Land and Environment Court of New South Wales CITATION : North Western Estates Pty Limited v Baulkham Hills Shire Council [2008] NSWLEC 1167 APPLICANT North Western Estates Pty Limited PARTIES : RESPONDENT Baulkham Hills Shire Council FILE NUMBER(S) : 11195 of 2007 CORAM: Hussey C KEY ISSUES: Subdivision :- Threatened species, STIF, Bats, Tree removal Environmental Planning and Assessment Act 1979 Baulkham Hills Local Environmental Plan 2005 LEGISLATION CITED: Rural Fires Act 1997; Threatened Species Conservation Act 1995; Sydney Regional Environmental Plan No 20 – Hawkesbury/ Nepean River; Baulkham Hills DCP Residential 2007. CASES CITED: Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133 DATES OF HEARING: 24/04/2008, 28/04/2008 and 02/05/2008 DATE OF JUDGMENT: 2 May 2008 APPLICANT Mr M. Staunton, barrister instructed by Ms J. Hewitt, solicitor LEGAL REPRESENTATIVES: of Home Wilkinson Lowry RESPONDENT Mr N. Howie, solicitor of Wilshire Webb Staunton Beattie JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 2 May 2008 11195 of 2007 North Western Estates Pty Limited v Baulkham Hills Shire Council This decision was given extemporaneously. It has been revised and edited prior to publication. JUDGMENT Background. 1 North West Estates lodged this appeal against council's refusal of a 42 lot residential subdivision at 96 Tuckwell Road, Castle Hill. The issues identified for the appeal were: i) Impact on flora; with particular reference to the endangered ecological communities (EEC) of the Shale/Sandstone Transition Forest and Sydney Turpentine /Ironbark Forest (STIF); ii) Impact on threatened bat species; iii) Impact on trees and existing vegetation. 2 Following the consideration of additional ecological evidence, the applicant sought to amend the proposal by reducing the number of residential lots to 29, together with a small residue lot (Lot 1) and a larger residue lot encompassing the area of the threatened species (Lot 31 – Restricted Bushland Area). These amendments were accepted by council, leaving the outstanding issue of the appropriate management of the residue Lot 31. The Site 3 The subject site is described as Lot 1 in DP 594025 and it has a total area of some 3.803 ha. It has a public road frontage Tuckwell Road, Cumberland Avenue and Ashmead Avenue and the surrounding area comprises predominantly large detached dwelling houses on lots with areas of approximately 800 sq m to 1100 sq m.. 4 There is currently a single story brick dwelling house and two detached garages located in the centre of the site. At the north-western corner there is a 2.5m wide drainage easement. The Proposal 5 The amended proposal is to create 29 residential lots, with areas averaging approximately 800 sq m. Also, a small residue Lot 1 for future consolidation with adjoining land and the restricted bushland area – Lot 31 with an area of 9220 sq m. 6 The construction of road and drainage infrastructure is also required, together with lot regarding and vegetation removal. Planning Controls 7 The relevant planning controls include: o Rural Fires Act 1997; o Threatened Species Conservation Act 1995; o Sydney Regional Environmental Plan No 20 – Hawkesbury/ Nepean River; o Baulkham Hills LEP 2005; under which the land is zoned Residential 2(b) and the development is permissible with consent. The following clauses were identified as relevant in the consideration of this matter: o Clause 13: Zone Objectives and Zoning Controls - the proposed development must be consistent with one or more of the aims of BHLEP and any relevant objectives for development set out in clause 2 and must not be contrary to achieving the objectives of the zone in the zoning table. The proposed development is permissible with development consent under item 3 of the zoning table as other development not included in item 2 or item 4; o Clause 14: Subdivision Requires Consent - the proposed subdivision requires development consent. o Clause 15: Demolition requires Consent - the proposed demolition of the dwelling and other structures requires development consent. o Clause 26: Land subject to Bushfire Hazards. o Clause 27: Tree and Bushland Management. o Baulkham Hills DCP Residential 2007. The Evidence 8 Detailed evidence was presented for council by: o Mr N Skelton; Consulting ecologist(vegetation management), o Mr P Irish; Council's Flora and Fauna Projects Officer, 9 For the applicant evidence was presented by: o Mr C Williams; Consulting ecologist (Bats), o Dr T Hawkeswood; Flora consultant 10 As I have noted, the further ecological reports resulted in the consolidation of some of the original lots into the restricted bushland area - Lot 31. This area contains mature and dead trees that provide habitat for the various bat species. These colonies were mainly identified as : o The tree roosting micro-bats ( east-coast freetail bat), o The cave-roosting microbats ( eastern bent-wing bat). 11 Insofar as the ecologists initially recognized some threats to the species in the overall subdivision, they agreed that the creation and appropriate management of Lot 31 would not result in any threat to these species and this matter be subject to appropriate conditions of consent. 12 The only issues for the Court then concern the control and management of Lot 31. It is agreed that this lot should be enclosed by a suitable 1.8m high fence to restrict entry and to enable effective environmental management of the area. However Council expressed concern about the longer term ownership and maintenance of this lot. Consequently it considers this lot should be annexed to one of the adjoining lots, or another lot in the estate. The submission is that this is more likely to guarantee the long term care and management of the area. 13 Against this, the applicant submits that the necessary management can be guaranteed by the imposition of appropriate conditions of consent, which compel the owner of this lot to undertake the prescribed maintenance works. 14 The other associated issue concerns the identification of lot 31. The submission for council is that there should be a sign stating the conservation status of the allotment. The applicant generally agrees but submits that in the future, further review of the threatened species may be undertaken and therefore it is appropriate to identify the lot as a "interim" conservation zone. Conclusions 15 In determining this appeal, I note that conferencing by the parties has lead to the parties' agreement to the subdivision layout, on the basis that it satisfies the relevant controls. The only outstanding matters concern the identification and management of Lot 31. 16 I initially accept the parties agreement that the creation and management of lot 31 should not result in any threat to the nominated species and that conditions of consent can cover matters raised in the 7 Part test. Furthermore, it seems that the proposed management arrangements including fencing the lot, maintenance/weed removal and provision of bat roosts is consistent with line of authority stated in Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133. 17 In para 108 the Chief Judge dealt with ecologically sustainable development and identified 6 important principles, relevantly including: 116 Fourthly, there are principles of equity. There is a need for inter-generational equity - the present generation should ensure that the health, diversity and productivity of the environment are maintained or enhanced for the benefit of future generations: see s 6(2)(b) of the Protection of the Environment Administration Act 1991; s 3.5.2 of the Intergovernmental Agreement on the Environment ; and Principle 3 of the Rio Declaration on Environment and Development . 117 There is also a need for intra-generational equity. This involves considerations of equity within the present generation, such as use of natural resources by one nation-state (or sector or class within a nation-state) needing to take account of the needs of other nation-states (or sectors or classes within a nation-state): P Sands, Principles of International Environmental Law , 2nd ed, Cambridge University Press, 2003 at p. 253 and E Brown Weiss, "Intergenerational Equity: a legal framework for global environmental change" in E Brown Weiss (ed), Environmental Change and International Law: New Challenges and Dimensions , UN University Press, 1992, p. 385 at pp. 397-398. It involves people within the present generation having equal rights to benefit from the exploitation of resources and from the enjoyment of a clean and healthy environment: B Boer, "Institutionalising Ecologically Sustainable Development: The Role of National, State and Local Governments in Translating Grand Strategy into Action" (1995) 31 Willamette Law Review 307 at 320. 118 Fifthly, there is the principle that conservation of biological diversity and ecologically integrity should be a fundamental consideration: s 6(2)(c) of the Protection of the Environment Administration Act 1991; s 3.5.3 of the Intergovernmental Agreement on the Environment; and Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [58]-[63]. 18 The first question for the Court is whether the care and management of lot 31 requires it to be annexed to another lot in the estate. It is apparent that the main purpose of the development is to create low-density residential lots, in accordance with the zoning. This is consistent with the surrounding development. 19 However lot 31 is significantly different due to its ecological constraints. From the various submissions I do not consider it necessary to initially restrict another lot in the estate by requiring annexure of lot 31. It seems that the environmental concerns are likely to be better protected by fencing this lot and restricting access. Providing there is an effective care and management plan for this lot, I do not consider it reasonable or necessary for the annexure. Therefore I consider that condition 19 A, as amended reasonably addresses this concern. 20 The other outstanding matter concerns the signage for lot 31. I accept it is desirable for an appropriate advisory sign to be placed on the fence(s), to restrict entry to the conservation area. 21 However, I note that whilst the parties have agreed to the creation of lot 31 in the development application, nevertheless there may still be opposing expert opinions on the ecological status of this lot. Therefore I consider it reasonable that lot 31 can be created on a 'provisional' basis. If the property owner considers this ecological status changes in the future, then a development application can be lodged and assessed on its merits. On this basis, the sign can mention the provisional status of lot 31. Court Orders. 22 The Court orders that: 1 The appeal is upheld. 2 Development application No 270/2008/ZB, for the creation of 31 lots at 96 Tuckwell Road, Castle Hill of is granted consent subject to the conditions in Annexure A. 3 The exhibits are retained except 1. ___________________ R Hussey Commissioner of the Court ljr 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.