Land and Environment Court of New South Wales CITATION : Dames and Moore Pty Ltd V Byron Council [2000] NSWLEC 46 APPLICANT: Dames and Moore Pty Ltd PARTIES : RESPONDENT: Byron Council FILE NUMBER(S) : 10096 of 2000 CORAM: Bignold J KEY ISSUES: Development :- Development:- Development appeal - application to remove trees to carry out infrastructural works for approved subdivision - Environmental impact on threatened species - cumulative impact. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 CASES CITED: Meriton Apartments Pty Ltd v Ryde City Council (unreported 30 April 1998) (Lloyd J) DATES OF HEARING: 28/02/00; 29/02/00; 01/03/00; 02/03/00 DATE OF JUDGMENT: 03/10/2000 APPLICANT: Mr W R Davison SC with Mr P Parry, Barrister SOLICITORS Bartier Perry LEGAL REPRESENTATIVES: RESPONDENT: Mr T Robertson, Barrister SOLICITORS Wilshire Webb JUDGMENT: IN THE LAND AND Matter No . 10096 of 2000 ENVIRONMENT COURT OF Coram : Bignold J. NEW SOUTH WALES 10 March 2000 DAMES AND MOORE PTY LTD Applicant v BYRON COUNCIL Respondent JUDGMENT Bignold J: A. INTRODUCTION 1. This is an appeal pursuant to the Environmental Planning and Assessment Act (EP&A Act) s 97against the Council's deemed refusal of a development application to cut down and remove trees from land known as lot 1 DP 42428 and Por 173, together with a part of the adjoining Crown Road Reserve and a part of the adjacent Crown land (the subject land). 2. Much of the area of the subject land comprises the site of an approved, (but not developed) development site, in respect of which the Court granted development consent in 1995 for a community title subdivision creating 15 residential lots. That consent (the 1995 development consent) was subject to a number of conditions, including condition 23 which states: No tree to be ringbarked, cut down, lopped, removed or damaged, or caused to be ringbarked, cut down, lopped removed or damaged in contravention of the Tree Preservation Order applicable to the land. Any tree or trees which require removal are to be shown on a plan of adequate scale for the approval of Council's Planning Manager prior to any works commencing. 3. The present proceedings were heard concurrently with the hearing of a modification application made in proceedings 10515 of 1994 to amend Condition 23 of the 1995 development consent. In my separate judgment delivered today I refused the modification application. 4. The development application, the subject of the present proceedings is essentially related to the 1995 development consent. 5. The Applicant, in lodging the present development application, noted that it "was made pursuant to condition 23" of the 1995 development consent. This would appear to be intended as a reference to the first sentence of condition 23, which draws attention to the applicable Tree Preservation Order (the TPO). 6. The Council, in opposing the grant of development consent has raised multiple and wide ranging issues. Ultimately, I think that the appeal can be properly determined without canvassing all of the issues that have been raised. B. DESCRIPTION OF THE PROPOSED DEVELOPMENT 7. The Statement of Environmental Effects supporting the development application (Exhibit P) indicates that the purpose of the proposed tree removal is to enable all works associated with the subdivision approved by the 1995 development consent to be carried out. These works include works associated with (i) the external and internal roads; (ii) inter-allotment drainage; (iii) sewer-pipeline; (iv) sediment controls and wetland filter. 8. The Statement of Environmental Effects limits the trees that are required to be removed to trees to which the TPO applies, namely "any species of tree, palm or fern exceeding three metres in height". As will be presently noted, the TPO additionally purports to impose controls on the removal of coastal heathlands and mangroves. However, the Statement of Environmental Effects avoids this feature of the TPO by relying upon the express terms of Condition 23 of the 1995 development consent which specifically refers to "tree" or "trees". 9. There is a discussion in the Statement of Environmental Effects on the differences between "trees" and "shrubs". Ultimately I do not need to adjudicate upon this matter. In these proceedings, no attack has been made on the validity of the TPO. 10. Accordingly, the Statement of Environmental Effects proceeds to identify the location of some 179 trees (the vast majority of which are three or more metres high but some trees are included within the 2 - 3 metres height range). Not all the identified trees are required to be removed. 11. The Statement of Environmental Effects next describes in some detail the proposed method of cutting down and removing the trees. Because of the importance placed upon this matter by the Applicant, it is best that the entire description be given: Each of the individual trees which are to be cut down and/or removed is to be felled by hand-saw or chain-saw, and removed manually to the designated mulching/stockpiling areas for later chipping. There is to be no use of major equipment or vehicles for the cutting down and/or removal of trees from the site, and there is no requirement for supplementary access for tree cutting down and/or removal other than by foot. Each tree is to be felled in a careful manner (using appropriate methods dependent on the tree size and location). In particular, the removal of trees is to be conducted in a manner which avoids adversely affecting individuals of those threatened plants known or possibly occurring on the subject site (Allocasuarina defungens and Diuris sp aff crysantha) and areas of the Byron Bay Dwarf Graminoid Clay Heath (BBDGCH) present on the site. Relevant specific protocols for the removal of trees from the subject site include: · the felling of trees, wherever possible, will be onto vegetation which does not contain Allocasuarina defungens or BBDGCH; · the crown-lopping of larger trees in the first instance, with the remaining stem progressively cut from the top down, providing small readily-handled portions of tree for manual removal from the site or for stockpiling; · the employment of a minimum of 2-person team for tree cutting down and/or removal, so that one person can collect (or catch) the tree or portion thereof as it is being felled, (where necessary), to avoid crushing vegetation beneath it; · the cutting of stems to ground level, leaving the roots intact. It is not necessary (as part of the tree cutting and/or removal program) to remove the root systems of trees, as this activity (where necessary) will be part of the ensuing development activity; · the painting, where necessary, of cut stems with a biologically safe herbicide (such as Roundup Dry) to prevent re-sprouting of trees where some delay between tree cutting and/or removal and development is likely to occur; and · the stockpiling of felled trees in woodland in the northern part of the subject site, and at relevant locations along the sewer pipeline alignment, until the relevant works have reached that location. At that point (eg where the on-site road has reached the woodland), a portable shredder can be used to chip or shred the tree material for use on the subject site as a soil stabiliser and cover. Tree removal is to be supervised at all times by a qualified botanist, able both to manage the removal of individual trees and to identify plant specimens that should be avoided during the removal process.. This approach is designed to avoid the imposition of adverse impacts upon any threatened species or endangered ecological communities at this location. 12. The Statement of Environmental Effects is supported by a Flora and Fauna Assessment jointly undertaken by Mr Fanning and Mr Leonard and an Assessment by Mr Fanning in terms of the EP&A Act s 5A . 13. Both the Study and the Assessment conclude that the proposed tree cutting and removal activity is not, by virtue of the specified protocol, likely to significantly affect threatened species, populations or ecological communities. C. THE RELEVANT PLANNING CONTROLS 14. As I have earlier mentioned, the present development application is essentially related to the 1995 development consent. 15. It is important to explore that relationship a little more closely. 16. Firstly, it is to be noted that although Assessor Bly, in granting development consent contemplated that the development, when carried out, would involve the "loss of approximately .77 ha of mainly low heath and some of the paperbark woodland" (p 7 of his reasons for judgment published on 15 March 1995) (this area is to be compared with the area of the development site of 1.1 ha), the 1995 development consent did not in fact or in law grant any consent for the clearing of the vegetation. On the contrary, by imposing condition 23, the 1995 development consent left for future consideration the question of any further necessary approval. In particular, the condition expressly recognised the operation of the TPO and reinforced the obligation of the developer to comply with it. 17. The status and operation of a TPO in the context of a local environmental plan was extensively considered by Lloyd J in Meriton Apartments Pty Ltd v Ryde City Council (unreported 30 April 1998). 18. It is sufficient to note that in that case, his Honour accorded to the relevant TPO a status no different from the prohibitions and controls wrought by the conventional land use table contained in the Ryde Planning Scheme Ordinance. 19. This brings me to the terms of the Council's current TPO which was made by the Council on 20 August 1996 pursuant to the powers conferred by cl 8 of the Environmental Planning and Assessment Model Provisions adopted by cl 6 of the Byron Local Environmental Plan 1988 (LEP). See also the EP&A Act s 33. 20. Relevantly, the TPO provides as follows: No person shall cut down, lop, top, remove or wilfully destroy any species of tree, palm or fern exceeding three (3) metres in height, except with the written consent of Council being obtained beforehand. All coastal heathlands and mangroves of any height are covered by this order and consent within these areas for any lopping or removal of vegetation is required. 21. The Council's resolution recorded in the TPO that " all applicants seeking approval under the TPO submit development applications " is now supported by the wider definition of " development " contained in the EP&A Act s 4(1) by the inclusion therein of par (f) as follows: (f) any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument 22. The EP&A Act , s 26(1) relevantly includes the following matters with respect to which an environmental planning instrument may make provision— (e) protecting or preserving trees or vegetation; (e1) protecting and conserving native animals and plants, including threatened species, populations and ecological communities, and their habitats 23. It follows from a consideration of the foregoing that the proposed tree cutting and removal relevantly constitutes the carrying out of development that requires development consent under the EP&A Act: vide s 76A and the LEP including the incorporated Model Provisions cl 8 and the TPO. 24. The approved development site is included in the Residential 2(a) Zone under the LEP and the adjoining Crown Road Reserve and adjacent Crown land are each included in the coastal Habitat Zone No 7(b) and there is located in close proximity the extensive wetlands Zone No 7(a). 25. The LEP contains a number of constraints or limitations on the power to grant development consent— in particular cl 2A limits the grant of consent to cases "where the Council is of the opinion that the carrying out of the development is consistent with the aims, objectives and guiding principles of this plan" (those matters being set forth in the LEP cl 2). 26. A threshold difficulty arises as to how the proposed development should be regarded in terms of planning purpose. Conventionally, the proposed development would be regarded as being "for the purpose of the approved community title subdivision". However, it may be legitimate in the present case to take a narrower view of the relevant purpose and conclude that it is to remove trees (albeit for the purpose of carrying out the development approved by the 1995 development consent). 27. However, clearly the proposed development is so linked with the approved development that it would be not likely that the development application be made but for this purpose in seeking to carry out the 1995 approved development. 28. To so identify the purpose of the development raises the question, acutely raised in the present case, of identifying the environmental impact of the relevant development. 29. In short, is the relevant environmental impact, the impact of the tree removal per se or is it the cumulative impact of that impact, together with the other impacts of carrying out the 1995 approved development? 30. It is this difficulty which provides the basis for some considerable objection as a matter of planning principle, raised by the Council against the proposed development. For ease of reference, I shall call these objections "legal objections" in contrast to the planning merit objections raised by the Council in the case, where again a similar problem is encountered in evaluating the proposal. D. THE COUNCIL'S LEGAL OBJECTIONS TO THE DEVELOPMENT APPLICATION 31. The Council's principal submission is that the development application was legally flawed because it had been so artificially formulated as to thwart the proper planning appraisal of the application. Indications of such artificiality involved:- (i.) the unconventional method of tree removal; (ii.) ignoring of the controls imposed by the TPO on removal of the coastal heathlands; (iii.) the divorce between the proposed development (tree removal) and the approved development (the 15 lot community title subdivision). 32. Allied objections were raised by the Council's contention that it, as the owner of the land at the end of Pacific Vista Drive, had not granted owner's consent to the development application and that the 1995 development consent did not authorise the carrying out of any development on the adjoining Crown Road Reserve or the adjacent Crown land. 33. Notwithstanding the force of the objections raised by the Council's submissions, I think that I should proceed to a determination of the development application on the planning merits, on the assumptions that the 1995 development consent extended to the drainage and sedimentation and wetland works on the adjacent Crown land and that the development application is not legally flawed on any of the grounds suggested by the Council. 34. Having said this, the extreme artificiality of the exercise should not be disguised or ignored. It comes down to this— The Applicant has devised a most unusual protocol for the execution of the necessary tree removal to enable the provision of infrastructual works for the approved community title subdivision, where that protocol meticulously seeks to preserve unharmed and unaffected the highly significant heathland vegetation in circumstances where it is concurrently proposed to carry out the approved development involving the removal of some 70 per cent of that heathland from the approved development site. In other words, the protection of the heathland is deliberately secured by the elaborate protocol for the tree removal activity only to be abandoned (almost in the same breath) in the carrying out of the approved development. E. APPRAISAL OF THE PROPOSED DEVELOPMENT ON THE PLANNING MERITS 35. I come to consider the planning merits, noting at once the significant divergence of expert opinion on the environmental impact of the proposed development, especially on significant flora but also perhaps to a lesser extent on significant fauna. 36. However, there is no dispute concerning the very high botanical significance of the development site, the subject of the 1995 development consent. It contains the following species: (i) approximately 1 hectare of Byron Bay Dwarf Granminoid Clay Heath community being a listed endangered ecological community in terms of the Threatened Species Conservation Act 1995, having been included in Pt 3 of Sch 1to the Act by virtue of the final determination of the Scientific Committee established under that Act which was published in Government Gazette No 22 of 11 February 2000; (ii) the endangered species at both National and State levels, Allocasuarina defungens, the population on the development site representing a significant extension of the known northern geographic limit of the species; and (iii) the orchid Diuris sp aff chtysantha (Byron Bay) which was given a provisional listing on an emergency basis as an endangered species under the Threatened Species Conservation Act by the determination of the Scientific Committee as notified in Government Gazette No 141 of 17 December 1999; 37. The very high botanical significance of the development site has only very recently been recognised under the Threatened Species Conservation Act 1995. 38. This recent recognition involves a very significant change in the justified botanical assessment of the development site from that which was available to Assessor Bly when he granted the 1995 development consent. 39. As I have held in my judgment on the modification application, the 1995 development consent is of a kind referred to in the EP&A Act s 79B(3). There can be no doubt that if the same development application as that considered by the Court in 1995 were to be made today, it would require to be accompanied by a species impact statement in terms of the Threatened Species Conservation Act vide the EP&A Act s 78A(8) and would require the concurrence of the Director General of National Parks and Wildlife under the EP&A Act s 79B(3). 40. Moreover, the very high significance of the Byron Bay Dwarf Graminoid Clay Heath is attested by the following comments of the Scientific Committee in its final determination under the Threatened Species Conservation Act 1995 as published in Government Gazette No 22 of 11 February 2000: 6. Only approximately 5 ha of the Byron Bay Dwarf Graminoid Clay Heath remains and this occurs in small, disturbed and isolated fragments. Threats include clearing, disturbance by humans, weed invasion and alterations to fire and hydrological regimes. 7. No areas of Byron Bay Dwarf Graminoid Clay Heath are known from a conservation reserve. 8. In view of the small size of existing remnants the threat of further clearing and disturbance, the Scientific Committee is of the opinion that Byron Bay Dwarf Graminoid Clay Heath is likely to become extinct in nature unless factors threatening its survival or evolutionary development cease to operate and that listing as an endangered ecological community is warranted. 41. There is, as I have mentioned, considerable difference in expert opinion concerning the environmental impact of the proposed development. 42. The Applicant's principal expert, Mr Fanning, emphasised in his several reports the fact that his assessment was restricted to a consideration of the potential impacts of the proposed tree removal per se, and did not involve any assessment of the impact of the development approved by the 1995 development consent. 43. Even if it be correct to so narrow the focus of the relevant environmental impact, Mr Fanning's opinions were not shared by Dr Clements (as to impact on flora) or Mr Milledge (as to impact on fauna). 44. Each of these experts have impressive credentials and it is not an easy task to determine which opinion should be held to prevail. 45. It is to be noted that many of Mr Fanning's opinions derive from his assessment under the EP&A Act s 5A. That assessment is relevant both to (i) the question whether the development application must be accompanied by a species impact statement (vide the EP&A Act s 78A(8)); and (ii) the planning evaluation required to be made by s 79C(1) of the Act. 46. However, it must be said that a favourable assessment in terms of s 5A does not exhaust or render unnecessary the evaluation required of s 79C in respect of environmental impact. 47. Ultimately, I have not been persuaded by Mr Fanning's opinions concerning the likely environmental impact of the proposed development, not only because of the considerable body of expert opinion to the contrary, adduced in the Council's case, but because of the following matters: (i.) his opinion is unduly predicated and reliant upon the strict performance of the elaborate protocols governing the proposed method of the tree removal. In this respect, I am not at all convinced that even perfect observance of the extreme strictures of those protocols will achieve the desired results. In any event, human agency is involved and that is never infallible. Moreover, I do not think a s 5A assessment or a s 79C(1) evaluation should proceed in reliance upon the basis of proposed methods of carrying out an approved development, especially where those methods are not conventional to, or inherent in the nature of, such a development. (ii.) his opinions deliberately avoid any assessment of cumulative environmental impact (such as would attempt to bring into the assessment the likely consequences of carrying out the proposed development and the 1995 approved development); and (iii.) the very high botanic significance of the flora on the development site, albeit only very recently recognised under the Threatened Species Conservation Act , deserves more rigorous environmental assessment and one, at least in the absence of any species impact statement (such as is the task presented to the Court in the present case) justifies a highly conservative assessment in defence of the importance of what is at stake. 48. Accordingly, in my evaluation of the proposed development required to be undertaken by the EP&A Act s 79C(1), I have concluded that the likely environmental impact of the proposed development is sufficiently adverse as to be unacceptable, given the extreme botanic importance of the endangered flora located on the development site. 49. Moreover, if it is legitimate, as I consider it to be, that an assessment of environmental impact include any cumulative impact of other likely developments (cf the Environmental Planning and Assessment Regulation 1994 cl 82(2)(o)) and most notably, the removal of most of the endangered vegetation in the carrying out of the 1995 approved development, then my conclusion on the unacceptability of the environmental impact is a fortiori, indeed on the undisputed evidence it is overwhelming. F. CONCLUSIONS AND ORDERS 50. For all the foregoing reasons, I am of the opinion that development consent should be refused. 51. Accordingly, I make the following orders: 1. Appeal dismissed. 2. Development consent refused. 3. Exhibits be returned. No order as to costs. 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.