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

Land and Environment Court New South Wales

Medium Neutral Citation: Winifred West Schools Ltd v Wingecarribee Shire Council [2023] NSWLEC 1799 Hearing dates: 18, 21-23 and 25 March 2022; 7 and 11 April 2022; 10 May 2022; 17 June 2022 Date of orders: 22 December 2023 Decision date: 22 December 2023 Jurisdiction: Class 1 Before: Adam AC Decision: The Court directs: (1) By 22 January 2024, the parties are to amend the conditions of consent to reflect the findings of this judgment, and file the amended conditions of consent. (2) By 22 January 2024, the parties are to forward a Word copy of the amended conditions of consent to the Court and subject to my satisfaction that the conditions reflect my reasons for judgment I will make final orders. (3) The matter is listed for Online Court on 22 January 2024 for the parties to confirm they have complied with directions (1) and (2). (4) Liberty to restore the matter on 24 hours' notice should the need arise. Catchwords: APPEAL – development application – consent sought for construction of student accommodation buildings, a multi-purpose hall and associated works at Frensham School – deemed refusal – amended application renotified – objectors' submissions – commencement at Frensham School with objector submissions, inspection of site of proposal and observation of areas to south including upper Holt – whether site is core koala habitat – change to conservation status of koala – Biodiversity Development Assessment Report (BDAR) – Flood Emergency Response Plan (FERP) – impacts on platypus – water quality assessment is not required to be met – nature of vegetation on site – establishment of Asset Protection Zones – managing bush fire risk – bush fire evacuation plan – whether the proposal is appropriate given biodiversity and other values Legislation Cited: Biodiversity Conservation Act 2016, ss 2.1, 2.8, 2.11, 2.12, 2.14, 2.18, 6.7, 6.8, 6.10, 6.12, 6.15, Sch 1 Pt 1; Sch 2 Pt 2; Sch 5 Biosecurity Act 2015, ss 15, 21, 22 Endangered Species Act (16 USC § 1531 et seq.) (US) Environment Protection and Biodiversity Conservation Act 1999 (Cth) Environmental Planning and Assessment Act 1979, ss 4.14, 4.15(1)(e), 8.7 Environmental Planning and Assessment Regulation 2000, cll 272, 273 Land and Environment Court Act 1979, s 39(6) Protection of the Environment Administration Act 1991, s 6 Rural Fires Act 1997, s 100B State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 3, 4; ss 6.58, 6.59, 6.61, 6.62, 6.63, 6.64 State Environmental Planning Policy (Educational Establishments and Childcare Facilities) 2017, cll 8, 33, 34, 35 State Environmental Planning Policy (Koala Habitat Protection) 2019 State Environmental Planning Policy (Koala Habitat Protection) 2020, cll 3, 4, 7, 8, 9; Sch 2 State Environmental Planning Policy (Koala Habitat Protection) 2021 State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3 State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011 State Environmental Planning Policy No 44—Koala Habitat Protection Threatened Species Conservation Act 1995 Wingecarribee Local Environmental Plan 2010 Cases Cited: Gatacre LC Pty Ltd v Lane Cove Council [2023] NSWLEC 35 Gunlake Quarries Pty Limited v Minister for Planning [2022] NSWLEC 1570 Morrison Design Partnership Pty Limited v North Sydney Council and Director-General of the Department of Planning (2008) 159 LGERA 361; [2007] NSWLEC 802 Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Ltd (2010) 210 LGERA 126; [2010] NSWLEC 48 Rocla Pty Ltd v The Minister for Planning and Sutherland Shire Council [2007] NSWLEC 55 VAW (Kurri Kurri) Pty Ltd v Scientific Committee (Established under s127 of the Threatened Species Conservation Act 1995) (2003) 58 NSWLR 631; (2003) 128 LGERA 419; [2003] NSWCA 297 Texts Cited: Community Environment Network, Land for Wildlife, accessed 13 December 2023, <https://www.cen.org.au/projects/land-for-wildlife> Harold Cazneaux, The Frensham book: 100 Pictures of an Australian school (1934, Art in Australia Ltd, Sydney) Holly Kerr Forsyth, Remembered Gardens: Eight Women & Their Vision of an Australian Landscape (2006, The Miegunyah Press, Melbourne), Bk 2, 'The Garden – a way of life: Winifred West 1881-1971' at pp 124-47 NSW Department of Planning and Environment, Southern Highlands Shale Woodlands in the Sydney Basin Bioregion - Determination to make a minor amendment to Part 3 of Schedule 1 of the Threatened Species Conservation Act, accessed on 12 December 2023, <https://www.environment.nsw.gov.au/topics/animals-and-plants/threatened-species/nsw-threatened-species-scientific-committee/determinations/final-determinations/2011-2012/southern-highlands-shale-woodlands-in-the-sydney-basin-bioregion-minor-amendment-determination> Planning for Bush Fire Protection 2006 Planning for Bush Fire Protection 2019 Priscilla Kennedy, Portrait of Winifred West (1976, The Fine Arts Press, Sydney) Susan E. Emilsen, Frensham: an historical perspective (1988, Winifred West Schools, Mittagong) Wingecarribee Shire Council, Land For Wildlife, accessed on 13 December 2023, <https://www.wsc.nsw.gov.au/Environment/Get-Involved/Land-for-Wildlife> Winifred West, Addresses and Talks by Winifred Mary West, C.B.E. (1973, Memorial Edition, Angus and Robertson Publishers, Cremorne, Sydney) Category: Principal judgment Parties: Winifred West Schools Ltd (Applicant) Wingecarribee Shire Council (Respondent) Representation: Counsel: P Larkin SC (Applicant) R O'Gorman-Hughes (Respondent)