Australand Holdings Ltd v Liverpool City Council [2003] NSWLEC 240

> Land and Environment Court of New South Wales

CITATION : Australand Holdings Ltd v Liverpool City Council [2003] NSWLEC 240 Applicant: Australand Holdings Ltd PARTIES : Respondent: Liverpool City Council FILE NUMBER(S) : 10374; 10375; 10376; 10377 of 2003 CORAM: Bly C KEY ISSUES: Subdivision :- Threatened species and endangered ecological communities LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Liverpool Local Environmental Plan 1997 CASES CITED: DATES OF HEARING: 25-28 August 2003 DATE OF JUDGMENT: 10/13/2003

Applicant Mr M Craig, QC instructed by Colin Biggers & Paisley LEGAL REPRESENTATIVES: Respondent Mr A Pickles, barrister instructed by Marsdens Law Group

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10374, 5, 6 and 7 of 2003

Bly C

13 October 2003 Australand Holdings Ltd Applicant v Liverpool City Council Respondent

Judgment

Introduction

1 These four appeals involve a proposed four stage residential subdivision of land in Camden Valley Way and Ash Road, Prestons, being Lots C and D in DP 393110, Lot B in DP 387123, Lot 6 in DP 664927 and Lot 1 in DP 329403 ("the proposal"). The four stages include a total of 68 residential lots and associated roads plus various other lots including open space, drainage, electricity transmission and residue.

2 The site has an irregular "L" shaped configuration with frontages of 94 m to Camden Valley Way and 100 m to Ash Road and a total area of about 11 ha. It is partly affected by a drainage reserve and an electricity transmission easement. Past agricultural activities are evident including grazing and intensive poultry farming. The site contains extensive stands of woodland and open - forest, (both mature and regrowth) mixed with open grassy areas.

3 It was not in dispute that parts of the site contain: o Cumberland Plain Woodland ("the Cumberland Woodland") an endangered ecological community, o Sydney Coastal River - Flat Forest ("the River Flat Forest"), an endangered ecological community, and o Large Land Snail (Meridolum corneovirens) ("the Land Snail") a threatened species.

Statutory provisions

4 The site is partly zoned 2 (a) Residential and partly 5 (a) Drainage under Liverpool Local Environmental Plan 1997 ("the LEP"). Subdivision is permissible with development consent.

5 A considerable area of the site is identified as being Environmentally Significant Land ("ESL"), including most of Stage 3 in the north-western corner and part of Stage 4 in the north-eastern corner. Considerable areas of adjoining lands to the north, west and south-east are also identified as ESL. Relevantly 16 (1) of the LEP provides as follows: (1) Before determining an application to carry out development on land shown on the map with vertical and horizontal cross hatching as being environmentally significant land the council must consider whether: (a) it substantially retains the existing vegetation, and (b) it does not detract from the scenic qualities of the locality, and (c) it does not adversely affect native fauna. 6 Also applicable to the site are: o Development Control Plan No. 31 - Subdivision of Land in the Hoxton Park, Carnes Hill and Prestons Residential Release Areas ("DCP 31"), o Development Control Plan No. 8 - Natural Assets ("DCP 8"), o Liverpool Contribution Plan 2001 ("the contribution plan")

The issues

7 Whilst a Statement of Issues containing nine issues was provided to the applicant and the Court, these issues essentially devolved to the following: o Whether the proposal is likely to have an unacceptable and unreasonable impact on threatened species and endangered ecological communities. o Whether the proposal is responsive to the ESL requirements in 16 (1) of the LEP.

The evidence

8 On behalf of the respondent Council expert evidence was given by: o Miss K Griffiths - town planner o Miss T James - botanist/ecologist o Miss S Clarke - ecologist. 9 On behalf of the applicant expert evidence was given by: o Mr D Fanning - ecologist o Mr J Travers - ecologist at and bushfire consultant.

10 The Court inspected the site and its environs in the company of the applicant and the respondent.

Threatened species and endangered ecological communities

11 Because threatened species and endangered ecological communities are involved, s 78A(8) of the Environmental Planning and Assessment Act 1979 ("the EPA Act") relevantly provides that: (8) A development application must be accompanied by: (a) … (b) if the application is in respect of development on land that is, or is part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats - a species impact statement prepared in accordance with Division 2 of Part 6 of the Threatened Species Conservation Act 1995 ("the TSC Act"). 12 Relevantly s 5A of the EPA Act sets out eight factors which must be taken into account to determine if the development under consideration is likely to significantly affect threatened species, populations or ecological communities, or their habitats. Arising out of the respondent's expert evidence, ss (a), (c), (d), (f) (g) and (h) of s 5A are relevant to this proposal: 5A For the purposes of this Act and, in particular, in the administration of sections 78A, 79C(1) and 112, the following factors must be taken into account in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats: (a) in the case of a threatened species, whether the life cycle of the species is likely to be disrupted such that a viable local population of the species is likely to be placed at risk of extinction, (b) … (c) species, population or ecological community, whether a significant area of known habitat is to be modified or removed, (d) whether an area of known habitat is likely to become isolated from currently interconnecting or approximate areas of habitat for a threatened species, population or ecological community, (e) … (f) whether a threatened species, population or ecological community, or their habitats, are adequately represented in conservation reserves (or other similar protected areas) in the region, (g) whether the development or activity proposed is of a class of development or activity that is recognised as a threatening process. (h) whether any threatened species, population or ecological community is at the limit of its known distribution.

The Cumberland Plain Woodland

13 In relation to the Cumberland Plain Woodland, an endangered community ss (c), (d), (f) and (g) of s 5A of the Act are relevant. (c) Regional distribution

14 Miss James explained that an area of approximately 1.72 ha of Cumberland Plain Woodland will be removed as a result of the proposed development. In addition fire protection measures and edge effects are likely to impact on an additional area of 1.4 ha and in the long-term a further 2 - 3 ha may be lost. The proposed retention of 1.3 ha represents less than half of that to be lost and the long term viability of this area is questionable due to its small size. Today there is only 9,760 ha or 8% remaining of the original extent of Cumberland Plain Woodland and although 3 - 5 ha comprises a very small proportion of this it comprises part of a larger remnant of about 18 - 20 ha which is naturally regenerating and is thus significant.

15 Mr Fanning explained that the total area of Cumberland Plain Woodland remaining in western Sydney according to National Parks and Wildlife Service estimates (2002) is 25,620 ha although this figure is likely to be an under estimate. The loss of woodland from this site would be insignificant. (d) Isolated habitat 16 Miss James was of the opinion that the proposal would result in the isolation of Cumberland Plain Woodland which exists on adjoining lands. However Mr Fanning noted that vegetation on the site and on surrounding lands is already fragmented as a result of existing roads and urban development and that further fragmentation will result from trunk drainage works. (f) Adequate representation 17 Miss James was of the opinion that Cumberland Plain Woodland is not adequately represented in conservation reserves, there being only 3% remaining in NPWS estates and 12% zoned for environmental protection. The amount of Cumberland Plain Woodland remaining is critically low and is continually diminishing.

18 Mr Fanning was of the opinion that Cumberland Plain Woodland would continue to be adequately represented and the area of the woodland on the site which is of the highest conservation value or significance is to be retained and appropriately managed in the residual bushland Lot 3017 ("the residual lot"). (g) Threatening process

19 Miss James explained that urban development involving the clearing of land and fragmentation of native vegetation is to be recognised as a threatening process. Mr Fanning accepted this but was of the opinion that in the wider context the effect was not significant.

The River Flat Forest

20 In relation to the River Flat Forest, an endangered community ss (c), (d), (f) and (g) of 5A of the Act are relevant. (c) Regional distribution

21 Miss James explained that an area of approximately 2.28 ha of River Flat Forest will be removed as a result of the proposed development. In addition there will be indirect impacts on River Flat Forest on adjoining lands as a result of the provision of fire asset protection zones, hydrological changes and edge effects resulting in a total area of approximately 3.5 ha to be removed or modified. She recognised that the area of River Flat Forest affected by this proposal comprises a very small proportion however in the regional context the loss within the local government area would be significant. Also it's relationship with the Cumberland Plain Woodland added to its significance.

22 Mr Fanning was of the opinion that the area of River Flat Forest affected by the proposal was small and the area of quality vegetation was even less. This analysis takes into account the total area of River Flat Forest in western Sydney which is conservatively estimated at 4,176 ha. (d) Isolated habitat 23 Miss James was of the opinion that the proposed development would result in the fragmentation of River Flat Forest within the larger remnant which exists on adjoining lands.

24 Mr Fanning said that vegetation on the site and surrounding lands is already fragmented as a result of existing roads and urban development and will become more so as a result of trunk drainage works and future development of other lands in the vicinity. (f) Adequate representation

25 Miss James said that the River Flat Forest was not adequately represented in conservation reserves. She explained that only approximately 1% of the remaining River Flat Forest is reserved in the National Parks and Wildlife Service estates and 5 % zoned for environmental protection which is considerably less than the recommended 15% target. The amount left is critically low.

26 Mr Fanning was of the opinion that the River Flat Forest on this site is in poor condition and has little or no conservation value. This, together with the significant removal of trees as a result of the trunk drainage works means that approval of the proposal would make little difference to adequacy of representation. (g) Threatening process

27 Miss James identified two key threatening process, being land clearing and degradation and fragmentation. Mr Fanning accepted this but did not believe that these processes would have a significant effect.

The Land Snail

28 In relation to the Land Snail, a threatened species ss (a), (c), (d), (f) (g) and (h) of 5A of the EPA Act are relevant. (a) Risk of extinction

29 According to Miss Clarke there is a viable local population of the Land Snail on the site which would be at risk if the development proceeds. This is because the reduction in the total size of the current population is likely to reduce the overall genetic diversity of this population and by default the entire species. Mr Fanning disagreed arguing that the proposal would affect only a very small area of the Land Snail's habitat.

30 Miss Clarke agreed with Mr Fanning that the existing population of Land Snails on the site could be relocated into the proposed residual lot which would comprise a suitable habitat. (c) Regional distribution

31 Miss Clarke noted that there are larger areas of known Land Snail habitat within a short distance of the site and that the area of Land Snail habitat on the site is not significant. Mr Fanning pointed out that as the Land Snail occurs in Cumberland Plain vegetation communities, there are thousands of hectares of potential or known habitat for this species. (d) Isolated habitat

32 In relation to the question of whether the Land Snail habitat is likely to become isolated Miss Clarke acknowledged that the existing habitat on the site is effectively isolated from other nearby patches of known snail habitat. Similarly Mr Fanning argued that this proposal would not further fragment or isolate the Land Snail's habitat. (f) Adequate representation

33 Miss Clarke was of the opinion that the Land Snail is not considered to be adequately conserved in conservation reserves in western Sydney or in the Sydney district as a whole. The bulk of known populations of this species is to be found outside conservation reserves. Again Mr Fanning pointed out the extent of existing Cumberland Plain vegetation communities which can be considered to provide habitat for this species. (g) Threatening process

34 Miss Clarke explained that there are two threatening processes which can have a direct impact on the Land Snail, being clearing of native vegetation and high-frequency fire. The proposal would result in a loss of part of the existing population. Mr Fanning acknowledged the likely impacts on the Land Snail but argued that given the retention of Cumberland Plain Woodland on the site and the relocation of the affected population these processes are not of concern. (h) Limits of distribution

35 Miss Clarke was of the opinion that the population of Land Snail on this site is roughly near the south eastern boundary of its distribution. Mr Fanning did not believe this to be a matter of concern.

Court's conclusion - s 78A(8) of the EPA Act

36 Relevant to the question asked by s 78A (8) of the EPA Act, I have taken into account the following matters: o The expert evidence of Miss Clarke, Miss James and Mr Fanning. o The Flora and Fauna Assessment Report (Exhibit J) and the document titled Species Impact Statement for a Proposed Residential Subdivision (Exhibit c). o The extent to which the existing vegetation is degraded, disturbed, fragmented and isolated. 37 Considering all of these matters in the context of s 5A of the EPA Act, I have not been persuaded that any endangered ecological community or threatened species is likely to be significantly affected such that a species impact statement for the purposes of s 78A(8) of the EPA Act would be required.

Conservation concerns generally

38 Despite my conclusion in relation to s 78A of the EPA Act, any impacts on endangered ecological communities or threatened species are still required to be given particularly careful consideration. In this regard I am satisfied that the above reports and expert evidence is sufficient to enable the Court, as the consent authority to properly consider these matters in terms of appropriate conservation outcomes in the context of the development of this site for residential purposes. Also, because that part of the site which is subject to the ESL requirements of the LEP is largely coincidental with the Cumberland Plain Woodland, the River Flat Forest and the habitat of the Land Snail, these matters can and should be dealt with concurrently.

39 Because the Stage 1 Development application (DA 802/03) is not subject to the ESL requirements for substantial vegetation retention and because the extent of Cumberland Plain Woodland and River Flat Forest affected is essentially not of great significance and the Land Snail was not discovered on this land I accept that consent for this stage can be granted. In reaching this conclusion I also took into account the extent to which this land is affected by a the drainage channel and the extent of approved development on adjoining lands.

40 However I have not been persuaded that Stages 2, 3 and 4 (DA's 801/03, 785/03 and 786/03) which comprise the larger northern portion of the site, and which includes the residual lot, should be approved. In reaching this conclusion I have taken into account the relevant evidence of the experts.

41 Miss Clarke agreed that the Land Snails could be relocated to the residual lot and would potentially survive but was concerned that the size and isolation of this lot could result in inbreeding which would be a disadvantage in terms of the snails' long-term survival. Miss James acknowledged that, in an ecological sense, most of the best area of the site is to be retained but remained concerned that by itself it was not a viable remnant. This is because of the isolation of the remnant together with the inevitable edge effects including bushfire protection measures associated with adjoining development.

42 Mr Fanning pointed out that the whole site had been cleared in the past and was now regenerating. Much of the existing vegetation on the site was nevertheless degraded but with proper management the residual lot could be enhanced to provide a viable habitat particularly for the Land Snail. Mr Travers was of the opinion that bushfire protection measures including the asset protection zone would have little impact on the effective area of the residual lot.

43 Notwithstanding that the vegetation communities are somewhat degraded, I am not satisfied that the conservation concerns when considered together have been sufficiently taken into account by the subdivision proposal in Stages 2, 3 and 4. I have reached this conclusion notwithstanding that the majority of this part of the land is zoned for residential development and the extent of affectation of Stage 4 by the drainage and transmission easement.

44 Adding weight to the conservation importance of this part of the site is the fact that adjoining lands to the north and south of Stage 3 and to the east of Stage 2 attract similar significance and appear to warrant protection. As a consequence, the significance of the Cumberland Plain Woodland, the River Flat Forest and the ESL which form the habitat of the Land Snail is elevated. Together these lands provide opportunities for conservation which have not been responded to in a manner sufficient to warrant approval of the application.

45 During the hearing the applicant sought to minimise the isolation of the residual lot by offering to close part of proposed Road 6, so as to connect it with existing vegetation on adjoining land to the south. This approach is desirable but I have not been persuaded that it goes far enough.

46 I must also comment that it is unfortunate, given the conservation significance of some of the vegetation and habitat on this site and in the locality that the council has not seen fit to prepare a development control plan which provides for a balance between the protection of the significant flora and fauna and the identification of the land for housing.

47 For the above reasons I have decided that the Stage 1 development application can be approved but the Stages 2, 3 and 4 development applications should be refused.

Orders Stage 1 - DA 802/03 1. The appeal is upheld. 2. Development application No. 802/03 for the subdivision of land in Camden Valley Way, Prestons, is determined by the granting of development consent subject to the conditions in Annexure A hereto. 3. Exhibit K is retained. Stages 2, 3 and 4 - DA's 801/03, 785/03 and 786/03 1. The appeals are dismissed. 2. Development applications 801/03, 785/03 and 786/03 for the subdivision of land in Camden Valley Way and Ash Road, Prestons, are refused. 3. Exhibit K is retained

____________________ T A Bly Commissioner of the Court

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