Act 1999 (Cth) Land and Environment Court Act 1979 Liverpool Local Environmental Plan 2008 Standard Instrument (Local Environmental Plans) Amendment (Vegetation) Order 2017 Threatened Species Conservation Act 1995
Cases Cited:	BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147 Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited 2013 NSW LEC 48 Chehab v City of Canada Bay [2002] NSWLEC 220 Denning Tweed Heads Pty Ltd v Tweed Shire Council [2018] NSWLEC 1108 Design Power Associates Pty Ltd v Willoughby City Council [2005] NSWLEC 470; (2005) 148 LGERA 233 Ebsworth v Sutherland Shire Council [2006] NSWLEC 63 Julian Malnic v Northern Beaches Council [2017] NSWLEC 1761 Mosman Municipal Council v Denning [2002] NSWLEC 227 Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited [2010] NSWLEC. 48 Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited (No 2) [2010] NSWLEC 104 Pro-Vision Developments Pty Limited v Ku- Ring- Gai Municipal Council [2003] NSWLEC 226 Radray Construction Pty Limited v Hornsby Shire Council [2006] NSWLEC 155
Texts Cited:	BioBanking Assessment Methodology 2014 Cooks River/Castlereagh Ironbark Forest in the Sydney basin Bioregion-endangered ecological community l. NSW Scientific Committee Listing page updated 27 February 2011 BJ Preston, Biodiversity offsets: Adequacy and efficacy in theory and practice.(2016) 33 EPLJ 93
Category:	Principal judgment
Parties:	Timpag Investments Pty Limited (Applicant) Liverpool City Council (Respondent)
Representation:	Counsel: Dr J Smith (Applicant) Solicitors: McKees Legal Solutions (Applicant) A Seton, Marsdens Law Group (Respondent)
File Number(s):	2017/234018
Publication Restriction:	No

TABLE OF CONTENTS

The site

History

The Plan of Management

The orders sought

Is the proposed development permissible?

Renotification

Lifting the s 88B instrument

Council seeks to rezone the site

Contentions and issues

Assessing the impacts

The mitigation hierarchy

Impact on threatened species and communities

What is a red flag area?

A red flag variation

Offsets

Viability

Environmentally Sensitive Lands

The EPBC Act listing

Public interest

Consideration

Orders

JUDGMENT

1. COMMISSIONERS: This case is an appeal by the Applicant, Timpag Investments Pty Ltd (Timpag) against the refusal, on 19 June 2017, by Liverpool City Council (the Council) of DA - 1250/2016. The development application proposed earthworks to create a level site, requiring the clearance of all vegetation from Lot 10 DP 1003837, at 36 Lyn Parade, Prestons. Exactly what the application is for became a matter of debate between the parties and is discussed later in this judgment.
2. The hearing commenced on site on 20 February 2018. The Court heard from two objectors, Mr Stephen Dobell-Brown and Mr Ian Bailey, both of whom had earlier made written submissions to Council. The objectors spoke to their concerns which related to possible impacts of the proposal on species and ecological communities of conservation significance. After hearing from the objectors, the Court, in the company of the parties’ legal representatives and ecological experts, inspected the site. Access was gained through a gap in the fence at the north-west corner of the site.
3. After inspecting Lot 10 we observed part Lot 11 DP 1228445, diagonally across Lyn Parade to the south-west from Lot 10. Part Lot 11 has the street address of 11 Progress Circuit and has frontages to both Lyn Parade and Progress Circuit. Observations of the lot were made from the boundary on both frontages, but, as the lot is privately owned and the owner is not a party to the matter, the property was not entered.
4. The frontage of Part Lot 11 to Progress Circuit is not fenced. From the roadside on Progress Circuit we observed that there had been substantial deposition of rubbish, and that there were more introduced species (weeds) than on Lot 10. Although the vegetation of Part Lot 11 was more degraded than that of Lot 10, it is still recognisable as essentially native vegetation. The differences between Lot 10 and Part Lot 11 are not the consequence of a planned experiment on the effects of fencing, but the contrast between the two sites is strongly suggestive of the beneficial effects of fencing and restricted access on ecosystem condition.
5. At the conclusion of the inspection and observations, the matter was adjourned, by agreement between the parties, so as to permit the Applicant to prepare an amended application, rather than proceeding to Court for the commencement of the hearing.

The site

6. Lot 10 is rectangular, with an area of almost exactly one hectare. The site has a frontage to Lyn Parade to the west and there are industrial properties to the north, south and east. There is a fall of approximately 3.8m across the site from the southeast corner to the northwest corner.

7. The site is densely vegetated. There was agreement between the expert ecologists that the vegetation on Lot 10 represents an Endangered Ecological Community (EEC) listed under both the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) and (originally) the Threatened Species Conservation Act 1995 (NSW)(TSCA) and now under the Biodiversity Conservation Act 2016 (NSW) (BCA). The vegetation has been variously referred to the Shale Gravel Transition Forest (SGTF) and Cooks River/Castlereagh Ironbark Forest (CR/CIF) EECs. Over the past two decades the increased number of studies has led to greater understanding of the variation in a range of vegetation types in greater Sydney. The experts are in agreement that Lot 10 vegetation is best described as CR/CIF.
8. It was also agreed between the experts that the population of Acacia pubescens (Downy Wattle) (listed as Vulnerable under both the EPBC Act and originally under the TSCA and now the BCA) on Lot 10 represented a significant occurrence of the species. A. pubescens is often clumped and determining in the field between a number of genetic individuals and vegetative proliferation of stems is not always certain. There is agreement that using current methodology the number of plants on the site is 84. However, caution is required when comparing this with the number of plants recorded at other sites when different methodological approaches may have been used.
9. The vegetation is, from our observation, generally in good condition with few weeds, except for dense growth of Eragrostis curvula (African lovegrass) around the edges, most particularly towards the western frontage along Lyn Parade. On the inspection we observed extensive areas of a well-developed cryptgam crust consisting largely of lichens and thalloid liverworts, forming a ground layer. There are areas along the southern boundary where rubbish has been deposited over the fence.

History

10. Information in this section is derived from the Respondent’s Bundle of Documents (Exhibit 3) and Second Additional Bundle of Documents (Exhibit 5).
11. The Prestons industrial area, within which Lot 10 is situated, was released on 12 October 1990 when the land was rezoned from rural to industrial. The vegetation study for the Prestons industrial area was conducted in 1998 and it was recommended that what is now Lot 10 be protected because of its ecological value. Other sites were also recommended for protection including some that have subsequently been developed or become degraded.
12. Because threatened species occurred on the land, before the Council could grant development consent to a proposal to create a subdivision, the Council was obliged to obtain concurrence from NPWS, and incorporate any conditions of consent imposed by NPWS in the Council’s grant of consent.
13. The concurrence issued by NPWS by letter to the Council dated 16 April 1999 (Exhibit 3 Tab 1 at Folio 1) that Lot 10 be dedicated to Council. The Council advised NPWS that it had received legal advice indicating that this was not possible. NPWS therefore issued a revised concurrence on 18 May 1999, replacing that requirement with one to establish a s 88B instrument pursuant to the Conveyancing Act 1919 (the second concurrence is included as an appendix in Mr Humphries’ Statement of Evidence- Exhibit J). This second concurrence is reflected in the wording of the approval granted by Council (Exhibit 3, behind Tab 2, at folio 20).
14. On 28 May 1999, approval was granted by the Respondent for development application 780/98 for subdivision of Lot 1, DP 626996, at 42A Jedda Road, Prestons into one lot (Lot 10) and a residual lot (Lot 11) and the subsequent subdivision of Lot 11 into eight industrial lots and a public reserve lot and associated road. Lot 10 is now Lot 10 in DP 1003837 at 36 Lyn Parade.
15. The notice of determination granting consent (Exhibit 3, Tab 2, folio 20-31) included the following conditions:

3 The final plan of subdivision is to be supported by an 88B instrument under the Conveyancing Act 1919. The instrument must burden proposed lots 10 and 11 with the following restrictions as to user:

(i) Lot 10 subject to a conservation management plan and development is prohibited
(ii) Lot 11 development is prohibited until land is subdivided in accordance with Council approval.

4 Consent is not granted nor implied to any future subdivision of proposed Lot 10.
9 The proponent is to be responsible for the preparation and implementation of a Plan of Management (PoM) for the conservation of threatened species in proposed Lot 10. The proponent will provide resources for the implementation of the PoM for at least three years following the date of approval of the PoM (emphasis added)
10 The PoM is to include:

(a) A program for the salvage of Meridolum comeovirens from the developable area (Lot 11) and monitoring their relocation to the conservation zone (Lot 10). The PoM must specify that any collection, reintroduction or monitoring of the species is undertaken by a suitably qualified environmental consultant who is experienced in identifications of the species and its habitat requirements.
(b) Senna odorata and Marsdenia viridiflora are to be salvaged and re-established in Lot 10.
(c) A weed control program which includes monitoring and control of weed invasion. The PoM must specify that any weed control is to be undertaken by a qualified bushland regenerator.
(d) Specifications in regard to the carrying out of ecological burns in the conservation area
(e) The buildings on Lot 11 shall be designed so as to minimise the overshadowing of the bushland in the conservation zone (Lot 10).

11 The PoM must be submitted to the Manager, Threatened Species Unit, Sydney Zone, NPWS for approval prior to the release of linen plan of subdivision. No activities which may affect threatened species are to be undertaken before this approval is obtained.
12 The conservation zone (Lot 10) must be fenced to prevent entry to the land. In this regard there is to be no storage of materials, vehicles, waste, or disposal of stormwater, liquid waste or rubbish of any kind on Lot 10. The fence must be erected prior to any construction activities commencing, in accordance with the approved PoM.

The Plan of Management

16. The conditions of consent for the 1999 approval required the preparation of a plan of management to be approved by NPWS. (Exhibit 3 behind folio 2 at. Conditions 12).
17. The plan of management was not in evidence. The Council’s copy of the plan is presumed to have been lost in a major fire at the Council chambers. The parties have not located a copy of the final plan from any other source. Ms James, the ecology expert for the Respondent in her Statement of Evidence included a copy of what she assumed was a draft of the plan of management, prepared by Mr Thomas (Exhibit 6 at Annexure 5). This document had been obtained from the archives of OEH. Ms James assumed that it was a draft as it was not a clean copy but included a handwritten annotation.
18. No evidence was presented which showed that NPWS approved the PoM as required by Condition of Consent 11.
19. The absence of what is agreed to be the definitive plan creates problems. It is not known with certainty what the plan of management required, and thus it is impossible to ascertain the extent to which it has been implemented. The only action which we know has definitely occurred was the construction of the fence. We do not know whether the plan required continuing actions by the landholder.
20. In the version of the plan included in Ms James’ report there is a requirement for weeding which talks about an intensive initial exercise with continuing maintenance (Exhibit 6, Annexure 5, Page 12), which if it had been included in the final version would have required ongoing management.
21. The condition of consent 9 requires implementation of the plan of management for at least three years. This requirement ‘for at least three years’ mirrors the wording in the second NPWS concurrence.
22. Dr Smith, Counsel for Timpag, in his final submissions, argued that “for at least three years” should be read ‘as not less than three years’ and that it should not be read as implying any potential for ongoing commitment of resources by whoever has responsibility for managing the land after three years. He says it must be assumed that whatever was required for 3 years was done, but there was no subsequent obligation imposed on the landholder. As there is uncertainty (caused by the absence of a copy of the final plan) and ambiguity as to the interpretation of consent condition 9, the interpretation of the condition should ‘be construed not necessarily in favour of the holder of the consent but against the Council’ - citing Mosman Municipal Council v Denning [2002] NSWLEC 227 at [8] and [16].
23. Over the years, the wording of plans of management in circumstances such as this has evolved so that requirements are now frequently set in a regime of continuing adaptive management (Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited [2010] NSWLEC 48 (NHVSS) where adaptive management is discussed at [181] to [189]. The detailed conditions defining the regime are Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited (No 2) [2010] NSWLEC 104 (NHVSS (2)). It would not be expected that the conditions for a monitoring and ongoing management regime in many matters would be as voluminous and complex as those required in NHVSS (No 2), but the broad principles of such a scheme are increasingly the norm, although it is unlikely that they were applied in 1999.
24. There was nothing in evidence from either party to show that, if there had been ongoing requirements specified in the conditions of consent, the Council had sought at any time to enforce them.
25. If consent were to be granted, then the conditions would need to establish a management regime for the site during the period between clearing and any eventual construction. This regime would need to address control of weeds in order to prevent site becoming a focus of potential invasion of other areas, and to prevent erosion, but would not be limited to these factors.

The orders sought

26. When Timpag commenced these proceedings, the application was in relation to:

The Respondent's actual refusal pursuant to s 97(1)(a) of the Environmental Planning and Assessment Act 1979, to grant development consent to Development Application No 1250/2016 in relation to Lot 10 in DP 1003837, being 36 Lyn Parade, Prestons NSW 2170.

27. Only one order was sought, namely:

Development consent is granted to Development Application Number 1250/2016 refused by the Respondent Council on 19 June 2017.

28. On 23 November 2017, Mr McKee, solicitor for the Applicant, wrote to the Respondent’s solicitor requesting that they:

... obtain instructions as to whether or not, in the event that the Court upholds the appeal and approved the development application no DA 1250/2016 Council will agree to revoke the restriction on title secondly referred to in DP 1003837 and set out in the supporting s 88B instrument.
In the circumstances where you do not obtain those instructions, could you please confirm that your client will not object to the amendment of the orders sought in the Class 1 appeal to include that the Court exercises its power to revoke the Restriction on Use registered on title.
(Quoted from the letter marked “A” attached to the Affidavit of Graham McKee dated 15/02/2018)

29. Mr McKee did not receive a response to this letter.
30. On 8 February 2018, an e-mail was sent to the Respondent's solicitor requesting a response to the earlier letter (a copy of the e-mail is attached to Mr McKee's Affidavit and marked “B”).
31. Further e-mail exchanges occurred between the solicitors but on 14 February 2018 the Respondent’s solicitors were still seeking instructions from Council (e-mail of 14 February 2018 from Ms Hudson to Mr McKee - attachment “D” to Mr McKee's Affidavit).
32. On 15 February 2018, the Affidavit of Mr McKee and a Notice of Motion seeking amendment to the orders sought were filed. Paragraph 9 of the Affidavit requested that the notice of motion be listed to be dealt with at the commencement of the hearing after the site view. (The site view was to commence on the morning of 20 February 2018).
33. On being made aware of the Notice of Motion, and having read the file, including the original development application, we thought it appropriate to raise with the parties, by way of an Online Court Communication dated 16 February, two preliminary matters.
34. The first matter related to the orders sought in the Notice of Motion and required brief submissions addressing why seeking an order under s 89 of the Conveyancing Act 1919 in the Supreme Court was not a preferable course of action.
35. The second matter arose as result of our consideration of the development application itself. We had concerns that there may be doubts as to whether the proposed development was permissible. This was not a matter which had been raised in the Council’s Statement of Facts and Contentions (SOFAC).
36. Brief submissions on both issues were requested by 12 noon on Monday 19 February 2018. Both parties made submissions by this deadline.
37. The requirement to notify the parties of issues additional to those previously identified by the parties was discussed by Preston CJ in Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147 at [101] (Pet Carriers).

101 It may be accepted that, as a general rule, if a Commissioner or Judge hearing a Class 1 appeal is to determine the proceedings by reference to matters beyond the issues identified by the parties, then procedural fairness requires that the parties be given notice of those additional matters and accorded the opportunity to be heard upon them: see Cavasinni Constructions Pty Ltd v Fairfield City Council at [39]. This is because ordinarily, the Court determines the proceedings on the substantive issues joined between the parties: Segal v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177 at [42], [95] and Design Power Associates Pty Ltd v Willoughby City Council [2005] NSWLEC 470; (2005) 148 LGERA 233 at [37], [38]. If, however, the Court considers that there are issues additional to those joined between the parties that need to be considered, procedural fairness requires the parties to be notified and given an opportunity to be heard in relation to the additional matters.

38. We raised the matters before the site inspection, before we had heard the parties’ substantive submissions and before the concurrent evidence of the parties’ ecological experts had been presented. We anticipated that the joint evidence would be an important part of the hearing. Nevertheless, we considered that the matters about which we had concerns were such that they might affect the course of the subsequent hearing.
39. It is appropriate that we discuss first the permissibility issue, as if the proposal is for a prohibited development, and the impermissibly cannot be cured by amendment to the application, then the appeal would have to be dismissed without discussion of the merit issues.

Is the proposed development permissible?

40. At the heart of the planning process is zoning, by which areas of land is allocated to a particular zone, and within a zone certain types of development may be permitted, and others cannot be approved - see [24] in Pet Carriers

Planning law turns on the characterisation of the purpose of development of land. The threefold classification in the EPA Act and environmental planning instruments made under it in regard to the carrying out of development depends on the characterisation of the purpose of the development. The threefold classification is of development that may be carried out without development consent, development that may be carried out with development consent, and development that is prohibited or cannot be carried out with or without development consent.

41. The local environmental plan which applies to the site is the Liverpool Local Environmental Plan 2008 (LLEP 2008) under which the land is zoned Heavy Industrial IN3. Clause 2.3 (1) of LLEP 2008 provides that

2.3 Zone objectives and Land Use Table
(1) The Land Use Table at the end of this Part specifies for each zone:
(a) the objectives for development, and
(b) development that may be carried out without development consent, and
(c) development that may be carried out only with development consent, and
(d) development that is prohibited.

42. The Land Use Table for Zone IN3 is as follows:

Zone IN3 Heavy Industrial
1 Objectives of zone
• To provide suitable areas for those industries that need to be separated from other land uses.
• To encourage employment opportunities.
• To minimise any adverse effect of heavy industry on other land uses.
• To support and protect industrial land for industrial uses.
• To preserve opportunities for a wide range of industries and similar land uses by prohibiting land uses that detract from or undermine such opportunities.
2 Permitted without consent
Nil
3 Permitted with consent
Boat building and repair facilities; Boat sheds; Building identification signs; Business identification signs; Cemeteries; Crematoria; Depots; Environmental facilities; Environmental protection works; Flood mitigation works; Freight transport facilities; General industries; Hazardous storage establishments; Heavy industrial storage establishments; Heavy industries; Helipads; Horticulture; Kiosks; Light industries; Mortuaries; Offensive storage establishments; Passenger transport facilities; Recreation areas; Recreation facilities (outdoor); Resource recovery facilities; Roads; Rural industries; Sex services premises; Storage premises; Transport depots; Truck depots; Vehicle body repair workshops; Vehicle repair stations; Warehouse or distribution centres
4 Prohibited
Any development not specified in item 2 or 3

43. A consent authority, and, in the case of Class 1 appeals, the Court, standing in the shoes of council, as the consent authority, must be satisfied that the proposed development is a type of development which can be carried out with development consent. For Zone IN3, Item 2 specifies that there are no types of development which are permitted without consent. If the proposed development cannot be properly characterised as being for a purpose permitted in Item 3 it is prohibited under Item 4.
44. Was the development application for a type of development included within Item 3 for zone IN3? The Development Application Form, the relevant page from which is reproduced below, described the development as ‘clearance of vegetation which is listed as an endangered ecological community under the Threatened Species Conservation Act.’

45. Clearance or removal of vegetation is, of itself, not development which appears to fall within any of the types of development specified in Item 3.
46. Although the Development Application Form is an essential component of a development application, documents accompanying the form also part of the application.
47. The application form has limited space, so that additional documentation is required. However, there was sufficient space for the inclusion of a few extra words, such as ‘for warehouse construction’.
48. The Development Application Form was accompanied by a Statement of Environmental Effects (SEE) which included a Species Impact Statement (SIS) as an Annexure. The SEE was prepared by Michael Brown Planning Strategies and the SIS by Cumberland Ecology.
49. Although the SEE identified a warehouse as the intended future use of the site, this is not reflected in the application form which only provided the barest detail, and the cost estimate of $30,000 is clearly only for the vegetation clearing and not for some future building. There is no indication in the application form itself that what is proposed was intended to be the first step in a staged development. Other than the concept plan, where the dimensions of the future warehouse are such that, as proposed, it would comfortably meet the relevant height and floor space ratio requirements for the site, there is little information to inform an assessment of the proposal.
50. Warehouse is one of the types of development which is permissible with consent in Item 3 of the land use table for Zone IN3.
51. Mr Seton, for the Council, in his submissions of 19 February 2018, points out that cl 2.3 of LLEP 2008 is subject to other provisions of the plan. However, at the time these proceedings commenced there were no provisions which would have permitted, with development consent, clearing or removal of vegetation
52. Before 25 August 2017 the LLEP contained clauses 5.9 and 5.9A, but these were omitted as a consequence of the Standard Instrument (Local Environmental Plans) Amendment (Vegetation) Order 2017. Clauses 5.9 and 5.9A dealt with preservation of trees or vegetation. Mr Seton provided a detailed analysis of the consequences of these changes and concluded at paragraph 33.

Accordingly, the provisions of the Environmental Planning and Assessment Act 1979 that were in force prior to amendment by the Biodiversity Conservation Act 2016 on 25 August 2017 continue to apply to the development application subject of these proceedings. However, the provisions of LLEP 2008 that were in force prior to being repealed by the Standard Instrument (Local Environmental Plans) Amendment (Vegetation) Order 2017 on 25 August 2017 are not saved and the application must be determined by reference to the provisions of LLEP as currently in force.

53. Dr Smith on the other hand argued ‘that the purpose of development the subject of the development application is the use of the land for industrial purposes namely the future construction of a warehouse. The clearing of land serves that purpose therefore the proposed development is clearly characterised as a use permissible under the IN3 zone being a warehouse which is a use permitted in that zone’ (Dr Smith’s submissions of 19 February paragraph 5).
54. Although the assessment of the application by the Council is focused upon the impacts of clearing and removing vegetation, there is acknowledgment by the Council of awareness that the intention of clearing was the eventual construction of a warehouse. In the Council’s SOFAC, it was stated at paragraph [2]:

The submitted statement of Environmental Effects and concept plans indicate that the proposed development involves the future construction of a warehouse building.

55. The overall assessment by the Council (Delegate Assessment Report Exhibit 3 Tab 15 Folio 82) concluded that the proposal was ‘best characterised as ancillary works to accommodate an “industry”.’
56. However, the discussion in the assessments was solely in terms of clearing and, in the draft without prejudice conditions of consent tendered by the Council (Exhibit 9), did not provide conditions for the warehouse building, but rather dealt only with clearing and related matters like sediment control, disposal of waste etc. This is not surprising given that only very limited details about the putative warehouse were available for assessment.
57. Notwithstanding that it remained Dr Smith's position that the proposal was for a warehouse and this was permissible, in discussion at the site inspection he sought to put the matter beyond doubt by seeking an adjournment to give time for Timpag to develop amended plans, upon which, by a foreshadowed Notice of Motion, Timpag would seek to rely.
58. Timpag prepared an amended application which was identified as being for:

Removal of all trees and vegetation from the site, site levelling and earthworks for the purposes of a warehouse.

59. The application was accompanied by a revised SEE which included details of the proposed levelling of the site. This would involve fill being moved from the south-east of the site and emplaced to the north-west across the diagonal bisecting the site. A revised SIS (Exhibit D) was also submitted.
60. The procedures for amending a development application are given in cl 55 of the Environmental Planning and Assessment Regulation 2000:

55 What is the procedure for amending a development application?
(cf clause 48A of EP&A Regulation 1994)
(1) A development application may be amended or varied by the Applicant (but only with the agreement of the consent authority) at any time before the application is determined.
(2) If an amendment or variation results in a change to the proposed development, the application to amend or vary the development application must have annexed to it written particulars sufficient to indicate the nature of the changed development.

61. The application of cl 55 has been discussed a number of judgments of the Court. Jagot J, in Radray Construction Pty Limited v Hornsby Shire Council [2006] NSWLEC 155, drew upon the earlier judgement of Talbot J in Ebsworth v Sutherland Shire Council [2006] NSWLEC 63, and said:

10 The question whether the power should be exercised in a particular case (that is, should the Court, exercising the functions of the consent authority agree to the amendment or variation sought) is also to be answered having regard to the beneficial purpose of the provision. The factors relevant to that question will vary depending upon the circumstances in which the application is made (including, for example, the time at which the application is made and the reasons for making the application).

62. At [16], she considered that the “substantially the same” test that had been frequently applied to consideration of proposals to amend plans should be broadened.

16 Mr Graham for the Council submits that the test to determine whether the changed development converts the application into an original application is whether the proposed development is “substantially the same” as the development the subject of the development application lodged with the Council (prior to its first amendment). That test has been applied in some cases, as the discussion in Ebsworth v Sutherland Shire Council discloses. I do not consider that the “substantially the same” formula (apparently derived from the modification power in s 96) reflects the full extent of the power available under cl 55. I prefer to ask whether the development now proposed is an amendment or variation of the application, recognising that an amendment or variation may result in change to the proposed development, but that the Court has no jurisdiction to entertain an original application.

63. The proposed amended application differs from the original in providing for the levelling of the site and more clearly indicating the clearing is for the purpose of warehouse construction.
64. Is the mere inclusion of a purpose sufficient to bring the proposal under the ambit of Item 3 in Zone IN3, and thus be a permissible development in the zone?
65. The proposal still leaves much open for future decisions. The details of the warehouse design are absent, and a timetable for its development is also absent. If the development application was to be approved and the clearing and levelling were carried out, the outcome is clear - there would be a level area of 1 ha, devoid of any form of vegetation. The site might be left in that condition for an unspecified period until a warehouse were constructed. The uncertainty of when or if development of a warehouse would occur, as distinct from the certainty of loss of a stand of an endangered ecological community is a matter which might provide grounds for refusing the application to rely on the amended plans. Although the purpose is stated to be for a warehouse, it would be possible for a future applicant to lodge a new development application to apply for another type of development permissible under IN3.
66. We recognise that cl 55 of the Regulation is a beneficial and facultative provision (Radray at [9]) which should be construed so as to permit a wide interpretation. On the other hand we recognise that the assessment of the merits issues around the retention or clearing of the vegetation will ultimately be determinative of the matter. The assessment of the construction of a warehouse building in the context of an existing industrial estate would be unlikely to give rise to any issues which could not be resolved by appropriate conditions.
67. If the amendment to the application were merely for a future warehouse, we would consider that what was proposed was not permitted, as there was not an application for a warehouse that could be assessed. However, the revised application specifically encompasses earthworks. Earthworks are a permissible use in any zone, subject to the provisions of LLEP 2008 cl 7.31

7.31 Earthworks
(1) The objectives of this clause are as follows:

(a) to ensure that earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land,
(b) to allow earthworks of a minor nature without requiring separate development consent.

(2) Development consent is required for earthworks unless:

(a) the work is exempt development under this Plan or another applicable environmental planning instrument, or
(b) the work is ancillary to other development for which development consent has been given.

(3) Before granting development consent for earthworks, the consent authority must consider the following matters:

(a) the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality,
(b) the effect of the proposed development on the likely future use or redevelopment of the land,
(c) the quality of the fill or the soil to be excavated, or both,
(d) the effect of the proposed development on the existing and likely amenity of adjoining properties,
(e) the source of any fill material and the destination of any excavated material,
(f) the likelihood of disturbing relics,
(g) the proximity to and potential for adverse impacts on any watercourse, drinking water catchment or environmentally sensitive area.

68. Clause 7.31(2) is not relevant in this instance, but we are required to consider subcl (3) and the objectives in subcl (1)(a). Of the subclauses in s 7.31(3), subcl (g) is relevant.
69. Before earthwork to level the site could take place, a necessary preceding event is the removal of vegetation. The impacts of clearing vegetation are also central to the other considerations required and will be discussed in that broader context.
70. Clause 7.31 of LLEP 2008 had been brought to our attention by Dr Smith early in the proceedings when the issue we had raised about whether what was proposed was prohibited development or could be permissible with consent was being discussed. It was not further referred to during the hearing on 21-22 May 2018 and was not an issue raised in contentions or submissions.
71. However, on reflection, it appears to us that the application should be construed as seeking consent for earthworks, which are a form of development for which development consent is required (cl 7.31 (2) LLEP 2008). It is not an application for a warehouse, as no application for a warehouse, in a form containing sufficient detail to be assessed against the requirements of Zone IN3 has been made.
72. This was not the way the case was run, and evidence was presented as if it were for a proposal under the assessment regime for development within Zone IN3. However, the environmental impacts associated with the earthworks necessarily would also occur if the application had been made for the clearing, levelling and earthworks and construction of a warehouse as part of a single package.
73. The application is for earthworks and levelling. If consent were granted it would not, either explicitly or implicitly, constitute an approval for a future warehouse, which would need to be the subject of a separate development application. However, we acknowledge that if the site were to be cleared and levelled the impediments to making such an application would be substantially lessened.
74. The key matters which we must consider in determining whether approval can be given to a development application for earthworks are whether the proposal is satisfactory in light of the objectives of cl 7.3(1)(a), and in particular that ‘the earthworks for which development consent is sought will not have a detrimental impact on environmental functions and processes’ and under cl 7.31(3)(g) ‘the proximity to and potential for adverse impacts on any... environmentally sensitive area.’
75. We must have regard to the objectives contained in cl 7.31(1)(a). However, we are also mandated to consider such matters contained in cl 7.31(3) as are relevant. We have earlier identified the fact that the sole relevant provision in cl 7.31(3) that is relevant is subcl 7.31(3)(g).
76. Objective (1)(a) of the clause contains a number of propositions which are in the alternative. That which is relevant to our consideration is whether or not the earthworks will have a detrimental impact on environmental functions and processes. In this instance, the environmental functions and processes would be the preservation of the environmental values of the site itself.
77. In our assessment of this objective, it is necessary that we consider the terms of cl 7.31(3)(g). In this context, there are two elements requiring consideration. The first is the proximity to any other environmentally sensitive area and the potential for adverse impacts on that area and, second, the potential for adverse impacts on this site, the site itself being an environmentally sensitive area.
78. As earlier noted, portion of Lot 11 would fall within the scope of being an environmentally sensitive area in the proximity of the site. There is evidence that the removal of the vegetation from the site itself would potentially have an adverse impact on Lot 11.
79. Lots 10 and 11 both contribute mutual support for floral pollination and also act as habitat as part of a chain in a corridor for native fauna. The impact on these values is part of our consideration.
80. In addition, for the purposes of cl 7.31(3)(g), the potential for adverse impacts on any environmentally sensitive area (being the site itself) is also a matter which we are mandated to consider.
81. That which follows is our analysis of whether or not that impact (total removal of vegetation on Lot 10) is acceptable under the circumstances.

Renotification

82. Following the decision to permit the Applicant to amend the application, the Council required that the amended proposal be renotified for the statutory period. Two submissions were received from the same two objectors from whom we had heard at the start of the site inspection. The amendments had not served to change their opinions and their submissions were in essentially the same terms as their original submissions.

Lifting the s 88B instrument

83. Timpag originally sought only a single order, which was to grant consent to the development application. It is not uncommon for Applicants to seek an additional general order along the lines of ‘such other orders as the Court considers appropriate’ but no such application was made in this case.
84. In the event that the Court were to find in favour of Timpag and make the single order sought, it could not have been acted upon as the development would be prohibited by the terms of the s 88B Instrument unless Council agreed to lift the restriction as to use.
85. LLEP 2008 includes in cl 1 .9A the following

1.9A Suspension of covenants, agreements and instruments
(1) For the purpose of enabling development on land in any zone to be carried out in accordance with this Plan or with a consent granted under the Act, any agreement, covenant or other similar instrument that restricts the carrying out of that development does not apply to the extent necessary to serve that purpose.
(2) This clause does not apply:
(a) to a covenant imposed by the Council or that the Council requires to be imposed,

Council had imposed the s 88B instrument as a restriction on title as part of the conditions for the 1999 consent

86. Dr Smith in his submission of 19 February (paragraph 4) argued that ‘the power of the Council which falls to the court under s 39 (2) of the Land and Environment Court Act 1979 (New South Wales) is to agree, as an incident to the development application, to release the restriction on user and not the jurisdiction of the Supreme Court to entertain an application for an order to modify or extinguish a restriction on user.’
87. Section 39(2) of the Court Act states:

In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

88. The Court has considered on a number of occasions the power of the Court to release a restriction as to user even where a clause in the relevant local environmental plan identical or similar in wording to cl 1.9A applied. Chehab v City of Canada Bay [2002] NSWLEC 220 (per Pain J) and Pro-Vision Developments Pty Limited v Ku- Ring- Gai Municipal Council [2003] NSWLEC 226 (per Lloyd J) are the leading cases which include syntheses of earlier judgements.
89. Lloyd J, in Pro-Vision, at [23], held that:

23 Under s 39(2) of the Land and Environment Court Act 1979 (“the Court Act”), for the purpose of hearing and disposing of an appeal, the Court has all the functions and discretions which the body whose decision is the subject of the appeal had in respect of the subject matter of the appeal. The rights of way in the present case are set out in an instrument registered under s 88B of the Conveyancing Act. The instrument states that the person empowered to release, vary or modify the easement is the Council of the Municipality of Ku-Ring-Gai. The powers of the Court under s 39(2) thus include the discretion to release, vary or modify the easement in the course of determining the development appeal, if the circumstances warrant (Willoughby Municipal Council v Huxley Homes Pty Ltd, NSWLEC, Stein J, 16 November 1989, unreported, McDougall v Warringah Shire Council (1993) 80 LGERA 151, Chehab v Canada Bay City Council [2002] NSWLEC 220 per Pain J).

90. However, release would be discretionary, but before release could arise as a matter for decision, the Court would need to be satisfied that, but for the instrument, approval could be justified on the merits. As Mr McKee (in the letter marked “A” attached to his Affidavit of 15 February) submitted ‘release of the s 88B instrument would only be a matter for further consideration in the event that the Court upholds the appeal and approves the development application’.
91. Mr Seton in his submissions of 19 February acknowledged ”that the Court had the power under s 39(2) of the Court Act to exercise the discretion of the respondent to release the covenant”. However, he considered that ‘it was in the interests of justice that the proposed amendment to the orders not be allowed and preferable that any request for release be dealt with by separate proceedings in the Supreme Court’.
92. The Council advanced two reasons for this view. Firstly, that the application to amend was made too late (submissions 19 February 2018, paragraph 5). ‘The Respondent would be prejudiced by not having an opportunity properly to prepare and file evidence’. This submission was made when the timetable was for a hearing commencing the next day, and did not anticipate the extended adjournment which has occurred. Any weight to be afforded to the argument has been lessened by the adjournment of approximately three months.
93. Secondly, ‘the matters that may be reasonably considered in respect of an application for release or extinguishment of the Restriction may be different to the matters that are relevant to the consideration and determination of the development application that is presently the subject of the Class 1 Application.’
94. Granting leave to amend the orders sought is not the same as granting the orders, and the parties would still need to present submissions as to why or why not an order to release the s 88B instrument should follow in the event that the first order to reverse the Council’s decision to reject the application is upheld. The time between the adjournment and the hearing was of sufficient length for the Council to consider whether there could be arguments that retention of the s 88B instrument is the desired outcome in the public interest, regardless of the outcome of the merits consideration.
95. Restrictions on title can be imposed or required by councils in a range of circumstances. For example, in Chehab the restriction was a limitation on the height of the main building on the site to a single storey; Pro-Vision was a case about rights of way and access for a number of property owners. Both these matters involve elements of policy and there is a public interest component in applying and maintaining the restrictions. The weight given to the public interest may vary with the circumstances of each individual case. Restrictions may be applied for environmental and conservation purposes and the restrictions as to use on the title in this matter is for a conservation purpose and thus the public interest in both applying and maintaining the restriction for the benefit of nature conservation might be different from that where there are competing interests between neighbours.
96. We were not taken to any cases in which a s 88B instrument applied to limit or constrain some activity for the benefit of conservation, although we are aware that including imposition of a restriction on title is not uncommon in consents... Consideration of the broader public interest in land being conserved may support retention of the restrictions over development which might otherwise be approved. Permitting the extra order sought to be added to the application does not foreclose continuing argument as to the most appropriate outcome (an outcome which could theoretically range from approval of what is proposed through imposition of conditions to outright rejection).
97. That restrictions as to title can be imposed for broad diversity conservation objectives is shown in Julian Malnic v Northern Beaches Council [2017] NSWLEC 1761 - an appeal against the imposition of a condition of consent (condition 65) limiting the number of companion animals and livestock which could have been kept on properties in a subdivision. The condition had been imposed for the reason of protection of biodiversity and the Commissioner agreed with Council that the presence of various threatened species and local wildlife meant it was inappropriate for dogs, cats, ponies or horses to be on any land in the subdivisions. The Commissioner concluded:

82 As for any argument that the Rural zoning of the land should allow rural pursuits or typical rural activities including the grazing of horses and the keeping of dogs, the subdivision of this land would not have been supported if such activities were proposed given the environmentally sensitive nature and location of this site. The further subdivision was only approved with the offer of the creation of Conservation Areas on each proposed lot, the detailed analysis to determine an acceptable location for buildings, effluent areas and asset protection areas, the restriction on further clearing, the thorough assessment of environmental impacts and the prohibition on domestic animals, all of which were required in order for me to grant approval.

98. In the current case, the 1999 approval was granted with the requirement that Lot 10 be conserved as an offset, and this is somewhat analogous to the situation in Malnic where the condition which that council wished to impose was to achieve a conservation benefit over an area wider than the Applicant’s lot even though the area was zoned Rural Residential.

Council seeks to rezone the site

99. In correspondence in 1999 to the Council from the National Parks and Wildlife Service regarding the then proposed development of Lot 1, DP 626996 at 42A Jedda Road (Council’s bundle behind Tab 1 at Folio 1) there appears the following paragraph:

The NPWS strongly recommends that Council approach the protection of remaining areas of significant habitat, endangered ecological communities and threatened species in a strategic manner, perhaps through amendments to the local environmental plan or through the preparation of a development control plan in consultation with landholders, to protect the values prior to development plans being submitted.

100. We do not know whether any consideration of this suggestion occurred, but the subject site was not rezoned.
101. At the Liverpool City Council meeting of 7 February 2018, the Council considered a City Economy and Growth Report, EGROW 05, on the proposed rezoning of certain lands in Prestons for environmental conservation (Council’s additional bundle of documents filed 16 February 2018, Exhibit 4).
102. The proposal is to rezone two sites in Prestons from IN3- Heavy Industry to E2 - Environmental Conservation. The sites are Lot 10 DP 1003837, the site the subject of these proceedings, and part Lot 11 DP 1228445, which is west of Lyn Parade, diagonally across from Lot 10.
103. The report recommends that Council provide:

1 in-principle support for the rezoning of the site; and
2 delegates to the CEO to prepare a planning proposal and forward it to the Department of Planning and Environment seeking gateway determination (page 5 in Exhibit 4).

104. Provision for making gateway determinations is provided for by s.3.34 of the EPA Act.
105. Part Lot 11 is connected to the Maxwells Creek riparian corridor to the west; that section of Lot 11, which is not part of the proposal, is zoned SP2 (drainage). The SP2 zoning is highly restrictive in terms of permissible development as its primary purpose is to provide the riparian buffer to Maxwells Creek, and thus offers protection to the ecological value of the land. Part Lot 11 is burdened with a restriction on title requiring the bushland on the site be retained and managed in accordance with a conservation management plan (the terms of the instrument are at pages 15 - 19 of Exhibit 4).
106. The current zoning is inconsistent with the s 88B Restriction on Title. The report suggested that rezoning of the sites to Zone E2 could go to meeting the aims of LLEP 2008 and is supported by Council policies and plans:

2 Aims of Plan
(1) This Plan aims to make local environmental planning provisions for land in Liverpool in accordance with the relevant standard environmental planning instrument under section 33A of the Act.
(2) The particular aims of this Plan are as follows:
,,,
(b) to foster economic, environmental and social well-being so that Liverpool continues to develop as a sustainable and prosperous place to live, work and visit,
...
(g) to conserve, protect and enhance the environmental and cultural heritage of Liverpool,
(h) to protect and enhance the natural environment in Liverpool, incorporating ecologically sustainable development,

and advance the following two objectives of cl 7.6 of LLEP 2008:

7.6 Environmentally significant land
(1) The objectives of this clause are as follows:
(a) to maintain bushland, wetlands and wildlife corridors of high conservation value,
...
(c) to protect rare and threatened native flora and native fauna,

107. The Council voted unanimously to support the motion that the recommendation be adopted. (Page 20 in Exhibit 4).
108. On 7 May 2018, the Delegate of the Greater Sydney Commission made a Gateway Determination in relation to the Planning Proposal. The text of this determination is reproduced below.

The Gateway Gateway Determination
Planning proposal (Department Ref: PP_2018_LPOOL_004_00): to rezone land at 36 Lyn Parade (Lot 10 DP1003837) and Part Lot 11 Progress Circuit (Part Lot 11 DP1228445), Prestons from IN3 Heavy Industrial to E2 Environmental Conservation
I, the Director, Sydney Region West, Planning Services at the Department of Planning and Environment, as delegate of the Greater Sydney Commission, have determined under section 3.34(2) of the Environmental Planning and Assessment Act 1979 (the Act) that an amendment to the Liverpool Local Environmental Plan (LEP) 2008 to rezone land at 36 Lyn Parade (Lot 10 DP1003837) and Part Lot 11 Progress Circuit (Part Lot 11 DP1228445), Prestons from IN3 Heavy Industrial to E2 Environmental Conservation should proceed subject to the following conditions:
1. Community consultation is required under section 3.34(2)(c) and schedule 1 clause 4 of the Act as follows:

(a) the planning proposal is classified as low impact as described in A guide to preparing local environmental plans (Department of Planning and Environment 2016) and must be made publicly available for a minimum of 28 days; and
(b) the planning proposal authority must comply with the notice requirements for public exhibition of planning proposals and the specifications for material that must be made publicly available along with planning proposals as identified in section 5.5.2 of A guide to preparing local environmental plans (Department of Planning and Environment 2016).

2. Consultation is required with the following public authorities and I organisations under section 3.34(2)(d) of the Act and/or to comply with the requirements of relevant section 9.1 Directions:

• NSW Office of Environment and Heritage;
• NSW Office of Environment and Heritage -Heritage Division;
• NSW Rural Fire Service;
• NSW Department of Industry; and
• Australian Department of the Environment and Energy.

Each public authority/organisation is to be provided with a copy of the planning proposal and any relevant supporting material, and given at least 21 days to comment on the proposal.
3. A public hearing is not required to be held into the matter by any person or body under section 3.34(2)(e) of the Act. This does not discharge Council from any obligation it may otherwise have to conduct a public hearing (for example, in response to a submission or if reclassifying land).
4. The planning proposal authority is authorised as the local plan-making authority to exercise the functions under section 3.36(2) of the Act subject to the following:

a. the planning proposal authority has satisfied all the conditions of the
Gateway determination;
b. the planning proposal is consistent with section 9.1 Directions or the
Secretary has agreed that any inconsistencies are justified; and
c. there are no outstanding written objections from public authorities.

5. The time frame for completing the LEP is to be 9 months following the date of the Gateway determination.

109. The Gateway Determination is subject to a number of conditions. Condition 1 requires community consultation with the documentation publicly available for a minimum of 28 days. From the Bar Table, we were advised by Mr Seton that the consultation process would commence on 23 May 2018. This was the day after the completion of the hearing. Thus, at the time of the hearing, the proposal was not formally a Draft LEP which influences the weight that can be afforded to it during our deliberations. Condition 4 delegates to Council the exercise of the functions under s 3.36(2) of the EPA Act, subject to satisfaction of a number of matters. Condition 5 sets a timetable for completing the LEP of nine months.
110. Dr Smith informed us that the Applicant would be making a submission during the consultation process strongly arguing that the rezoning not occur. He also stated that it was Timpag’s view that the Planning Proposal presented a case in a way which might have misled the Delegate as to its basis, and that Timpag might seek judicial review of the Council’s practice and procedures in preparing the Planning Proposal in Class 4 proceedings. These are not issues upon which we express any view.

Contentions and issues

111. By its Amended Statement of Facts and Contentions (Exhibit 1) the Council presses five contentions which can be summarised as:
     • Adverse significant effect on an endangered ecological community (Cooks River/Castlereagh Ironbark Forest) and two species - the vulnerable Acacia pubescens (Downy Wattle) and the endangered Meridolum corneovirens (the Cumberland Plain Land Snail).
     • Impact on Environmentally Significant Land: The land to be cleared of vegetation is land identified and mapped as Environmentally Significant Land pursuant to LLEP 2008. Clearing of the land is inconsistent with the requirements of the LLEP and the requirements of Part 1 of the Liverpool Development Control Plan (Liverpool DCP).
     • The application to extinguish the restriction imposed by the s88B instrument should be rejected given the environmental significance of the site and the circumstances of the case.
     • Precedence: The development application should be refused because approval would be an undesirable precedent for similar inappropriate developments in the area.
     • Public Interest: The Respondent argues that it would be contrary to the public interest to approve the removal of environmentally significant vegetation, particularly when the Council has submitted a planning proposal to rezone the land from IN3 to E2, and the delegate of the Greater Sydney Commission has issued Gateway Approval.
112. Dr Smith argues, in paragraph 1 of his Outline of Written Submissions, that:

Although the Council has raised five contentions in the proceedings, there is in essence only one issue in dispute, that is, whether clearing of the subject land for the proposed warehouse can be offset by conditions of development consent.

113. Timpag’s case, summarised in Dr Smith's submissions at paragraph 2 and in his oral argument, is that the land is zoned “Heavy Industry” and realisation of the objectives of the zoning cannot be achieved with the site in a vegetated condition. There is no active requirement to manage the ecological values of the site and that, given the location of the site and the surrounding industrial development, the site will continue to slowly degrade and the conservation values will be reduced and possibly lost.
114. The BCA and the OEH Biobanking Scheme permit the imposition of conditions of consent requiring an offset in the form of biodiversity credits to be obtained and retired before the commencement of works. Securing offsets in the form of credits would provide for the long-term protection and management of the CR/CI forest and threatened species, which is preferable to investing in a site with limited prospects of long-term viability.
115. Dr Smith argued that, because the conservation values currently represented in Lot 1 will be protected in perpetuity through the retirement of credits, the s 88B instrument will be redundant and should be extinguished.
116. Dr Smith argued that the action by the Council in seeking to retain the s 88B instrument and not to allow the clearing of vegetation would not provide for long-term survival of the conservation values of Lot 10. The Council had over the past two decades not taken steps to actively promote conservation of the land, and, even if they existed, had not enforced requirements in the plan of management requiring ongoing management. The Council’s approach now was, in his words, a case of “too little, too late”.
117. Although they are not words used by Mr Seton, it is possible to perceive, in the Council’s case, an element that, regardless of omissions in the past, it was now “better late than never” and that the site still has values worthy of retention in situ.

Assessing the impacts

118. The assessment of the impact of the proposal on threatened species and communities needs to be considered within the appropriate ecological context and legislative framework.

The mitigation hierarchy

119. In managing adverse impacts on biodiversity arising from development, an important framework is provided by what is called the mitigation hierarchy, whereby a proponent considers, in order, actions to avoid, mitigate and offset impacts.

Avoidance and mitigation measures should be the priority strategies for managing the potential adverse impacts of a proposed development. Avoidance and mitigation measures directly reduce the scale and intensity of the potential impacts of the development. Only then are offsets used to address the residual impacts that remain after avoidance and mitigation measures have been put in place. Adherence to the mitigation hierarchy is central to biodiversity offsetting. Without prior application of the mitigation hierarchy, conservation actions would not qualify as offsets the most definitions of offsets. Further providing offsets without prior mitigation of development impacts may not be feasible because of the magnitude of the unmitigated residual impacts on biodiversity.
(Preston, B J, Biodiversity offsets: adequacy and efficacy in theory and practice (2016) 33 EPLJ 93 at 95-96)

120. Application of the mitigation hierarchy in the context of a Class 1 matter is considered in detail in Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited 2013 NSW LEC 48 (Bulga) at [147]-[153] and subsequently.
121. The mitigation hierarchy could be said to have been applied to the original 1999 approval, although the term was not in common use at that time.
122. In 1999, the decision to require the creation of Lot 10 for conservation purposes encompassed avoidance, mitigation and offsetting. Avoidance in the sense of development was not to occur on Lot 10, thus preventing disturbance of a stand of vegetation of high conservation value (assessment of conservation value was in terms of threatened species, as the vegetation per se was not then recognised as an Endangered Ecological Community). This is an example of the type of avoidance measure discussed in Bulga at [148]. Mitigation was provided for by a plan of management for Lot 10 and by the salvage and translocation of certain species as required by conditions 10 (a) and (b) of the approval; although it is unclear as to what extent these conditions were implemented. Salvaging of resources for reuse is accepted as a mitigation measure (Bulga at [172]). The 1999 approval also involved an offset in that protection and management of Lot 10 served as an offset for the losses elsewhere on the whole site, although there was not a rigorous numerical exercise of calculating credits.
123. In the present proposal, virtually the whole of Lot 10 is of conservation value. If there is to be a type of development, permissible with consent, under the zoning, there is no meaningful opportunity for avoidance on such a small site. Opportunities for mitigation are similarly constrained by the small size of Lot 10 and the nature of what might ultimately be constructed. Any landscaping around a warehouse could potentially have some value for native fauna, but this cannot be evaluated on the basis of a concept plan.
124. In the mitigation hierarchy, offsets only come into play to address residual impacts after avoidance and mitigation measures have been taken. When no avoidance or mitigation measures are proposed, a question arises as to whether reliance solely on offsetting provides a basis for granting approval.

Impact on threatened species and communities

125. The Applicant had the choice between two possible routes for addressing the impacts on threatened species and communities: through preparation of an SIS or by obtaining a Biobanking Statement from the Chief Executive of OEH. The Applicant has elected to follow the SIS path, and the amended SIS (Exhibit D) accompanied the amended development application which is the subject of these proceedings. A similar approach had been taken in Denning Tweed Heads Pty Ltd v Tweed Shire Council [2018] NSWLEC 1108 (Denning) a matter recently determined by O’Neill C.
126. The proposal in Denning involved a biobanking credits report prepared according to the requirements of the Biobanking Assessment Methodology 2014 (BBAM), the procedure which is required for this purpose. The BBAM provides a consistent rule based approach for determining the number of credits for the number of credits which the Applicant will be required to purchase and retire in order to achieve the required offset.
127. Under the BBAM a Biobanking Statement can only be issued where the Chief Executive of OEH makes a determination that the proposal will ‘ improve or maintain biodiversity’ under section 9.2 of the BBAM:

9.2 Development that improves or maintains biodiversity
9.2.1.1 Under the TSC Act, a biobanking statement can only be issued for a proposed development where the Chief Executive of OEH makes a determination on the basis of an assessment of the development in accordance with the BBAM, that the development will improve or maintain biodiversity values. The BBAM establishes the circumstances where the development is to be regarded as improving or maintaining biodiversity values. This includes circumstances where the impacts of clearing on biodiversity values at the development site are offset against the beneficial impacts of management actions which create biodiversity credits at the biobank site.
9.2.1.2 A development is to be regarded as improving or maintaining biodiversity values if:
(a) the development does not directly, adversely impact on biodiversity values in a red flag area on the development site
or
(b) the development does directly adversely impact on biodiversity values in a red flag area but the Chief Executive of OEH makes a determination as set out in Subsection 9.2.3 and
(c) the direct impacts of the development on biodiversity values on the development site are offset by the retirement of biodiversity credits determined in accordance with the offset rules in Section 10.6 and
(d) the Chief Executive of OEH determines that any indirect impacts of the development on biodiversity values on-site and off-site are mitigated through reasonable onsite measures.
9.2.1.3 The Chief Executive of OEH must publish on the register of biobanking statements the reasons for determining that a development may be regarded as improving or maintaining biodiversity values according to Subsection 9.2.3.
9.2.2 Definition of a red flag area
An area of land is regarded as a red flag area if it contains one of more of the following:
Landscape features
9.2.2.2 Native vegetation within:
(a) 20 m either side of a 4th or 5th order stream
(b) 50 m either side of a 6th order stream or higher
(c) 50 m of an estuarine area
(d) 50 m of an important wetland
(e) a state significant biodiversity link
(f) a regionally significant biodiversity link.

128. An important issue is whether or not the proposal has direct or indirect impacts on a red-flagged area (BBAM 9.2.1.2 (a) and (b)):

9.2.1.2 A development is to be regarded as improving or maintaining biodiversity values if:
(a) the development does not directly, adversely impact on biodiversity values in a red flag area on the development site or
(b) the development does directly adversely impact on biodiversity values in a red flag area but the Chief Executive of OEH makes a determination as set out in Subsection 9.2.3

What is a red flag area?

129. The definition of red flag area is provided in s 9.2.2 of which the relevant parts are:

Native vegetation
9.2.2.3 Native vegetation of a plant community type that:
(a) has greater than 70% cleared as listed in the VIS Classification Database (that is, has less than 30% of its estimated distribution prior to 1750 remaining in the catchment area) or is associated with a critically endangered ecological community, or endangered ecological community, and
(b) is not in low condition, and
(c) has a site value score >34.
Threatened species and populations
9.2.2.4 A threatened species, or any part of its habitat, where:
(a) the threatened species is identified in the Threatened Species Profile Database as a species that cannot withstand further loss in the major catchment area, or
(b) it is a threatened species that has not previously been recorded in the IBRA subregion according to records in the NSW Wildlife Atlas

130. All three tests in 9.2.2.3 have to be met for a red flag to arise.
131. Site value score is calculated by the application Table 2 (page 13) in the BBAM as below:

Table 2: Scoring and weighting of the site attributes

In this table:

‘within benchmark’ means a measurement that is within and including the range of measurement for attributes that are assessed by percent foliage cover, or equal to/or greater than the number for attributes assessed by a number or length that is identified as the benchmark that PCT ‘

‘> benchmark’ means a measurement that is greater than the maximum measurement in the benchmark range.

(PCT is the acronym for Plant Community Type)

132. There are different weightings applied to different attributes, with some having considerably greater weightings than others. Native plant species richness has the highest weighting, and the number of trees with hollows is also highly weighted. Lot 10 is regrowth and the trees currently have not developed hollows, and it will be many years before there is any possibility of there being hollows present (the high proportion of Acacia stems in any event makes it unlikely that there could be large numbers of hollows)
133. The parties’ experts are in agreement that the site value score is greater than 34, hence contributing to the raising of a red flag.
134. The experts agreed than some of the measurements contributing to the reported site value score were in error and recommended that the site value score be recalculated; Both experts agreed that the site value score would remain above 34, although Mr Humphries did not anticipate that the change would be great.
135. Where areas have been red-flagged, the Chief Executive of OEH is required to:

9.2.4 Options to avoid and minimise impacts on a red flag area must be considered
9.2.4.1 The Chief Executive of OEH must determine that he or she is satisfied that all reasonable measures have been considered to:
(a) avoid and minimise the adverse impacts of development on the red flag area(s) consistent with the guidelines set out in Subsection 8.3.2, or
(b) improve the viability of the biodiversity values of the red flag area. This includes consideration of whether appropriate conservation management arrangements can be established over the red flag area given its current ownership, status under a regional plan, zoning and the likely costs of future management.

136. For vegetation the Chief Executive must carry out additional assessment:

9.2.5 Additional assessment criteria for impacts on landscape features
9.2.5.1 Where the red flag area is native vegetation referred in Paragraph 9.2.2.2 and the proposed development will have an adverse impact on that native vegetation, the Chief Executive of OEH must determine that:
(a) the viability of the biodiversity values in that red flag area are low or not viable, and
(b) the contribution of that red flag area to regional biodiversity values is low
Viability must be low or not viable
9.2.6.2 Where the red flag area contains native vegetation referred to in Paragraph 9.2.2.3 and the proposed development will have an adverse impact on that native vegetation, the Chief Executive of OEH must determine that the viability of biodiversity values in that red flag area is low or not viable. The viability of biodiversity values in an area depend on:
(a) the condition of the vegetation
(b) the size of the area of biodiversity values and its isolation
(c) current or proposed tenure and zoning under any relevant planning instrument
(d) current and proposed surrounding land use, and
(e) whether mechanisms and funds are available to manage low viability sites such that their viability is improved over time.
9.2.6.3 In making an assessment that the viability of biodiversity values in a red flag area is low or not viable, the Chief Executive of OEH must be satisfied that at least one of the following factors applies:
(a) The current or future land uses of land surrounding the red flag area (other than the land use proposed in the biobanking statement application) reduce its viability or make it unviable. Relatively small areas of native vegetation surrounded or largely surrounded by intense land uses, such as urban development, can be unviable or have low viability because of disturbances from urbanisation, including edge effects.
(b) The size and connectedness of native vegetation in the red flag area to other native vegetation is insufficient to maintain its viability. Relatively small areas of isolated native vegetation can be unviable or have low viability. In considering the size and connectedness, the assessor may consider whether there is less than 30% native vegetation cover within a 0.55 km and 1.75 km radius of the red flag area, or the area to perimeter ratio of the patch size that contains the red flag area.
(c) The condition of native vegetation in the red flag area is substantially degraded resulting in loss of, or reduced, viability. Native vegetation in degraded condition can be unviable or have low viability. Degraded condition means vegetation in the vegetation zone where at least half of the site attributes are less than 50% of benchmark as listed in Table 2 of the BBAM without the vegetation being in low condition, or having a site value score of ≤34.
Note: Vegetation that is substantially outside benchmark due to a recent disturbance such as a fire, flood or prolonged drought is not considered degraded for the purposes of the BBAM.
Contribution of the red flag area to regional biodiversity values is low
9.2.6.4 In making an assessment as to whether the contribution of the red flag area to regional biodiversity values is low for the purposes of Paragraph 9.2.6.1, the Chief Executive of OEH must consider the following factors for each PCT that is in that red flag area:
(a) relative abundance - whether the PCT, or the EEC or CEEC in the red flag area is relatively abundant in the region

Note: Relatively abundant in the region may vary from one or more thousands of hectares in coastal regions, to tens of thousands of hectares or greater for some inland regions.

(b) percent remaining is high - that the percent remaining of the PCT, or the EEC or CEEC, in the red flag area is relatively high for the region

Note: Relatively high means relatively high in the region compared with the percent cleared of the vegetation type for the major catchment area where the red flag area is located.

(c) percent native vegetation (by area) remaining is high - that the percent remaining of all native vegetation cover in the region is relatively high Note: Relatively high means relatively high in the region compared with the percent native vegetation cover for the major catchment area where the red flag area is located.
(d) condition of the PCT - whether the PCT, or the EEC/CEEC that comprises the red flag area is generally in moderate to good condition in the region.

137. For threatened species:

Viability must be low or not viable
9.2.7.2 In making an assessment that the viability of biodiversity values in a red flag area is low or not viable, the Chief Executive of OEH must be satisfied that at least one of the following factors applies:

(a) The current or future land uses of land surrounding the red flag area (other than the land use proposed in the biobanking statement application) reduce its viability or make it unviable. Relatively small areas of native vegetation surrounded or largely surrounded by intense land uses, such as urban development, can be unviable or have low viability because of disturbances from urbanisation, including edge effects.
(b) The size and connectedness of native vegetation in the red flag area to other native vegetation is insufficient to maintain its viability. Relatively small areas of threatened species habitat isolated from areas of native vegetation can be unviable or have low viability.
(c) The condition of threatened species habitat in the red flag area is substantially degraded resulting in loss of, or reduced, viability.

Note: Vegetation that is substantially outside benchmark due to a recent disturbance such as a fire, flood or prolonged drought is not considered degraded for the purposes of the BBAM.
Contribution of the red flag area to regional biodiversity values is low
9.2.7.3 In making an assessment that the contribution of that red flag area to regional biodiversity values for the species is low, the Chief Executive of OEH must be satisfied that:

(a) relative abundance of the individual threatened species, threatened population or threatened species habitat on the site, whether habitat and/or the number of the threatened species in the region, would allow the species to bear temporary loss at the development site while gains are being achieved at potential biobank site(s) within the same region, or
(b) the relative importance of the relationship of the local population to other population/populations of the species in the region is low. This must include consideration of the interaction and importance of the local population to other population/populations for factors such as breeding, dispersal and genetic viability/diversity, and whether the local population is at the limit of the species’ range.

A red flag variation

138. The red flag determination is to be made by the Chief Executive of OEH. Timpag’s view is that it is only necessary for the Chief Executive to make a red flag determination if they were seeking a Biobanking Statement. As Timpag have elected to follow the SIS path, there is no requirement for seeking a red flag determination, but nevertheless they are voluntarily seeking a red flag determination.
139. There is no indication of how long it would take the Chief Executive to make a red flag determination, but if the outcome of these proceedings was the granting of development consent, then there would likely be a delay before the consent could be taken advantage of as the number of credits which would need to be purchased and retired would not have been finally established until the Chief Executive’s determination was known.
140. Timpag is confident that a red flag variation would be granted, because of their assessment of the lack of long term viability of Lot 10 as habitat, and because the number of required credits would provide for the long term conservation of more biodiversity than currently represented on Lot 10. Mr Humphries’ evidence was that there would be a 5:1 ratio between the biodiversity lost through development of Lot 10 and that guaranteed a long term future through the purchase of the required credits.
141. In Denning, the Court accepted arguments that the site in question, although red flagged, did not make a major contribution to achieving conservation objectives. The site had been substantially cleared except for a few remnant trees and was essentially grass dominated. The circumstances were thus not directly comparable with Lot 10 which is currently vegetated by an Endangered Ecological Community in generally good condition.
142. Timpag’s argument as to why the Chief Executive of OEH would accept a red flag variation for Lot 1 is based on consideration of the projected long-term viability of the site and its limited connectivity to other bushland areas. The Applicant proposes to present its case to OEH for determination, but seeks that development consent be granted with conditions that effectively foreshadow the Chief Executive’s eventual determination.

Offsets

143. Over the past few decades there has been vigorous debate internationally about the merits and efficacy of offsetting for achieving conservation outcomes. The literature on the topic now encompasses hundreds, if not thousands, of scientific and technical papers. The views on both sides of the debate are very strongly held. This literature may help guide policy development and the formulation of legislation, but our task is to interpret and apply the law as it stands. In New South Wales, the BCA (and its predecessor the Threatened Species Conservation Act 1995 (TSCA)) provide for the use of offsetting as a means of achieving balance between development and conservation. The BCA provides a mechanism for the purchase of credits within a fund rather than being directly linked to particular sites at the time of purchase:

6.30 Payment as alternative to retirement of biodiversity credits
(1) A person who is required under this or any other Act (including under an instrument, approval or agreement) to retire biodiversity credits may satisfy that requirement by instead paying an amount into the Biodiversity Conservation Fund determined in accordance with the offsets payment calculator established under this Division.
(2) If that amount is paid into the Fund, the requirement to retire biodiversity credits is satisfied.
6.31 Corresponding obligation to secure required biodiversity offsets
(1) The Biodiversity Conservation Trust is to apply the amount paid into the Biodiversity Conservation Fund under this Division towards securing biodiversity offsets determined in accordance with the regulations in substitution for the relevant number and class of biodiversity credits otherwise required to be retired.
(2) Those biodiversity offsets include:

(a) the acquisition and retirement of biodiversity credits, and
(b) payment for other biodiversity conservation measures or actions that may be required under this Act as an alternative or in addition to the retirement of biodiversity credits.

144. Once payment for credits has occurred, Timpag would have no control over their use. It would be for the Trust to make decisions on their retirement as and when was considered appropriate to do so.
145. Although the BCA has been proclaimed the Biodiversity Conservation (Savings and Transitional) Regulation 2017 [NSW] applies, so that Division 6 of the TSCA still relevantly applies. Clauses 22(1) and (2) of the Biodiversity Conservation (Savings and Transitional) Regulation is applicable:

22 Existing statutory obligations requiring retirement of biodiversity credits
(1) This clause applies to an obligation to retire credits under the Threatened Species Conservation Act 1995 under the following that have not been retired on the repeal of that Act:

(a) a condition of a development consent under Part 4 of the Environmental Planning and Assessment Act 1979,
(b) a condition of a State significant infrastructure approval under Part 5.1 of the Environmental Planning and Assessment Act 1979,
(c) a decision of a determining authority to carry out an activity, or approve the carrying out of an activity, under Part 5 of the Environmental Planning and Assessment Act 1979,
(d) a requirement of biodiversity certification, or of a biodiversity certification agreement, under Part 7AA of the Threatened Species Conservation Act 1995,
(e) any other obligation imposed by a provision of or made under an Act or statutory instrument or an agreement.

(2) If biodiversity credits that are required to be retired under any such obligation have not been retired on the commencement of the new Act, the obligation is to be construed as requiring the retirement of biodiversity credits under the new Act that remain to be retired.

146. It was Mr Humphries’ evidence during the concurrent oral session that these measures were included in the legislation as a mechanism to permit a development to commence in the circumstances where biodiversity credits were required but at that time were not available for the specific species or communities involved. If there was a requirement that the required credits be for the specific species or community before development could occur there might be considerable delays (possibly years) where development could not commence. In the current case credits for CR/CI forest and Acacia pubescens are not available at this time, although the Applicant was aware that potential biobanking sites of the appropriate type might be available in the near future. However, Mr Humphries’ evidence was that there was a considerable backlog of potential sites awaiting registration and no indication of how rapidly they could be processed. Credits for the Cumberland Plain Land Snail were available and we understand have been secured by the Applicant. (There was little discussion about the Land Snail, although it was mentioned in the Applicant's contentions.)
147. There was some discussion about the cost of the required credits to Timpag. Mr Humphries suggested a ballpark figure of around $2 million. It was Mr Humphries’ evidence that the provision and purchase of credits took place within a market and that the forces of supply and demand could lead to considerable changes in the cost of particular credits over time.
148. However, the cost of credits is not a matter about which the Court is concerned. The number of credits has to be correctly calculated and this is an aspect into which we could enquire, but if the calculations are correct then the cost of credits is what it is. The cost of credits is clearly a matter which might affect the financial viability of a project, but this is for consideration by Timpag in the operation of its business. It could be that the cost becomes prohibitive and the project does not proceed, but any approval granted is in rem, so that for as long as an approval remains current and has not lapsed, the owner of a property, or a party with the approval of the owner, would be able to take advantage of the consent if, at some time during which the approval remained current, its implementation were financially viable from an Applicant’s perspective
149. Dr Smith in his submissions was critical of the Council’s ecology expert, Ms James, on the grounds that she was philosophically opposed to the concept of offsetting and had little previous experience with the scheme, whereas Mr Humphries had been involved with offsetting and biobanking for many years and was one of the architects of the scheme in its current form. We recognise that the curriculum vitae of the two experts reveals different career histories but we do not consider that either approached their task in a way which would be in breach of the requirements of experts to be unbiased and fair-minded. Experts, however, may differ in their opinions for a number of reasons, and provided they can articulate the basis for the disagreement it will be the role of the Court to adjudicate between the competing positions. In the present case the experts were in agreement over many matters; the substantive differences between them related to their assessment of long-term viability of the stand of vegetation.
150. In 1999, the setting aside of Lot 10 for conservation reflected the presence of a number of threatened species, the habitat of which was to be destroyed consequent on the loss of vegetation in those areas to be developed for industry. In the present proposal, Timpag offers to seek credits based both on Lot 10 as it currently is and the credits which Lot 10 embodies from the now developed area. Although CR/CI Forest was lost during the development post 1999, the community was not listed as endangered at the time the 1999 consent was issued. Timpag does not propose, and argues that it is under no requirement or obligation, to double-count in order to determine the credits required for the now proposed loss of CR/CI Forest from Lot 10.

Viability

151. In order to make a determination of whether the red flag should be lifted, the Chief Executive of OEH is required to assess the long-term viability of the site for which development approval is sought.
152. The parties were poles apart in their assessment of the long-term viability of Lot 10. Timpag argued that stand of vegetation was degraded; was, and would continue to be, experiencing edge effects; and, with no requirements for management, would continue to decline in condition. (No particular rate of decline was raised but the implication was that it was fairly rapid.) The Council, on the other hand, pointed to the relatively good state of the vegetation and argued that there was no evidence for significant decline over the past two decades.
153. A number of aerial photographs of the site over time were presented for Timpag in the Joint Report (Exhibit 7) to demonstrate the decline in condition of what is now Lot 10. These showed the clearance and fragmentation associated with the development of the wider area. Unfortunately, in the form presented in Court, they did not readily permit interpretation of the condition of the vegetation now in Lot 1. Neither side had presented evidence from GIS/API experts, and such interpretation of the images provided by the ecology experts and what was visible to us when the exhibit was presented is best described as that of informed laypersons rather than experts applying appropriate technology to the interpretation.
154. Timpag had also sought from the Council information on the timing of development on the lands in the vicinity of Lot 10. Unfortunately, the majority of information that might have been available to the Council had been a victim of the fire; all that was available as information of the issuing of three construction certificates (Exhibit N). This does not provide information as to when development applications were granted or construction commenced and so does not provide information about the length of time there had been edge affect pressures on Lot 10.
155. Ms James’ assumption was that these pressures had operated since at least 1999, and that the condition of the vegetation reflected two decades of impact. She therefore argued that the current good condition of the majority of vegetation on the site indicated resilience and provided no evidence for loss of viability. Timpag suggested that the majority of impacts were more recent and the decline in condition around the edges of the site had occurred over a much shorter period than assume by Ms James and that continuing decline in loss of viability was inevitable.
156. At some stage prior to 1999, the vegetation on the site had been cleared and what is currently present is regrowth (natural regrowth not assisted by any restoration or rehabilitation actions). As stems mature, the structure of the vegetation will change but such changes would be part of natural ecosystem processes and do not necessarily reflect degradation.

Environmentally Sensitive Lands

157. Lot 10 is mapped as Environmentally Sensitive Land (ESL) (Exhibit M). By virtue of the mapping of the site, it is subject to the provisions of cl 7.6 of LLEP 2008.
158. Lot 10 is only one part of a much more extensive area mapped as ESL. Yet, despite the mapping, there has been substantial development within the mapped ESL. Timpag’s argument is that the ESL category, at least within the general vicinity of the site, is no longer appropriate. However, there is no definition of ESL in LLEP 2008 (or elsewhere) couched in terms of recordable attributes such that an observer could evaluate whether or not an area qualified as ESL. Rather ESL is to be recognised by reference to a map. Thus, any area that appears on the ESL map is deemed to be environmentally sensitive land, and comes within the ambit of cl 7.6 of LLEP 2008. A consent authority is required to consider cl 7.6 but cl 7.6 does not require particular responses to the existence of ESL in a given area. The weight given to various factors in applying cl 7.6 will vary with the circumstances of each particular case.

The EPBC Act listing

159. The CE/CI Forest is listed as a Critically Endangered Ecological Community under the EPBC Act, and Acacia pubescens is listed as a vulnerable species. The Court has no jurisdiction over the application of the EPBC Act.
160. Section 39 (6) of the Court Act, in matters requiring approval from a NSW consent authority, permits the Court to make determinations which would otherwise be made by the consent authority if the consent authority has not provided its terms of consent, or to amend or omit conditions provided by the consent authority. This course of action is not available to us in relation to commonwealth listings.
161. The Commonwealth Department of Environment and Energy has provided advice to the Council (Exhibit 3, Tab 9, Folio 58) that referral to the Department is required.
162. Timpag has made the decision not to refer the development application to the Commonwealth prior to the decision in this matter. Accordingly, if this appeal is granted, it could not be actioned until the proposal had been referred to the Commonwealth and the Department had carried out its assessment, which might result in extra conditions being imposed, or even rejection.
163. At its highest the fact of the Commonwealth listings could be considered as one of the elements involved in the public Interests criterion under s 4.15(e) of the EPA Act

Public interest

164. In our evaluation we are required to take into account public interest considerations, both under s39(4) of the Court Act and s 4.15(e) of the EPA Act (formerly in s 79C).
165. The objects of the EPA Act are at s 1.3:

1.3 Objects of Act
(cf previous s 5)
The objects of this Act are as follows:
(a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State’s natural and other resources,
(b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment,
(c) to promote the orderly and economic use and development of land,
(d) to promote the delivery and maintenance of affordable housing,
(e) to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats,
(f) to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage),
(g) to promote good design and amenity of the built environment,
(h) to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants,
(i) to promote the sharing of the responsibility for environmental planning and assessment between the different levels of government in the State,
(j) to provide increased opportunity for community participation in environmental planning and assessment.

166. The objects are not hierarchically arranged, and the weight to be given to each object will depend on the circumstances of a particular case. The objects which are most applicable in this matter are (a), (b), (c) and (e) (and the outcome of consideration will need to involve an evaluation of the balance that is appropriate between (a), (b) and (e) on the one hand and (c) on the other.
167. Section 1.3 (b) seeks to facilitate ecologically sustainable development (ESD) and the definition in s 1 .4 gives the same meaning to ESD as it has in s 6(2) of the Protection of the Environment Administration Act 1991 (the POEA Act) as below:

(2) For the purposes of subsection (1) (a), ecologically sustainable development requires the effective integration of social, economic and environmental considerations in decision-making processes. Ecologically sustainable development can be achieved through the implementation of the following principles and programs:
(a) the precautionary principle—namely, that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
In the application of the precautionary principle, public and private decisions should be guided by:
(i) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and
(ii) an assessment of the risk-weighted consequences of various options,
(b) inter-generational equity—namely, that the present generation should ensure that the health, diversity and productivity of the environment are maintained or enhanced for the benefit of future generations,
(c) conservation of biological diversity and ecological integrity—namely, that conservation of biological diversity and ecological integrity should be a fundamental consideration,
(d) improved valuation, pricing and incentive mechanisms—namely, that environmental factors should be included in the valuation of assets and services, such as:
(i) polluter pays—that is, those who generate pollution and waste should bear the cost of containment, avoidance or abatement,
(ii) the users of goods and services should pay prices based on the full life cycle of costs of providing goods and services, including the use of natural resources and assets and the ultimate disposal of any waste,
(iii) environmental goals, having been established, should be pursued in the most cost effective way, by establishing incentive structures, including market mechanisms, that enable those best placed to maximise benefits or minimise costs to develop their own solutions and responses to environmental problems.

168. Public interest considerations operate at a ‘very high level of generality’ (Bulga at [58]) but the principles of ESD may be an aspect of public interest to be taken into account where relevant to a particular case (Bulga at [59]).
169. The Respondent argues that it would be contrary to the public interest to approve the removal of environmentally significant vegetation, particularly when the Council has submitted a planning proposal to rezone the land from IN3 to E2, and the delegate of the Greater Sydney Commission has issued Gateway Approval.

Consideration

170. Lot 10 is currently zoned IN3- Heavy Industrial. Zoning is central to the planning process, and as was said by McClellan CJ in BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 (BGP) at [115]- [118]:

Significance of the zonings
115 The context in which the issues in this case must be resolved includes the history of the use of the land and the contribution which it now makes to the existing natural environment. Although zoned industrial, that zoning was imposed at a time when the community’s understanding of the significance of some elements of the natural environment was not as mature as it now is. Consideration of matters of inter-generational equity and the conservation of both biological diversity and the ecological integrity of land were not such significant elements of environmental decision-making as they are today.
116 Notwithstanding the fact that the ecological integrity of the site may be threatened if the major road reservation were utilised for its purpose, I am satisfied that this is not a significant matter in this case. The reservation was also imposed at a time when the ecological significance of the area was unlikely to have been given any, or at least any mature, consideration. It would be inappropriate to make a decision in the present case upon the assumption that construction of the proposed road is inevitable.
117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects (Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened.
118 In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts.
119 However, there will be cases where, because of the history of the zoning of a site, which may have been imposed many years ago, and the need to evaluate its prospective development having regard to contemporary standards, it may be difficult to develop the site in an environmentally acceptable manner and also provide a commercially viable project.

171. There will be circumstances where it would be inappropriate to grant approval for a proposal otherwise permissible with consent, because of environmental considerations (BGP at 115 - 119).
172. The 1999 approval for subdivision of the larger parcel of land forming Lot 1 DP 626996 42A Jedda Road required the establishment of Lot 10 for ‘conservation of threatened species’ and the area was burdened with the s 88B instrument requiring a plan of management to protect the conservation values of the land, to be prepared and approved.
173. The s 88B instrument overrides the potential for development of Lot 10 which might otherwise be permissible with consent. The restrictions on use were imposed both to protect the vegetation on Lot 10 in its own right and to act as an offset for the losses of threatened species and habitat elsewhere on those parts of the original Lot 1 on which development was approved circumstances, NPWS’s second concurrence was issued with the inclusion of the imposition of the s 88B instrument to act as substitute for the dedication to Council which had been the NPWS’s original preference.
174. The proposal will result in the total loss of a stand of Cooks River/Castlereagh Ironbark Forest and the habitat for occurrences of species which make up the community at the site.
175. We consider that the evidence for declining condition and loss of viability of the ecosystem on lot 10 is not convincing and prefer Ms James’ opinion that the stand, as of the present, remains viable.
176. Similarly, we consider it likely that the existence of CR/CIF on Lot 10 is part of a broader network of sites: it is not part of a continuous corridor but potentially plays a stepping-stone role. Connectivity was not subject to any detailed study to identify possible elements of the fauna which might move between sites, but there were generalisations about the possibilities of such movement occurring. This would be in accordance with current understanding of ecosystem functioning of fragmented stands of vegetation within an urban area. We consider it probable that interactions between Lot 10 and Lot 11 occur and may be important to the viability of both Lot 10 and Lot 11 in the longer term.
177. We consider that a s 88B instrument restriction on title should not be lightly released. For Lot 10, the reasons why the instrument was imposed - that is to protect a standard vegetation which was a habitat for a number of threatened species - is still relevant. Indeed, the subsequent listing of the vegetation as an endangered ecological community strengthens the case for protection. The evidence indicates that the stand of the community on Lot 10 is still viable. Public confidence in the use of s 88B instruments for conservation reasons may be reduced if the instrument that burdens Lot 10 were to be lifted.
178. The proposal to rezone Lot 10 and part Lot 11 to E2 is not ‘imminent or certain’ given that the consultation phase is still to be completed and we cannot anticipate the outcome. Nevertheless, to grant consent would negate the purpose of the proposed rezoning. While the weight to be given to the proposal is less than it would be if the outcome were ‘imminent and certain’, the Council's decision to pursue rezoning indicates that there is a public interest factor to be considered.
179. We have concluded that the earthworks proposed will have a significant detrimental impact because a stand of the endangered ecological community (CRC/CI Forest) which is in the form of vegetation in good condition and in which ecological processes are occurring which contribute to the maintenance of its viability. This is unacceptable.

Orders

180. In light of these findings the following orders are made:
     • (1) The appeal is dismissed
     • (2) Development application DA 1250/2016, as amended, for the clearing of vegetation, site levelling and earth works for a warehouse, is refused.
     • (3) The exhibits, except for Exhibits 1, B, C, D and E may be returned.

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Acting Commissioner Adam

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Acting Commissioner Douglas

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