Land and Environment Court of New South Wales CITATION : Hockitt Pastoral Co Pty Ltd v Great Lakes Shire Council [2007] NSWLEC 514 APPLICANT Hockitt Pastoral Co Pty Ltd PARTIES : RESPONDENT Great Lakes Shire Council FILE NUMBER(S) : 10983 of 2006 CORAM: Hussey C KEY ISSUES: Development Application :- Appeal against conditions for requiring re-vegetation management, imposition of restrictive covenants Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Great Lakes Local Environmental Plan 1996 State Environmental Planning Policy No. 46 Director General of National Parks and wildlife v Wilkinson & Anor Director General of Land and Water Conservation v Wilkinson & Anor [2002] NSWLEC 171; CASES CITED: Fortunate Investments Pty Ltd v North Sydney Council [2001] NSWLEC 70; MacDonald v Mosman Municipal Council [1999] NSWLEC 215 DATES OF HEARING: 05/07/2007 DATE OF JUDGMENT: 17 August 2007 APPLICANT Mr D. Wilson, barrister Instructed by Mr G. Doherty of Low Doherty and Stratford LEGAL REPRESENTATIVES: RESPONDENT Mr I. Hemmings, barrister Instructed by Mr P. Rees, of Mallik Rees Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 17 August 2007 10983 of 2006 Hockitt Pastoral Co Pty Ltd v Great Lakes Shire Council JUDGMENT The appeal 1 This appeal was lodged against conditions of consent imposed on a rural/residential subdivision located at the corner of the Pacific Highway and Minimbah Road, Minimbah. 2 The site originally comprised Lot 22 in DP 871233 and the adjoining Lot 21, with a combined area of approximately 100 ha. It has the benefit of a 1st stage subdivision of 8 rural/residential lots and a subsequent 2nd stage subdivision creating 19 lots, including a larger residue Lot 26. 3 The appeal is against conditions 19(c) and (e) imposed on the 2nd stage, relative to Lot 26. There was some reference made to another s 96 modification application in respect to these conditions, but the parties agreed that the appeal should proceed on the basis of a s 97 appeal against these conditions of consent, which require: 19. The following Restrictions as to User are to be entered onto the title of the specified Lots (s 88B or s 88E Instrument, where appropriate), with Great Lakes Council nominated as the body empowered to modify or waive such requirements: a) ... b) … c) S 88E Instrument restricting the clearing, removal, modification of or damage to native vegetation from any vegetative strata (trees, shrubs, groundcovers, wetland plants or vines) and excluding development (as defined by the EP&A Act) except for the establishment and maintenance of boundary fencing, from all of Lot 26 outside the 1-ha development area and from the 50m Pacific Highway buffer zone on Lot 8. These areas shall be allowed to naturally regenerate and mature. The provisions of the Instrument shall not preclude the removal of invasive noxious or environmental weeds from the lands, provided that such weeds are removed in accordance with best practice management and do not negatively impact upon natural vegetation. On Lot 26, this shall be in addition to the current Registered Property Agreement that applies to part of this land, but which expires in September 2012. d) … e) A notifiable condition shall be placed on Lot 26 to require at the time of lodgement of a development application for the purposes of the establishment of a dwelling, shed or other structure that a Habitat Management Plan be prepared for the area encompassed by the s 88E instrument. The Habitat Management Plan (HMP) shall be prepared by a qualified ecologist and submitted to Council for review and written endorsement prior to the determination of the DA. The responsibilities for the implementation of each specific aspect of the HMP shall be specified and the HMP shall incorporate monitoring, evaluation and review. The HMP shall be reviewed and updated after five years and subject to review and renewed endorsement by Council at that time. It shall outline the techniques to be used to manage the lands such that over time a diverse and viable natural open forest community is restored and maintained, including healthy lower vegetation layers. This Plan shall consider and outline weed control and removal works. This shall clearly outline the full range of known and potential threats to threatened species populations over this land, devise and document actions to address these identified threats and to maintain, restore and enhance the integrity and persistence of all threatened species populations and their habitats. The HMP shall incorporate techniques that implement the adequate and deliberate manipulation of fire regimes within the land so as to maintain populations of threatened species and their associated taxa. Fire intervals of not less than 7-years shall be encouraged. Such prescribed burns shall be low intensity and fast burning. 4 On the basis of the s 97 appeal, Council contended that revised conditions, as shown in Schedule 2 (Exhibit 6), should now be imposed to replace conditions No. 19( c) and (e). 5 The evidence in this matter comprises a joint report (Exhibit 2) by Dr A Smith (on behalf of council) and Dr D Robertson (on behalf of the applicant), both ecology experts. Background. 6 This subdivision application is effectively the second stage subdivision of the original Lot 22. The first stage subdivision created 7 lots (Lots 1 - 7), with areas of 1 ha and a larger residue Lot 8. 7 This second stage subdivision of Lot 8 was granted consent on 17 November 2005 for 18 lots (Lots 8 - 25) with areas generally of 1 ha and a larger residue Lot 26 with an area of 69.14 ha. The conditions of consent included No 19, which sought to impose restrictions on the use of Lot 26, to maintain it as a conservation area. 8 Prior to this 2nd stage consent being granted and at the end of July 1996, an application was lodged with the Department of Land and Water Conservation (the Department") under the provisions of SEPP 46 for consent to clear 58 ha of native vegetation from the land and to facilitate the rural residential subdivision. Apparently an amended application was submitted to the Department in 1998 to be consistent with a revised development application lodged with council. 9 During the assessment, the Department requested a species impact statement, a flora survey, and an assessment of archaeological sensitivity and cultural significance. Then on 17 July 1998 the Department issued a notice allowing the conditional consent to clear approximately 15 ha of the land. 10 Clearing works were subsequently undertaken which breached the conditions of consent. This resulted in prosecution action by the Director General of National Parks and Wildlife, which was heard by His Honour Justice Lloyd in the matter of Director General of National Parks and Wildlife v Wilkinson & Anor Director General of Land and Water Conservation v Wilkinson & Anor [2002] NSWLEC 171. Arising out of those proceedings the applicant entered a Registered Property Agreement (RPA) under Pt 5 of the NVC Act in relation to the restrictions on the land (Lot 26) to be retained for conservation purposes subject to agreed terms. 11 The terms of the property agreement are summarised in the judgement as follows: 52 The Property Agreement ("the Agreement") is between the Hockitt Pastoral Company Pty Ltd (ABN 57 080 605 983, described as the "landholder") and the Director-General of the Department of Land and Water Conservation. The Agreement remains in force for a period of 10 years and the landholder is to bear the cost of carrying out any works. The land to which the agreement applies is described as part lot 22 in deposited plan 871233 (hereafter "rty"), the location and area of which is shown in Pt D of the Agreement. 53 The Agreement was entered into for conservation and management of vegetation on the Property. The landholder is to incorporate the covenants of the Agreement into any lease or licence over the Property and is to ensure that any of their servants, agents or contractors are aware of those covenants. 54 The Agreement provides that the land "is to be established and maintained as a conservation area". The Management Program prescribed in Sch 3 to the Agreement includes the following objectives: to ensure the future use of the Property is as a conservation area; to facilitate re-establishment of the vegetation strata present on the Property prior to the land clearing; to facilitate the ecological value of the land for native fauna species by restoring fauna habitat components and food sources; and to use natural regeneration as the principal means of achieving appropriate revegetation of the land. 55 Activities that not allowed on the Property are those that may adversely impact the native fauna and native vegetation and specifically include: horse riding, trail bike riding, mountain bike riding, grazing and four-wheel drive trail driving. There is to be no further clearing on the land under the Agreement except for authorised works. 56 There is a house-site ("the site") permitted within the Property, the location and area of which is shown in Pt D of the Management Program. Road access to the site is specified and its boundaries are to be fenced with a 1.2 metres high pig wire fence before human or domestic occupation of the site. A single, normal residential dwelling is permitted on the site with the relevant approvals. No exotic or introduced species are to be grown on the site and domestic animals are to be confined to it as much as possible. Any occupant or lessee of a dwelling house on the site is to be furnished with a copy of the Agreement by the landholder and are to agree to the use limitations set out in Pt C of the Management Program. 57 The perimeter of the Property is to be fenced with plain stock-proof wire fencing although existing sections of barbed wire fencing may remain in situ while they are in stock-proof condition. All fences are to be maintained in stock-proof condition and the landholder is to inspect all fences for any damage every 6 months and complete repairs as necessary. 58 The boundary of the Property is to be fenced with 1.2 metres high pig wire fencing within three months of approval of any residential development on any part of lot 22 in deposited plan 871233 that is not the Property. If such development does not involve lots adjacent to the Property, then those lots can be fenced as an alternative within three months of approval or registration, whichever is earlier. 59 There will be an annual weed inspection and weed removal as required. 60 The Director General is to initiate approval procedures for the closure of Crown road over Lots 21 and 22 in deposited plan 871233 within one month of the Agreement. The landholder is to spread seed bearing branches over the areas not vegetated along this road. If the Director General fails to gain the appropriate approval for closure of the road, the landowner will not be responsible for the control of weeds on that part of that Crown road. 61 It is intended by the parties to the Agreement that the Property is to remain as one unsubdivided parcel. If in future circumstances there is a need to subdivide the Property, the landholder may seek the Director General's consent and the Director-General will consider the request in terms of the proposal's impacts on achievement of the objectives of the Management Program. The Director General may refuse to grant consent or to give conditional consent. 62 The landholder is to lodge a security deposit in the form of an unconditional bank guarantee in the sum of $10,000 which is to be maintained for a period of 10 years. The security deposit will be used by the Director General when the landholder has been requested to carry out works but has failed to so do after receipt of reasonable notice. Planning Controls. 12 The land is subject to the following controls Great Lakes Local Environmental Plan 1996 . Under which the site is within the 1(d) Small Holdings zone. The objectives of this zone are: a) Objective (a) to enable development for the purposes of small rural-residential holdings and dwellings to be carried out: i) On land which is suitable for that development, and ii) Which is unlikely to create a demand for an economic provision of services, and iii) Which will not significantly detract from the scenic quality of land within the zone, and iv) Which will maintain the amenity of existing rural-residential lots in the locality. b) Objective (b) to enable non-residential development which is: i) compatible with rural-residential development, and ii) unlikely to create an unreasonable demand for public services or substantially reduce existing level of service, and iii) unlikely to interfere unreasonably the amenity of adjoining properties. 13 Great Lakes Subdivision Development Control Plan No 31. This DCP applies to the site and contains the following relevant aims and objectives. 14 A principal aim of the DCP is to: a) Protect and enhance the environment. (cl 1.1.2) 15 An aim for rural subdivision and environmental zoned subdivision it is to: a) Protect the scenic value and natural habitats of rural land. (cl 1.1.2) 16 The environmental protection objectives are: o To ensure that all subdivision is maintain diversity and preserve natural o To ensure that all subdivision recognise environmental constraints of subject land. o To ensure that all subdivisions are designed to minimise environmental impacts. Discussion of the evidence and submissions 17 In his submissions, Mr Wilson acknowledges that one of the objectives of` the RPA is to ensure that the predominant future use of the land is as a conservation area. Also, that the 10 year period of the agreement is important and that this should adequately cover any outstanding environmental concerns. However, he says that nothing in the agreement purports to inhibit or prevent a development application being made under the provisions of the EPA & Act 1979, whereas the proposed conditions do and this is unreasonable. Accordingly, his submission is that the conditions 19(c) and (e) should be deleted. 18 Against this, Mr Hemmings submits that the RPA was entered in response to the charges made and is part of the penalty imposed in respect of the unauthorised clearing works. 19 As such it only covers the 10 year period until 2012 and the proposed alternate conditions of consent are to cover more detailed revegetation and conservation works for the 10 year period and beyond. 20 In support of this submission, Mr Hemmings referred to aspects of the various Statements of Environmental Effects, prepared by Coastplan Consulting, which stated that: "Lot 26 in the proposed subdivision, with an area of approximately 70 hectares encompasses that part of the site that is the subject of the property agreement between the landowner and DIPNR for retention of land for conservation purposes. It should be noted that the property agreement sets aside an area (dwelling site) of approximately one (1) hectare that may be developed for the purposes of a single dwelling with the relevant approvals. It is proposed to designate a dwelling site on proposed Lot 26 in accordance with the property agreement as part of the development proposal. It is also intended to place an advisory note on the title of proposed Lot 26 to inform any prospective purchaser that the land the subject to a registered property conservation agreement that runs until 27 September 2012. The note will advise that it is possible that any future development proposal for Lot 26 apart from the erection of a dwelling in the designated building envelope will require appropriate ecological investigations to the undertaken as part of any assessment by Council." 21 Conacher Travers (environmental consultants) subsequently undertook a flora and fauna assessment in July 2005. This assessment included an 8 Part Test of Significance, which recorded the following two threatened fauna species within the site, i.e. the Squirrel Gliger (Petaurus norfolcensis) and the Brush-tailed Phascogale (Phascogale tapoatafa). The assessment concluded that: "provided the recommendations listed in Section 6.0 are adopted and habitats for threatened species are retained in the proposed development landscape, the proposal will not result in a significant impact upon threatened species, populations endangered ecological communities. Therefore a Species Impact Statement should not be required for the proposed development." 22 Mr Hemmings submits that this conclusion was accepted by Council, in granting the original conditional subdivision consent (including condition 19), without the requirement for any Species Impact Statement (SIS). If now the applicant's position was accepted that this condition be deleted, then a SIS would likely be required. 23 In further support of imposing the revised conditions 19(c) and (e), Mr Hemmings referred to the joint report of the ecological experts. Both of the experts agreed that the site had high ecological significance before it was cleared and the land has habitat for threatened fauna species, which is possible to conserve in the longer term. 24 Dr Smith referred to the evidence presented to Lloyd J, which indicated that a period of at least 100 years would be required for logs and large dead branches to be re-established on the ground and periods of 80-200 years would be required for re-establishment of large trees and hollows. Accordingly, he considers that the RPA is of an immediate, short-term nature to allow native vegetation to re-establish by excluding domestic stock and controlling weeds and disturbance until the vegetation is tall enough and sufficiently established to have some actual resilience - this typically takes about 10 years, in his opinion. 25 Accordingly, Dr Smith says that conditions 19(c) and 19 (e) are consistent with and necessary for implementation and enforcement of the long-term objectives of the RPA once the native vegetation has become re-established. His opinion is that the conservation significance of native vegetation and fauna habitat is sufficiently high to warrant conservation protection in perpetuity and he supports the inposition of Council's revised Schedule 2 conditions. 26 Contrary to this, Dr Robertson does not consider the conservation agreement as permanent and says unforeseen circumstances such Biobanking could be a reason for not extending the conservation agreement to make it permanent. This is on the basis of the following statement in Part F of the RPA: "However, if through unforeseen circumstances in the future there is a need to subdivide the land the Landholder may seek the Director-Generals consent to subdivision. The Director-General will consider the request in terms of the proposed subdivision's impact on achievement of the objectives of the management program and may refuse consent for give conditional consent to the proposed subdivision including requirements for entry into a new agreement or agreements." 27 Apart from this, submissions were made about the appropriateness of imposing councils revised conditions by way of 88E covenants on the land. Mr Hemming initially referred to Fortunate Investments Pty Ltd v North Sydney Council [2001] NSWLEC 70, where Pearlmam CJ determined that the Court has power to impose conditions requiring such instruments where there is a proper planning purpose. 28 Reference was made to other cases, particularly MacDonald v Mosman Municipal Council [1999] NSWLEC 215, which confirmed that the Court prefers to avoid restrictive covenants where the intentions can be covered by appropriate conditions of consent. Conclusions 29 Having considered the evidence and submissions, I am satisfied to rely on the agreed statements by the ecology experts that the site had areas of high ecological significance before it was cleared. As a result of this unauthorised clearing of the land, the property owners entered the RPA to enable its revegetation over a period of 10 years, which expires in 2012. In my assessment, it appears that the purpose of the RPA is primarily aimed at remediating harm caused the unauthorised clearing. 30 On this basis then, I consider it a separate matter that other reasonable conditions of consent should be imposed on the subdivision development, which protect the ecological qualities of the designated "conservation" Lot 26, so as to satisfy the planning controls, particularly the environmental protection objectives in DCP 31. This is consistent with the approach that the development consent for the subdivision provides certain benefits in the form of additional allotments for residential use, but there is an associated burden that the conservation status of the adjoining Lot 26 be protected. 31 In this regard, I rely on the details submitted by the applicant in the various Statement of Environmental Effects, which identify the conservation status of Lot 26 as part of the overall development of the subject land. This proposition was then confirmed in the Conacher Travers 'Flora and Fauna Assessment – July 2005', which recommended remedial conditions that would obviate the necessity for a Species Impact Statement. 32 Furthermore, I note that this application was referred to the Department of Natural Resources, who advised as follows that it disagreed with the submissions to Council on behalf of the applicant that: "It is inappropriate for Council to impose conditions of consent in relation to the conservation lot that exceed the provisions of the registered Property Agreement." The ruling related to illegal clearing of native vegetation and harming of threatened species on the property. The Property Agreement conditions were related to remediating the harm caused by the illegal activity. The Development Approval conditions are for purpose of the Council's assessment of a development application it received for subdivision. It is reasonable to assume that if the proposed subdivision is likely to cause additional environmental harm that was already caused by the illegal native vegetation clearing, the Council should impose additional requirements. In considering EP&A Act 79C, the Council might consider that the permanence of the impacts which will be caused by the Development should be balanced through comparable permanence of relevant protections. I note this is sound compliance practise to consider any adverse history when determining the degree of prescriptive areas of conditions of consent." 33 For these reasons then, I am satisfied there is a direct connection between the approved subdivision, which contains the designated 'conservation' Lot 26 and the reasonableness to impose conditions of consent that protect the ecological features of this lot, in addition to from the provisions of the RPA. Accordingly, I do not accept Mr Wilson submissions that the original conditions 19(c) and (e) should be deleted. 34 The next question then concerns the form of such conditions. Insofar as the council prefers the imposition of an 88E covenant on the land, to provide clear advice to all future owners/users of Lot 26 of its restrictive conservation status, nevertheless I consider that this intention can be adequately covered by appropriate conditions of consent. This is on the basis that having considered the various submissions on the lines of authority for imposing conditions on restrictive covenants, I rely on the authority set out in the decision of MacDonald v Mosman Municipal Council [1999] 105 LGERA 49, where His Honour Lloyd J said (at 53): "The Court has not, in the past, been favourably disposed towards conditions requiring registered restrictions as to user". 35 In the determination of appropriate conditions to achieve the aforementioned objectives, I note that the draft conditions submitted by Council do not appear to restrict the applicant's ability to lodge future development applications, subject to the circumstances at the time and therefore the concerns raised by Mr Wilson should not arise. This is consistent with the provisions of the RPA. 36 With respect to the conditions then, the parties have had the opportunity to make further submissions in respect to the draft conditions in Schedule 2 of Exhibit 6, which I consider forms a reasonable basis for finalisation of these conditions. I accept Mr Wilson's submissions that the amended condition 19(c) should not in breach the RPA and can include a note the effect a dwelling house proposal can be made for a dwelling house on the designated 1 ha lot within Lot 26. 37 However I do not accept Mr Wilson submissions in respect of condition 19(e), that the detailing and requirement for a Habitat Management Plan (HMP) should be deleted and substituted with the requirements of the RPA. Instead, it seems to me that the ecological evidence, including the recommendations of Conacher Travers requires the implementation of additional management strategies to aid in the minimisation of impact of the development upon the habitats of threatened species. I am satisfied that such a condition is reasonable to impose to comply with the provisions of the LEP and DCP 31, on the basis that it will run with the land, presumably beyond the 10 year RPA term, unless appropriately modified in the future. 38 Accordingly the Court makes the following orders. Court Orders 1. The appeal is upheld. 2. The conditions of consent No. 19(c) and (e) for D A – 491/2005 are varied in accordance the conditions shown in Attachment A. 3. Exhibits may be returned except for 1, 2, 5 and 6. ___________________ R Hussey Commissioner of the Court DK/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.