Pluim Commercial Contractors Pty Ltd trading as Pluim Group v Central Coast Council [2019] NSWLEC 1077

Land and Environment Court New South Wales

Medium Neutral Citation: Pluim Commercial Contractors Pty Ltd trading as Pluim Group v Central Coast Council [2019] NSWLEC 1077 Hearing dates: Conciliation conference on 4 February 2019 Date of orders: 27 February 2019 Decision date: 27 February 2019 Jurisdiction: Class 1 Before: Dixon SC Decision: See orders at [31] below Catchwords: DEVELOPMENT APPLICATION: conciliation conference – agreement between the parties – orders Legislation Cited: Biodiversity Conservation Regulation 2017 Biodiversity Conservation (Savings and Transitional) Regulation 2017 Environment Protection Biodiversity Conservation Act 1999 (Cth) Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Native Vegetation Act 2003 Threatened Species Act 1995 Wyong Local Environment Plan 1991 Wyong Local Environmental Plan 2013 Category: Principal judgment Parties: Pluim Commercial Contractors Pty Ltd trading as Pluim Group (Applicant) Central Coast Council (Respondent) Representation: Solicitors: S Nevin, Sparke Helmore Lawyers (Applicant) M Ball, Central Coast Council (Respondent) File Number(s): 2018/208700 Publication restriction: No

Judgment 1. On 13 June 2014, the Central Coast Council granted development consent to the Applicant for the construction of a place of worship on land, being Lot 9 in DP 825892, located at 7 Kyte Place, Tumbi Umbi (the site). 2. The consent (DA/905/2013) approved the removal or thinning of 0.95 ha of native vegetation on the site with approximately 0.55 ha required to be retained. This vegetation is Coastal Plains Smooth- barked Apple Woodland (with an ecotone with Coastal Narrabeen Moist Forests in the south). Although there are no Endangered Ecological Communities (EEC), there was one threatened tree recorded on the site – a Syzgium paniculatum. This species was, as at the date of the consent, listed as Endangered under the Threatened Species Act 1995 (now repealed) and as Vulnerable on the Environment Protection Biodiversity Conservation Act 1999 (Cth) but was approved to be removed. 3. Prior to removal of any vegetation on the site, the consent requires the Applicant obtain an approved property vegetation plan (PVP) from the Local Land Services (LLS). Condition 5 provides as follows: "5. Prior to removal of native vegetation an approved property vegetation plan (PVP) from Local Land Services in accordance with the Native Vegetation Act 2003 must be obtained. Correspondence from the Local Land Services must be submitted to Council demonstrating that the requirements of the Native Vegetation Act 2003 have been satisfied." 1. However, this is no longer possible as the Native Vegetation Act 2003 has been repealed. It seeks the Court's approval to modify the consent under s 4.55(1A) of the Environmental Planning and Assessment Act 1979 (EPA Act) (2018 Modification Application) by deleting Condition 5 and replacing it with two new conditions 5A and 5B which state: "5A Prior to the removal of any vegetation, a Biodiversity Development Assessment Report must be submitted to the Council. The Council must be satisfied that the Biodiversity Development Assessment Report has been prepared in accordance with the Biodiversity Conservation Act 2016, Biodiversity Assessment Method and Biodiversity Conservation Regulation 2017. The Biodiversity Development Assessment Report must include consideration of the stick nest that has been identified on the site. 5B Prior to commencement of any vegetation clearing works, the number and class of ecosystem and species credits specified in the Biodiversity Development Assessment Report are to be retired to offset the residual biodiversity impacts of the development. The requirement to retire credits may be satisfied by payment to the Biodiversity Conservation Fund of an amount equivalent to the class and number of species or ecosystem credits, as calculated by the Biodiversity Offsets Payment Calculator. Evidence of the retirement of the required credits or payment to the Biodiversity Conservation Fund must be provided to Council prior to commencement of any vegetation clearing works."