Land and Environment Court of New South Wales CITATION : Jarberg Investments Pty Ltd v Great Lakes Council [2006] NSWLEC 261 APPLICANT Jarberg Investments Pty Limited PARTIES : RESPONDENT Great Lakes Council FILE NUMBER(S) : 10277 of 2005 CORAM: Murrell C KEY ISSUES: Development Application :- Consent orders, subdivision of 60 ha parcel of land , 8 residential lots and residue lot for conservation area, impact on ecology, drainage Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Great Lakes Local Environmental Plan Draft Local Environmental Plan DATES OF HEARING: 29/08/2005, 20/02/2006 and 09/03/2006 EX TEMPORE JUDGMENT DATE : 03/09/2006 APPLICANT Mr P. McEwen, SC with Dr S. Berveling, barrister Instructed by Mr J. Dawson, solicitor of Conditsis and Associates LEGAL REPRESENTATIVES: RESPONDENT Mr T. Robertson, SC 29/08/05 Instructed by Mr P. Rees, solicitor Mr Peter Rees - 20/02/06 & 09/03/06 JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 9 March 2006 10277 of 2005 Jarberg Investments Pty Limited v Great Lakes Council JUDGMENT This determination was given extemporaneously and it has been edited prior to publication 1 COMMISSIONER: This judgment is for an appeal under s 97 of the Environmental Planning and Assessment Act against Great Lakes Council refusal of a development application for the subdivision of land known as lot 4242 DP 1036056 Hillside Parade, Elizabeth Beach. 2 By way of background, the applicant sought development consent from council to undertake a six lot Torrens Title subdivision of the subject land, which is approximately 59 ha. The six lots were made up of five large residential allotments and a residue allotment. 3 The subject site has a significant slope in excess of 19 m from south to north. The irregular shaped lot 4242 has a general depth of 83 m. The southern boundary extends 235 m in two separate sections, and the northern Hillside Parade boundary of the site is about 210 m. 4 The site is currently vacant and is well vegetated. It is bounded to the north by Hillside Parade, with a number of single and 2-storey dwelling houses and to the south it is bounded by a large allotment zoned 1(c) Future Urban Investigation. To the west there are two allotments zoned 1(c) Future Urban Investigation and to the east there are a number of 2-storey dwelling houses fronting Hillside Parade on allotments consisting of 700 to 800 sq m. 5 The streetscape in the area is diverse, with the area consisting of single and 2-storey dwelling houses on residential sized allotments which are bound by larger allotments containing significant levels of remnant vegetation. 6 The subject development application was first considered by the Court with a site inspection on 29 August 2005, and following the site inspection there was further conferencing of the numerous experts in these proceedings. When the Court conducted the on-site hearing, it then resumed to Taree Court in the afternoon, and the applicant had indicated to the council that it was prepared to amend the plan to satisfy many of council's concerns, and as such to the proceedings in Taree - Exhibit B was tendered that provides the indicia of agreement between the parties. 7 The parties sought an adjournment and The Court indicated that it was prepared to adjourn the proceedings to allow the applicant the opportunity to amend the proposal and for the council to also undertake the necessary re-notification in terms of its notification policy. 8 The parties came to the Court some weeks ago when consent orders were handed up for the Court to consider. At this time the Court expressed some concerns in terms of the council officer's report wherein there was reference to a 'Court agreement' when in fact there was no such Court agreement. But rather the parties were seeking to resolve a number of issues and the Court merely provided the opportunity for an amended plan. It was also clear when the Court heard from council's senior manager/director of planning that the council (as a body) was unaware that 'consent orders' were being entered into. 9 At that point in time the Court therefore declined to make the consent orders. Clearly it is appropriate that councils, where there is no delegation, and the officer advised the Court that he did not have delegation, that consent orders should only be entered into with the knowledge and authority of the council. 10 The Court adjourned the proceedings to allow a report to be prepared to the Great Lakes Council to explain the consent orders and that references to any Court agreement are incorrect and misleading. A report was submitted to the full council on 28 February 2006. It was explained to the council that the consent orders proposed reflect the parties discussions and that those of the experts who had arrived at a position where they were satisfied about the ecological impacts of the proposed development. The council resolved at its meeting of 28 February and agreed to enter into 'consent orders' to approve of the subdivision in its amended form and that such orders would then be submitted to the Court. 11 I should say at this point the amended plan provides for eight residential allotments fronting Hillside Parade and for a large residue lot. The large residue lot is some 51.4 ha and the conditions agreed to between the parties provide for a 'deferred commencement', such that the deferred commencement requires a number of matters to be satisfied prior to the consent taking effect. The central issue is that there be an 88B instrument over what is called the residue for the conservation of that land. 12 The Court is now in a position to consider all of the evidence to the Court in terms of the experts' report and also in terms of the Court-appointed expert ecologist, Dr Andrew Smith. The Court also has in evidence a statement from Mr George Smith, a consultant town planner. There is evidence also on other areas of expertise including: engineering; surveying; Mr Philip Konica; Dr David Robertson; and, on behalf of the respondent, Mr Chambers' report is also in evidence. 13 The Court indicated previously when the parties came with 'consent orders' some weeks ago that it required additional information as well as confirmation of the knowledge that council was aware it was proposed that it enter into consent orders. In the additional information that has been provided to the Court as Exhibit 6 and submitted to the council meeting of 28 February, an 8-part assessment has been carried out by council's ecologist, and I am satisfied that a species impact statement is not required. 14 The parties have today returned with their consent orders and the Court has now received correspondence from Dr Wells in the form of two letters, one dated yesterday and one dated today. Dr Wells has raised a number of issues and requested that the Court give consideration to the issues that he raises before making final judgment. It is a rather unusual course of action, but the Court provided copies of the letters to the parties this morning to enable them to respond, given that the letters had been handed direct to the Court. In the circumstances I consider that this was the most appropriate course of action. 15 In summary, Dr Wells states that he wishes to inform the Court about the koala plot surveys in respect of SEPP 44 and previous surveys that have been done, and he questions their veracity. He goes on to say in his letter of today's date that the applicant should not be required to set aside land on the basis of surveys that in his opinion are inaccurate. He also makes other allegations in his letter, but for the purposes of my assessment I must comment on the issues in terms of the case before me, that is, the merits of this development application. He also states in his letter that the applicant should not be coerced into the conservation lot or the residue lot as described. 16 The Court has considered his representations and I am satisfied that on submissions made by Mr McEwen that the applicant has not been coerced into the conservation of this land or the s 88B instrument over the large lot, and the applicant does not seek the opportunity to validate the previous koala plots described by Dr Wells as being incorrect. 17 It is submitted by Mr McEwen so for the applicant that the koala habitat is merely one of the many threatened species that may occupy this land, and that Dr Smith's assessment was not based on the fact that the koala plots are the only reason for the necessary conservation of this land, but that there are many threatened species and the litmus test is the yellow bellied glider in terms of the ecology of this land. I am satisfied that I do not need to have the koala plots validated or verified in terms of my determination of the consent orders for this development application. 18 It is instructive to go back to the transcript that was provided by the respondent from the Taree proceedings, where the Court had the opportunity of hearing from Dr Smith as opposed to just the indicia of agreement being handed up, and I am satisfied on the basis of the evidence that a species impact statement is not required for the subject site and development application. 19 In terms of the yellow bellied glider, Dr Smith stated that "in his assessment in stating that there was not enough known about the yellow bellied glider on the regional distribution to be able to ascertain the impact, and whilst he had not obtained further information, the "agreement" reached actually goes further than what I had asked." Dr Smith goes on to say "it actually takes out less yellow bellied glider habitat and increases the security or the certainty that there will not be any clearing of the remaining habitat to a degree that I am satisfied offsets the small area of loss that will occur". He also states that "in terms of the 'general agreement', I think that it is a very good agreement. I think it will be positive for threatened fauna on the site, and if that agreement proceeds there will be no requirement for an SIS." 20 In terms of the Court's questions, I asked him to reiterate his opinion or his advice to the Court, and he undertook to do same by saying "yes, that's correct. In my original statement of evidence I put forward a model that I use for assessing facts on squirrel glider and I adapted it for yellow bellied gliders as well. Under the guidelines that are within that model, they would have been satisfied with a slightly less rigorous trade off than with a computer, so I am satisfied that this is a better outcome than I originally proposed." 21 I also asked him further to consider the need for an SIS in terms of the requirements of the Act, and he said his major concern about this development initially was the cumulative impact and the potential for cumulative impact because the applicant had not specified the use to which the residue lot would be put, and he was concerned there may be progressive clearing of the lot and that in total this progressive clearing in his opinion would have been sufficient to cause a significant impact. 22 He goes on to say "we have a situation which is quite different from which the applicant is now proposing to conserve under covenant on title, the bulk of habitat on the site, which in my view would be sufficient to prevent any likelihood of the development clearing causing extinction of any existing local populations." I also asked of Dr Smith in terms of what we commonly refer to as the seven or eight part tests, whether he was satisfied an SIS is not required? and he responded "yes, I am." 23 The Court adjourned proceedings at that point to allow the amended plan to be submitted to the council and to allow the necessary advertising re-notification. At that time the Court was advised that council will assume the obligation about advertising and notification, and an appropriate time frame was set for the proceedings to allow the necessary notification. It is noted that there were three objections to the original proposal, and not only those objectors were advised about the amended plan but other people within the vicinity of the subject site. 24 The Court, as I stated, did have the benefit of the experts' reports which are in evidence, and of hearing from Dr Smith in terms of the proposal that now forms the amended plan. The proposal now put to the Court is that there be an 88B instrument over the large parcel known as the residue lot. The residue lot is some 56 ha. This will allow consideration of further subdivision to be the subject of a further development application at a later point in time, and the conservation area within that lot is some 51 ha. 25 The Court must have regard to the planning regime, and at this point it is important that I also state when the Court met in Taree it expressed to the parties the need to ensure that the discretion of future decision makers was not fettered in terms of tying the subject development application to any future rezonings as such, and I do note in the reports to council that it refers to certain rezonings. But in the Court's assessment I am satisfied on the information before me that the different sections of the Environmental Planning and Assessment Act are separated and that I am assessing this development application on the basis of the merits of the application not being dependent upon rezonings as such, and the conditions have been appropriately worded as such. 26 I will just go back one moment to Dr Wells concerns. Dr Wells's concerns it would appear originated from surveys that were done in respect of the plan making process. They are issues, as I said, which I do not need to address in my determination of the merits of this development application. 27 The amended plans provide for eight lots, as I stated, fronting Hillside Parade and they range in size from some 1200 sq m to approximately 5000 sq m. The land is relatively steeply sloping. However, the size of the allotments clearly provides the opportunity for a building platform for dwelling houses. The subject site is zoned Village under the Great Lakes Local Environmental Plan and the subject development is permissible with consent. 28 The aims of the LEP: include to protect and enhance the environmental qualities of the area, to facilitate the orderly and economic development of land and promote the wellbeing of the area's population. The objectives of the LEP include: (c) to protect environmentally sensitive areas and the heritage of the area, and (d) to improve opportunities for ecologically sustainable development. 29 Cl 8 of the LEP, subcl (3) states that the council must not grant consent unless it has considered the aims of the plan and is satisfied the development is consistent with at least one or more of the objectives of the zone in which the development is proposed. 30 As I stated, the subject land with the proposed residential lots is zoned Village (2) and the objective of the zone is to restrict development to small scale developments compatible with the general residential character of Village areas and which are unlikely to prejudice the viability of established shopping and commercial centres. The proposed residue lot on the subject site is also partly covered in the by the 1(c) 'Future Urban Investigation' zone, and the objectives include: to ensure that premature and sporadic subdivision of land would render economic provision of public utilities and community facilities unreasonable and more difficult; that development significantly does not detract from the scenic quality of the land within the zone, or compromise existing significant environmental attributes of land within the zone, or have a significant adverse impact on the quality of water resources, or be unreasonably subject to risks from natural hazards. 31 It is noted that there is a draft LEP. However, at this point in time it appears that council is seeking further inquiries before proceeding with such a draft plan, and while it is a matter for my consideration, it is not something that the council states would be an impediment to the approval of the proposed development. 32 The issues at the end of the day are clearly the conservation of an important area of relatively natural bushland with remnant vegetation that also contains threatened species, and the ecologists, experts and environmentalists all agreed on the importance of the land in terms of its conservation value. The experts are agreed on the fact that the subdivision providing for the eight lots to Hillside Parade with the conservation of the majority of the residue lot will provide for more than an offset in terms of the eight lots that are proposed. It could be seen from the view that the eight lots are within the area already containing dwelling houses and with frontage to the existing Hillside Parade. 33 The proposal also provides for a turning area at the end of Hillside Parade as a public benefit. It was also noted on the view that the engineer stated that there would be appropriate drainage works, and the objector who raised the issue of downhill drainage could be assured that post be no adverse drainage development would not be an impact from the proposed development. 34 The Court in its assessment of the application, despite the matter being consent orders, must be satisfied that all the necessary processes and procedures have been appropriately carried out, and also must be satisfied on the merits of the application. As with many matters that come before this Court, they often come under greater scrutiny than other applications. The Court is satisfied on the basis of all the evidence to the Court there is no reason as to why it should not approve of the consent orders as proposed by the parties and from the evidence the ecology of the area in terms of the conservation is not dependent upon the accuracy or validation of the koala plots. Even though that may be a matter for council at another day in terms of its plan making process, it is not a matter for the Court in these proceedings. 35 The deferred commencement provides in the Court's assessment the necessary certainty in terms of the development of the eight lots not significantly impacting on the environmental qualities of the area, and the Court sees no reason as to why eight lots with dwelling houses would not fit comfortably in the area. 36 Therefore on the basis of my assessment, in terms of all the evidence to the Court, the formal orders of the Court are by consent: 1. The appeal in respect of the land known as lot 4242 DP 1036056 Hillside Parade, Elizabeth Beach, is upheld. 2. The development application submitted to Great Lakes Council as amended for a nine lot subdivision is approved, subject to the conditions contained in annexure A. 3. The exhibits except for 1, 6, 7, D, E, F and G are returned to the parties. ___________________ J S Murrell Commissioner of the Court Ljr/rjs 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.