Earlier this year Partners Adam Seton and Jisella Corradini-Bird of Marsdens Law Group successfully defended an appeal against Lismore City Council’s refusal of a development application seeking a residential subdivision in Goonellabah. The Court held that the Applicant had failed to adequately identify and assess the impacts of the proposed development on biodiversity values, in particular on koala habitat.
The case concerned an appeal against Lismore City Council’s (“the Council”) refusal of a development application seeking residential subdivision of land within the Eastwood Estate, Goonellabah to the east of Lismore.
The site contained vegetation including various preferred koala feed trees (“KFTs”) and had been documented as being used by koalas. In addition to residential lots and associated infrastructure, the developer of the Estate, McCloy Project Management Pty Ltd proposed to create an environmental management lot on land zoned C3 Environmental Management which was to ultimately be dedicated to Council for long term environmental conservation.
Issues in Dispute
The concerns raised by the Council in the proceedings were summarised by Commissioner Chilcott, who presided over the hearing, at paragraph [20] of his judgment as follows:
- “biodiversity issues, including in relation to whether the yield and design of the proposed subdivision did not sufficiently accommodate the retention of trees including KFTs;
- traffic issues, including in relation to whether the unfunded upgrade to the intersection of Invercauld Road and Bruxner Highway, which both Parties agreed was required to facilitate the delivery of stages 4-8 of the Proposed Development, represented a precondition to the grant of consent under the provisions of cl 6.9 of LLEP requiring suitable vehicular access;
- stormwater and flooding, including in relation to satisfying the objectives of the C3 zoned parts of the Subject Site;
- geotechnical issues, including in relation to the location and functionality of certain infiltration pits close to the C3 lands and whether these gave rise to slope and stability issues; and
- certain planning issues concerning the provision of parkland spaces within the Proposed Development.”
Biodiversity
In relation to the biodiversity issues, it was argued on behalf of Council that:
- the proposed development would be likely to have serious and irreversible impacts on biodiversity values (in particular on the koala, and the threatened plant species Arthraxon hispidus, also known as HJG); and
- that the Biodiversity Development Assessment Report (“BDAR”) prepared for the development application did not satisfy the requirements for such a document under the provisions of section 7.13(2) of the BC Act.
The provisions of section 6.16(2) of the Biodiversity Conservation Act 2016 (“BC Act”) require that the consent authority, or the Court on appeal, must refuse to grant consent under Pt 4 of the Environmental Planning and Assessment Act 1979 (“EP&A Act”) if it is of the opinion that the proposed development is likely to have serious and irreversible impacts on biodiversity values.
Having regard the requirements of the BC Act and the Biodiversity Conservation Regulation 2017 (“BC Regulation”), Commissioner Chilcott summarised the requirement as following:
“[46] The focus of the considerations in relation to serious and irreversible impacts is, therefore, whether the Proposed Development is likely to contribute significantly to the risk of a threatened species or ecological community becoming extinct, as a consequence of impacts on biodiversity values.”
In relation to the first argument, Commissioner Chilcott was of the view that it was unlikely the proposed development would have impacts on biodiversity values such that it may cause the extinction of either the koala or HJG because (at paragraph [49]):
- “the Applicant’s proposed removal of some 20 KFTs on the Subject Site, while undoubtedly likely to impact on the local population of koalas, is unlikely to lead to the extinction of this species, which, while an endangered species, remains present across a much broader area of NSW than the Subject Site, including in areas of Lismore to the west of the Subject Site; and
- while the Proposed Development will have a significant impact on the local occurrence (that is the occurrence on the Subject Site) of the HJG, the HJG will remain widespread in its distribution in NSW, such that the Proposed Development is unlikely to contribute significantly to the risk of the HJG becoming extinct.”
Although Commissioner Chilcott did not consider that the proposed development was likely to have serious and irreversible impacts on biodiversity values, he agreed with Council that the BDAR prepared for the development application was inadequate and held as follows (at paragraph [53]):
“… I am satisfied that:
(1) the Proposed Development would not have a serious and irreversible impact on biodiversity values including in relation to the koala and HJG; and
(2) the Applicant’s BDAR has documented and justified the efforts to avoid and minimise impacts, as identified by the Applicant, as required under the BAM; but
(3) the Applicant has not identified and assessed fully the Proposed Development’s impacts on the biodiversity values, notably in relation to the retention of KFTs which form part of koala habitat, and which:
(a) can be a further consideration under the provisions of cl 7.13(2) of the BC Act; and
(b) is required in order for the Proposed Development to be consistent with the CKPoM and to satisfy the provisions of s 4.8(2) of SEPP B&C;
(4) the likely impacts of the Proposed Development, including its natural environmental impacts, have not been satisfactorily assessed, which is a consideration under the provisions of s 4.15(1)(b) of the EP&A Act;
(5) noting the points above (at [(3)] and [(4)], the Applicant’s Proposed Development, on its merits, should not be approved.”
The Commissioner’s conclusion that the Applicant had not identified and fully assessed the impact of the proposed development on biodiversity values came down to the evidence of the parties’ arboricultural experts who disagreed whether 11 trees proposed for retention (all of which were KFTs) could in fact be retained under the proposed development. In that regard, Commissioner Chilcott ultimately preferred the evidence of Council’s arboricultural expert, Mr Tesoriero, who considered that the 11 trees would not survive intrusions by footpaths, sewers and earthworks into their tree protection zones.
Vehicular Access
The parties’ traffic experts agreed that the upgrade of the intersection would be required to accommodate the later stages of the subdivision.
On the basis of this evidence Council contended that the development application must be refused because “suitable vehicular access” would not be available as required by clause 6.9 of the LEP unless and until the intersection of Invercauld Road and Bruxner Highway had been upgraded to maintain the functionality of that intersection under the influence of the additional traffic flows generated by those later stages of the development.
In response, the Applicant submitted that subdivision of the initial stages could proceed and a condition could be imposed which would prevent the later stages of the subdivision from proceedings until the intersection had been upgraded.
In relation to traffic impacts, Commissioner Chilcott agreed with the Applicant that the upgrade of the intersection could be a condition for completion prior to the commencement of any works on Staged 4 to 8 of the proposed development, as occurred in the case of Grampian Regional Council v Secretary of State for Scotland and City of Aberdeen District Council 1984 S.C. (H.L.) 58.
Stormwater Management
The final matter considered by the Court related to stormwater management impacts.
The Applicant had proposed for stormwater flows to be directed into a single stormwater management basin, located adjacent to the portion of the site zoned C3 Environmental Management. The basin was proposed to act as a water quality treatment facility which captured and treated flows before releasing them in a controlled manner across the C3 zoned land.
Two matters were in dispute between the parties’ stormwater engineers:
- whether it was necessary for the Applicant to provide a ‘combined’ Model for Urban Stormwater Improvement Conceptualisation (MUSIC) model to properly assess the management of stormwater on the site; and
- whether the design of the water quality treatment facility, which involved the use of infiltration pits located in the road, would deal with likely stormwater flows and achieve the water quality treatment outcomes required so as not to impact adversely the environmental features, including water quality, in the C3 zoned land.
Commissioner Chilcott held that the MUSIC models prepared by the Applicant were acceptable and the outcomes generated by those models could be relied on. However, he agreed with evidence of the Council’s stormwater expert, Ms Collier, that the Court could not be confident the infiltration pits had been designed to deal with likely stormwater flows or would achieve the water quality treatment outcomes required so as not to adversely impact the C3 zoned lands.
Conclusion
Having determined that the development application should be refused on the basis of the BDAR being inadequate, and the potential impacts of the infiltration pits on the C3 zoned lands, it was not necessary for the Court to determine the remaining two issues in dispute relating to geotechnical engineering and planning.
Key takeaway points from this case include:
- When considering serious and irreversible impactsthe consent authority needs to focus on: “whether the Proposed Development is likely to contribute significantly to the risk of a threatened species or ecological community becoming extinct, as a consequence of impacts on biodiversity values”.
- The foundations of a BDAR assessment need to be sound in order for the conclusions reached in the Report to be considered accurate.
- Grampian conditions can be imposed in certain circumstances, which limit particular aspects of a development proceeding until certain off-site works are completed.
Written by Jisella Corradini-Bird
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
