Land and Environment Court of New South Wales CITATION : Davfast Pty Ltd v Ballina Shire Council [2000] NSWLEC 128 Matter Nos. 10621 and 10637 of 1999 APPLICANT Davfast Pty Ltd RESPONDENT Ballina Shire Council INTERVENER PARTIES : Minister for Urban Affairs & Planning Matter Nos 40088 and 50083 of 1998 APPLICANT Ballina Shire Council RESPONDENT Davfast Pty Ltd FILE NUMBER(S) : 10621 & 10637 of 1999; 40088 and 50083 of 1998 CORAM: Sheahan J KEY ISSUES: Development Consent :- Development applications - refusal - Class 1 appeals - impact of approval on extant court orders for site remediation - coastal protection - imminent amendment of Local Environmental Plan - impact on rare fauna - bushfire risk - noxious weed infestation Environmental Planning and Assessment Act 1979 Land & Environment Court Act 1979 S 64(2) LEGISLATION CITED: Local Government Act 1919 Pt 12 North Coast Regional Environmental Plan 1988 Ballina Local Environmental Plan 1987 State Environmental Planning Policy 4 Balgownie Pty Ltd v Shoalhaven City Council (1980) 46 LGRA 198; CASES CITED: McKay v North Sydney Council [2000] NSWLEC 62; Re La (1993) 41 FCR 151 DATES OF HEARING: 20/12/99, 31/3/00, 2/5/00-5/5/00 DATE OF JUDGMENT: 06/22/2000 APPLICANT Mr D Wilson (Barrister) with Mr McEvoy at hearing on 5.5.00 Solicitors: W J Grace & Co RESPONDENT LEGAL REPRESENTATIVES: Mr R D Marshall (Barrister) Solicitors: Short Flynn & Co INTERVENER Hearing 2/5/2000 AND 5/5/2000 Professor B Thom, Chairman, Coastal Council of NSW JUDGMENT: IN THE LAND AND Matter No: 10621 &10637 of 1999 ENVIRONMENT COURT and 40088 & 50083 of 1998 OF NEW SOUTH WALES Coram: Sheahan J 22 June 2000 Matter Nos. 10621 and 10637 of 1999 DAVFAST PTY LIMITED Applicant v BALLINA SHIRE COUNCIL Respondent MINISTER FOR URBAN AFFAIRS & PLANNING Intervener Matter Nos 40088 and 50083 of 1998 BALLINA SHIRE COUNCIL Applicant v DAVFAST PTY LTD Respondent JUDGMENT Introduction 1. The two Class 1 appeals before the court concern a refusal by Ballina Shire Council (" Council ") to grant development consent to the applicant company (" Davfast ") for the construction of two dwelling houses. 2. The relevant development applications (" DAs " 1998/276 and 1998/277) were refused by Council on 29 October 1998. The Notices of Refusal refer to both applications as being " to erect a dwelling house, upgrade existing access, and undertake environmental protection works ". 3. The subject land lies on the western side of coastal sand dunes, south of Ballina. Those dunes are covered with native vegetation which is, regrettably, infested to varying but serious degrees by Bitou Bush, as are the Crown lands between Patchs Beach and the subject land, which adjoins, to its west, flatter agricultural lands used largely for growing sugar cane. 4. In anticipation of the appeals being upheld, Davfast has filed Notices of Motion to have the orders already made in the class 4 and class 5 proceedings varied to accord with the development consents granted, and any conditions imposed, by the court, in the class 1 proceedings. 5. Those class 4 and class 5 proceedings dealt with unauthorised preparatory works done on the land, involving the establishment and gravelling of tracks, which lead to two areas of land cleared of vegetation with a view to the construction of the two proposed dwelling houses. 6. Davfast contends that the proposed development will have a positive impact, and "clearly address … effective rehabilitation of the property ", as required by the orders already made in the class 4 and class 5 proceedings (see Exhibit C4 fol 339). 7. On the other hand, Council contends that the development will have an adverse impact, and will involve further land clearing and roadworks (see Exhibit C1 fol 34). 8. Council opposes the development, and resists the variation of the class 4 and 5 orders, but there is no dispute between the parties as to the conditions which should be imposed in the event that the court grants consent to the development. (Appendix 13 to Exhibit C8 ). 9. The Minister has intervened in the proceedings to oppose the development. 10. The merits of the proposal(s) fall for assessment under the provisions of the former s 90 of the Environmental Planning & Assessment Act 1979 (" the EP&A Act "). 11. I record that I had the benefit of a site inspection. Witnesses 12. The court has received evidence from the following witnesses: For the applicant Peter Parker (consultant - ecology) ( Exhibits C8 and A9-A13 ) Michael George (consultant - town planning) ( Exhibit A14) Brian Dick (consultant - soil and road works) ( Exhibit A8 ) For the Council John Richard Clerke (DLWC - site rehabilitation) ( Exhibit C7 ) David Andrew Kitson (Council planner) ( Exhibits C1 and C8 ) Wayne Garrard (DLWC - weed management) ( Exhibits C10 and C11) Robert Wilcox (fire matters) ( Exhibit C12 ) David Rohweder (consultant - ecology) ( Exhibits C13-C18 ) For the Minister Bruce Graham Thom (Coastal Council issues) ( Exhibit C6 ) 13. All of these witnesses, except Dick, gave oral evidence at the hearing. Relevant history 14. The somewhat complex history which leads to the hearing of these appeals, and Notices of Motion, needs to be set out in some detail. The land itself 15. Davfast has owned the subject land since 1988 . 16. It is a sugar cane farm, having a total area of approximately 45.7ha at Patchs Beach, just south of Robins Beach in the Wardell district, some 17.5km south of Ballina, on a long stretch of coastline which runs from the south wall of the Richmond River to Evans Head. 17. The land fronts the eastern end of Patchs Beach Road and enjoys direct frontage to Crown reserves adjoining Patchs Beach (which is also called, in various documents, " Patches " or " Patch's " Beach). 18. The area of the subject land which is " naturally " vegetated is zoned 7(f) Environmental Protection (Coastal Lands), and the western component (cultivated cane fields) falls within the 1(a2) Rural (Coastal Lands Agriculture) zone under the Ballina Local Environmental Plan (" the LEP "). (See aerial photos at Exhibit C1 fol 10 and 13, and Exhibit M3 , and zoning map Exhibit C1 fol 12). 19. In August 1997 , a resubdivision of the land was approved (DA1997/242), causing boundary realignment of what had been, since November 1975 , lots 27 and 28 in DP 582149 (see Exhibit C8 fol 20). 20. All the " naturally " vegetated area towards the beach (the land zoned 7(f)) used to be in lot 28, which had a 30m frontage to Patchs Beach Road, just west of the village area. Lot 27 was entirely cane fields (the land zoned 1(a2)) and had a 370m frontage to that road (see Exhibit C8 fol 13-20, especially locality plan fol 18). 21. The stated purpose of DA1997/242, as recognised by Council ( Exhibit C8 fol 15), was to provide the opportunity for a second dwelling site within the 7(f) lands, by reconfiguring the land so that there was a relatively small lot (lot 1), which was virtually all 7(f) land, with the rest of the 7(f) land in lot 28 (7.31 ha out of 15.81 ha) amalgamated with the cane land in lot 27 (29.95 ha) to form lot 2. 22. Lots 1 and 2 of DP 874687, therefore, have areas of 8.993ha, and 36.7ha respectively (see relevant documents at fol 9, 13, 15 and 40 of Exhibit C4 ). Lot 1 is now accessed via a right of way " around " lot 2/27, which adjoins the existing village with contiguous cane fields to the west. 23. The eastern boundary of the subject land adjoins Crown land adjacent to the foredunes of Patchs and Robins Beaches. The preparatory works already carried out 24. In the course of its investigation of the 1997 DA for subdivision, Council officers discovered that in May 1997 some unauthorised works had been carried out on the land. 25. Again, in November/December 1997, in preparation for an auction of the land then scheduled for 12 February 1998, Davfast arranged the cutting, etc. of certain trees on the land, together with some cutting and filling of the land for roadworks purposes, without obtaining Council's consent. 26. Arising out of those unapproved " development " works, Council brought against Davfast both the class 4 and the class 5 proceedings in April 1998 . 27. Davfast entered a plea of guilty in the class 5 proceedings on 15 May 1998. These DAs and the earlier proceedings and orders 28. As the property had not sold at the February 1998 auction, the relevant DAs now before the court were made to the Council on about 1 July 1998 , on behalf of Davfast, by David Ardill & Associates Pty Ltd (" Ardill ") (See Exhibit C4 fols 76-178). 29. The DAs included an environmental management programme (" EMP ") and a flora and fauna assessment report, prepared by Peter Parker, dated June 1998 (See Exhibit C4 fols 114-142). 30. In a letter dated 30 July 1998 , Council expressed some reservations about the EMP Parker proposed ( Exhibit C4 fol 244). 31. Consent orders were made in the class 4 proceedings on 22 August 1998 . They involved restraining the respondent company, by itself, its servants, agents and assigns, from carrying out any development works on the land without development consent, and required it to " reinstate and restore the land to the reasonable satisfaction of the applicant " Council. 32. I dealt with the questions of costs and penalty in the class 5 proceedings on 24 August 1998 and I reserved my decision. At the time of that class 5 hearing on 24 August 1998, the DAs had not been determined, but Davfast contended, in respect of the likely remediation order, that its EMP had been commenced before the class 5 proceedings were commenced. 33. On 21 September 1998 , the NSW Department of Urban Affairs and Planning (" DUAP ") advised its " concurrence " in regard to the DAs on the following bases ( Exhibit C4 fol 198): (i) the proposal is unlikely to have an adverse impact on the coastal environment and the implementation of the Environmental Management Plan prepared for the land will assist in appropriate rehabilitation of native vegetation and control of Bitou Bush; and (ii) the proposal also complies with the objectives of the 7(f) Environmental Protection (Coastal Lands) Zone. 34. I delivered a judgment on 9 October 1998 . At par 88ff of that judgment I indicated that my intention was to fine Davfast $30,000, to order it to pay the Council's costs, and to make an order for remediation of the land. 35. Davfast wished to negotiate details of an appropriate EMP and/or remediation programme for the land, and as the building work proposed in the then undetermined DAs might impinge upon any remediation works I might order in the class 5 proceedings, I stood the matter over on a couple of occasions, on and after 9 October 1998, to enable the parties to agree upon the terms of an appropriate form of remediation order, and/or for the Council to determine the DAs. 36. On 22 October 1998 the Council's officers reported on the DAs, and concluded ( Exhibit C4 fol 188): Provided Council is satisfied that the proposals are consistent with the objectives of the zone, it is considered reasonable for Council to grant consent on the basis that: 1. The subject lots have a dwelling entitlement. 2. Any destruction of the proposed dwellings resulting in coastal erosion is not likely to be immediate and is unlikely to occur during the economic life of the buildings. 3. The Director of Urban Affairs & Planning has granted concurrence. 4. Conditions can be imposed which protect the environmental integrity of the land. They recommended the imposition of 31 conditions, in the event of approval. 37. On 29 October 1998 , Council refused the DAs on the following grounds: 1. The proposed location of the dwelling house is unsatisfactory to Council insofar as the actual building envelope, household wastewater disposal area, clearing for bushfire hazard reduction and access have resulted in, or will result in, a maximum adverse impact on the environment of the Environmental Protection (Coastal Lands) Zone. 2. Council is concerned that the selection of the proposed dwelling site has been made without having proper regard for the environmental sensitivity of this coastal area, and therefore the development is inconsistent with the objectives of the land's zoning under the Ballina Local Environmental Plan 1987. 3. The grant of consent to the development application would be contrary to the public interest. 38. I made final orders in the class 5 proceedings on 18 December 1998 (see Exhibit C4 fol 366-7), imposing the fine, and making both an order for costs and an order for remediation, as per Exhibit P1 in those proceedings, which was a report prepared by the Department of Land and Water Conservation (" DLWC ") dated 14 December 1998 (see now Exhibit C4 fol 369-388). 39. The relevant remediation works were to be conducted over a six month period and there was to be ongoing maintenance of those works. The schedule of works involved the reintroduction of native species for excavated areas of the land, namely the " house pads " and the sides of the road cuttings. The orders did not extend to removal of the gravel, restoration of the landform across the whole site, or the replanting of the tracks. (See details in Exhibit C4 fol 341-2, and 358-9). The Class 1 appeals 40. Earlier appeals were lodged against the refusals of the DAs (matters 10788 and 10824 of 1998) on 3 December 1998 , but when part-heard before Commissioner Hussey in Ballina, following a view, on 28 July 1999 , leave was granted to the applicant to file notices of discontinuance, a course to which the respondent Council consented. Those notices dated 30 July 1999 were filed on 2 August 1999. 41. Without submitting new development applications, the two class 1 matters currently before the court were commenced a few days later in August 1999 . 42. Three preliminary questions of law arose in the new class 1 proceedings, and they were listed before me on 20 December 1999 for determination of those questions. 43. On that occasion it became clear that the determination of the class 1 proceedings might require some amendment of the orders made in the class 4 and class 5 proceedings. 44. I, therefore, directed that Davfast file Notices of Motion in both the class 4 and class 5 proceedings seeking variations of the orders therein, and an SEPP 1 objection in respect of what Council has since admitted to be a development standard relevant to the DAs. 45. In the Notice of Motion in the class 4 proceedings, the applicant company seeks an order that the consent orders made on 25 August 1998 be varied to include an additional paragraph namely: 4. These orders shall not restrict the Respondent from carrying out any development on the land described in the schedule provided development consent from the Applicant is first obtained. 46. The Notice of Motion in the class 5 proceedings seeks the addition of a further order namely: These orders shall not restrict the Defendant from carrying out any development on the land in certificate of title lots 1 and 2 in DP 874687 provided development consent from the Applicant is first obtained . The Coastal Council and the Minister 47. I listed all 4 proceedings for joint hearing in Ballina and Sydney, commencing 2 May 2000. 48. When the hearing resumed, in Ballina, on 2 May 2000 , Professor Bruce Graham Thom , Chairman of the Coastal Council of NSW, appeared and sought leave to file in court an intervention in the proceedings on the part of the Minister for Urban Affairs & Planning, pursuant to s 64(2) of the Land & Environment Court Act 1979. 49. Professor Thom had appeared as a witness for the Council in the earlier Ballina hearing before Commissioner Hussey. 50. Following the aborted hearing of those earlier proceedings, Ballina Council resolved to prepare a draft amending LEP, which would have the effect of ensuring that the Council's ability to approve a dwelling on allotments in rural areas including the 7(f) zone, was not extinguished. 51. The Minister received certain advice from the Coastal Council, which resulted in DUAP recommending to him the deletion, from the Council's draft amending LEP, of its reference to the 7(f) zone. 52. The Minister then decided to seek leave to intervene in these proceedings and have Professor Thom appear at the hearing before me as his agent, rather than again as a witness on behalf of Ballina Council (see Minister's letter Exhibit M1 ). 53. I granted leave to the Minister to intervene and be represented by Professor Thom, who made an opening address and closing submissions, accompanied the court on its site inspection, and gave oral evidence. The development applications 54. The actual chosen and proposed sites for the dwellings are described in the DA documents as "Two existing areas previously cleared for elevated camping and caravan site … surrounded on all sides by sparse, littoral forest significantly degraded by invasive Bitou bush ". (The cleared dwelling sites as such are generally referred to in this judgment as " house pads "). 55. The Ardill document, which comprised or supported the DAs as lodged, (Appendix V to Exhibit C4 ) said that the applications were for: the erection of a dwelling; upgrading of access tracks to all-weather standard, and eradication of invasive noxious Bitou bush on lots 1 and 2 respectively. The proposal seeks to formalise existing private tracks recently upgraded to ensure access to 2 elevated areas utilised over the past 10 years as casual camping and caravan sites. Both sites were recently cleared and sown with Couch grass as part of a Bitou eradication and general land management program in light of the obvious impact on existing Coast banksia and the stifling of native groundcover vegetation. Goats foot and Pig-face regrowth has also been encouraged. … The proposal also seeks to formalise existing sand access tracks recently upgraded by the application of shale surfacing both to stabilise the tracks and pre-existing batters. The shale surface mitigates wind erosion of the surface sands particularly where exposed as a result of frequent vehicular and pedestrian access by the landowners, local campers and beach fishermen over extended periods of time. The shale surface treatment assures all-weather access to the sites and actually serves to maintain the existing surface levels of the land rather than altering otherwise exposed and mobile surface levels changing as a consequence of access traffic and wind erosion. As well as maintaining surface levels recent upgrading further assures a constant track width and alignment. … The recent application of shale to these tracks - conducted in the normal course of land management and maintenance works, ensures all-weather access and stabilises the pre-existing tracks. 56. The application says on the subject of effluent disposal : Conventional on-site treatment and disposal of effluent and sullage is proposed. This will entail the adoption of aerated effluent treatment with disposal by way of spray irrigation to approved evapotranspiration beds. Each bed will occupy an area in excess 250m2 of dense vegetation comprising infill planting of species indigenous to the locality and entirely suited for the consumption of nutrients, phosphates and pathogens. Construction of the beds will accord with AS 2870 - 1994 and Council's requirements. The beds will be suitably located to the west and downslope of the development and will be suitably vegetated to mitigate the leaching of nutrients into the groundwater table. 57. The application says in respect of water supply : On site collection and storage of domestic potable drinking water is proposed. Such is to further provide for fire-fighting purposes should this ever be required. In this regard minimum storage of 45,000 litres is proposed with further recommendation for the provision of additional supply. 58. In respect of other domestic services , the application notes that: Northern Rivers Electricity and Telstra envisage no problems with the proposed extension of existing services for the respective provision of electricity and telephone services . 59. On the subject of the Bitou Bush , the application documents note as follows: Davfast commenced an ongoing land management program - in concert with the existing cane production activities, to eradicate the noxious Bitou bush from the eastern portion of the site adjacent to Patchs and Robins Beaches. The offending W3 weed, which had in cases choked and killed existing Coast banksias and other vegetation was pulled from the trees using a farm tractor. Trees dead or dying as a consequence of strangulation by the Bitou frequently fell during the eradication process. Where lying across the existing tracks these were windrowed and stacked to ensure and maximise continued access to both cleared areas. The existing tracks have previously been surfaced with shale to ensure the long-term stability of access to the proposed house sites. … The eradication of Bitou will be conducted using a range of methods including hand weeding, cutting the mature stems and applying diluted herbicide solutions or spraying with a herbicide sufficiently diluted so as to impose minimal impact on both the mature and immature native species. The decaying Bitou will be mulched back into the surface soils after removal. … Given the extensive cultivation of all available arable flat land with sugar cane, there are no feasible alternatives to the proposed siting of dwellings within the subject parcels. The remainder of the site comprises undulating sand dunes forested with littoral rainforest vegetation with only 2 cleared elevated areas presenting opportunities for development. Availability of the limited number of cleared sites is a consequence of prior camp and caravan sites in addition to recent Bitou removal. These are readily accessed by existing tracks recently upgraded to maintain surface levels, alignment and track camber. Batter retention with plantings of Goats foot and Pig-face to ensure continued stability is proposed herein as recommended in the EMP by Peter Parker. 60. Parker (Peter Parker Pty Ltd) prepared both a flora and fauna assessment and an EMP for the site, and the latter document, annexed to the DAs, addressed three categories of planting : · Dune plantings of coastal wattle, goats foot ipomoea, and pig-face will serve to stabilise the sideslopes and banks and batters when combined with brush matting. · Hind dune and littoral rainforest plantings of coast banksia, tuckeroo, beach alectryon, white kamala and beach acronychia, and · Wetland plantings of broad-leaved paperbark and swamp oak in the low-lying interdune areas. Town Planning Considerations The Ballina Local Environmental Plan 61. The Ballina LEP ( Exhibit C2 and Appendix III to Exhibit C3 ) was gazetted on 27 February 1987 and provisions relevant in the current matter include the following. 62. In clause 5(1) the term " existing holding " is defined (for land outside the former municipality of Ballina) as follows: (i) except as provided by subparagraph (ii), a lot, portion or parcel of land which has the same boundaries as it had, and is owned by the same person as it was owned by, on 12 June 1970; or (ii) where, on 12 June 1970, a person owned 2 or more adjoining or adjacent lots, portions or parcels of land, the aggregation of those lots, portions or parcels, provided that they are owned by the same person that they were owned by on that date. 63. Clause 8 establishes the various zones, including Zone No.1(a2) Rural (Coastal Lands Agriculture) Zone and Zone No. 7(f) Environmental Protection (Coastal Lands) Zone. 64. Clause 8(7) says: Except as otherwise provided by this plan, the council shall not grant consent to the carrying out of development on land to which this plan applies unless the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out. 65. In respect of zone 1(a2), the plan notes the primary objectives of the zone as: (a) to regulate the subdivision and use of land within this zone to ensure that - (i) land actually used for purposeful agricultural production, particularly sugar cane; or (ii) land having the potential for purposeful agricultural production, particularly sugar cane, is developed in a manner to optimise its production potential, as advised from time to time by the Department of Agriculture; and (b) to enable development which is ancillary to the agricultural use of land within the zone (particularly dwelling-houses, rural workers' dwellings and rural industries) where such facilities do not significantly reduce the production potential of the subject land or other land in the locality. 66. In that zone there are various types of prohibited development, but only agriculture and dwelling houses are (with the common, but not here relevant, exceptions) permissible without development consent. Certain development has to be advertised and that development plus any other innominate development may be carried out only with development consent. 67. The primary objectives of zone 7(f) are: (a) to protect environmentally sensitive coastal lands; and (b) to prevent development which would adversely affect or be adversely affected, in both the short and long term, by the coastal processes. 68. Various types of development are listed as permissible " only with development consent". The list includes Agriculture; … bush fire hazard reduction; camping grounds; .. dwelling houses; … environmental protection works; …". No uses are specified as permissible without consent or as advertised development, and any purpose, other than a purpose specified as " only with development consent " is prohibited. Dwelling-houses are permissible with consent. 69. Clause 10 provides " A person shall not subdivide land to which this plan applies except with the consent of the council ". 70. Subdivision in both relevant zones must comply with the provisions of cl 11, which specifies various considerations and minimum areas. In respect of zones 1(a2) and 7(f) " the area of each allotment to be created by the subdivision " must be not less than " 40 hectares " (cl 11(2)). 71. Clause 11(6) says: Nothing in this clause shall prohibit or restrict a subdivision for any of the following purposes: (a) … (b) adjustments to common property boundaries; … 72. Clause 12 regulates the construction of dwelling houses in both relevant zones and provides as follows: … (3) A dwelling-house may, with the consent of the council, be erected on vacant land to which this clause applies only where that land - (a) has an area of not less than - (i) … (ii) in the case of land within Zone No. 1(a2),… 7(f) … - 40 hectares; (b) is an existing holding; (c) is an allotment created by subdivision to which development consent has been granted in accordance with clause 11; (d) … (e) is an allotment created by a subdivision to which development consent was granted before the appointed day, not being a development consent which was granted subject to a condition that a dwelling-house could not be erected on that allotment. (3A) Notwithstanding the provisions of subclause (3), the council may consent to the erection of a dwelling-house on an allotment of land that was lawfully created before the appointed day and upon which a dwelling-house could lawfully have been erected immediately prior to the appointed day. 73. " Appointed day " is defined in cl 5(1) as " the day on which this plan takes effect ", i.e. 27 February 1987. 74. The Council acknowledged at the hearing that cl 12(3)(a) is relevantly a development standard, amenable to an SEPP 1 objection. See McKay v North Sydney Council [2000] NSWLEC 62. Davfast lodged such an objection ( Exhibit A5 ). 75. Clause 23 applies to Zone 7(f), but not 1(a2), and makes plain that " a person shall not … cut down, top, lop or otherwise destroy a tree (other than a tree planted for commercial or landscaping purposes); or clear, fill or otherwise alter the surface level of land, without the consent of the council ". 76. Clause 32 requires that Council not consent to any development in the 7(f) zone for any purpose without the concurrence of the Director. The Director is required by 32(2) to take into consideration: (a) whether any environmental issues are involved in, or raised by the proposed development; (b) if so, whether adequate safeguards and rehabilitation measures have been, or will be, made to protect the environment; and (c) whether the development complies with the objectives of Zone No. 7(f) as set out in the Table to clause 9. Proposed amendment to the LEP 77. Brief reference has been made above to a proposed amendment of Ballina LEP (" amendment 61 "). 78. The court, under s 90 of the EP&A Act, has an obligation to take serious account of any draft environmental planning instrument the making of which is " imminent and certain ". See Balgownie Pty Ltd v Shoalhaven City Council (1980) 46 LGRA 198. 79. According to a report by the Chief Town Planner of the Council on 9 December 1999 ( Exhibit C4 , fol 389-394), Council resolved on 26 August 1999 "to honour 'dwelling entitlements' and allow them to be retained notwithstanding minor changes to property boundaries", and so to amend cl 12 of the LEP to ensure that Council could approve dwelling houses on allotments of land created after 1987 by subdivision approval, subject to Council having been able to approve a dwelling under cl 12 on the allotments from which the boundary adjustment subdivisions were created. 80. It was noted that some uncertainty about the retention of such entitlements had arisen during the hearing of the matter before Commissioner Hussey. 81. In that report, Council had noted that the dwelling entitlements may have been inadvertently extinguished by the " legal process which was utilised in the approval of the subject lots " (fol 390) which were created as a result of a boundary adjustment. State Environmental Planning Policy 4 (" SEPP 4 "), notwithstanding the LEP's requirement of Council's consent, provided that development consent did not have to be obtained for such a subdivision. Clause 12 of the LEP allowed Council to grant consent to a dwelling on a lot which was created as a result of a development consent, but it may not allow Council to grant consent to a dwelling on a lot approved solely under the Local Government Act 1919 (" the LGA "). 82. SEPP 4 was first gazetted in 1981. Its aims and objectives were to allow minor or incidental developments to be undertaken without the cost and time involved with a development application. Clause 6(1) provides as follows: Where, in the absence of this clause, a subdivision of land could be carried out, but only with development consent, for the purpose of - (a) … (b) making an adjustment to a boundary between allotments, being an adjustment that does not involve the creation of any additional allotment. … the subdivision may be carried out without that consent. 83. Council took the view that this court would probably rule that a dwelling could not be approved under the then current provisions of the Ballina LEP, on a lot created under the LGA, notwithstanding that the original lot may have had a dwelling entitlement. 84. On 18 April 2000 , the Regional Director of DUAP notified Professor Thom that DUAP had noted the Coastal Council's recommendation on 11 February 2000 that the specific lots on beach foredunes be deleted from the draft plan by reason of the prohibition in the 1997 Coastal Policy of development in those locations, and would recommend to the Minister that lots in the 7(f) zone be deleted from the draft amendment. 85. Professor Thom told the court on 2 May 2000 that the Minister had indicated to him that he would accept that recommendation and, on 5 May, Professor Thom notified the court that the Minister had signed the plan the previous evening, and that it would be gazetted on 12 May 2000 . Judgment was reserved on 5 May, but on 16 May Professor Thom faxed to my Chambers a copy of Amendment 61 as gazetted (NSW Government Gazette No.57 dated 12 May 2000 pp 3903-4). 86. Accordingly, I must attribute considerable weight to the provisions of Amendment 61, the aims and objectives of which are set out in cl 2 as follows: This plan aims to ensure that a subdivision approval granted under Part 12 of the Local Government Act 1919 in the absence of a development consent does not extinguish Council's ability to approve a dwelling-house on an allotment in a rural or environmental protection area. 87. Clause 3 applies the substance of Amendment 61 to zone 7(1)(a2) but not 7(f). 88. Clause 5 adds to cl 12(3) the following additional provisions: (f) is an allotment not in the 7(f) zone created on or after the appointed day by a subdivision carried out in accordance with Part 12 of the Local Government Act 1919 where: (i) the consent of the Council was not required for the subdivision, and (ii) before the subdivision was carried out, a dwelling-house could have been erected under this clause on the land comprising that allotment. The Expert Planning Evidence 89. Davfast's case was supported by George , a consultant Town Planner ( Exhibit A14 ), who expressed the view that whatever value this coastal land may have had was largely destroyed by the Bitou Bush infestation. 90. He believes that appropriately conditioned dwellings on the already constructed pads would best satisfy the objectives of both Council and the applicant. The illegal works done on the land were consistent with the DAs, and the remediation orders do not require removal of the pads or of the rock material used to stabilise the roadways. 91. George relied on the comments in the supplementary flora and fauna assessment, which notes the poor quality of habitat and the dominance of Bitou Bush, and that: access roads currently exist to each house site and these roads are suitable for weed and fire management as well as access to the potential house sites. There is little to be gained, in terms of site management, in choosing alternative house sites or access roads to those currently proposed . 92. From that comment, George concluded that there is no superior alternative site, within the Davfast lands, for the proposed homes, in terms of vegetation values, and that, in the case of the 7(f) lands, this is consistent with the overall assessment as to the existing and increasing extent of damage caused by Bitou Bush infestation. 93. Location of proposed residences on sites within the 1(a2) lands, would impinge upon agricultural values, provide substantially reduced residential amenity (less view, less breeze, more traffic, and close neighbours), and would be less likely to promote the ongoing re-establishment of native vegetation in the 7(f) zone. 94. Mr George comments in his conclusion (May 1999 p13): The issue therefore is not one of potential damage to sensitive Coastal environments, because those environments have either been destroyed or are severely compromised . 95. Whereas the Council had argued for a site management plan in their conditions, George suggested that greater certainty could be provided by using deferred commencement conditions. Also, in his oral evidence he said that a septic system was capable of being properly conditioned. Conclusion 96. There is a strong argument for Amendment 61 to be found to have determinative weight in the adjudication of these appeals, but, in fairness to the applicant, I should set out my views on the other issues dealt with at the hearing. The issues raised 97. The issues raised by Council, in opposition to the DAs, in its Statement of Issues dated 5 April 2000 ( Exhibit C5 ), may be summarised as follows: 1. Inconsistency with Zone 7(f) objective (a) i.e. " to protect environmentally sensitive coastal lands ": (i) residents may develop gardens which would displace native vegetation and may introduce weeds to the detriment of the environment. (ii) residents may want to keep dogs and cats to the detriment of native fauna. (iii) precedent effect, to the detriment of the coastal fauna corridor. (iv) development may prevent/inhibit aerial spraying of Bitou Bush. (v) dwelling on lot 2 will require further clearing for an adequate fire buffer. (vi) dwelling on Lot 1 will require further clearing and earthworks to widen the access track to enable fire trucks to pass other vehicles. 2. Inconsistency with Zone 7(f) objective (b) i.e. " to prevent development which would adversely affect or be adversely affected, in both the short and long term, by the coastal processes": (i) house pads are susceptible to subsidence and wind erosion. (ii) dwellings are to be located adjacent to steep dunal scarps susceptible to subsidence. (iii) track maintenance will cause further undercutting of sand dunes. 3. Inconsistency with NSW Coastal Policy : (i) failure to adequately address Policy's requirements. (ii) subject lands have high conservation value, and dwellings will increase land value to an extent which will prevent/inhibit future acquisition by Government as envisaged by Strategic Action 1.1.2. (iii) inconsistency with Objective 2.1, Strategic Action 2.1.3, Objective 3.2, and Strategic Action 3.2.4. 4. Development is contrary to the " public interest " as it is inconsistent with the remediation order made in the class 5 proceedings. 5. Precedent effect exacerbating problems 1-4. 6. " Circumstances of the case ", in that the applicant entered consent orders to reinstate to its natural state the land to be developed, and the development would be contrary to those orders. 7. Adverse effects on flora and fauna . 8. Need for a Species Impact Statement . 98. Kitson's evidence ( Exhibit C1 ) elaborated on some of the less prominent of these matters, such as gardens, cats, spraying, etc. (see fol 34-5), and the more prominent I will deal with shortly. 99. In his closing submissions, Mr Wilson, Counsel for the Council, advanced four merits grounds for the court to refuse consent. He said that any one of them alone provided sufficient grounds for such refusal but all of them in combination virtually dictated refusal. Those four issues were: 1. Wind and sea effects (coastal erosion matters), argued by Professor Thom, and not contradicted by any evidence from the applicant. 2. Impact of necessary effluent arrangements on a sensitive sand and vegetation environment. 3. Unacceptable bushfire risks - " extreme hazard " area, timber house materials, fire buffer zones, need for more clearing and roadworks - uncontradicted by any evidence from the applicant. 4. Flora and fauna issues - degradation of the floristics of the site, plus inadequate study, and threat to rare species, such as the Pied Oystercatcher, possibly the Common Planigale, and perhaps other fauna. 100. Mr Wilson also submitted that the evidence made clear that Council lacked the necessary legal " power " to approve DA 1997/242, the lot " boundary adjustment subdivision " ( Exhibit A1 ). Counsel needed to have, in his submission, both an SEPP1 objection, and a Director's concurrence, before it gave that approval. As it did not, (see Exhibit A8 p12), the consent to the subdivision is void, and the applicant cannot rely on the " existing holding " provisions in the LEP. In any event, those provisions nominate key dates 18 July 1969 and 12 June 1970, and lots 27 and 28 came into existence in 1975/76, and lots 1 and 2 in 1997/98. The 40ha minimum was imposed when the land was configured as lots 27 and 28, both of which failed to meet that minimum area requirement (see Kitson, Exhibit C1 fol 30-1). 101. Mr Marshall, Counsel for Davfast, complained that the effluent and bushfire issues were not included in the Statement of Issues and he presented written submissions referring specifically to each issue raised in that Statement. However, the court has to take such items into account pursuant to s 90, even if it becomes clear that they can be adequately dealt with by conditions. Effluent disposal, and at least water supply for fire fighting, were dealt with in the DAs, and both issues were covered in reports filed in the proceedings. 102. Mr Marshall argued that the Council's consent to the boundary adjustment did not infringe clauses 11 and 12 of the LEP (Re La (1993) 41 FCR 151), even though the Director's concurrence was missing. 103. As I have determined on merits grounds that consent should be refused , I do not need to resolve this question, which was not fully argued before me. 104. Another legal issue concerns the adequacy of the SEPP1 objection ( Exhibit A5 ), which is not beyond doubt, as it does not address the objectives of the 7(f) zone. The coastal issues in more detail 105. In 1990 the New South Wales Government formulated a policy entitled " The New South Wales Coast - Government Policy " which was designed to impose restrictions upon the development of coastal land in this State. In 1997 a substitute Coastal Policy was issued entitled " NSW Coastal Policy 1997 - A Sustainable Future for the New South Wales Coast ". (See Appendix I of Exhibit C3 ). 106. The Policy is stated to fulfil the present Government's " election commitment to manage the coast in an ecologically sustainable way ". New initiatives in the Policy are stated to include: · prohibiting new sandmining ventures in coastal national parks and other environmentally sensitive areas; · banning the development of tourist resorts that impede public access to beaches; · prohibiting development on the beach fore dunes (other than for essential public purposes such as surf life saving clubs); and · re-forming the Coastal Council as a source of professional and independent advice to Government on coastal management issues. (p5). 107. Professor Thom was closely involved in the development of the Coastal Policy which, he says, is underpinned by two principles - ecologically sustainable development (" ESD "), and integrated coastal management. 108. The Coastal Policy uses the precautionary principle as an integrating mechanism for considering and addressing a range of issues in the Coastal Zone. The subject lands are within the zone (p26). The Policy states that that principle should be used at the project level as well as the strategic level. It says (pp16 and 20): While the precautionary principle does not require a 'no development' approach, it does require a risk averse approach to decision-making, especially where locational considerations are critical or where environmental impacts are uncertain but potentially significant. … … beaches, frontal dunes and undeveloped headlands will be protected and only minor development will be permitted for essential public purposes … 109. The North Coast Regional Environmental Plan 1988 (" REP " - See Exhibit C3 Appendix II) requires the court to take the Policy and Coastline Management Manual into account in considering DAs such as those involved in this case. Kitson's report ( Exhibit C1 fol 40-41) sets out a convenient summary of the relevant objectives and strategic actions in the Policy, and the Council's comments thereon regarding these DAs. Councils are required to consider the Policy when determining DAs under s 90 of the EP&A Act (p25). 110. Several " Objectives " and " Strategic Actions ", within the Policy's stated " Goals " were referred to in the Statement of Issues ( Exhibit C5 ) and/or in Thom's evidence and submissions. Some of the more relevant and important are set out below: Goal 1: To protect, rehabilitate and improve the natural environment Objective 1.1: To identify coastal lands and aquatic environments with conservation values and devise and implement acquisition policies, management strategies and controls to ensure that those values are protected. Strategic Actions under objective 1.1 include: 1.1.2 Land (including submerged land) identified as having high land and/or marine and estuarine conservation values will be: · where public owned, assessed for dedication or reservation as appropriate under the National Parks and Wildlife Act, 1974, the Fisheries Management Act, 1994, the Crown Lands Act, 1989, or declared under the Marine Parks Act, 1997; · where privately owned, assessed for acquisition to the National Parks or Crown Reserves system or for declaration as a Marine Park or Aquatic Reserve with the consent of the owner. 1.1.9 Local environmental plans will be prepared with appropriate zonings and other provisions for areas of recognised conservation value. 1.1.11 Regional open space networks/corridors (including water areas) should, where possible, be used to protect natural habitats and environments. Objective 1.2 To conserve the diversity of all native plant and animal species and to protect and assist the recovery of threatened and endangered species. The Strategic Actions under objective 1.2, such as 1.2.2 and 1.2.7, emphasise comprehensive investigation, and use of the Threatened Species Conservation Act 1995. Objective 1.4 To manage the coastline and estuarine environments in the public interest to ensure their health and vitality. Strategic Actions under objective 1.4 include: 1.4.3 Detailed management plans for the coastline and estuaries, as provided for in the Coastline Management Manual and Estuary Management Manual, will continue to be prepared and implemented. 1.4.4 The Government's Coastal Management Program will continue to be implemented. Technical and financial assistance will continue to be provided to local government and agencies for the purpose of preparing and implementing coastal management plans, providing protective measures where appropriate, rehabilitating the coastal environment, and improving the recreational amenity of the coastline, as outlined in the NSW Government's Coastline Management Manual. 1.4.5 Development proposals on the coastline and offshore, which are threatened by coastal hazards or where they pose a threat to the physical well being of the coastline subject to the provisions of the Coastal Protection Act, 1979 will be approved subject to conditions which minimise impacts or rejected where they pose an unacceptable threat to the physical well being of the coastline. 1.4.8 Methods will continue to be developed and implemented to control the spread and impact of Bitou Bush on coastal dunes and foreshore environments. Goal 2: To recognise and accommodate natural processes and climate change Objective 2.1: To give the impacts of natural processes and hazards a high priority in the planning and management of coastal areas. Strategic Actions under Objective 2.1 include: 2.1.3 Physical and ecological processes and hazards will be considered when assessing development applications. Goal 3: To protect and enhance the aesthetic qualities of the coastal zone. Objective 3.1: To identify and protect areas of high natural or built aesthetic quality. Strategic Actions under Objective 3.1 include: 3.1.1 Significant coastal lands with scenic qualities will continue to be acquired under the Coastal Lands Protection Scheme. Objective 3.2 To design and locate development to complement the surrounding environment and to recognise good aesthetic qualities. Strategic Actions under Objective 3.2 include: 3.2.4 In preparing and amending regional and local environmental plans and development control plans and when assessing development applications, consideration of the design and locational principles contained in the Coastal Policy (Appendix C Table 3) will be required. 111. There is no Coastal Management Plan (a " hazards management policy " as envisaged by the Policy) yet in existence for the subject area, but, as noted above Thom was the author of a Statement of Evidence ( Exhibit C6 ), made submissions on the Minister's behalf, and gave oral evidence in these proceedings. 112. Thom gave evidence of the planning work and broad-based consultations that would be involved in developing a CMP for this area, and said ( Exhibit C6 par 7-8): Until such studies and plans are undertaken it would be most inappropriate to accept these development applications given their potential to (i) disturb dunal vegetation and sand surface conditions; and (ii) be potentially affected by shoreline erosion and accompanying dune instability. No determination of rates of shoreline recession have been made to my knowledge at Patchs Beach. We know from other studies that up to 80m of erosion can occur during a storm even but whether that is likely here is uncertain. In applying the Coastal Policy including principles of ESD (such as the precautionary principle) my conclusion would be that these development applications be refused at least until a Coastline Management Plan was prepared for the area. 113. Thom has been a coastal geomorphologist for 40 years. He has studied this area, and published in regard to it, since 1962. He observes it as a " high energy " beach, in terms of both wind and wave effects. 114. His professional view ( Exhibit C6 par 6) is that: the dune complex within which Lots 1 and 2 are located is typical of dune complexes on the North Coast which have experienced wave erosion and episodes of dune instability over the past 6000 years. The dunes form a sand barrier which is linked to an eroding section of Pleistocene (Inner Barrier) dunes to the south. The barrier has clear evidence of recession over the last 6000 years since sea level has been at its present position. Shoreline recession is accompanied by blowouts with sand moving from southeast to northwest over adjoining alluvial (floodplain) land. Dune instability phases are interspersed with stable periods of revegetation. In historic times the situation along such dune complexes in northern NSW is complicated by cattle grazing, sand mining, vehicle traffic and weed infestation. 115. Thom advanced many supporting arguments against the grant of approval, one of the most convincing of which was the key role played by undisturbed dunal vegetation in minimising the instability caused by wind and wave activity. He did, however, acknowledge the need to control or eradicate Bitou Bush, despite its past well-deserved reputation as a good dune stabiliser. He urged a focus on preservation and enhancement of native vegetation, and protection of wildlife. 116. These lands are zoned 7(f) because they are environmentally sensitive coastal lands, and they should be protected. 117. Professor Thom gave compelling evidence and it was not refuted by the applicant. Bitou Bush 118. The DAs include Bitou Bush eradication on the whole of the site, not just the proposed home sites. 119. Bitou Bush is still regarded as a good sand stabiliser, but it is now regarded as a noxious weed (see Far North Coast County Council publications 1997 in Exhibit A6 ). In the Ballina Shire Council area, Bitou Bush is characterised as a " W2 " weed, which means it " must be fully and continuously suppressed and destroyed ". Evidence was given that it has been a problem in the Ballina Shire Council district for in excess of 25-30 years. Evidence was also given that it is flammable when dry. 120. In the class 5 proceedings the owner asserted that the unauthorised clearing works were undertaken, at least in part, to help eradicate Bitou Bush on the site (see Exhibit C4 fol 359-360). 121. Garrard gave evidence about Bitou Bush. The DLWC would require a Plan of Management for such a large area of infestation. 122. Aerial spraying cannot be carried out within 150m of a dwelling house according to EPA Guidelines. Given the proximity of the proposed dwellings to the Patchs Beach Village, approval to construct them would limit the future use of aerial spraying in the area from 150m south of Patchs Beach Village to 150m north of the dwelling proposed for lot 1. 123. Mr Garrard's inspection of the site, after the clearing work had been done, indicated that the piles of debris consisted of considerable coastal banksia and other native vegetation, and very little Bitou Bush, but he agrees that the majority of the site is " severely infested with Bitou Bush ", and this has had a considerable adverse impact on the native vegetation. Experience of Dune Care Groups along the coast shows that native vegetation can be successfully reinvigorated through the removal of Bitou Bush and enhanced planting of native trees. 124. Parker's EMP, as submitted with the DAs, did not mention aerial spraying, but yet some has been undertaken. Aerial spraying is good for heavy infestations, particularly that which is climbing native trees. Such spraying needs to be followed up by a maintenance programme. 125. Garrard acknowledged that the applicant had shown initiative in conducting an aerial spraying programme, but he had some concerns with its scale. Aerial spraying should only be carried out on heavily infested areas of Bitou Bush when there is " a large labour and seedling source available ". The area of the site is much larger than would normally be handled by a Dune Care Group which would undertake follow-up planting and removal of Bitou Bush regrowth. The occupants of two dwellings would not provide a sufficient labour force to eradicate the Bitou Bush at this site. 126. Garrard does not agree with George's view that " development consent with appropriate conditions is one way Bitou Bush infestations can be eradicated " - declaration of Bitou Bush as a threatening process to species under the Threatened Species Conservation Act, and as a noxious weed, are far more powerful tools, in his view. Fire Issues 127. Wilcox is a supervisor with the NSW Rural Fire Services, employed by Ballina Shire Council. He has been a fire officer for 20 years and with the Council since October 1994. He visited the subject site on 13 July 1998 and 18 June 1999. 128. His evidence was virtually uncontested. 129. As the subject area is characterised by dry coastal heath vegetation, on an average slope of 5-10 degrees, it has a " high ", perhaps " extreme ", fire hazard assessment. 130. Cane fires are very hot and southerly winds are a problem in this area. The closest fire brigade unit to the rather remote subject site, would take up to 15 minutes to arrive from the time of call. 131. He described the proposed building sites as undulating coastal dunes, vegetated with Banksia, Sheoak, Lantana and Bitou Bush, with isolated pockets of grass. Banksia is very flammable and dangerous. Coastal Wattle (Acacia) not quite so flammable. Bitou Bush will burn. 132. He recommends the following minimum requirements: 1. Inner and outer radiation zones around each dwelling site. The inner zone should be 20m wide with all flammable vegetation removed and the outer zone (10-15m) fuel reduced by selective clearing. As the dunes are unstable, they should be revegetated with grass or other low level groundcover. 2. Each site should have a minimum water storage of 45,000 litres, situated close to the access road. 3. The access road should be at least 3m wide and capable of supporting fully laden 15 tonne fire fighting vehicles. They should have vehicle passing bays at intervals not exceeding 150m. 4. Turning areas would need to be established at each site with a minimum length of 11m and minimum width of 9m clear of trees and buildings. 5. Overhanging trees, branches and flammable shrubs should be removed from the access road shoulder and replaced with non-flammable low level ground cover. 6. Protection of sprinkler systems must be incorporated into any building. Even if sprinkler systems were on the roof and outside the house, the buffer areas would be required. 133. His other criticisms of this site and the proposal (see detailed plans in Exhibit C4 fols 84-5, 111, and 113) include: (a) It is easy to contemplate very dangerous fire situations in this area and the cane is too close to the right of way to the entry point. There needs to be a 20m wide gap. The type of species stipulated for the roadside (in Exhibit C4 , fol 378), are not good when so close to the access road. (b) The DAs do not make clear where on each " pad " the house will be built so feasibility of necessary radiation zones cannot be assessed. (c) Timber housing materials should be avoided, and " pier " separation from the ground (elevation not specified) is not good for buildings constructed of timber in such an area. (d) The tracks would need to be wider (3m) and, as they are sandy under the shale, they need more shale if they are to support fire control vehicles. (e) The DAs involve no turning areas for fire trucks. Earthworks past and future 134. Clerke ( Exhibit C7 ) was the author of the document the court embodied in the remediation orders it made in the class 5 proceedings (see Exhibit C4 fols 369-388), and he gave evidence in these proceedings that the timeframe and objectives of that remediation plan were not, at the time of hearing, being met. 135. He expressed some reservations about aerial spraying of Bitou Bush. 136. The evidence of Brian Dick , who was not required for cross examination, is that passing bays could be constructed along the existing tracks without impact upon the dunal area. They could be at even closer intervals than stipulated in Council's suggested conditions. 137. He also expressed a view that maintenance of the access roads through the dunes should not cause further undercutting, provided the applicant undertakes a responsible erosion control plan and revegetates the dune slope with selected endemic groundcover. (Conditions were proposed to address this matter). 138. Dick also does not believe that the two house " pads " are susceptible to subsidence, assessed to the Australian Standard. Flora and Fauna matters 139. There was a serious contest at the hearing on the various flora and fauna issues involved with these DAs. 140. When they were lodged Davfast relied upon documents prepared by Parker , a well-known consultant (see CV in Exhibit A10 ), who gave evidence in these proceedings on the basis of his initial DA documents and a couple of follow-up reports. Mr Parker conducted his initial assessment of the site on 18 February 1998, with follow-up visits on 12 June 1998, 29 October 1998, 16 May 1999, and three regarding the court cases, all after the unauthorised works had been done. 141. Parker's site assessment and EMP, dated June 1998, appear at pp 123 and 115 respectively of Exhibit C4 . In 1999, after revisiting the site, he embellished his original report ( Exhibit A9 ). He then prepared a report in response to the Council's evidence on 20 July 1999 ( Exhibit A10 ), to which he annexed a publication of the Byron Environmental & Conservation Organisation, entitled " The Border Zone ", to which he was a contributor. 142. Parker undertook his preliminary inspection of the site on 18 February 1998 in order to determine if any flora or fauna habitats would be adversely affected by the proposed dwelling houses. His impressions ( Exhibit A9 p4) included: The majority of the site supported the noxious weed bitou bush with occasional emergent coast banksia trees. In many cases, bitou bush had entwined the uppermost limbs of the coast banksia and banksia die back was evident. Small areas of the site supported vegetation dominated by the littoral rainforest species tuckeroo and the wetland species broad-leaved paperback and swamp-she-oak. 143. He concluded that: No threatened plant or vertebrate species is expected to utilise the area proposed for development due to the depauperate nature of habitats. 144. His EMP was stated to have been built on the survey report, but aimed to describe " ways to enhance habitat quality at the site ": the central theme of the EMP is to repair a site that has been considerably degraded by the infestation of bitou bush … This will generally be achieved by weeding and reforesting the site and by formal landscaping . 145. As noted earlier, his EMP proposed three categories of planting, nominating species currently located at the site or within the Wardell area, of vigorous and hardy plant varieties suitable for the exposed conditions, and recognised for value in the diet of nectivorous or fructivorous fauna. 146. On 12 June 1998 he conducted an inspection of an area of approximately 50m radius surrounding the house " pads " or suggested building envelopes. From that inspection it was evident that Davfast had recently eradicated bitou bush from living and dead banksia trees, by ground slashing, and pulling from limbs with a tractor, but that considerable additional management works would be required to reduce the local infestation of Bitou Bush. 147. He noted in respect of the cleared " pads ": recolonising vegetation within the building envelopes included bitou bush and goats-foot ipomea . 148. Coast Banksia and Broad-leaved Paperbark provide both roosting and nectar requirements for the Queensland Blossom Bat. Parker anticipated that this habitat would be improved once the eradication of Bitou Bush was complete. 149. He conducted an " 8 point test " to determine whether the proposed development was likely to significantly impact on the environment of threatened species, and concluded that it was not. 150. Parker's July 1999 report ( Exhibit A9 ) records the inspections of 18 February 1998, 12 June, 29 October 1998 and 16 May 1999. Bitou Bush had been listed as a threatening process under the Threatened Species Conservation Act, requiring Davfast to reduce the infestation, and to reintroduce native trees and shrubs to the site, but the site inspection of May 1999 confirmed that Bitou Bush had continued to spread and dominate the site over the preceding year, except for areas adjacent to the access roads and building envelopes where it had been eradicated. 151. Parker recommended the aerial spraying programme " currently underway within Ballina Shire ", and use of hand spraying techniques around the house sites. He noted that the most realistic long term solution was biological control. 152. In respect of the building envelopes, Parker ( Exhibit A9 p11) comments as follows: There is ample opportunity to locate dwellings in any number of locations at the site with minimal impact on plant and animal assemblages. This is due to the depauperate nature of habitats and the dominance of bitou bush. However, access roads currently exist to each house site and these roads are suitable for weed and fire management as well as providing access to potential house sites. In conclusion, there is little to be gained, in terms of site management, in choosing alternative house sites or access roads to those currently proposed. 153. Parker's July 1999 report included an updated " 8 point test ", the conclusions of which may be summarised: · no threatened species were recorded but the Blossom Bat is likely and will be deterred by the impact on banksia and paperbark of Bitou Bush. · the proposed building envelopes were now dominated by native plant regrowth, but they do not provide habitats for threatened species due to their depauperate nature. · no threatened species or their habitats are expected to occur within the areas proposed for development. · it is unlikely that the subject development will alter the impact of the fox on fauna assemblages at the site. 154. Parker measured the " house pads " at 1200m (40m x 30m) on lot 1, and 900m (60m x 15m) on lot 2. Those two envelopes were " devoid of all trees and shrubs ". The groundcover at both pads was comprised of couch grass, Goats-foot Ipomea, Bitou Bush, a Sedge and Coast Wattle Seedlings. He walked along two existing tracks, one from lot 1 and one from lot 2, both leading to Robins Beach. He observed evidence of their being used by several dogs of different sizes, the Swamp Wallaby and the Brindled Bandicoot. He also saw a hare come from under Bitou Bush adjacent to the track. He saw no fox tracks or scats, although he believed the fox was likely to occur at the site. 155. He excluded the possibility of nesting sites for the Pied Oyster-catcher on Robins Beach ( Exhibit A10 , p4): High tides have eroded the beach escarpment to the extent that vegetation along the dune crest has been undercut and washed away. The pied oyster-catcher usually roosts on open sandy spits… or above the high tide mark on open beaches. It forages mainly on intertidal sand and mudflats . 156. Parker revisited the property on 20 April 2000 ( Exhibit A11 ), and did not alter the views he expressed in his reports of June 1998 and July 1999. 157. Having accompanied the court on the site inspection on 2 May 2000, Parker agreed that the scarp view was now different from the last time that he had seen it and that the dune area was indeed suitable for the Pied Oystercatcher. 158. He opined that his " fauna surveys… were appropriate for the scope of a development that requires no clearing of native trees or shrubs ". 159. Parker identified only a number of common flora and most conspicuous flora species. The 8 part test was limited only to the Common Blossom Bat and Parker's general conclusion was that the proposal will have no impact on threatened fauna or flora, as no threatened species are expected to utilise the area proposed for development, primarily because of Bitou Bush. Parker apparently made no allowance for the fact that permanent residents on the land would seek to make further tracks, and thus further fragment the vegetation. 160. Parker does not believe that the Eastern Bristlebird and rainforest pigeons are likely to occur at the site. He also down-played the evidence and submissions regarding bats. 161. Parker does not advocate a septic system on this site, but an irrigation system associated with the planning of littoral rain forest species. In the context of the septic tank proposal, Parker noted that the Crown land is more degraded than the site. The Crown land would be 80-90% Bitou Bush compared with 60-70% on the site. Bitou Bush is already on both sides of the track to the beach. 162. In defence of his methodology, Parker and Counsel for Davfast rely upon par 3.3.2 of the NPWS information circular (p 15 of Exhibit A7 ): It is not expected that the '8 part test' should produce detailed analysis and evaluation of the potential effects of a proposal on threatened species, populations or ecological communities, or their habitats. This analysis and evaluation will need to be obtained if the decision is made to proceed to the next stage (ie. the preparation of a SIS). 163. The Council relied upon the expert evidence of Rohweder (CV in Exhibit C13) , whose initial report dated 7 July 1999 is Exhibit C14 , and whose response to Mr Parker's statement of evidence is Exhibit C15 . Rohweder (Sandpiper Ecological Surveys Pty Ltd) is a recognised expert on the habitat of shore birds. He completed his PhD with a thesis focussed on a detailed assessment of habitat used by shorebirds, and has made a particular study of the Pied Oystercatcher. 164. Rohweder evaluated the information provided in the Parker studies, the development application and George's Report, reviewed scientific literature, and conducted a brief site inspection on 15 June 1999. 165. He was critical of Parker's methodology, notably the failure to use accepted survey procedures, the failure to justify why a number of threatened species were not addressed in the 8 part test, and Parker's opinion that the presence of Bitou Bush reduced the use of the site by threatened fauna. Parker's assessment should have included the possible occurrence of a range of threatened species on the site, including the Common Planigale, the Northern Longeared Bat and the Greater Broad-nosed Bat. He believes that a species impact statement should have been prepared. 166. In Exhibit C15 (p1) he comments: The assessment of the subject site conducted by Parker seems to assume that impacts associated with the proposal will be restricted to the house sites. There appears to be no consideration given to impacts on the surrounding habitats once the dwellings are occupied. 167. Whereas Parker surveyed only the relevant areas of the subject site, Rohweder basically surveyed the whole of the vegetated non-cane area of Davfast's land, and does not accept Parker's suggestion that the coastal corridor is predominantly Bitou Bush. He would describe it as including a variety of vegetation communities including remnant Melaleuca quinqunervia, freshwater wetlands, and heathland. 168. He noted the presence of " moist dune swales with remnant native vegetation, a considerable area Coast Banksia, and the location of the site within a region renowned for its high density of threatened species ". Figure 2 in Rohweder's first report indicates clearly that the Bitou Bush domination is in the area closest to the sand, but that twice as much of the vegetated area is dominated by the other species, mainly Coast Banksia, but also including Swamp Oak, and Broad-leafed Paperbark. 50% or more of the over storey vegetation uncultivated in both blocks was comprised of native species, mainly Coast Banksia. 169. Impacts of the proposal will not be confined to the boundaries of the house blocks and the removal of the Bitou Bush from the entire site may result in the destruction of additional habitat for threatened fauna. It is incorrect to assert that the birds will not nest on an erosion scarp as they have been recorded nesting on or immediately above erosion scarps. 170. Rohweder would embark upon an 8 point test only after a preliminary but comprehensive survey to identify habitat, followed by a target survey such as pit trapping and spotlighting for Planigales and Bats. One must look at habitats adjacent to the site, east to the beach, both north and south of the site. 171. Rohweder cited several examples of threatened fauna which use, and in some cases rely upon, exotic plant species for food and shelter. For example, the endangered Eastern Bristlebird uses lantana, and threatened rainforest pigeons use Camphor Laurels. Other species such as the Common Planigale have been captured from beneath Lantana in eco tonal habitats. 172. Rohweder noted ( Exhibit C14 at p10) that: Common Planigales have been recorded from sites in northern NSW with similar vegetation structure to that present at the subject site… There are several coastal records of this species within Byron Shire… The species appears to be tolerant of at least some vegetation disturbance, often recorded in areas regenerating after disturbance… The occurrence of Common Planigale within Swamp Schlerophyll forest, and within previously disturbed but regenerating habitats with exotic species suggests that it may occur on the subject site. The species is also known to occur in Broadwater National Park… which is directly connected to the coastal corridor that includes the subject site. The presence of moist dune swales dominated by Broad-leafed Paperbark and Swamp Oak with adjacent areas of dense Bitou Bush may provide suitable habitat for Common Planigale. 173. Exhibit C17 includes two photographs of the Common Planigale. The photographs were taken south of Kingscliff in September 1999 in similar habitat to the subject site. The only way to detect them on any site is pitfall trapping. Exhibit C18 is two photographs of the site where Rohweder caught the Planigale. He says it is comparable to the vegetation on the subject site, a dense Bitou understorey with some Lantana and a native overstorey. The Planigale has neither been confirmed on the site, nor has the site been excluded as its potential habitat. Bitou Bush in association with natives is acceptable habitat. The precautionary principle would dictate a more complete survey. 174. It was put to Rohweder that the full report on the Kingscliff site alleged that there was no significant effect on the Planigale. Rohweder said he would be very surprised, and would have come to a different conclusion. Apparently the author was Dominic Fanning and it was a resort case in the Tweed Shire survey conducted 1999. 175. The relevant extract of the Kingscliff report is Exhibit A13 , which says as follows: The Common Planigale utilises a range of vegetation communities and substrates as habitat, and has an extensive (albeit patchy) distribution in coastal northern NSW (from approximately Port Stephens north). A single Common Planigale was recorded on the subject site, in an area of regrowth Coast Paperbark Shrubland with a grassy understorey. This species has also been recorded widely to the west of Cudgen Creek, but had not been previously recorded east of the Creek. … Notwithstanding the proposed development of the subject site, and the presence of at least one Common Planigale on it, the proposed development is not regarded as likely to impose such impacts upon the species that 'a viable local population' of the Common Planigale would be 'likely to be placed at risk of extinction'. The proposed golfcourse and the buffer of vegetation along Cudgen Creek will provide suitable habitat for the Common Planigale, and this species is likely to remain in the vicinity following the completion of development of the site and the construction of the proposed golfcourse. Furthermore, the Common Planigale is clearly capable of utilising modified and degraded vegetation, given its presence within an area of unmanaged regrowth on a previously mined portion of Kings Beach. It therefore cannot be regarded as likely that 'the life cycle of the species' would be 'disrupted' to any significant extent, notwithstanding the likely disruption of the 'life cycle' of some individuals. 176. The relevant area of the Kingscliff survey is depicted in an aerial photograph ( Exhibit A12 ). 177. Parker does not find the Kingscliff area site comparable with Patchs Beach. The western boundary of that site was a creek with mangrove, etc. vegetation providing a corridor of fauna along a riparian strip. The Planigale was caught in a very different site and not in a Bitou Bush area. 178. Rohweder also observed that the Northern Longeared Bat roosts in Coast Banksia, dense foliage, tree hollows and beneath peeling bark. Greater Broad-nosed Bats have also been recorded roosting under the bark of dead trees. It is possible that the trees removed during construction activities, and particularly the 'dead and dying' Coast Banksias destroyed during Bitou removal … may have provided roosting sites for threatened bats. ( Exhibit C14 p10) 179. Researchers emphasise the " importance of conserving a diversity of roost trees for Northern Longeared Bats which are known to utilise a number of different roost sites ". 180. Rohweder prepared a table listing the threatened fauna that he says should have been addressed in assessing the impact of the proposed development ( Exhibit C14 p11): Species Justification for inclusion Common Planigale recorded previously in the coastal strip, particularly in areas (Planigale maculata) with Broad-leafed Paperbark and a dense understorey; appears to tolerate disturbed/regenerating environments; has been recorded previously from areas with introduced weeds. Common Blossom Bat the current assessment fails to consider the use of the site as (Syconycteris australis) a diurnal roost, although its potential as a roost site is acknowledged on page 10 of the report; does not consider the impact of house construction on territorial behaviour. Greater Broad-nosed Bat known to utilise a broad range of habitats, including the (Scoteanax rueppellii) coastal zone; recorded roosting in dead trees Northern Longeared Bat several records of this species in coastal northern NSW; (Nyctophilus bifax) recorded roosting in Coast Banksia; may utilise dead banksia trees on the subject site. Black Flying-fox recorded previously in the local area; often forages on the (Pteropus alecto) blossoms of paperbarks. 181. Rohweder also noted that consideration should also be given to the potential impacts on regionally significant species such as the Pale Field Rat which has been recorded in the northern section of Broadwater National Park and is directly linked to the relevant area. This species prefers sandy soils in coastal areas and it is possible that the burrows documented by Parker (1998) may, in fact, " belong to Pale Field Rats, as opposed to Bush Rats … which tend to be less common immediately adjacent to the coast ". 182. He expressed concern that Parker's assessment had failed to adequately consider the impact of track creation on foxes and the impact of increased fox predation on threatened fauna. Fox predation is a key threatening process on Schedule 3 of the NSW Threatened Species Conservation Act (1995). Foxes regularly use human-made tracks to gain access through dense vegetation, and beach tracks to access ocean beaches, where they are a major predator of Pied Oystercatchers, eggs and chicks. Increased access through the site by foxes will not only affect the Pied Oystercatchers, but other threatened species such as the Common Planigale. This "is reason enough to warrant a Species Impact Statement ". 183. He noted that the beaches that extend from the Richmond River south to the Broadwater National Park are the most important beaches in NSW for the Pied Oystercatcher, which has been recorded nesting within 500m of the current access track. The Pied Oystercatcher had been located in the district since 1972. During the site inspection the court noted three roosting and seven foraging. The birds move up and down the 22km beach establishing breeding territory. They both breed and forage in exposed locations making them particularly vulnerable to foxes. The Pied Oystercatcher does not utilise the subject land, but the proposed use of that land will impact on its territory. The photographs in Exhibit C16 show evidence of the Pied Oystercatcher nesting on ledges and on the spinifex on the top of the foredune. These were taken at the South Ballina end of the beach. One of the photographs shows the Pied Oystercatcher nesting on a ledge on erosion scarp. 184. At pages 8-9 of his Statement of Evidence ( Exhibit C14 ) Rohweder noted: The stretch of ocean beach between the Richmond River and Broadwater National Park is regarded as the most important site in NSW for Pied Oystercatchers … In February 1999 over 100 Pied Oystercatchers were recorded along the beach, and the beach regularly supports up to 90 individuals. This represents over one third of the estimated NSW population of 250 birds… In addition to providing foraging habitat for large numbers of oystercatchers the beach also provides important nesting habitat, with at least 15 pairs of oystercatchers nesting along the beach each year. Unfortunately, this population suffers poor recruitment. In the period from 1994 to 1996 only two chicks fledged out of a total of 136 clutches… The primary documented reason for nest failure was attributed to Foxes… Despite the success of the Fox control program pairs of Pied Oystercatchers that nest in the vicinity of Patchs Beach continue to suffer very low breeding success. The reason for this is due to the policy of not placing poisoned baits in the vicinity of urban areas… Additional development to the north or south of the township will result in an extension of this buffer… Development at the current site will result in the extension of the buffer by at least 300 m. This will reduce the protection provided to oystercatchers that currently nest in the vicinity of the proposed development. In assessing the impact of the proposal on Pied Oystercatchers the territorial behaviour of this species must be considered. … Human recreation is recognised as a major factor affecting habitat use by shorebirds… Pied Oystercatchers already avoid the area immediately surrounding the Patchs Beach 4WD entrance… It is likely that developments such as the current proposal will place additional constraints on the area of the beach used by the birds. Increased levels of human recreation will further reduce the area of beach available for nesting and foraging. Nest monitoring on South Ballina Beach has shown that nests have been destroyed by 4WD activity and human recreation. Prolonged and regular recreation in the vicinity of nests has also caused birds to abandon nest sites. 185. Figure 3 ( Exhibit C14) shows the location of known nesting sites, one on Patchs Beach to the south of lot 2 and one on Robins Beach to the north of Lot 1 and the noted feeding area is directly in front of lot 1 and between lot 1 and the northern nesting site. Parker wrongly concluded that erosion scarp would preclude Robins Beach as a nesting area for Pied Oystercatchers. 186. Fox predation has been shown to have a major effect on the breeding success of the species along that beach. 187. Rohweder noted that the court order requires the revegetation of the access tracks. If those tracks are again cleared for the house project, they well provide increased access points for foxes to reach Robins Beach. The current proposal will provide additional access points for foxes through previously impenetrable vegetation and that the construction of the house sites will reduce the success of the current fox control programme managed by the Rural Lands Protection Board and the NPWS. Fox baiting is not allowed within 500m of residential areas. Conclusion 188. The current DAs rely to a considerable extent on the unauthorised clearing, excavation and roadworks carried out on the site already. 189. These works were the subject of orders made by the court in classes 4 and 5 of its jurisdiction (in class 4 by consent, and in class 5 in response to a plea of guilty met by a substantial fine). 190. It is implicit in the applicant's case that the court should now sanction further development works as a desirable way to minimise the harm already done by the unapproved development works. 191. The court's class 5 orders required rehabilitation of only the proposed house sites, according to a plan agreed between Davfast and Council. The court was not asked for any order for the removal of the roads or total reinstatement of the dunal system, a concession made by Council in order to finalise the class 5 proceedings. The evidence indicates that the remediation work has been slow and somewhat ineffective. 192. It is arguable that the agreed orders in the class 5 matter subsume the consent order in the class 4 matter that Davfast " reinstate and restore the land to the reasonable satisfaction of" Council. 193. Although Issues 4 and 6 (in Exhibit C5 ) do not " plead " the point, in respect of the orders in those earlier proceedings, this case has elements which call up the old Latin maxim ex turpi causa non oritur actio , loosely translated to suggest that the law does not allow a party to profit from a blameworthy case. As was also pointed out in the evidence, the pre-emptive actions of the applicant in doing the unauthorised works, which may never have won Council's approval if a DA had been lodged, also precluded proper investigation and assessment of some other important issues, such as aboriginal heritage. 194. Considerations of the public interest and the utility of the orders made by this court certainly militate against the approval of these DAs. 195. So do the legal doubts about the original subdivision, which paved the way for there to be two DAs in respect of the 7(f) lands; and so too does the decision of the Minister to sign Amendment 61 while his representative was opposing these appeals, and to have it gazetted as soon as possible afterwards, while this judgment was reserved. 196. In the end I have determined to refuse consent, in any event, on merits grounds including: · the application of the precautionary principle on issues of coastal protection - there is no element of " essential public purposes " in the proposed development on these dunes, and the proposal certainly does not meet the stated goals, objectives and strategic actions of the NSW Coastal Policy. · inadequate addressing of matters of fauna conservation, dunal protection, effluent disposal, and facilitating weed eradication (especially Bitou Bush). · exacerbation of unacceptable bushfire risks. · infringement of the (pre Amendment 61) LEP provisions, especially the relevant zone objectives. · the virtual certainty that further clearing of vegetation, earthworks and roadworks will be required to achieve the proposed development. (See Exhibit C4 fol 83). 197. I am satisfied that the Council has succeeded on all the issues in Exhibit C5 (see par 97) except possibly Nos. 2 and 8. 198. In respect of fauna issues, I need go no further than those matters upon which, in the end analysis, there was little, if any, disagreement between Parker and Rohweder (e.g. on the Pied Oystercatcher), in order to conclude that this development should not be approved. 199. The shortcomings identified throughout this judgment cannot be resolved to the court's satisfaction by means of conditions (such as have been agreed - Exhibit C8, Appendix III), even deferred commencement conditions (such as were suggested by George), or even by means of restrictive covenants (such as were suggested by Marshall, in his written submissions). Orders 200. Accordingly, the Court makes the following orders: 1. The appeals in matters 10621 and 10637 of 1999 are dismissed. 2. Development Applications 1998/276 and 1998/277 submitted to Ballina Shire Council are determined by refusal of development consent, and the applicant's objection under SEPP1 is not upheld . 3. The notices of motion in matters 40088 and 50083 of 1998, accordingly, are also dismissed . 4. Any questions of costs are reserved. 5. All the exhibits may be returned, except Exhibits M1, A5, C5, C7 and C9 . 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.