Land and Environment Court New South Wales Medium Neutral Citation: Kara-Ali v Hawkesbury City Council [2021] NSWLEC 1418 Hearing dates: 24 and 25 June 2021 Date of orders: 23 July 2021 Decision date: 23 July 2021 Jurisdiction: Class 1 Before: Peatman AC Decision: The Court orders that: (1) The appeal is upheld. (2) Development Consent is granted to DA00069/20 at 1855 Putty Road, Colo for an animal boarding or training establishment – vegetation clearing, the construction of a stables building, the installation of a prefabricated staff building and the operation of an animal boarding or training establishment subject to conditions of consent in Annexure A. (3) The Exhibits are to be retained other than Ex 2 (except for tabs 9, 12-14). Catchwords: DEVELOPMENT APPLICATION– biodiversity – koala habitat – bushfire risk – revegetation – riparian – Colo River Legislation Cited: Biodiversity Conservation Act 2016 s 1.3 Biodiversity Conservation Regulation 2017 cll 7.2, 7.3 Environmental Planning and Assessment Act 1979 ss 8.7, 4.15 and 4.16 Environmental Planning and Assessment Regulation 2000 cll 49, 55, 77 and 113 Hawkesbury Local Environmental Plan 2012 Zone E4, cll 5.1, 5.1A, and 6.1-6.4 Land and Environment Court Act 1979 ss 17 and 30 State Environment Planning Policy (Coastal Management) 2018 cll 3, 5, 6 and 13 State Environmental Planning Policy (Infrastructure) 2007 cl 100 State Environmental Planning Policy (Koala Protection) 2020 cl 4, 5, Schedule 1 – cl 9, Part 3 cl 12 State Environmental Planning Policy (Koala Protection) 2021 Part 4 cl 18 State Environmental Planning Policy No 55—Remediation of Land cl 7(1) Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean (No 2—1997) cl 6(1)-(7) Cases Cited: BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 Hawkesbury City Council v Kara-Ali (No 2) [2018] NSWLEC 129 Texts Cited: Hawkesbury Development Control Plan 2020 Part A cl 3.1, 3.2 and 3.2.1 Planning for Bushfire Protection 2019 Category: Principal judgment Parties: Wafaa Kara-Ali (Applicant) Hawkesbury City Council (Respondent) Representation: Counsel: L Nurpuri (Applicant) M Cottom (Solicitor) (Respondent) Solicitors: Darby Jones Lawyers (Applicant) Pikes & Verekers Lawyers (Respondent) File Number(s): 2020/323302 Publication restriction: No Judgment 1. COMMISSIONER: The Applicant is appealing the deemed refusal by Hawkesbury City Council (Council) to grant development consent to Development Application No DA69/20 (DA) which was lodged with Council on 21 February 2020. Council requested further information and revised plans were lodged with Council on 10 September 2020 pursuant to cl 55(2) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). The appeal was filed in Court on 12 November 2020 pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) and in accordance with the time provisions in cl 113 of the EPA Regulation. 2. The DA seeks approval for vegetation clearing, excavation, the construction of stables, the installation of 2 prefabricated staff premises, and the operation of an animal boarding and/or training facility at 1855 Putty Road Colo NSW 2756 being Lot 1 in Deposited Plan 1060733 (the site). 3. As set out in Council's Amended Statement of Facts and Contentions dated 10 June 2021 (SOFAC) [1] , the DA specifically involves: 1. The removal of approximately 0.86Ha of native vegetation on the raised south-western section of the site; 2. The excavation of land on the raised south-western section of the site to create a level building platform to accommodate two prefabricated structures; 3. The construction of a stables building on the north-eastern section of the site. The building is to be constructed with a concrete slab, timber frame, metal and concrete walls and a metal roof. The building is to comprise of 12 stables and two storerooms and is to have an area of approximately 480.25m2 and a height of approximately 4.7m at its highest point; 4. The installation of two prefabricated structures to be purportedly used as ancillary staff premises on the raised south-western section of the site. The northern structure is described as an 'office' whilst the southern structure is described as 'temporary accommodation'. The metal structures are to be installed on concrete slabs and fitted with timber trellis cladding. Each of the buildings are identical in layout and are provided with a bathroom and three unlabelled rooms. It is unclear whether the benchtop area with sinks in each building is intended to provide kitchen facilities. The prefabricated structures each have gross floor areas of approximately 29.4m2 and a height of approximately 3.9m; 5. The construction of internal roads, car park, tracks and fences within the south-western section of the site; 6. The installation of fencing and gates to the boundaries of the site's frontage to Putty Road; 7. The installation of a 3,000L septic tank and 32.4m2 absorption bed within the south-western section of the site to service the prefabricated buildings; and 8. The use of the land for the breeding, keeping and training of horses. The site 1. The site is the whole of the land within Lot 1 Deposited Plan 1060733 and has a site area of approximately 12.89005Ha. The property is intersected by Putty Road, with the north-eastern section of the land adjoining the Colo River and the south-western section of the land raised above the road on the side of a hill. In particular: 1. The north-eastern section of the site is currently used for the keeping of horses, with this section of the site broken into a number of paddocks. Two prefabricated buildings are located (but to Council's knowledge not installed) on this portion of the site. 2. The south-western section of the site generally consists of remnant vegetation and rocky outcrops. An area of the site adjoining Putty Road is currently re-generating (at least in part) following the previous unauthorised clearing and earthworks that took place. Further reference is made to this issue later in the judgment. 3. The north-eastern section of the site varies in height from approximately 11m AHD adjoining Putty Road down to approximately 2m AHD near the Colo River. This portion of the site has a relatively gentle fall towards the Colo River. Part of the site within 50m of the Colo River was subjected to unauthorised land clearing that is the subject of the orders made in Hawkesbury City Council v Kara-Ali (No 2) [2018] NSWLEC 129 (the Kara-Ali judgment) and remains largely unvegetated soil that is subject to erosion. Further reference is made to this issue later in the judgment. 4. The raised north-western section of the site varies in height from approximately 13m AHD adjoining Putty Road up to approximately 100m AHD towards the property's rear boundary. Located on the side of a hill, this section of the site has a steep fall towards Putty Road. 5. Access to the site is available via a 'northern entry' and a 'southern entry' that were recognised by Transport for NSW (formerly Roads and Maritime Services) in response to the Kara-Ali judgment. 1. The locality: Colo is located approximately 70km northwest of Sydney's Central Business District and approximately 20km north of Windsor. The site is located on Putty Road, north of the Colo Bridge and the unformed Gills Road. The locality is characterised by rural properties, agricultural properties, tourist accommodation and bushland. The Colo Riverside Café adjoins the site to the north at 1826 Putty Road, whilst the Colo River Holiday Park is located further south at 1786 Putty Road. Dwelling houses at 1825, 1899 and 1905 adjoin the site. Figure 1: extracted from Ex C p 4 'Vegetation Management Plan' by Narla Environmental: The broken red line depicts the boundary of the property, and the closed blue line depicts the boundary of the DA. Legislation Environmental Planning & Assessment Act 1979 8.7 Appeal by applicant—applications for development consent (cf previous s 97) (1) An applicant for development consent who is dissatisfied with the determination of the application by the consent authority may appeal to the Court against the determination. (2) For the purposes of this section, the determination of an application by a consent authority includes— (a) any decision subsequently made by the consent authority or other person about an aspect of the development that under the conditions of development consent was required to be carried out to the satisfaction of the consent authority or other person, or (b) any decision subsequently made by the consent authority as to a matter of which the consent authority must be satisfied before a deferred commencement consent can operate. (3) An appeal under this section relating to an application for development consent to carry out designated development in respect of which an objector may appeal under this Division cannot be heard until after the expiration of the period within which the objector may appeal to the Court. ss 8.6, 8.7: Ins 2017 No 6, Sch 8.1 [2]. 4.15 Evaluation (cf previous s 79C) (1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application— (a) the provisions of— (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) (Repealed) that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. (2) Compliance with non-discretionary development standards—development other than complying development If an environmental planning instrument or a regulation contains non-discretionary development standards and development, not being complying development, the subject of a development application complies with those standards, the consent authority— (a) is not entitled to take those standards into further consideration in determining the development application, and (b) must not refuse the application on the ground that the development does not comply with those standards, and (c) must not impose a condition of consent that has the same, or substantially the same, effect as those standards but is more onerous than those standards, and the discretion of the consent authority under this section and section 4.16 is limited accordingly. (3) If an environmental planning instrument or a regulation contains non-discretionary development standards and development the subject of a development application does not comply with those standards— (a) subsection (2) does not apply and the discretion of the consent authority under this section and section 4.16 is not limited as referred to in that subsection, and (b) a provision of an environmental planning instrument that allows flexibility in the application of a development standard may be applied to the non-discretionary development standard. Note— The application of non-discretionary development standards to complying development is dealt with in section 4.28(3) and (4). (3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority— (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application. In this subsection, standards include performance criteria. (6) Definitions In this section— (a) reference to development extends to include a reference to the building, work, use or land proposed to be erected, carried out, undertaken or subdivided, respectively, pursuant to the grant of consent to a development application, and (b) non-discretionary development standards means development standards that are identified in an environmental planning instrument or a regulation as non-discretionary development standards. 4.16 Determination (cf previous s 80) (1) General A consent authority is to determine a development application by— (a) granting consent to the application, either unconditionally or subject to conditions, or (b) refusing consent to the application. … (4) Total or partial consent A development consent may be granted— (a) for the development for which the consent is sought, or (b) for that development, except for a specified part or aspect of that development, or (c) for a specified part or aspect of that development. (5) The consent authority is not required to refuse consent to any specified part or aspect of development for which development consent is not initially granted under subsection (4), but development consent may subsequently be granted for that part or aspect of the development. Note— See also Division 4.4 for special procedures concerning concept development applications. Environmental Planning and Assessment Regulation 2000 49 Persons who can make development applications (cf clause 46 of EP&A Regulation 1994) (1) A development application may be made— (a) by the owner of the land to which the development application relates, or 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, by lodging the amendment or variation on the NSW planning portal. (2) If an amendment or variation results in a change to the proposed development, the application to amend or vary the development application must include particulars sufficient to indicate the nature of the changed development. (3) If the development application is for— (a) development for which concurrence is required, as referred to in section 4.13 of the Act, or (b) integrated development, the consent authority must immediately forward a copy of the amended or varied application to the concurrence authority or approval body. 77 Notice of development applications (1) As soon as practicable after a development application is lodged with the consent authority, the consent authority must— (a) publish notice of the application on the consent authority's website, and (b) give notice of the application to— (i) the public authorities (other than relevant concurrence authorities or approval bodies) that, in the opinion of the consent authority, may have an interest in the determination of the application, and (ii) in the case of a development application other than designated development—the persons that, in the opinion of the consent authority, own or occupy the land adjoining the land to which the application relates (unless the notice is in respect of an application for public notification development). (2) The notice must contain the following information— (a) a description (including the address) of the land on which the development is proposed to be carried out, (b) the name of the applicant and the consent authority, (c) a description of the proposed development, (d) whether or not the development is designated development, nominated integrated development, threatened species development, Class 1 aquaculture development or State significant development, (e) a statement that the development application and the documents accompanying the application, including any environmental impact statement, are publicly available on the consent authority's website for the period specified in Schedule 1 to the Act for that kind of development, (f) a statement that any person, during the submission period specified in Schedule 1 to the Act for that kind of development, may make submissions to the consent authority concerning the development application and that the submissions must specify the grounds of objection (if any), 113 Applications taken to be refused (cf clause 70B of EP&A Regulation 1994) (1) For the purposes of section 8.11(1) of the Act, a development application is taken to be refused if a consent authority has not determined the application within the deemed refusal period, being— (a) 40 days, except in the case of development referred to in paragraph (b) or (c), or Note : This clause does not apply in respect of a development application if section 8.7 of the Act does not apply to the application. Biodiversity Conservation Act 2016 1.3 Purpose of Act The purpose of this Act is to maintain a healthy, productive and resilient environment for the greatest well-being of the community, now and into the future, consistent with the principles of ecologically sustainable development (described in section 6(2) of the Protection of the Environment Administration Act 1991), and in particular— (a) to conserve biodiversity at bioregional and State scales, and (b) to maintain the diversity and quality of ecosystems and enhance their capacity to adapt to change and provide for the needs of future generations, and (c) to improve, share and use knowledge, including local and traditional Aboriginal ecological knowledge, about biodiversity conservation, and (d) to support biodiversity conservation in the context of a changing climate, and (e) to support collating and sharing data, and monitoring and reporting on the status of biodiversity and the effectiveness of conservation actions, and (f) to assess the extinction risk of species and ecological communities, and identify key threatening processes, through an independent and rigorous scientific process, and (g) to regulate human interactions with wildlife by applying a risk-based approach, and (h) to support conservation and threat abatement action to slow the rate of biodiversity loss and conserve threatened species and ecological communities in nature, and (i) to support and guide prioritised and strategic investment in biodiversity conservation, and (j) to encourage and enable landholders to enter into voluntary agreements over land for the conservation of biodiversity, and (k) to establish a framework to avoid, minimise and offset the impacts of proposed development and land use change on biodiversity, and (l) to establish a scientific method for assessing the likely impacts on biodiversity values of proposed development and land use change, for calculating measures to offset those impacts and for assessing improvements in biodiversity values, and (m) to establish market-based conservation mechanisms through which the biodiversity impacts of development and land use change can be offset at landscape and site scales, and (n) to support public consultation and participation in biodiversity conservation and decision-making about biodiversity conservation, and (o) to make expert advice and knowledge available to assist the Minister in the administration of this Act. Biodiversity Conservation Regulation 2017 7.2 Clearing of area of land that exceeds threshold (1) Clearing of native vegetation is declared by this clause to exceed the biodiversity offsets scheme threshold if the area proposed to be cleared is the area set out in Column 2 of the Table to this clause opposite the minimum lot size applicable to the land to be cleared in Column 1 of that Table. Note— Section 7.4 of the Act provides that any part of development that involves the clearing of native vegetation on category 1-exempt land (within the meaning of Part 5A of the Local Land Services Act 2013) is to be disregarded for the purposes of determining whether proposed development exceeds the threshold. (2) The minimum lot size applicable to any land being cleared is as follows— (a) if an environmental planning instrument under the Environmental Planning and Assessment Act 1979 prescribes a standard minimum lot size in relation to the land on which the proposed development is to be carried out—that minimum lot size, (b) in any other case—the actual size of the allotment of land on which the proposed development is to be carried out. For the purposes of paragraph (a), the standard minimum lot size is the minimum lot size that applies to development generally on the land, and not any different minimum lot size that applies to particular development or in particular circumstances. (3) In the application of the Table to this clause— (a) if the proposed development does not comprise only the clearing of native vegetation—the area of clearing is the total area of proposed clearing irrespective of the number of lots concerned or the ownership of those lots, and (b) if the proposed development comprises only the clearing of native vegetation—the area of clearing is the total area of proposed clearing— (i) over the lots in the same ownership (unless subparagraph (ii) applies), or (ii) over the lots that are worked or operated as a single property (whether or not they are in the same ownership), and (c) if the land on which the proposed development is to be carried out comprises different areas of land with different minimum lot sizes—the minimum lot size is the smaller or smallest of those minimum lot sizes, and (d) if the proposed development comprises or involves the clearing of more than one patch of native vegetation—the area of clearing is the total cumulative area cleared. (4) The Environment Agency Head is to publish a method (which may include computer programs) to be used for the purpose of calculating the total area of clearing for proposed development. Table 7.3 Clearing on land within Biodiversity Values Map exceeds threshold (1) In this clause— the Map means the Biodiversity Values Map published, from time to time, on an appropriate Government website under this clause. (2) The Environment Agency Head is to prepare and publish a Biodiversity Values Map. The Environment Agency Head may, from time to time, amend or replace the Map. (3) The Map may include the following land— (a) land that is the coastal wetlands and littoral rainforest area of the coastal zone referred to in the Coastal Management Act 2016, Note— See Biodiversity Conservation (Savings and Transitional) Regulation 2017 for the application of this provision before the commencement of that Act. (b) land identified as koala habitat in a plan of management made under State Environmental Planning Policy No 44—Koala Habitat Protection, being land that in the opinion of the Environment Agency Head is core koala habitat, (c) land that is a declared Ramsar wetland within the meaning of the Environmental Protection and Biodiversity Conservation Act 1999 of the Commonwealth, (d) land that, in the opinion of the Environment Agency Head, contains any threatened species or threatened ecological communities that are identified in a list of potential serious and irreversible impacts on biodiversity values under section 6.5(2) of the Act, (e) land that is identified by the Environment Agency Head as biodiverse riparian land, (f) land containing high conservation value grasslands or other groundcover— (i) as determined under the "Interim Grasslands and Other Groundcover Assessment Method" published by the Minister for the Environment in the Gazette on 25 August 2017, or (ii) as determined by an independent field assessment undertaken before the commencement of the Act, (g) land that is identified by the Environment Agency Head as containing old-growth forests, on the basis of— (i) the mapping of old-growth forests for the purposes of the Comprehensive Regional Assessment under the National Forest Policy Statement (being the agreement between the Commonwealth, State and Territory governments made in 1992 and so described), but (ii) excluding any land containing native vegetation that does not meet the criteria for old-growth forests published jointly from time to time by the Minister for the Environment and the Minister for Primary Industries (as determined in accordance with the procedure so published), (h) land that is identified by the Environment Agency Head as containing rainforests, on the basis of— (i) the mapping of rainforests for the purposes of the Comprehensive Regional Assessment under the National Forest Policy Statement (being the agreement between the Commonwealth, State and Territory governments made in 1992 and so described), but (ii) excluding any land containing native vegetation that does not meet the criteria for rainforests published jointly from time to time by the Minister for the Environment and the Minister for Primary Industries (as determined in accordance with the procedure so published), (i) land that is a declared area of outstanding biodiversity value, (j) land that, in the opinion of the council of the local government area concerned, contains vegetation connectivity features or threatened species habitat and whose inclusion in the Map will, in the opinion of the Minister, conserve biodiversity at a bioregional or State scale, (k) any other land that, in the opinion of the Environment Agency Head, is of sufficient biodiversity value to be included in the Map. Note— Section 6.8(3) of the Act provides that the biodiversity assessment method is to exclude the assessment of the impacts of clearing of native vegetation and loss of habitat on category 1-exempt land (within the meaning of the Local Land Services Act 2013), other than impacts prescribed by the regulations under section 6.3 of the Act. (4) Despite anything to the contrary in this Part, proposed development (other than subdivision) does not exceed the biodiversity offsets scheme threshold merely because it is to be carried out on a lot included in the Map if the lot was the result of a subdivision carried out before the commencement of the Act and the lot is within land zoned R1 to R4, RU5, B1 to B8 or IN1 to IN3 under an environmental planning instrument. (5) If an area of land is included in the Map, proposed development to be carried out in that area of land does not exceed the biodiversity offsets scheme threshold if it is the subject of an application for planning approval when the area is so included or within 90 days after it is so included. Hawkesbury Development Control Plan 2002 Part A Hawkesbury Development Control Plan 3.1 INTRODUCTION This chapter outlines notification requirements for the public exhibition of DAs. 3.2 NOTIFICATION OF DEVELOPMENT? This section identifies the types of the development that will be notified and the types of development that does not require notification. 3.2.1 What Development Will Be Notified? The following table identifies types of development that will be notified and the form of notification unless the General Manager, or delegated staff, consider that the circumstances of the application are such that notification is not necessary or a use that is not listed in the matrix is believed to require notification in the public interest. Extract: Agriculture: Letters to adjoining Owners/Occupiers, Site Plan, Notice in Local Newspapers Hawkesbury Local Environmental Plan 2012 Zone E4 Environmental Living 1 Objectives of zone • To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values. • To ensure that residential development does not have an adverse effect on those values. • To restrict development on land that is inappropriate for development because of its physical characteristics or bushfire risk. • To ensure that land uses are compatible with existing infrastructure, services and facilities and with the environmental capabilities of the land. • To encourage existing sustainable agricultural activities. • To ensure that development does not create or contribute to rural land use conflicts. • To promote the conservation and enhancement of local native vegetation, including the habitat of threatened species, populations and ecological communities by encouraging development to occur in areas already cleared of vegetation. • To ensure that development occurs in a way that does not have a significant adverse effect on water catchments, including surface and groundwater quality and flows, land surface conditions and important ecosystems such as waterways. 2 Permitted without consent Bed and breakfast accommodation; Environmental protection works; Extensive agriculture; Home occupations 3 Permitted with consent Animal boarding or training establishments; Boarding houses; Boat sheds; Building identification signs; Business identification signs; Camping grounds; Caravan parks; Charter and tourism boating facilities; Child care centres; Community facilities; Dual occupancies (attached); Dwelling houses; Educational establishments; Entertainment facilities; Environmental facilities; Farm buildings; Flood mitigation works; Food and drink premises; Forestry; Health consulting rooms; Helipads; Heliports; Home-based child care; Home industries; Hospitals; Intensive livestock agriculture; Intensive plant agriculture; Jetties; Landscaping material supplies; Moorings; Passenger transport facilities; Places of public worship; Plant nurseries; Public administration buildings; Recreation areas; Recreation facilities (indoor); Recreation facilities (outdoor); Registered clubs; Respite day care centres; Roads; Roadside stalls; Rural supplies; Rural workers' dwellings; Sawmill or log processing works; Stock and sale yards; Tourist and visitor accommodation; Transport depots; Truck depots; Veterinary hospitals; Water recreation structures; Water storage facilities 4 Prohibited Industries; Service stations; Warehouse or distribution centres; Any other development not specified in item 2 or 3 Zone SP2 Infrastructure 1 Objectives of zone • To provide for infrastructure and related uses. • To prevent development that is not compatible with or that may detract from the provision of infrastructure. 2 Permitted without consent Environmental protection works; Home occupations 3 Permitted with consent Roads; The purpose shown on the Land Zoning Map, including any development that is ordinarily incidental or ancillary to development for that purpose 4 Prohibited … Definition animal boarding or training establishment means a building or place used for the breeding, boarding, training, keeping or caring of animals for commercial purposes (other than for the agistment of horses), and includes any associated riding school or ancillary veterinary hospital. 5.1 Relevant acquisition authority (1) The objective of this clause is to identify, for the purposes of section 27 of the Act, the authority of the State that will be the relevant authority to acquire land reserved for certain public purposes if the land is required to be acquired under Division 3 of Part 2 of the Land Acquisition (Just Terms Compensation) Act 1991 (the owner-initiated acquisition provisions). Note— If the landholder will suffer hardship if there is any delay in the land being acquired by the relevant authority, section 23 of the Land Acquisition (Just Terms Compensation) Act 1991requires the Authority to acquire the Land. (2) The authority of the State that will be the relevant authority to acquire land, if the land is required to be acquired under the owner-initiated acquisition provisions, is the authority of the State specified below in relation to the land shown on the Land Reservation Acquisition Map (or, if an authority of the State is not specified in relation to land required to be so acquired, the authority designated or determined under those provisions). 5.1A Development on land intended to be acquired for public purposes (1) The objective of this clause is to limit development on certain land intended to be acquired for a public purpose. (2) This clause applies to land shown on the Land Reservation Acquisition Map and specified in Column 1 of the Table to this clause and that has not been acquired by the relevant authority of the State specified for the land in clause 5.1. (3) Development consent must not be granted to any development on land to which this clause applies other than development for a purpose specified opposite that land in Column 2 of that Table. 6.1 Acid sulfate soils (1) The objective of this clause is to ensure that development does not disturb, expose or drain acid sulfate soils and cause environmental damage. (2) Development consent is required for the carrying out of works described in the Table to this subclause on land shown on the Acid Sulfate Soils Map as being of the class specified for those works. (3) Development consent must not be granted under this clause for the carrying out of works unless an acid sulfate soils management plan has been prepared for the proposed works in accordance with the Acid Sulfate Soils Manual and has been provided to the consent authority. (4) Despite subclause (2), development consent is not required under this clause for the carrying out of works if: (a) a preliminary assessment of the proposed works prepared in accordance with the Acid Sulfate Soils Manual indicates that an acid sulfate soils management plan is not required for the works, and (b) the preliminary assessment has been provided to the consent authority and the consent authority has confirmed the assessment by notice in writing to the person proposing to carry out the works. … (6) Despite subclause (2), development consent is not required under this clause to carry out any works if: (a) the works involve the disturbance of less than 1 tonne of soil, such as occurs in carrying out agriculture, the construction or maintenance of drains, extractive industries, dredging, the construction of artificial water bodies (including canals, dams and detention basins), foundations or flood mitigation works, or (b) the works are not likely to lower the watertable. 6.2 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 earthworks are exempt development under this Plan or another applicable environmental planning instrument, or (b) the earthworks are 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 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 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, (h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development. Note— The National Parks and Wildlife Act 1974, particularly section 86, deals with disturbing or excavating land and Aboriginal objects. 6.3 Flood planning (1) The objectives of this clause are as follows: (a) to minimise the flood risk to life and property associated with the use of land, (b) to allow development on land that is compatible with the land's flood hazard, taking into account projected changes as a result of climate change, (c) to avoid significant adverse impacts on flood behaviour and the environment. (2) This clause applies to land at or below the flood planning level. (3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development: (a) is compatible with the flood hazard of the land, and (b) is not likely to significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and (c) incorporates appropriate measures to manage risk to life from flood, and (d) is not likely to significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and (e) is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding. (4) A word or expression used in this clause has the same meaning as it has in the Floodplain Development Manual(ISBN 0 7347 5476 0), published by the NSW Government in April 2005, unless it is otherwise defined in this clause. (5) In this clause: flood planning level means the level of a 1:100 ARI (average recurrent interval) flood event. 6.4 Terrestrial biodiversity (1) The objective of this clause is to maintain terrestrial biodiversity by: (a) protecting native fauna and flora, and (b) protecting the ecological processes necessary for their continued existence, and (c) encouraging the conservation and recovery of native fauna and flora and their habitats. (2) This clause applies to land identified as "Significant vegetation" and "Connectivity between significant vegetation" on the Terrestrial Biodiversity Map. (3) Before determining a development application for development on land to which this clause applies, the consent authority must consider: (a) whether the development: (i) is likely to have any adverse impact on the condition, ecological value and significance of the fauna and flora on the land, and (ii) is likely to have any adverse impact on the importance of the vegetation on the land to the habitat and survival of native fauna, and (iii) has any potential to fragment, disturb or diminish the biodiversity structure, function and composition of the land, and (iv) is likely to have any adverse impact on the habitat elements providing connectivity on the land. (b) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development. (4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that: (a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or (b) if that impact cannot be reasonably avoided by adopting feasible alternatives—the development is designed, sited and will be managed to minimise that impact, or (c) if that impact cannot be minimised—the development will be managed to mitigate that impact. Land and Environment Court Act 1979 17 Class 1—environmental planning and protection appeals The Court has jurisdiction (referred to in this Act as "Class 1" of its jurisdiction) to hear and dispose of the following: … d) appeals, objections and applications under sections 4.55, 8.7, 8.8, 8.9, 8.16, 8.18, 8.21, 8.22, 8.23 and 8.25 of, and clause 35 of Schedule 5 to, the Environmental Planning and Assessment Act 1979, 39 Powers of Court on appeals (1) In this section, appeal means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1, 2 or 3 of its jurisdiction. (2) 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. (3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal. (4) In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest. (5) The decision of the Court upon an appeal shall, for the purposes of this or any other Act or instrument, be deemed, where appropriate, to be the final decision of the person or body whose decision is the subject of the appeal and shall be given effect to accordingly. (6) Notwithstanding any other provision of this section, if an appeal relates to an application made to a council within the meaning of the Local Government Act 1993 or a consent authority within the meaning of the Environmental Planning and Assessment Act 1979 and that council or consent authority may not approve of, consent to, or deal with, or grant a permission in respect of, the application except after consultation with, or with the concurrence or approval of, any person or body: (a) the Court may determine the appeal whether or not the consultation has taken place and whether or not the concurrence or approval has been granted, and (b) in a case where the concurrence or approval has been granted—the Court may vary or revoke any conditions imposed by that person or body or may impose any conditions that could have been imposed by that person or body. (6A) Notwithstanding any other provision of this section, if an appeal relates to an application made to a consent authority within the meaning of the Environmental Planning and Assessment Act 1979 and the application relates to integrated development within the meaning of section 91 of that Act: (a) the Court may determine the appeal whether or not the consent authority has obtained the general terms of approval of each relevant approval body within the meaning of section 90A of that Act, and (b) the Court is not bound to refuse an application for development consent because an approval body has decided not to grant its approval or has failed to inform the consent authority whether or not it will grant its approval, and (c) the Court may determine the appeal even though a development consent granted as a result of the appeal is inconsistent with the general terms of approval of an approval body. Section 93 of that Act applies to a development consent granted as a result of the appeal. (7) The functions of the Court under this section are in addition to and not in derogation from any other functions of the Court. State Environmental Planning Policy (Coastal Management) 2018 3 Aim of Policy The aim of this Policy is to promote an integrated and co-ordinated approach to land use planning in the coastal zone in a manner consistent with the objects of theCoastal Management Act 2016, including the management objectives for each coastal management area, by— (a) managing development in the coastal zone and protecting the environmental assets of the coast, and (b) establishing a framework for land use planning to guide decision-making in the coastal zone, and (c) mapping the 4 coastal management areas that comprise the NSW coastal zone for the purpose of the definitions in the Coastal Management Act 2016. 5 Land to which Policy applies This Policy applies to land within the coastal zone. 6 Identification of coastal management areas Note— Section 5 of the Coastal Management Act 2016 provides that the "coastal zone" means the area of land comprised of the following coastal management areas-- (a) the coastal wetlands and littoral rainforests area, (b) the coastal vulnerability area, (c) the coastal environment area, (d) the coastal use area. (1) This clause identifies land for the purposes of the Coastal Management Act 2016 and this Policy. (2) The coastal wetlands and littoral rainforests area is the land identified as such by the Coastal Wetlands and Littoral Rainforests Area Map. Note— The coastal wetlands and littoral rainforests area is made up of land identified as "coastal wetlands" or as "littoral rainforests" on the Coastal Wetlands and Littoral Rainforests Area Map. The land so identified includes land identified as "proximity area for coastal wetlands" and "proximity area for littoral rainforest". (3) The coastal vulnerability area is the land identified as such by the Coastal Vulnerability Area Map. Note— At the commencement of this Policy, no Coastal Vulnerability Area Map was adopted and therefore no coastal vulnerability area has been identified. (4) The coastal environment area is the land identified as such by the Coastal Environment Area Map. (5) The coastal use area is the land identified as such by the Coastal Use Area Map. 13 Development on land within the coastal environment area (1) Development consent must not be granted to development on land that is within the coastal environment area unless the consent authority has considered whether the proposed development is likely to cause an adverse impact on the following— (a) the integrity and resilience of the biophysical, hydrological (surface and groundwater) and ecological environment, (b) coastal environmental values and natural coastal processes, (2) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that— (a) the development is designed, sited and will be managed to avoid an adverse impact referred to in subclause (1), or (b) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or (c) if that impact cannot be minimised—the development will be managed to mitigate that impact. (3) This clause does not apply to land within the Foreshores and Waterways Area within the meaning of Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005. State Environmental Planning Policy (Infrastructure) 2007 100 Development on proposed classified road (1) Consent for development for any of the following purposes on land reserved for the purposes of a classified road (but before the land is declared to be a classified road) may be granted only with the concurrence of the chief executive officer of RMS-- (a) subdivision that results in the creation of an additional lot with dwelling entitlements, (b) development with a capital investment value greater than $185,000, (c) development for the purpose of dwellings that are, or any other building that is, to be held under strata title. (2) Before determining a development application (or an application for modification of a consent) for development to which this clause applies, the consent authority must-- (a) give written notice of the application to the chief executive officer of RMS within 7 days after the application is made, and (b) take into consideration any response to the notice that is received within 21 days after the notice is given. (3) In deciding whether to grant concurrence to proposed development under this clause, the chief executive officer of RMS must take the following matters into consideration-- (a) the need to carry out development for the purposes of a classified road or a proposed classified road, (b) the imminence of acquisition of the land by RMS, (c) the likely additional cost to RMS resulting from the carrying out of the proposed development. (4) The consent authority must give RMS a copy of the determination of the application within 7 days after the determination is made. (5) The consent authority may grant consent to development to which this clause applies without the concurrence of the chief executive officer of RMS if-- (a) the consent authority has given the chief executive officer notice of the development application, and (b) 21 days have passed since giving the notice and the chief executive officer has not granted or refused to grant the concurrence. State Environmental Planning Policy (Koala Habitat Protection) 2021 Part 4 Savings and transitional provisions 18 Existing development applications A development application made in relation to land, but not finally determined before this Policy applied to the land, must be determined as if this Policy had not commenced in its application to the land. State Environmental Planning Policy (Koala Habitat Protection) 2020 4 Definitions In this Policy— core koala habitat means an area of land with a resident population of koalas, evidenced by attributes such as breeding females, being females with young, and recent sightings of and historical records of a population. guidelines means the guidelines, as in force from time to time, made for the purposes of this Policy by the Planning Secretary. Planning for Bush Fire Protection means the document referred to in clause 272 of the Environmental Planning and Assessment Regulation 2000. potential koala habitat means areas of native vegetation where trees of the types listed in Schedule 2 constitute at least 15% of the total number of trees in the upper or lower strata of the tree component. 5 Land to which Policy applies (1) This Policy applies to each local government area listed in Schedule 1 of State Environmental Planning Policy (Koala Habitat Protection) 2021 … State Environmental Planning Policy (Koala Habitat Protection) 2020 [NSW] Schedule 1 Local government areas: Ku-ring-gai; Weddin; Kyogle; Wentworth; City of Lake Macquarie; Wingecarribee; Leeton; Wollondilly; City of Lismore; City of Wollongong; City of Lithgow; Yass Valley; City of Liverpool. 9 Step 2—Is the land core koala habitat? (1) Before a council may grant consent to a development application for consent to carry out development on land to which this Part applies that it is satisfied is a potential koala habitat, it must satisfy itself as to whether or not the land is a core koala habitat. (2) The council may be satisfied as to whether or not land is a core koala habitat only on information obtained by it, or by the applicant, from a person with appropriate qualifications and experience in biological science and fauna survey and management. (3) If the council is satisfied— (a) that the land is not a core koala habitat, it is not prevented, because of this Policy, from granting consent to the development application, or (b) that the land is a core koala habitat, it must comply with clause 10. Part 3 Plans of management 12 Preparation of plan of management (1) A plan of management may be prepared for— (a) the whole of a local government area listed in Schedule 1, or (b) a part of such a local government area, including an area of land that is the subject of a development application. (2) Anyone, including a council, may prepare a plan of management. (3) A plan of management is to be prepared in accordance with the guidelines. State Environmental Planning Policy No 55—Remediation of Land 7 Contamination and remediation to be considered in determining development application (1) A consent authority must not consent to the carrying out of any development on land unless-- (a) it has considered whether the land is contaminated, and (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose. Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997) 6 Specific planning policies and recommended strategies The specific planning policies and recommended strategies for this plan are as follows: (1) Total catchment management Policy: Total catchment management is to be integrated with environmental planning for the catchment. Strategies: (a) Refer the application or other proposal for comment to the councils of each adjacent or downstream local government area which is likely to suffer a significant adverse environmental effect from the proposal. (b) Consider the impact of the development concerned on the catchment. (c) Consider the cumulative environmental impact of development proposals on the catchment. (2) Environmentally sensitive areas Policy: The environmental quality of environmentally sensitive areas must be protected and enhanced through careful control of future land use changes and through management and (where necessary) remediation of existing uses. Note— Environmentally sensitive areas in the Hawkesbury-Nepean catchment are: the river, riparian land, escarpments and other scenic areas, conservation area subcatchments, national parks and nature reserves, wetlands, other significant floral and faunal habitats and corridors, and known and potential acid sulphate soils. Strategies: (a) Rehabilitate parts of the riverine corridor from which sand, gravel or soil are extracted so that attached aquatic plant beds are replaced and water quality and faunal habitats improved. (b) Minimise adverse impacts on water quality, aquatic habitats, riverine vegetation and bank stability. (c) Minimise direct and indirect adverse impacts on land reserved or dedicated under the National Parks and Wildlife Act 1974 or the Forestry Act 1916 and conservation area sub-catchments in order to protect water quality and biodiversity. (d) Protect wetlands (including upland wetlands) from future development and from the impacts of land use within their catchments. (e) Consider the need to include buffer zones (such as adequate fire radiation zones) for proposals on land adjacent to land reserved or dedicated under the National Parks and Wildlife Act 1974 or theForestry Act 1916. (f) Consider the views of the Director-General of National Parks and Wildlife about proposals for land adjacent to land reserved or dedicated under the National Parks and Wildlife Act 1974. (g) Consideration should be given to the impact of the development concerned on the water table and the formation of acid sulphate soils. (h) New development in conservation area sub-catchments should be located in areas that are already cleared. (3) Water quality Policy: Future development must not prejudice the achievement of the goals of use of the river for primary contact recreation (being recreational activities involving direct water contact, such as swimming) and aquatic ecosystem protection in the river system. If the quality of the receiving waters does not currently allow these uses, the current water quality must be maintained, or improved, so as not to jeopardise the achievement of the goals in the future. When water quality goals are set by the Government these are to be the goals to be achieved under this policy. Note— Aquatic ecosystems and primary contact recreation have the same meanings as in the document entitled Australian Water Quality Guidelines for Fresh and Marine Waters, published in 1992 by the Australian and New Zealand Environment and Conservation Council. Strategies: (a) Quantify, and assess the likely impact of, any predicted increase in pollutant loads on receiving waters. (b) Consider the need to ensure that water quality goals for primary contact recreation and aquatic ecosystem protection are achieved and monitored. (c) Approve development involving primary contact recreation or the withdrawal of water from the river for human contact (not involving water treatment), such as showers, only in locations where water quality is suitable (regardless of water temperature). (d) Do not carry out development involving on-site disposal of sewage effluent if it will adversely affect the water quality of the river or groundwater. Have due regard to the nature and size of the site. (e) Develop in accordance with the land capability of the site and do not cause land degradation. (f) Consider the need for an Erosion and Sediment Control Plan (to be in place at the commencement of development) where the development concerned involves the disturbance of soil. (g) Minimise or eliminate point source and diffuse source pollution by the use of best management practices. (h) Site and orientate development appropriately to ensure bank stability. Plant appropriate native vegetation along banks of the river and tributaries of the river, but not so as to prevent or inhibit the growth of aquatic plants in the river, and consider the need for a buffer of native vegetation. (i) Consider the impact of the removal of water from the river or from groundwater sources associated with the development concerned. (j) Protect the habitat of native aquatic plants. (4) Water quantity Policy: Aquatic ecosystems must not be adversely affected by development which changes the flow characteristics of surface or groundwater in the catchment. Strategies: (a) Future development must be consistent with the interim or final river flow objectives that are set for the time being by the Government. (b) Ensure the amount of stormwater run-off from a site and the rate at which it leaves the site does not significantly increase as a result of development. Encourage on-site stormwater retention, infiltration and (if appropriate) reuse. (c) Consider the need for restricting or controlling development requiring the withdrawal or impoundment of water because of the effect on the total water budget of the river. (d) Consider the impact of development on the level and quality of the water table. (5) Cultural heritage Policy: The importance of the river in contributing to the significance of items and places of cultural heritage significance should be recognised, and these items and places should be protected and sensitively managed and, if appropriate, enhanced. Strategies: (a) Encourage development which facilitates the conservation of heritage items if it does not detract from the significance of the items. (b) Protect Aboriginal sites and places of significance. (c) Consider an Aboriginal site survey where predictive models or current knowledge indicate the potential for Aboriginal sites and the development concerned would involve significant site disturbance. (d) Consider the extent to which heritage items (either identified in other environmental planning instruments affecting the subject land or listed in Schedule 2) derive their heritage significance from the river. (6) Flora and fauna Policy: Manage flora and fauna communities so that the diversity of species and genetics within the catchment is conserved and enhanced. Strategies, generally: (a) Conserve and, where appropriate, enhance flora and fauna communities, particularly threatened species, populations and ecological communities, aquatic habitats, wetland flora, rare flora and fauna, riverine flora, flora with heritage value, habitats for indigenous and migratory species of fauna, and existing or potential fauna corridors. (b) Locate structures where possible in areas which are already cleared or disturbed instead of clearing or disturbing further land. (c) Minimise adverse environmental impacts, protect existing habitat and, where appropriate, restore habitat values by the use of management practices. (d) Consider the impact on ecological processes, such as waste assimilation and nutrient cycling. (e) Consider the range of flora and fauna inhabiting the site of the development concerned and the surrounding land, including threatened species and migratory species, and the impact of the proposal on the survival of threatened species, populations and ecological communities, both in the short and longer terms. (f) Consider the need to provide and manage buffers, adequate fire radiation zones and building setbacks from significant flora and fauna habitat areas. (g) Consider the need to control access to flora and fauna habitat areas. (h) Consider the need to maintain corridors for fish passage, and protect spawning grounds and gravel beds. (7) Riverine scenic quality Policy: The scenic quality of the riverine corridor must be protected. Strategies: (a) Maintain areas of extensive, prominent or significant vegetation to protect the character of the river. (b) Ensure proposed development is consistent with the landscape character as described in the Scenic Quality Study. (c) Consider the siting, setback, orientation, size, bulk and scale of and the use of unobtrusive, non-reflective material on any proposed building or work, the need to retain existing vegetation, especially along river banks, slopes visible from the river and its banks and along the skyline, and the need to carry out new planting of trees, and shrubs, particularly locally indigenous plants. (d) Consider the need for a buffer between new development and scenic areas of the riverine corridor shown on the map as being of significance beyond the region (which are also scenic areas of significance for the region) or so shown as being of regional significance only. (e) Consider the need for controls or conditions to protect those scenic areas. (f) Consider opportunities to improve riverine scenic quality. 1. The hearing commenced on 24 June 2021 when the parties advised the Court that they had reached agreement subject to the Court granting leave to the Applicant to rely upon new plans and updated expert reports, and subject to the parties agreeing the proposed conditions of consent. The Court granted the parties time to finalise the outstanding issues in relation to the conditions of consent. 2. On 25 June 2021 the Applicant moved her Motion for leave to rely upon amended plans and updated expert reports as set out in her Notice of Motion dated 24 June 2021, and read the Affidavit of Wassim Sadek dated 24 June 2021. The Council consented to the Motion. The Court ordered: "The Applicant is granted leave to rely upon the amended plans and expert reports as set out in her Notice of Motion dated 24 June 2021, and particularised as follows: a. Bushfire Hazard Assessment Report prepared by Steve Brooks dated 11 June 2021. b. Addendum to Bushfire Hazard Assessment Report prepared by Steve Brooks dated 18 June 2021. c. Drawing No. A-002, Architectural Drawing prepared by Tonkin Zulakha Greer Architects and revised on 9 June 2021. d. Drawing No. A-100, Architectural Drawing prepared by Tonkin Zulakha Greer Architects and revised on 9 June 2021. e. Drawing No. A-101, Architectural Drawing prepared by Tonkin Zulakha Greer Architects and revised on 9 June 2021. f. Drawing No. A-302, Architectural Drawing prepared by Tonkin Zulakha Greer Architects and revised on 9 June 2021. g. Drawing No. 18552021-3rev, Landscape Plan prepared by Tig Designs and revised on 11 June 2021. h. Ecological Impact Updated prepared by Narla Environmental Pty Ltd dated 18 June 2021. i. Operational Details and Plan of Management dated 21 June 2021. j. Letter from Harris Environmental Consulting (undated) k. Drawing No. 2 "Wastewater Management Plan Details Sheet No. 2" prepared by Harris Environmental Consulting dated 24 June 2021." 1. The parties informed the Court that the contentions as set out in Council's SOFAC [2] had been resolved by the amended plans, amended experts' reports and the conditions of consent. As there is no contradicter in this case, the role of the Court is to be satisfied that the jurisdictional pre-requisites have been satisfied. 2. The Applicant is the owner of the site, and pursuant to cl 49 of the EPA Regulation entitled to lodge the DA with Council. The DA was lodged with Council on 21 February 2020. 3. Council notified the DA from 15 to 29 April 2020 in accordance with Part A Chapter 3 of the Hawkesbury Development Control Plan 2020 and cl 77 of the EPA Regulation. Council received 4 submissions in response to the notification. 4. The Applicant lodged amended plans and further documentation with the Council pursuant to cl 55(1) of the EPA Regulation on 10 September 2020. The amended DA was subsequently notified by Council from 24 September to 8 October 2020, and Council received 4 submissions in response. 5. The Applicant appealed to the Court on 10 September 2020 (see [1] above). The appeal falls within Class 1 of the Court's jurisdiction pursuant to s 17(d) of the EPA Act. 6. The Court has power to hear and determine the matter pursuant to s 4.16 of the EPA Act and s 39 of the LEC Act. 7. The site is zoned E4 Environmental Living and SP2 Infrastructure – Classified Road (along strips of land either side of Putty Road) pursuant to Hawkesbury Local Environmental Plan 2012 (HLEP2012). Animal boarding or training establishments are nominated as a permissible use, subject to development consent. 8. The DA in its present form meets the objectives of the E4 Zone: • To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values. • To ensure that residential development does not have an adverse effect on those values. • To restrict development on land that is inappropriate for development because of its physical characteristics or bushfire risk. • To ensure that land uses are compatible with existing infrastructure, services and facilities and with the environmental capabilities of the land. • To encourage existing sustainable agricultural activities. • To ensure that development does not create or contribute to rural land use conflicts. • To promote the conservation and enhancement of local native vegetation, including the habitat of threatened species, populations and ecological communities by encouraging development to occur in areas already cleared of vegetation. • To ensure that development occurs in a way that does not have a significant adverse effect on water catchments, including surface and groundwater quality and flows, land surface conditions and important ecosystems such as waterways. 1. The DA in its present form meets the objectives of the SP2 Zone: • To provide for infrastructure and related uses. • To prevent development that is not compatible with or that may detract from the provision of infrastructure. 1. The Applicant drew the Court's attention to the planning principle enunciated in BGP Properties Pty Limited v Lake Macquarie City Council [3] where it is noted that "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". The DA is for a nominated use under the Zone, and it is reasonable to assume that the site is suitable for that use, subject to the Applicant demonstrating that the environmental impacts may be ameliorated to an acceptable level. The environmental impacts are considered in detail below in relation to the 5 contentions raised by Council. 2. Contention 1: "The development application should be refused because it has not been demonstrated that the proposed development has been designed, sited or will be managed to avoid or mitigate any significant adverse environmental impact on terrestrial biodiversity as required under cl 6.4 of HLEP2012." 1. The areas of the site that are subject to the proposed development are identified as 'Significant Vegetation' and 'Connectivity Between Significant Vegetation' under the Terrestrial Biodiversity Map and accordingly cl 6.4 of HLEP2012 applies to the site. 2. The south-western section of the property has been subject to unauthorised clearing of vegetation and trees, and was previously subject to Class 4 proceedings in this Court [4] . Vegetation on this portion of the site is now re-generating (at least in part) following the unauthorised clearing. A Vegetation Management Plan [5] (VMP), an Individual Koala Management Plan [6] , and a Flora and Fauna Assessment Report [7] have now been included as part of the revised documentation for the DA. The Flora and Fauna Report includes a Biodiversity Assessment Report (BDAR) as required under s 7.3 of the Biodiversity Conservation Act 2016 (BC Act) and the Biodiversity Conservation Regulation 2017 (BC Regulation). Originally the BDAR indicated that the development would impact approximately 0.86Ha of native vegetation. That area has since been reduced to 0.77Ha. Further, the Landscaping Plan [8] indicates that internal roads, tracks, fencing and paddocks will be provided outside the area nominated in the BDAR. The Court must also consider whether the DA will exceed the following Biodiversity Offset Scheme Development Thresholds: 1. Exceeding the clearing threshold of an area of native vegetation (1Ha but clearing in this case is 0.77Ha); 2. Carrying out development on land included in the Biodiversity Values Land Map; or 3. Having a 'significant effect' on threatened species or ecological communities. 1. BC Act and BC Regulation are mandatory for this DA. The Biodiversity Values Map (Department of Planning, Industry & Environment (DPIE) 2021) identifies land with high biodiversity values that are particularly sensitive to impacts from development and clearing. The Map forms part of the Biodiversity Offsets Scheme Entry Threshold which is one of the triggers for determining whether the Biodiversity Offsets Scheme (BOS) applies to a clearing or development proposal. The Map has been prepared by DPIE under Part 7 of the BC Act. The site does not contain areas mapped on the Biodiversity Values Map. 2. The minimum lot size prescribed by the HLEP2012 to the site is 40Ha. To avoid triggering the BOS, the proponent must avoid clearing/managing 1Ha or more of native vegetation. In this case the impact is to 0.77Ha of native vegetation. Therefore as the DA is not located on areas mapped on the Biodiversity Values Map, and as it requires removal of less than 1Ha of native vegetation, the BOS does not apply. [9] 3. The Joint Experts Ecology Report of Dr J Tatler, Ecologist for the Applicant and A Johnston, town planner for the Council filed 22 June 2021 [10] addressed Contention 1, and the experts agreed inter alia: "'Areas of the site that are subject to the proposed development are identified as 'Significant Vegetation' and 'Connectivity Between Significant Vegetation' under the Terrestrial Biodiversity Map and accordingly Clause 6.4 of the Hawkesbury LEP 2012 applies to the land. The provisions of the Biodiversity Conservation Act 2016 and Biodiversity Conservation Regulation 2017 apply to the land. Clause 7.2(1) and Column 2 of the Table under the Biodiversity Conservation Regulation 2017 establish a Biodiversity Offsets Scheme threshold of 1Ha for the land. The Flora and Fauna Assessment Report [11] prepared under the Biodiversity Conservation Act 2016 and Biodiversity Conservation Regulation 2017 indicates that the development will impact approximately 0.86Ha of native vegetation. … The proposed development only involves the use of the track providing access from Putty Road to the area that is to accommodate the pre-fabricated building and car park. The identified Asset Protection Zone (APZ) is acceptable where it will also be used for the temporary accommodation of horses during times of flood. The Landscape Plan [12] (Reference No. 18552021-3rev) prepared by TIG Designs and dated 11 June 2021 will need to be updated to show that any tracks or paddocks located outside of the identified APZ will be unused and left to regenerate. A condition requiring an updated landscaping plan may be imposed to address this issue. Subject to an amended landscaping plan that restricts clearing and works to the identified APZ, the prepared Flora and Fauna Report, Vegetation Management Plan and Individual Koala Plan will satisfy the requirements of Clause 6.4 of the Hawkesbury LEP 2012. Subject to an amended landscaping plan that restricts clearing and works to the identified APZ, the proposal will not exceed the Biodiversity Offsets Scheme threshold of 1HA for the land that applies to the land. The experts are therefore in agreement that a condition may be imposed to address Contention 1 relating to biodiversity impacts." 1. The Council has considered the Flora and Fauna Assessment Report [13] , and in drafting the Agreed Condition of Consent [14] considered the recommendations on pages 41-43 of that Report. The final paragraph of Narla Environmental's Report states: "The proposed development is located on a mostly vegetated block and as such impacts to native vegetation were difficult to avoid. It I however not anticipated that any threatened flora, fauna or ecological communities will be impacted by the proposed development. A number of impact mitigation and minimisation measures, as outlined in this report, are to be implemented to reduce impacts to native vegetation and fauna where possible. A VMP will also be prepared for the Subject Site and surrounding vegetation (including the EEC along Colo River and all areas of regrowth on the western side of Putty Road) to outline ongoing habitat management within these areas." 1. Conditions 11 and 12 of the Agreed Conditions of Consent [15] provide for the implementation and monitoring of the VMP and 'Individual Koala Plan of Management'. In relation to the VMP: 1. It details the long-term management of vegetation with the site, including the establishment and maintenance of the proposed DA, and includes habitat management for regenerating remnant areas of bushland, including the Endangered Ecological Community (EEC) River-Flat Eucalypt Forest on Coastal Floodplains of the NSW North Coast, Sydney Basin and South East Corner Bioregions, which is present within the riparian zone. 2. The site has been divided into the following management zones which are depicted in Figure 1 at [5] above: 1. Zone 1: APZ 2. Zone 2: Bushland Management 3. Zone 3: Riparian Management 1. The VMP includes provision for ongoing monitoring, management, review and reporting. 1. On 17 March 2021 the State Environmental Planning Policy (Koala Protection) 2021 came into force. However, the Savings and Transitional Provisions in Part 4 s 18 provides that if a development application has been made, but not determined, prior to the commencement of this Policy, the development must be determined as if this Policy had not commenced. Therefore the relevant control in this matter is the State Environmental Planning Policy (Koala Protection) 2020 (Koala SEPP). 2. Council was satisfied that the site is not a core koala habitat as defined by cl 9 of the Koala SEPP. During the site assessment no koalas or signs of koala occupancy (scats, scratch marks) were observed within the site. However, a spatial search using NSW Wildlife Atlas (BioNet; DPIE 2021) revealed thirteen (13) koala records exist within a 10km x 10m cell centred on the site. The most recent and local sighting occurred in 2014, approximately 3k south-west of the site. Due to recent and proximal records, there is potential for the site to comprise core koala habitat. As such, there is potential for the site to comprise core koala habitat, and therefore the Individual Koala Management Plan (Ex E) was prepared pursuant to Part C of the Koala SEPP. As Council formed the opinion that the site is not a core koala habitat, approval of the said Plan by the Secretary of the DPIE is not required. The final paragraph of the Flora and Fauna Assessment Report [16] states on p 44: "The proposed development is located on a mostly vegetated block and as such impacts to native vegetation were difficult to avoid. It is however not anticipated that any threatened flora, fauna or ecological communities will be impacted by the proposed development. A number of impact mitigation and minimisation measures … are to be implemented to reduce impacts to native vegetation and fauna where possible. A VMP will also be prepared for the site and surrounding vegetation (including the EEC along Colo River and all areas of regrowth on the western side of Putty Road) to outline ongoing habitat management within these areas." 1. The Bushfire Hazards Report [17] , Table 5, page 21 demonstrates that the APZ exceeds the minimum distances required under Planning for Bushfire Protection 2019 published by the Rural Fire Service of NSW. The conclusions reached by Mr Brooks in Ex J p 36 are as follows: "The land on which the property is situated is classified as Bushfire Prone Land under the Hawkesbury City Council LGA Bushfire Prone Land Map (NSW Government 2020). The proposed siting of the manufactured portable temporary dwelling is on the Western portion of the subject Lot and have been deemed to be in the BAL-12.5 range of AS3959-2018 as determined by Table A1.12.5 of Planning for Bushfire Protection 2019. Therefore, the manufactured portable dwelling must meet the construction standards outlines in Section 5 of AS3959-2018. The twelve horse stables are not required to be constructed to bushfire standards as per Section 8.3.2 of Planning for Bushfires Protection 2019 as they are located more than 6m from the manufactured portable dwelling. The proposed development and proposed APZ comply with the specific objectives and requirements of Planning for Bushfire Protection 2019." 1. In the Addendum to the Bushfire Hazard Assessment [18] , Mr Brooks responded to Council's request for further information in relation to the Access Track to be used in association with the horse breeding establishment as follows: "This (Access Track) will not result in any changes having to be made to the existing Bushfire Hazard Assessment Report dated 11 June 2021.' Although the Access Track will lead directly to the prefabricated structure 'This will not result in any changes to the existing Bushfire Hazard Assessment Report dated 11 June 2021.' Although the Access Track is within the APZ 'This will not result in any changes having to be made to the existing Bushfire hazard Assessment Report dated 11 June 2021……Furthermore, the 'access track" is located within the Asset Protection Zone (APZ) which increases the level of bushfire safety, not only to the occupants, but also attending emergency services personnel." 1. I note the recommendations of Mr Brook in Ex J p 35 have been included in the Conditions of Consent [19] , and that Mr Brook concludes on p 36 in Ex J that: "It is my opinion that the proposed development, with recommendations from this Report, will provide a satisfactory level of bushfire safety to the property and satisfies the requirements of the NSW Rural Fire Service and the Hawkesbury City Council's obligations for this area". 2. I further note that although the site is mapped as bushfire prone land under s 4.46 of the EPA Act, there is no subdivision proposed of the site and it is therefore not integrated development. 3. The documentation referred to in response to Contention 1 demonstrates that the DA has been designed and/or sited to avoid or mitigate environmental impacts, and meets the objectives of cl 6.4 of the HLEP2012. 1. I shall now deal with Contentions 2, 3, 4 and 5 except 5(c): "(2) The development application should be refused because it has not been demonstrated that the proposed development is of a nature and scale that justifies the need for two buildings to provide facilities for workers. [20] … (3)The development should be refused because it has not been demonstrated that the proposed development will be managed or is of a sufficient scale and intensity to avoid or minimise adverse environmental impacts. … (4) The development application should be refused because the proposed development is not in the public interest for the reasons identified in the contentions above and having regard to the submissions received which oppose the application. … (5)The development application should be refused because insufficient information has been provided to allow the full and proper assessment of the proposed development. In summary: (a) earthworks (b) SP2 land – classified road (dealt with separately) (c) APZ plan in respect of prefabricated building (d) wastewater report (e) location of non-permeable area (f) landscaping plan." 1. I note that the 2 prefabricated buildings have been reduced to 1 prefabricated building, and the APZ has been reduced from 0.86Ha to 0.77Ha. 2. The Joint Experts' Town Planning Report by G Fielding, town planner for the Applicant, and A Johnston, town planner for the Council, filed 23 June 2021 [21] dealt with these contentions, and agreed inter alia: "The proposed development is defined as an 'animal boarding or training establishment' and is permissible within the E4 Environmental Living zone under the HLEP2012. The prefabricated building nominated with the amended Architectural Plans (Attachment 3) is permissible on the basis it is ancillary to and associated with the animal boarding or training establishment use. The amended architectural plans 'address Contention 2 relating to the nature and scale of the development and the need for two prefabricated buildings. In this regard the amended Architectural Plans now nominate the provision of a single prefabricated building on the raised south-western section of the property. A Vegetation Management Plan has been prepared and is accepted by Council to address the unauthorised clearing identified' in earlier proceedings. [22] A 'Flood Emergency Response Plan' has been prepared and is accepted by Council to address the flood risk.' 'The 'Revised Operational Details and Plan of Management' and 'Flood Emergency Response Plan' indicate that horses will be re-located to the raised south-western section of the property should a flood warning be issued. A lack of welfare checks on horses during times of heavy rain and flooding has been identified in a submission. Specifics relating to this incident are unclear, however the 'Revised Operational Details and Plan of Management' and 'Flood Emergency Response Plan' indicate that horses will be re-located to the raised south-western section of the property should a flood warning be issued. The welfare of the horses will be dependent upon management procedures, although the supplied documentation is considered to address this contention. Operating hours of 8:00am to 5:30pm have been nominated with the 'Operational Details and Plan of Management' [23] . ….'these hours of operation are considered appropriate for an animal boarding and training establishment. The amended Landscaping Plan [24] proposes a non-permeable area that is to be used for the collection and composting of stable waste. The implementation of composting procedures should minimise odour impacts identified with Contention 4(a)(iii). The amended Architectural Plans [25] address Contention 59(a) relating to earthworks. The amended plans confirm that no fill material is to be imported to the lower north-eastern section of the property. The amended Landscaping Plan [26] address Contention 5(c) relating to the extent of the Asset Protection Zone. The 'Soil and Site Assessment for Onsite Wastewater Disposal' Report [27] … addresses Contention 5(d) relating to effluent disposal for the prefabricated building. This report highlights the location of the absorption beds servicing the prefabricated building. The amended Landscaping Plan [28] addresses Contention 5(e) relating to the location of the non-permeable area that is to be used for the collection and composting of stable waste. The amended Landscaping Plan addresses Contention 5(f) relating to the planting of trees and the provision of shelter for horses." 1. Contention 2 has been satisfied by the Applicant amending the DA to remove one of the proposed prefabricated buildings. There will now be 1 prefabricated building provided for the purposes of part administration, part staff facilities, and part accommodation. The accommodation is particularly required when the horses are birthing. 2. Contention 3 has been satisfied by the Applicant reducing the maximum number of horses on site from 40 to 20, and the Applicant shall implement the Operational Details & Plan of [29] Management. 3. In relation to cl 6.1 Acid Sulfate Soils of HLEP2012, the site is predominantly mapped as containing Class 4 Acid Sulfate Soils (ASS). A small section of Class 1 ASS is located within the site's river frontage. No works are proposed within the Class 1 ASS area of the site, and only minor excavation (approximate depth of 1m) is proposed in the Class 4 ASS areas. As such, preparation of the ASS management plan is not required. [30] 4. In relation to cl 6.1 Earthworks of HLEP2012, excavation to a maximum depth of approximately 1m is proposed to establish the building footprint for the 1 prefabricated building. Filling to a maximum height of approximately 1.8m above existing ground level is proposed to create the floor level of the stables. No fill will be brought onto the site with all required fill to be sourced from the excavation works. The proposed excavation would not have a detrimental impact on environmental functions and processes, neighbouring uses (particularly due to separation distances) or features of the surrounding land. [31] 5. In relation to cl 6.3 Flood Planning of HLEP2012, Council's online 'Flood Extent Map' indicates that the site is affected by the 1:100 year flood. The proposed non-sensitive land use is considered to be compatible with the flood hazard of the land. The proposed structures and landforms are not likely to have a significantly adverse effect on flood behaviour, being relatively small in scale in the context of the site and surrounds. The Flood Emergency Response Plan [32] ensures that the following will be implemented on the site: "(a) warning signposts will be posted at the stables in a prominent location to indicate that it is unsafe to enter floor waters. (b) induction of new staff members will provide information of the site's flood liability and highlight the need to evacuate safely. (c) On-site staff are trained to promptly move horses to higher ground." 1. I have perused the Submissions by Mr Geoff Dickson; Ms Leanne Azzopardi, Mr Kevin Azzopardi and Ms Leanne Savage; Mr P F Napper, Mr Simon R, and Mr S Russell. I am satisfied that the Council has considered the submissions and taken them into account in resolving the contentions and drafting the Agreed Conditions of Consent. 1. Contention 5(b) provides: "The amended plans indicate that fences and gates are to be located within the sections of the property zoned SP2 Infrastructure Classified Road. The concurrence of Transport for NSW has not been provided for this work under Clause 100(1)(b) of the Infrastructure SEPP." I note: 1. After the Kara-Ali judgment [33] Transport for NSW (TfNSW) wrote to Barker Ryan Stewart on 13 February 2021 [34] (query the date of the letter as it referred to the judgment dated 27 August 2019), and the penultimate paragraph stated: "The existing gates/crossing as shown on the "Gates Plan" adequately service the rural activities identified for this land, however, any change of land use requires application for a new or upgraded access arrangement.' At the time of writing the letter, TfNSW noted that there were 5 entries to the land and that 3 of the entries were to be removed. The 2 ingress/egress to the land which remained are those that exist on the plans supporting the DA which is before the Court." 1. Clause 100(1)(b) of the State Environmental Planning Policy (infrastructure) 2007 (Infrastructure SEPP) states that consent for development on land reserved for the purposes of a classified road (but before the land is declared to be a classified road) that has a capital investment value greater than $185,000, may be granted only with the concurrence of TfNSW. The Applicant has stated in its DA [35] initial application form that the estimated value of the development is $200,000. 2. The Council referred the DA to TfNSW by letter dated 25 May 2021, and received a response dated 15 June 2021 [36] requesting further information on the assumption that there is to be a change in the access to the site. There is no change in the access to the site. Access from Putty Road to either side of the site remains the same. 3. In accordance with cl 100(5) of the Infrastructure SEPP the Court may grant consent to development to which the clause applies without the concurrence of TfNSW if two conditions are satisfied: 1. The consent authority has given the chief executive officer notice of the development application, and 2. 21 days have passed since giving the notice and the chief executive officer has not granted or refused to grant the concurrence. 1. The works to be undertaken within the SP2 Zone are designed to replace what currently exists. There is no intensification or substantial change to what is currently existing. Access is already permitted from Putty Road at the two nominated points of ingress/egress, and the DA does not affect the effective ongoing function of Putty Road. 2. Taking into consideration the above facts, I exercise the power under cl 100(5) of the Infrastructure SEPP and s 39(6) of the LEC Act and grant concurrence on behalf of TfNSW to the DA. 1. Condition 16 of the Agreed Conditions of Consent [37] provides that Architectural drawing A-100 Rev H dated 9 June 2021 is to be amended by deleting the 1.8m high fence shown adjacent to the Colo River. 2. Condition 62 of the Agreed Conditions of Consent provides that "the 40m wide riparian corridor (Management Zone 3) is to be fenced with wildlife friendly fencing (post and wire or post and rail fencing – no barbed wire) in accordance with the Vegetation Management Plan" [38] prior to the release of the Occupation Certificate. Condition 76 provides, inter alia, that "no horses or other livestock are to be kept within the defined riparian corridor." 3. Clause 7 of State Environmental Planning Policy No 55— Remediation of Land (SEPP 55) requires that a consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and it is satisfied that the land is suitable (or will be after remediation) for the proposed use. The site is currently used for the keeping and agistment of horses. The Council has accepted that the site is suitable for the continued purpose of keeping or training horses in accordance with the zoning of the land, and its historical use does not pose a risk to human health under SEPP 55. 4. The State Environmental Planning Policy (Coastal Management) 2018 (Coastal Management SEPP) aims to promote an integrated and co-ordinated approach to land use planning in the coastal zone in a manner consistent with the objects of the Coastal Management Act 2016. The site falls under cl 6(c) 'the coastal environment' of the Coastal Management SEPP. The Court is to consider whether the DA within the coastal environmental area causes an adverse impact in accordance with subcll 13(1) and (2) of the Coastal Management SEPP. Taking into account the fact that the riparian zone is excluded from the operation of the animal boarding and/or training facility on the site, the VMP (Ex C), the Landscape Plan (Ex L), the Soil and Site Assessment for Wastewater Disposal (Ex A), the Operational Plan of Management (Ex N), the Erosion and Sedimentation Concept Plan (Ex O), and the Agreed Conditions of Consent (Ex 7), there is not an adverse impact by the development on the coastal environmental area. 5. The Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997) (SREP 20) has the aim to protect the environment of the Hawkesbury-Nepean River system by ensuring that the impacts of future land uses are considered in a regional context. The site is within the catchment of the Colo River, a sub-catchment of the Hawkesbury River. Clause 6 of SREP 20 outlines the specific planning policies and recommended strategies. In response, in part, to SREP 20 a VMP [39] , a Concept Erosion and Sediment Control Plan [40] , and Flora and Fauna Assessment Report [41] has been prepared. The response of the Applicant to the subclauses in cl 6 was: 1. Subclauses (1) total catchment management; (2) environmentally sensitive areas; (3) water quality; and (4) water quantity: "The proposed development is unlikely to result in any adverse impacts on the river catchment. In particular, the proposed stables will be positioned in an area already cleared of vegetation and a 40m riparian buffer zone is proposed along the river frontage. The water and soil management measures … will minimise any potential impacts on the river's ecosystem during the construction and operational phases." [42] 2. Subcl (5) cultural: the site is not known to contain any known Aboriginal places or items, and it is not in proximity to any items of heritage significance or within a heritage conservation area. 3. Subcl (6) flora and fauna: the site is designed and will be managed to avoid any adverse impacts on flora and fauna as set out in the plans of management listed above. 4. Subcl (7) riverine scenic quality: the site has been mapped as being within the Scenic Protection Zone. The DA has been sensitively designed to respect the landscape character of the surrounding area, which includes maintaining the riparian area. 1. The Council is satisfied that this DA is unlikely to result in any adverse impacts on the river catchment. In particular the proposed stables will be located in an area already cleared of vegetation and the 40m riparian zone will be maintained with horses excluded from this riparian zone. 2. The height of the stables is 4.4m to the top of the landscaped roof, and 5.7m to the top of the balustrade above the roof. The height of the staff premises is 2.8m to the top of the roof. Both structures are below the height limit of 10m in cl 4.3 of HLEP2012: Height of Buildings' control. 3. Council agrees that the contentions it raised have been satisfied, together with the matters raised under s 4.15 of the EPA Act. The Court is satisfied that there are no reasons to warrant refusal of the DA. I find that the proposed DA subject to agreed conditions of consent complies with the planning regime. Pursuant to s 4.16 of the EPA Act and s 39 of the LEC Act the Court will uphold the appeal and grant consent to the development application subject to the conditions in Annexure A. Orders 1. The Court orders: 1. The appeal is upheld. 2. Development Consent is granted to DA00069/20 at 1855 Putty Road, Colo for an animal boarding or training establishment – vegetation clearing, the construction of a stables building, the installation of a prefabricated staff building and the operation of an animal boarding or training establishment subject to conditions of consent in Annexure A. 3. The Exhibits are to be retained other than Ex 2 (except for tabs 9, 12-14). …………………… M Peatman Acting Commissioner of the Court Annexure A (267112, pdf) Plans (2630885, pdf) ********** Endnotes 1. Ex 1: Council's Amended SOFAC dated 10 June 2021. 2. Ibid, Ex 1 3. (2004) 138 LGERA 237; [2004] NSWLEC 399 at [115]-[119]. 4. Hawkesbury City Council v Kara-Ali (No 2) [2018] NSWLEC 129. 5. Ex C: Vegetation Management Plan by Narla Environmental dated March 2021. 6. Ex E: Individual Koala Management Plan by Narla Environmental dated March 2021. 7. Ex F: Flora and Fauna Assessment by Narla Environmental dated March 2021. 8. Ex L: Landscape Plan by TIG Designs dated 11 June 2021. 9. Ibid, Ex F p 14. 10. Ex 3: Joint Experts Ecology Report of Dr J Tatler, ecologist, and M Johnston, town planner filed 22 June 2021. 11. Ibid, Ex F. 12. Ibid, Ex L. 13. Ibid, Ex F. 14. Ex 7: Agreed Conditions of Consent. 15. Ibid, Ex 7. 16. Ibid, Ex F. 17. Ex J: Bushfire Hazard Assessment Report by Steve Brooks dated 11 June 2021. 18. Ex K: Addendum to Bushfire Hazard Assessment by Steve Brooks dated 18 June 2021. 19. Ibid, Ex 7. 20. Ibid, Ex 1. 21. Ex 4 Joint Experts Town Planning Report by G Fielding and A Johnston filed 23 June 2021. 22. Ibid, Ex C. 23. Ex O Operational Details and Plan of Management. 24. Ibid, Ex L. 25. Ex B: Amended Architectural Plans. 26. Ibid, Ex L. 27. Ex A: Soil & Site Assessment for Wastewater Disposal by Harris Environmental Consulting dated 28 July 2020. 28. Ibid, Ex L. 29. Ibid, Ex O. 30. Ex G: City Plan's Amended Statement of Environmental Effects dated May 2021, p 27. 31. Ibid, Ex G, pp 16 and 27. 32. Ex H: Flood Emergency Response Plan dated 25 March 2021 by GRC Hydro Pty Ltd. 33. Ibid, 4. 34. Ex 2: Council's Bundle of Documents Tab 9. 35. Ex D Class 1 Application filed 12 November 2020 including Development Application coversheets dated 17 December 2019. 36. Ex 5 Transport for NSW letter to Hawkesbury City Council dated 15 June 2021. 37. Ibid, Ex 7. 38. Ibid, Ex C. 39. Ibid, Ex C. 40. Ex O Letter from S Harris to G Fielding undated setting out Concept ESCP for 1855 Putty Road, Colo. 41. Ibid, Ex F. 42. Ibid, Ex G p 23. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 July 2021