Subdivision Appeal Rejected Due to Ecological Concerns

The Court dismissed an appeal and refused consent for a residential subdivision due to inconsistencies with the development control plan and negative impacts on endangered ecological communities and koala habitats.

[NAME] South Wales

Medium Neutral Citation: [NAME] v Port Stephens Council [2021] NSWLEC 56 Hearing dates: 10-14 May 2021 Date of orders: 02 June 2021 Decision date: 02 June 2021 Jurisdiction: Class 1 Before: Preston CJ Decision: [ADDRESS] orders: (1) The appeal is dismissed. (2) Development application no 16-2019-266-1 for the [NAME] of Lot 16 DP32005 known as [ADDRESS], [ADDRESS] is determined by refusal of consent. (3) The exhibits except for Exhibits V, X and Y, are to be returned to the party tendering the exhibit. Catchwords: APPEAL – [NAME] – refusal of development consent – [NAME] inconsistent with development control plan – planned local street and bus route not provided – weight to be given to development control plan – insufficient justification for inconsistency with development control plan – no reasonable alternative solution [NAME] in development application – unacceptable impacts on endangered ecological community and koala feed trees Legislation Cited: Biodiversity Conservation Act 2016 ss 7.2, 7.3, 7.13 Conveyancing Act 1919 s 88B Environmental Planning and Assessment Act 1979 ss 3.42, 3.43, 4.15(3A) Port Stephens Development Control Plan 2014 Port Stephens Development Control Plan 2007 Port Stephens Local Environmental Plan 2013 Port Stephens Local Environmental Plan 2000 Rural Fires Act 1997 s 100B State Environmental Planning Policy (Koala Habitat Protection) 2021 State Environmental Planning Policy (Koala Habitat Protection) 2020 State Environmental Planning Policy (Koala Habitat Protection) 2019 State Environmental Planning Policy No 44 – Koala Habitat Protection Cases Cited: Botany Bay City Council v Saab Corp Pty Ltd (2011) 183 LGERA 228; [2011] NSWCA 308 Conquest Constructions (NSW) Pty Ltd v Sutherland Shire Council (2011) 184 LGERA 1; [2011] NSWLEC 52 Dogild Pty Ltd v Warringah Council (2008) 158 LGERA 429; [2008] NSWLEC 53 Nalor Pty Ltd v Bankstown City Council (1980) 2 NSWLR 630 Newbury District Council v Secretary of State for the Environment [1981] AC 578 Saffioti v Kiama Municipal Council [2019] NSWLEC 57 Sofi v Wollondilly Shire Council (1975) 2 NSWLR 614 Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472 Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88 Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30; [2004] HCA 63 Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 Category: Principal judgment Parties: [NAME] (First Applicant) [NAME] (Second Applicant) Port Stephens Council (Respondent) Representation: Counsel: [redacted] [NAME] (Respondent)

Solicitors: [redacted] [NAME] (Respondent) File Number(s): 2020/36596 Publication restriction: Nil

Judgment

A residential [NAME] is [NAME] 1. [NAME] and his brother [NAME] (the applicants) wish to subdivide their [NAME] at [ADDRESS], [ADDRESS] (the site) into 11 residential lots, remove vegetation on the site and construct driveways to access the lots. The site is zoned R2 Low Density Residential under Port Stephens Local Environmental Plan 2013 (PSLEP). [NAME] is permitted, but only with development consent: cl 2.6(1) of PSLEP. The site is within an urban release area, triggering the need to make satisfactory arrangements for the provisions of designated State public infrastructure before development consent for the [NAME] of [NAME] in the urban release area can be granted: cl 6.1 of PSLEP. The applicants lodged a development application to subdivide their [NAME], originally into 12 lots, but later into 11 lots, with Port Stephens Council (the Council). The lots of the [NAME] comply with the minimum lot sizes: cl 4.1 of PSLEP. The [NAME] involves ancillary earthworks: cl 7.2 of PSLEP.

Development consent is refused for two reasons 1. The Council refused consent. The applicants appealed to the Court. Although the Council raised numerous contentions as to why development consent to the [NAME] should be refused, in the end, the contentions became twofold.

2. First, the [NAME] does not comply with the applicable Port Stephens Development Control Plan 2014 ([NAME]), as amended in 2019, primarily because the [NAME] driveways are not consistent with the street layout and traffic network requirements of Parts C1 and [NAME] and the Locality Controls Map in [NAME]. The Council submits that the applicants have not advanced sufficient justification for not complying with [NAME].

3. Secondly, the [NAME] will impact adversely on vegetation on the site mapped as containing biodiversity value, including an area of PCT 1598 Forest Red Gum grassy open forest on floodplains of the Lower Hunter, which is a part of the endangered ecological community of Hunter Lowland Redgum Forest in the Sydney Basin and NSW North Coast bioregions (the EEC), and an area of vegetation mapped as preferred koala habitat.

4. The applicants sought to address these contentions. As to the inconsistency with [NAME], the applicants submitted that departure from [NAME] is justifiable for three reasons. First, the Court would not give material weight to [NAME] also for three reasons: the applicants purchased the property and lodged the development application before [NAME] was amended to prescribe the street layout and transport network that affects the site; the unfair process by which [NAME] was amended, which involved little consultation with the applicants who were [NAME] by the amendment; and the street layout and transport network required by [NAME] do not reasonably and fairly relate to the site and are otherwise manifestly unreasonable.

5. Secondly, the applicants have provided sufficient justification that the variation [NAME] by the development application to the street layout required by [NAME] will achieve the objectives and satisfy other requirements of [NAME] for the street layout and transport network, as allowed by cl 13.2 of [NAME].

6. Thirdly, the Court should be flexible in applying the provisions of [NAME] for street layout and transport network and allow the reasonable alternative solution [NAME] in the development application, as this will achieve the objects of the provisions of [NAME] dealing with the street layout and transport network, as allowed by s 4.15(3A) of the Environmental Planning and Assessment Act 1979 (EPA Act).

7. As to the impacts on the EEC and preferred koala habitat, the applicants submitted that the amended [NAME] layout, which identifies building envelopes in each of the lots within which future residential development will need to be confined and an area of EEC and identified koala feed trees to be retained and conserved, reduces the impact on the EEC and preferred koala habitat to an acceptable degree.

8. I have determined that the amended [NAME] should be refused, on the basis of the two contentions advanced by the Council. There is material inconsistency with the street layout and transport network requirements of [NAME], departure from which is not justified in the circumstances. The [NAME] layout will also have unacceptable impacts on the EEC and preferred koala habitat on the site.

The [NAME]'s inconsistency with the applicable development control plan

[NAME]'s objectives and requirements for [NAME]

1. The objectives of Part C1 [NAME] of [NAME] include the objectives of "Block and Street Layout" in C1.A: "- To ensure local streets are well-connected to the street network with obvious pedestrian and cycle links to higher order streets - To ensure priority is provided to residents' needs when designing local streets to encourage usability - To ensure pathways follow desire lines"

1. The provisions of Part C1 dealing with block and street layout set standards with respect to aspects of the development of [NAME] and the development application for the development, referred to as "requirements". One of the standards or requirements concerns "Street Layout Attributes" in C1.3, which provides: "The street layout addresses the following: - All street components are integrated, such as kerbing, pavement type, width, street tree planting, footpaths, on road cycleway, shared paths, lighting and seating are provided as specified in infrastructure specific – design - Road widths accommodate the necessary movements of service and emergency vehicles - Driveways and footpaths are provided at [NAME] as part of the [NAME] works - Footpaths and shared paths follow desire lines - Street layout is interconnected to provide a grid-like structure - Street layout is informed by street connections for future subdivisions on adjacent lands - Street layout enables each lot to front a street and for corner lots to face both streets - Street layout seeks to provide a perimeter road between residential dwellings and; - bush fire prone [NAME] - open space defined as a regional park, district park or local park - Street layout ensures public access to public open space is maintained and encouraged - Street layout responds to topographical features of the site, such as: - where [NAME] slopes at a grade of 6% or more the predominant street alignment is perpendicular to the contours - straight or gently curved to frame vistas Note: Development should have consideration for Port Stephens Pathways Plan." 1. [NAME] of [NAME] prescribes the street layout and transport network for [NAME] in the [NAME] urban release area. The site is within this area. One of the objectives of [NAME] concerns the street layout and transport network in [NAME].A, which provides: "- To ensure that a well-planned and connected street layout for the area is delivered and not compromised by development on a single site. To achieve efficient and equitable pedestrian, cycle, public transport, and private vehicle connectivity between lots and precincts, the local centre and nearby service areas."

1. The provisions of [NAME] dealing with street layout and transport network set standards with respect to aspects of the development of [NAME] and the development application for that development, referred to as requirements.

2. The first standard or requirement in [NAME].1 concerns "Street Layout": "The street layout is generally consistent with the Locality Controls Map at Figure DX (p. D-151)."

1. The Locality Controls Map shows "indicative road connections" crossing the site. One road connection travels in a north-easterly direction from the intersection of [ADDRESS] and [ADDRESS], along but inside the boundary with [ADDRESS] to the west of the site, to the recently constructed extension of [ADDRESS] to the north of the site. A second road connection travels east to west from [NAME] through [ADDRESS] to the east of the site, across the northern part of the site, around 30m in from and running parallel to the northern boundary, across [ADDRESS] to the west of the site, to reach the recently constructed cul-de-sac in the [NAME] of the former [ADDRESS]. The Locality Controls Map also shows a "bus route" running along the roughly south-north indicative road connection through the site. The bus route runs along [ADDRESS], through the site, then along [ADDRESS].

2. Provision is made in [NAME].2 of [NAME] for a variation of the street layout shown in the Locality Controls Map. [NAME].2 provides: "Street layout variations are permitted where an access point is provided to [NAME], [ADDRESS] or [ADDRESS], or where a Development Application provides sufficient justification that a variation will achieve the above objectives and satisfy other requirements of this DCP."

1. The second standard or requirement in [NAME].3 concerns "Connectivity": "The [NAME] of a lot that proposes a road layout that prevents the effective connectivity of the wider street network will not be supported. Development Applications must: - Provide for wider street network connectivity in a grid-like structure. - Where possible, provide a through road to existing roads. If constraints of the site do not permit a through street, the development is to include potential connections to adjoining future subdivisions. - Avoid the sue of cul-de-sacs as a means of lot access. Where cul-de-sacs cannot be avoided, they are to be restricted to: - Maximum length of 75m; and - Access to a maximum of 10 dwellings."

1. The third standard or requirement in [NAME].4 also concerns "Connectivity": "Subdivisions that [NAME] street networks are to be informed by road connections to future subdivisions on adjoining [NAME]. Development Applications shall identify future road connections to adjacent [NAME] where necessary."

1. The fourth, fifth and sixth standards or requirements in [NAME].5, D 13.6 and [NAME].7 concern "Transport Movement Hierarchy": "The positioning and design of the transport movement network provides priority to facilitate efficient walking, cycling and public transport networks whilst retaining and complementing natural topography, such as views and drainage. Designated public transport routes as identified on the Locality Controls Map at Figure DX (p. D-151) are constructed as bus routes in accordance with the infrastructure specification – Design. Access to public transport routes or to future public transport stops and should be no more than 400m walk by the most direct route."

1. As previously noted, the Locality Controls Map identifies a designated public transport route, which is to be constructed as a bus route, through the site connecting [ADDRESS] with [ADDRESS].

2. The Infrastructure Specification – Design, referred to in [NAME].6, identifies the characteristics of the local street that is constructed as a bus route as being a maximum carriageway width (from the lip of kerb to the lip of kerb) of 9m, minimum verge width each side of 4m, kerbing on both sides, and a footpath in the verge of 1.2m, all within a road reserve width of 16-17m (Table D1.5 Characteristics of Road).

3. There are two more standards or requirements in [NAME].8 on [NAME].9 on Road Widening, but these do not apply to the site.

The [NAME]'s inconsistency with [NAME]

1. The applicants' amended [NAME] plan does not propose a local street, constructed a as a bus route, through the site, as required by [NAME]. Instead, the [NAME] plan proposes two, disconnected driveways, one accessing [ADDRESS] and the other accessing [ADDRESS].

2. The driveway from [ADDRESS] is [NAME] to be 4m wide, with two passing bays and the entrance off [NAME] to be 6m wide. This driveway provides access to [NAME] 203-207 and Lot 208, which contains the existing brick dwelling, metal garage and "granny flat" (although approved as a "hobby room"). This driveway will be constructed on the access handle of Lot 208 running between the western boundary of the site with [ADDRESS] and the [NAME] 203-207. Lots 201 and 202, fronting [ADDRESS], will have their own private driveways off [ADDRESS].

3. The driveway off [ADDRESS] is [NAME] to be wider, starting with the same carriageway width as the carriageway width of [ADDRESS], but then reducing in width to 4m when it becomes the driveway access to Lots 209 and 211. This driveway off [ADDRESS] will provide access to Lots 209, 210 and 211, as well as additional access to Lot 208, where the existing dwelling, garage and granny flat are located. The driveway will be constructed on a second access handle of Lot 208 running off [ADDRESS].

4. The two driveways do not connect through Lot 208, the driveway from [ADDRESS] finishing at the existing metal garage and the driveway from [ADDRESS] finishing in a turning area to the north of the metal garage.

5. The [NAME] driveways, therefore, do not meet the requirements of [NAME] of providing a local street that is well connected to the existing street network, a through road connecting the site to the existing roads of [ADDRESS], [ADDRESS] and [ADDRESS], and a local street constructed as a bus route with a carriageway of 9m within a road reserve of 16-17m. The [NAME] driveways and [NAME] layout also do not enable each lot to front and have direct access to a local street. Only two lots, Lots 201 and 202, will front and have direct access from a street, [ADDRESS]. The other lots will have access by a shared driveway from either [ADDRESS] or [ADDRESS].

6. The applicants, at the end of the hearing, proffered a condition of consent that the Court could impose requiring the dedication to the Council of a 17.5m wide strip of [NAME] within which the [NAME] driveways would be constructed. This would require the applicants to make application to modify the consent, as it would resume parts of all lots accessing the driveways. This [NAME] condition of consent does not solve the current inconsistency of the [NAME] layout, with its disconnected driveways, with the requirements of [NAME] for a local street, constructed as a bus route, through the site connecting with existing roads.

7. The [NAME] plan also does not [NAME] a footpath within the verge of the local street, connecting [ADDRESS] to [ADDRESS], as required by, amongst other provisions, the Infrastructure Specification – Design referred to in [NAME].6 of [NAME].

8. The applicants did suggest, if the Court were to find the lack of a footpath to be unsatisfactory, that the Court could impose a condition of consent requiring the applicant to construct a footpath as a shared pathway/cycleway, which would provide a connection through the site from [ADDRESS] to [ADDRESS]. The applicants provided a plan showing this suggested footpath. Starting at [ADDRESS], the [NAME] footpath would coincide with the driveway off [ADDRESS], 2.5m of the 4m wide driveway being marked as a shared driveway, pathway and cycleway. Upon reaching Lot 208, the pathway/cycleway would diverge from the driveway, the shared pathway/cycleway turning to the west and running between the existing metal garage and the fence on the boundary with [ADDRESS], and the 4m driveway turning east to a turning area to the east of the metal garage. Upon reaching the turning area of the [NAME] driveway off [ADDRESS], the shared pathway/cycleway would cross the driveway diagonally to the eastern side, where upon it becomes a separate 2.5m wide pathway which, when it leaves the site, connects with the recently constructed footpath in [ADDRESS].

9. The standard of construction, marking and signage, and lighting of the shared pathway/cycleway was not specified.

10. The applicants [NAME] that this shared pathway/cycleway would remain privately owned, as it would be located wholly within Lot 208, being on the two access handles and the body of Lot 208, but could be registered as a right of footway under the Conveyancing Act 1919 entitling the public to access the pathway/cycleway.

11. This suggested shared pathway/cycleway is not consistent with [NAME] in a number of respects, including that it is not a separate footpath in the verge of a local street constructed as a bus route, and as such is not in public ownership, it does not facilitate efficient walking and cycling through the site, and it does not provide obvious pedestrian and cycle links to the street network.

The weight to be given to [NAME]

The weight to be given to a development control plan 1. It is well established that the provisions of a development control plan need to be taken into consideration, in determining a development application, as a "fundamental element" in or a "focal point" of the decision-making process: Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 at [75], [77]. [ADDRESS], exercising the function of the consent authority to consider and determine the development application, is required to "take into consideration" any development control plan of relevance to the development the subject of the development application: s 4.15(1)(a)(iii) of the EPA Act. A provision of the development control plan that is "directly pertinent" to the development and the development application is entitled to "significant weight" in the decision-making process, although it is not determinative: [NAME] v Canterbury City Council at [75].

2. Other factors will also increase the weight to be given to a development control plan. Three factors were identified in Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472 at [87]: "- A development control plan adopted after consultation with interested persons, including the [NAME] community, will be given significantly more weight than one adopted with little or no community consultation. - A development control plan which has been consistently applied by a council will be given significantly greater weight than one which has only been selectively applied. - A development control plan which can be demonstrated, either inherently or perhaps by the passing of time, to bring about an inappropriate planning solution, especially an outcome which conflicts with other policy outcomes adopted at a State, regional or local level, will be given less weight than a development control plan which provides a sensible planning outcome consistent with other policies."

1. Although the provisions of a development control plan need to be fundamental elements and focal points in the decision-making process, there may be alternative solutions to achieve the objects of the provisions. Section 4.15(3A) of the EPA Act provides: "If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority: (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application. In this subsection, standards include performance criteria."

1. As I have earlier pointed out, Parts C1 and [NAME] of [NAME] do set standards with respect to aspects of the development of [NAME] and the development application for that development (termed "requirements"), and specify the objects (termed "objectives") of these standards.

No less weight because development application made before [NAME] amended 1. Notwithstanding that these provisions of [NAME] setting the standards and the objects of the standards are directly pertinent to the applicants' [NAME] of the site and the development application for the [NAME], so that the provisions are prima facie entitled to significant weight, the applicants submitted that little weight should be given to the provisions of [NAME]. I have earlier flagged the three main reasons advanced by the applicants.

2. The first reason is that the applicants purchased the property in October 2018 and lodged the development application on 23 April 2019, prior to [NAME] being amended on 5 September 2019 to identify a local street and a bus route through the site. When the applicants purchased the property and lodged the development application, [NAME] identified only one local street in the [NAME] urban release area, which was to the east of the site through [ADDRESS]. The street network that came to be constructed as part of the [NAME] of the urban release area to the north of the site, now known as the [NAME], was not identified in this earlier version of [NAME]. In particular, neither [ADDRESS] to the north of the site nor the extension of [ADDRESS] to [ADDRESS] to the south of the site was identified.

3. Nevertheless, the Council had resolved on 26 February 2019 to put the draft amendment to [NAME] of [NAME], which identified the new street network, including the local street and bus route through the site, on public exhibition and the draft amendment to [NAME] was publicly exhibited from 14 March to 11 April 2019. Letters giving notice of the public exhibition of the draft amendment of [NAME] were given to [NAME] of property [NAME] by the draft amendment, including the applicants, on 13 March 2019. These events occurred before the applicants lodged their development application for the [NAME] of the site.

4. The Council resolved to adopt the draft amendment of [NAME] on 27 August 2019. The amendment of [NAME] commenced on 5 September 2019. There were no savings or transitional provisions that allowed for a development application that had been made but not determined before the amendment to [NAME] came into force to be dealt with under the provisions of [NAME] that applied before the amendment commenced.

5. The Council did not determine the development application for the [NAME] of the site until 19 December 2019, over three months after the amendment to [NAME] came into force. The Council was obliged to determine the development application in accordance with the law and facts that applied at that time.

6. On an appeal against the Council's refusal of the development application, the Court, exercising the function of the consent authority to determine the development application, must also apply the law and facts as they exist at the time of hearing and determination of the appeal: Sofi v Wollondilly Shire Council [1975] 2 NSWLR 614 at 622; Nalor Pty Ltd v Bankstown City Council [1980] 2 NSWLR 630 at 634-635.

7. At the time of hearing and determination of this appeal, the applicable development control plan is [NAME] as amended on 5 September 2019, not the earlier version of [NAME] that applied at the time the applicants lodged their development application on 23 April 2019. The applicants' argument that less weight should be given to the current [NAME] because they had lodged their development application before the current [NAME] came into force is at odds with the statutory obligation to determine the development application in accordance with the law that exists at the time of the hearing and determination of the appeal. In the absence of a savings provision, the current law must be applied. To afford little or no weight to the current [NAME] would offend against this obligation to apply the current [NAME].

No less weight because of process of making amended [NAME]

1. The second reason the applicants advanced for giving little weight to the current [NAME] concerns the process by which [NAME] was amended. The applicant provided a chronology of the strategic planning and development control of the [NAME] urban release area.

2. The first applicable development control plan was Port Stephens Development Control Plan 2007 (PSDCP 2007), which commenced on 31 May 2007. Part C3 [NAME] of PSDCP 2007 applied to [NAME] to the west of [NAME], including the large lots then referred to as [NAME], which later became the [NAME], and the smaller 1ha lots to the north of [ADDRESS], known as 2-[ADDRESS], as well as lots to the south of [ADDRESS] but fronting [NAME], including 34 [NAME].

3. Figure C.3, which showed the extent of the [NAME] to which Part C3 of PSDCP 2007 applied, identified two [NAME] roads. A longer road started on the southern side of [ADDRESS] opposite [ADDRESS], ran through 34 [NAME] then the western half of the lots fronting [NAME], before turning east to join [NAME]. A shorter road connected this longer road to [NAME] through the lot to the south of 34 [NAME].

4. Section C3.2 dealt with "[NAME]". Principle C3.P4 addressed [NAME] of [NAME]: "Development on [NAME] should be consistent with the site planning principles and structures set out in Figure C3.4 Site Plan and Street Structure."

1. Figure C3.3: [NAME]: Site and Context Analysis included not only [NAME] but also the lots fronting [ADDRESS], including the site at [ADDRESS]. Figure C3.4: [NAME]: Site Plan and Street Structure also included both [NAME] and the lots fronting [ADDRESS], including the site at [ADDRESS]. Figure C3.4 showed a local street extending [ADDRESS] from the intersection of [ADDRESS] and [ADDRESS] and running in a north-easterly direction through [ADDRESS] near the boundary with [ADDRESS], into [NAME] to the north of [ADDRESS] along a route that approximates where [ADDRESS] was later constructed. This local street was designated to be constructed as a "bus route" on Figure C3.4.

2. Figure C3.4 also showed [ADDRESS] being extended from its terminus at the driveway to [ADDRESS] to the west of that property to join a new road in [NAME] in the location where a road was later constructed when [ADDRESS] was subdivided.

3. The control C3.C10 in section C3.6 Road Design provided that: "[NAME] roads as shown on Figure C3.1 Extent of DCP must be constructed to comply with Figure C3.2 [NAME]."

1. Figure C3.2 specified the standards for a local street to be a minimum carriageway width of 8m and a maximum carriageway width of 9m for a local street designated as a bus route, a minimum verge width of 4m, a road reserve width of 16-20m, and a footpath width and cycleway width of 1.2m and 2m respectively.

2.

Accordingly, while Figure C3.1 – Extent of DCP did not show a [NAME] road running through [ADDRESS] connecting [ADDRESS] to what would later become [ADDRESS], Figure C3.4 Site Plan and Street Structure did show a [NAME] local street, designated to be constructed as a bus route, through [ADDRESS] connecting [ADDRESS] to what became [ADDRESS].

3. The [NAME] urban release area, shown in PSDCP 2007, was rezoned in May 2011 to be Residential 2(a) by Port Stephens Local Environmental Plan 2000 Amendment No 18.

4. A development application DA16-2013-707-1 for [NAME] of part of [NAME], being 40 and 42 [NAME], that became the [NAME], was lodged on 14 November 2013.

5. Port Stephens Local Environmental Plan 2013 commenced on 22 February 2014, changing the designation of the residential zone from Residential 2(a) to R2 Low Density Residential.

6. The development application for [NAME] of the [NAME] was approved on 29 August 2014. The assessment report for the development application noted that "a Development Control Plan (C3 [NAME]) was prepared for the site to ensure the development responds appropriately to the constraints of the site". The assessment report evaluated the [NAME] in terms of this development control plan. In relation to section C3.2 [NAME], the assessment report concluded that: "The street and lot layout and access points to the [NAME] are acceptable". In relation to section C3.6 Road Design, the assessment report concluded: "The road layout and construction details have been considered in the assessment and appropriate conditions have been placed on the consent."

7. Although the documents tendered did not include the approved plans of [NAME], there was no suggestion that the development was not carried out in accordance with the approved [NAME] plans. Of relevance is the construction of [ADDRESS], in the location shown in Figure C3.4 of PSDCP 2007, to the standard of a bus route, as required by Figure C3.2 of PSDCP 2007. To ensure "connections to any future development on the periphery of the site", which includes any future [NAME] of [ADDRESS], [ADDRESS] was constructed to end at the boundary of [ADDRESS] where the local street shown in Figure C3.4 as traversing [ADDRESS] would end.

8. On 6 August 2015, PSDCP 2007 was replaced by Port Stephens Development Control Plan 2014 ([NAME]). [NAME] applied to the same [NAME] as had been identified in Part C3 of PSDCP 2007, including the former [NAME], now [NAME], and the lots fronting [ADDRESS], including [ADDRESS]. 9. [NAME].1 Street Layout required that: "The street layout is consistent with Figure DX (p. D-149)." Figure DX: [NAME] Locality Controls Map showed the indicative local streets. To the south of [ADDRESS], Figure DX showed the same longer road and shorter road that had been identified in Figure C3.1 of PSDCP 2007. Figure DX of [NAME], however, showed the longer road as extending across [ADDRESS] into [ADDRESS] to the north then continuing into the [NAME]. This was not consistent with either Figure C3.4 [NAME]: Site Plan and Street Structure in PSDCP 2007 or the approved [NAME] of [NAME], 40 and 42 [NAME].

10. By 2018, the inconsistency between [NAME].1 and Figure DX of [NAME] and the approved subdivisions in the [NAME] urban release area was raising concerns. On 11 July 2018, an internal Council memorandum requested a review of [NAME] "to better reflect the requirements of Part 6 of the PSLEP and approved development applications in the urban release area ([NAME]). This aims to assist in the preparation of future DAs and resolve the issues we have been facing over the last 6 months."

11. The applicants purchased [ADDRESS] later in 2018, exchanging contracts in October 2018. One of the applicants, [NAME], said that he was not aware that the Council was proposing to revise [NAME] of [NAME] until after contracts had been exchanged.

12. In December 2018, the applicants engaged a surveyor/town planner, [NAME], to prepare a development application to subdivide [ADDRESS]. When the applicants met with [NAME], he brought up on his computer [NAME] of [NAME] and noted that no road was shown as going through [ADDRESS] (in Figure DX). [NAME] was surprised at finding this out "because the plans used to show a [NAME] road going through [ADDRESS]". [NAME] was no doubt referred to Figure C3.4 of PSDCP 2007, which showed a local street connecting [ADDRESS] to what became [ADDRESS] through [ADDRESS]. [NAME] was aware of PSDCP 2007 as he had acted for the proponent of the [NAME] of [NAME], now [NAME].

13. The applicants later in December 2018 visited the Council and were given by a duty planner a copy of Figure DX in [NAME] of [NAME]. He confirmed that the road therein shown was through the neighbouring property of [ADDRESS] and not the property the applicants had purchased of [ADDRESS].

14. The applicants thereafter set about preparing a development application for [NAME] of [ADDRESS]. [NAME] said he attended a pre-DA meeting with officers of the Council on 18 February 2019, during which he was advised that the Council was proposing an amendment to [NAME], which would include a through road affecting [ADDRESS]. [NAME] discussed with the Council officers the concerns of the applicants about the impact of such amendment on their [NAME] and the Council officers indicated that they would consider those concerns. [NAME] reported on what had been said by the Council at this meeting to the applicants.

15. The Council gave notice of an Ordinary Meeting on 26 February 2019. An item on the agenda for the meeting was the proposal to exhibit a draft amendment to [NAME] of [NAME]. Amongst the amendments [NAME] was an updated Figure DX to include the lot layout and street layout of recently approved subdivisions and the reintroduction of a local street, to be constructed as a bus route, through [ADDRESS] connecting [ADDRESS] to [ADDRESS]. 16. [NAME].1 Layout required that: "The street layout is generally consistent with the Locality Controls Map at Figure DX (p. D-151)." Figure DX, as then [NAME], continued to show the longer road in the urban release area to the south of [ADDRESS] extending across [ADDRESS] into [ADDRESS], but instead of continuing north-easterly into the [NAME] as had been shown in Figure DX of [NAME], this extended road would terminate at a T junction with a new east-west road coming from [NAME], across 2, 4 and [ADDRESS] to meet up with the recently approved cul-de-sac in [ADDRESS]. The [NAME] DX also reinstated the local street, to be constructed as a bus route, through [ADDRESS] connecting [ADDRESS] to [ADDRESS].

17. The Council officers' report noted that the [NAME] amendment of [NAME] "seeks to update the indicative layout for future development as shown in Figure DX of the DCP, as well as reflect recent large scale [NAME] approvals and include provisions to ensure it is compliant with the PSLEP requirements for Urban Release Areas. It is expected that the Amendment will provide clearer and more consistent development requirements for [NAME] and future developers." The report identified key features of the amendment to include: "-Update Figure DX to include the lot layout of recently approved subdivisions. - Addition of requirements that relate to street connectivity to ensure the efficient movement of traffic and the orderly and economic development of the precinct. It also ensures that future development applications take into consideration road connections with adjoining future subdivisions. - Additional transport network provisions, including public transport requirements, shared paths and road widening. These matters have been drafted with the assistance of Council's Engineering Services."

1. On receiving notice of the Ordinary Meeting on 26 February 2019, [NAME], on behalf of the applicants, wrote to the Council on 26 February 2019 requesting that the agenda item for the exhibition of the draft amendment of [NAME] of [NAME] be withdrawn "until such time as the [NAME] have been consulted, in particular the proprietors of [ADDRESS]." [NAME] noted that PSDCP 2007 had shown [ADDRESS] extending north-easterly through [ADDRESS] but [NAME] had shown a new road in the urban release area to the south of [ADDRESS] extending north-easterly through to [ADDRESS]. The [NAME] amendment to [NAME] showed both of these roads extending north-easterly through both properties. [NAME] submitted that this arrangement to have both roads extending north-easterly is "very problematic" for three reasons: "1. Having 2 four way intersections in such close proximity is excessive, unnecessary and costly and seems to serve no purpose other than to try and give credibility to earlier mistakes in the creation of the DCP.

2. The proprietor of [ADDRESS] has only recently purchased the [NAME]. The 149 Certificate at the time steered the proprietor to the 2014 edition of the DCP that showed NO ROAD going through that property whereas the [NAME] shows about 25% of the property being rendered non-usable in terms of units that may have otherwise been erected on the site.

3. If it is not enough that the plans show No.4 as being dramatically reduced in area by the [NAME] extension of [ADDRESS] and this extension going smack through a very new shed, there is also a cross road shown that goes through the existing house and pool!" 1. [NAME] concluded: "These issues also impact other properties so it is considered essential that Council withdraw this item from the business paper and consult/negotiate/placate the [NAME] before resolving to put it on exhibition." 2. [NAME] provided the applicants with a copy of his submission on their behalf.

3. The Council nevertheless resolved at its meeting on 26 February 2019 to place the draft amendment of [NAME] of [NAME] on public exhibition. The draft amendment was publicly exhibited between 14 March to 11 April 2019.

4. On 13 March 2019, the Council wrote letters to [NAME] of property potentially [NAME] by the draft amendment of [NAME] of [NAME], including the [NAME] of [ADDRESS]. The letter stated in part: "Port Stephens Council has prepared a draft amendment to the Port Stephens Development Control Plan 2014 – [NAME], [ADDRESS] (draft DCP). Council is now writing to [NAME] of [NAME] that would be [NAME] by the draft DCP (please see attachment 1 to the locality plan)."

1. The letter advised that the draft DCP is available for viewing online and at the Council's Administration Building in [ADDRESS] and that submissions could be made in writing.

2. On 15 March 2019, [NAME], Senior Strategic Planner with the Council, emailed [NAME] advising that the draft DCP covering [NAME] at [NAME] went on exhibition on 14 March 2019 and continued: "We're aware that you have clients that are [NAME] and that they have some concerns with the DCP. We would be willing to have a meeting with yourself and the [NAME] to discuss the draft DCP, just so we may provide some clarity around the objectives and intent of the DCP as well as give an opportunity to provide comments directly to Council staff prior to any possible submissions."

1. The applicants did not avail themselves of this offer to meet with Council staff to provide comments directly.

2. On 23 April 2019, the applicants lodged the development application for [NAME] of [ADDRESS].

3. On 20 May 2019, the applicants' solicitors, [NAME], wrote to the Council making a submission in objection to the draft amendment to [NAME] of [NAME] as well as providing a response to the Council's request for additional information on the development application for [NAME] of [ADDRESS]. The letter stated that the applicants had purchased the property with a view to [NAME]. At the time they purchased the property, Figure DX of [NAME] did not show a local street through the property. The applicants relied on that plan in making the decision to purchase the property.

4. The letter noted that prior to the Council resolving at its meeting on 26 February 2019 to place on exhibition the draft amendment to [NAME] of [NAME] had raised concerns by email about the potential impacts of the [NAME] amendments, including on the property. The letter asserted that the effect of the draft amendments "would be to radically alter the indicative layout of streets in the locality". The letter asserted that if the indicative roads shown in the amended Figure DX were to be constructed, they would have three impacts on the property: a dramatic reduction in the developable area of the property; demolition of existing improvements on the property (the existing dwelling, garage and granny flat); and demolition of improvements on adjoining [NAME] at [ADDRESS] (existing dwelling).

5. The letter asserted that the applicants' development application should be assessed having regard to the current [NAME] of [NAME], and not the draft amendment of [NAME]. The letter then assessed the [NAME]'s compliance with the current [NAME] DX of [NAME].

6. On 27 August 2019, the Council resolved to approve the amendment of [NAME] of [NAME]. Prior to doing so, the Council received and noted the submissions that had been made, including the submission made by the [NAME] on 20 May 2019. That submission was summarised in Attachment 1 to the Council officer's report to the meeting. The Council officer's report summarised the purpose of the amendments to [NAME] of [NAME], in similar terms to what had been said in the report to the meeting on 26 February 2019. The report noted that the draft amendment had been publicly exhibited and submissions had been received from [NAME]. The report noted that: "Following consultation, amendments have been made to respond to the matters raised in submissions, including new provisions to provide greater certainty and clarity for [NAME] by specifying that a development application may provide alternative road connections if the objectives of the DCP 2014 and other relevant requirements are satisfied."

1. The report expressly noted that the applicants had lodged a development application to subdivide [ADDRESS] following the public exhibition of the draft amendment to [NAME] of [NAME]. The report stated: "Following exhibition of the draft DCP 2014, a development application was lodged in April 2019 for [NAME] in the [NAME] Area at [ADDRESS], [ADDRESS]. The application is for a 1 into 12 lot [NAME] (DA16-2019-266-1) and the [NAME] plan includes a road layout that is inconsistent with the existing constructed and approved roads and indicative road connections for future development shown in Figure DX of the DCP 2014. It is also inconsistent with the planned and substantially constructed bus route for the urban release area. It is noted that other roads in the release area do not meet the current specifications for bus routes. If Council approves the DCP 2014, it will apply to the determination of this application. If DA16-2019-266-1 is determined prior to Council approving the DCP 2014, the application will be assessed against the requirements of the current DCP 2014, including the existing controls that set objectives for road connections and the orders and economic use of [NAME] that are consistent with the draft DCP 2014. Given this, a decision to approve the DCP 2014 is considered likely to have a minimal impact on the assessment of this application. It should be noted that, in accordance with the EP&A Act, a DCP is only a guidance document. Should the DCP 2014 be approved, it would not introduce new statutory requirements and it remains open to the applicant to submit alternative road layouts that meet the objectives of the DCP 2014. No amendments to the indicative road layout is [NAME] at this stage due to the location of the bus route, which was formed in consultation with Council's Engineering Services, the [COMPANY] and the [NAME] in the URA. Nonetheless, the draft DCP 2014 has also been amended following exhibition to expressly specify that a development application may be made showing an alternative road layout that meets the objectives and any other relevant requirements of the DCP 2014. Therefore the draft DCP 2014 is not considered to have a material impact on the assessment and determination of DA16-2019-266-1."

1. The report identified a risk that the amendment of [NAME] "will impact the assessment and determination of current applications", but assessed this risk as having a "low" risk rating, for the following reason: "As set out above, current applications are already subject to assessment against requirements in the existing DCP2014 that are consistent with the objectives of the draft DCP 2014. The draft DCP 2014 will not introduce new legislative requirements and alternative road layouts may be submitted if they can satisfy the objectives of the DCP 2014."

1. On 5 September 2019, the amendment of [NAME] of [NAME], formally described as Port Stephens Development Control Plan 2014 (Amendment No 9), commenced.

2. On 19 December 2019, the applicants' development application was refused by the Council, including for the reason that the [NAME] was inconsistent with the recently adopted amendment of [NAME] of [NAME].

3. The applicants contend that this process of making the current [NAME] of [NAME] supports giving less weight to its provisions for four reasons: 1. the applicants had purchased the property at [ADDRESS] and lodged the development application for [NAME] of the property when the previous [NAME] of [NAME] applied, which did not show a local street or bus route through the property; 2. there was no higher level, strategic planning document which informed the amendment of [NAME] of [NAME], but rather the amendment was made to reflect the large scale [NAME] approvals with lot and street layouts that were inconsistent with the previous [NAME] of [NAME]; 3. there was inadequate consultation with [NAME], particularly the applicants, before the amendment to [NAME] of [NAME] was placed on public exhibition; and 4. there was no local infrastructure contributions plan adopted by the Council, which would have provided the lawful means by which the Council could require, by condition of consent imposed under s 7.11 of the EPA Act, dedication of [NAME] for the local street shown on Figure DX of [NAME] as traversing the property.

1. I reject this contention. First, the fact that the applicants purchased the property and lodged the development application for [NAME] of the property before the amendment of [NAME] of [NAME] was exhibited or adopted is not relevant. As I have earlier noted, the applicant's development application was required to be determined by the Council and is required to be determined by the Court in accordance with the facts and the law that exist at the respective times of determination. At both times, the existing facts include the street layout and transport network that actually exist, including the extension of [ADDRESS] to [ADDRESS] opposite [ADDRESS] and the construction of [ADDRESS] as a bus route from the northern boundary of [ADDRESS] into the [ADDRESS]. The only missing link of this connector road is the local street through [ADDRESS]. At both times, the existing law includes the current [NAME] of [NAME], with the amended Figure DX showing a local street, to be constructed as a bus route, through [ADDRESS]. There is no justification for giving less weight to the current provisions of [NAME] of [NAME] merely because the property was purchased and the development application for [NAME] of the property was lodged before the current provisions commenced.

2. Secondly, the purpose for which the current [NAME] of [NAME] was adopted was to bring about an appropriate planning solution. The strategic planning for the lot and street layouts of the [NAME] urban release area was originally articulated in Part C3 of PSDCP 2007. Figure C3.3 encapsulated the site and context analysis and Figure C3.4 described the site plan and street structure for the [NAME] urban release area. One of the local streets shown, to be constructed as a bus route, was a street in the same location as the local street shown on the current Figure DX in [NAME], being an extension of [ADDRESS] through [ADDRESS] to connect with what has become [ADDRESS]. [NAME] approval was granted for parts of [NAME] in accordance with Figure C3.3 and C3.4 of PSDCP 2007, including requiring the construction of [ADDRESS] to the standard of a bus route.

3. The problem arose when the Council adopted [NAME] of [NAME], which contained Figure DX showing different [NAME] roads to those that had been identified in Part C3 and Figure C3.4 of PSDCP 2007. Development consents continued to be granted for subdivisions in the [NAME] urban release area, but the lot and street layouts of these subdivisions were not consistent with Figure DX and [NAME] of [NAME]. This resulted in a mismatch between the large scale [NAME] approvals and the provisions of [NAME] of [NAME].

4. The amendment [NAME] in 2019 sought to address this mismatch and to realign the lot and street layouts of the subdivisions that had been approved with the provisions of the applicable development control plan. The amendment of [NAME] of [NAME], including the amendment of Figure DX to reinstate the local street and bus route through [ADDRESS] that had been identified in Figure C3.4 of PSDCP 2007, achieved this objective.

5. The result was to correct the inappropriate planning outcome that had been caused by the previous [NAME] of [NAME] so as to achieve an appropriate planning solution in the current [NAME] of [NAME]. A development control plan that provides a sensible planning outcome is to be given more weight than a development control plan that results in an inappropriate planning outcome: [COMPANY] v Manly Council at [87].

6. Thirdly, the current [NAME] of [NAME] was adopted after consultation with [NAME] landowners, including the applicants, and the [NAME] community. The applicants had been given notice of the Council's proposal to amend [NAME] of [NAME], including Figure DX to indicate a local street and bus route through [ADDRESS], before the Council resolved to place the draft amendment on public exhibition. The applicants' surveyor, [NAME], who had been engaged to prepare the development application for the [NAME] of the property, was informed by the Council at the pre-DA meeting on 18 February 2019 of the Council's proposal to so amend [NAME] of [NAME]. [NAME] passed on this information to the applicants. [NAME] made a submission to the Council on the applicants' behalf prior to the Council meeting on 26 February 2019, requesting the Council to withdraw the agenda item for the exhibition of the draft amendment to [NAME] of [NAME], supported by reasons as to the adverse impact that the draft amendment would have on the applicants.

7. The applicants were given further opportunities to make a submission objecting to the draft amendment of [NAME] of [NAME] after it was put on exhibition. The Council wrote individually to [NAME] landowners on 13 March 2019, including to the [NAME] of [ADDRESS], notifying them of the draft amendment that was on exhibition, providing a link to the draft amendment, and inviting submissions. A Council officer, [NAME], emailed the applicants' surveyor, [NAME], on 15 March 2019, advising of the exhibition of the draft DCP, providing a link to the draft DCP, and inviting him and the applicants to meet with Council staff to discuss their concerns with the draft DCP. Notice of the exhibition of the draft amendment was also published in local newspapers and on the Council's website, which advised the public generally of the draft amendment and where it could be viewed, and invited submissions.

8. The applicants availed themselves of the opportunity to make a submission objecting to the draft amendment, although they did not take up the invitation to meet with Council staff to discuss their concerns. The [NAME] wrote a letter, by way of submission on behalf of the applicants, on 20 May 2019, objecting to the draft amendment and its application to the applicants' development application for [NAME] of [ADDRESS].

9. All submissions made on the draft amendment, including the [NAME]'s submission were noted and summarised in the Council officer's report that was before the Council when it resolved to adopt the amendment of [NAME] of [NAME].

10. This process for the adoption of the amendment to [NAME] of [NAME] shows timely and proper consultation with [NAME] landowners, including the applicants, and the community. A development control plan that is adopted after consultation with interested persons, including the [NAME] community, is entitled to be given significantly more weight than one adopted with little or no community consultation: [COMPANY] v Manly Council at [87].

11. Fourthly, it matters not that the Council has not adopted a local infrastructure contributions plan that allows for the imposition of a condition of consent requiring the dedication of that part of the [NAME] of [ADDRESS] on which the local street and bus route is shown in the amended Figure DX in [NAME]. It may be accepted that the Council could have made a contributions plan under s 7.18 of the EPA Act authorising the imposition of a condition under s 7.11 requiring the dedication free of cost of [NAME] on which the indicative road connections are in Figure DX of PSCDCP 2014 or the payment of a monetary contribution towards the cost of acquisition of such [NAME] and the construction of the indicative road connections, but it was not obliged to do so and did not in fact do so.

12. Instead, [NAME] DX of [NAME] served a strategic planning purpose of indicating the indicative road connections to existing roads that should be created as part of any approved development of the [NAME] to ensure the efficient movement of traffic and public transport and the orderly and economic development of the urban release area. A development control plan can require a new public road to be created as part of any approved development of the [NAME]: Conquest Constructions (NSW) Pty Ltd v Sutherland Shire Council (2011) 184 LGERA 1; [2011] NSWLEC 52.

13. In summary, there is nothing in the process of adoption of the amended [NAME] of [NAME] that would justify giving less weight to its provisions.

No less weight because [NAME] does not reasonably relate to [NAME]

1. The third reason the applicants advanced for giving little weight to the provisions of the current [NAME] concerned the alleged unreasonableness of the provisions. The applicants relied on the judicial decisions on the test for the validity of conditions of consent, conveniently summarised in Newbury District Council v Secretary of State for the Environment [1981] AC 578 at 599-600, 607-608, 619. The second and third limbs of the test are that a condition of consent must reasonably and fairly relate to the development the subject of the development application and not be so unreasonable that no reasonable consent authority could impose it. In Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30; [2004] HCA 63 at [155], Callinan J doubted whether the third limb of the test is necessary because if, as the second limb requires, the condition must fairly and reasonably relate to the [NAME] development, it must be a condition which is fair and reasonable in the circumstances of the case.

2. The applicants contended that a consent authority could not impose a condition of development consent for the [NAME] of [ADDRESS] requiring the construction of the local street and bus route shown on the amended Figure DX of [NAME] and the dedication of the [NAME] on which this local street is constructed free of cost to the Council. Such a condition would not reasonably and fairly relate to the [NAME] of [ADDRESS] and would be manifestly unreasonable: Dogild Pty Ltd v Warringah Council (2008) 158 LGERA 429; [2008] NSWLEC 53 at [60]; Botany Bay City Council v Saab Corp Pty Ltd (2011) 183 LGERA 228; [2011] NSWCA 308 at [15]. The applicants submitted that the [NAME] of [ADDRESS] does not generate the demand for a local street, constructed as a bus route, through the property to connect with the existing roads. Rather, such a connector road and bus route is needed for the large scale subdivisions in the [NAME] to the north of the property.

3. The applicants argued that, by analogy, [NAME] DX of [NAME] cannot reasonably require a [NAME] of [ADDRESS] to make provision for the local street, to be constructed as a bus route, through the property to connect with existing roads. If it is unreasonable to require that road as a condition of consent it is equally unreasonable to require a [NAME] to make provision for that road.

4. I do not agree. The two requirements are different. The principal purpose of a development control plan is to provide guidance to persons proposing to carry out development and to the consent authority for such development on three matters: "(a) giving effect to the aims of any environmental planning instrument that applies to the development, (b) facilitating development that is permissible under any such instrument, (c) achieving the objectives of [NAME] zones under any such instrument.": s 3.42(1) of the EPA Act.

1. To achieve this purpose, a development control plan can make provision to achieve particular strategic planning outcomes, such as the desired street layout and transport network, provided that those provisions are not inconsistent or incompatible with the provisions of an environmental planning instrument applying to the same [NAME]: s 3.43(5) of the EPA Act and [COMPANY] v Manly Council at [87] and [COMPANY] v Sutherland Shire Council at [118], [119], [136], [141].

2. In this case, the current [NAME] DX of [NAME] make provision for the street layout, connectivity and transport movement hierarchy of the [NAME] urban release area. The street layout and designated public transport routes are to be generally consistent with the Locality Controls Map at Figure DX. Figure DX shows the indicative connections and bus route, including the local street and bus route through [ADDRESS].

3. These provisions of [NAME] of [NAME] have been made to achieve two strategic planning objectives: "to ensure that a well-planned and connected street layout for the area is delivered and not compromised by development on a single site" and "to achieve efficient and equitable pedestrian, cycle, public transport and private vehicle connectivity between lots and precincts, the local centre and nearby service area": [NAME].A of [NAME] of [NAME].

4. These provisions of [NAME] of [NAME], which provide guidance as to the desired street layout and transport network in the urban release area, are provisions of a kind that are permitted by the EPA Act to be prescribed by a development control plan. By their nature, such provisions provide guidance on the desired strategic planning outcomes for the urban release area to persons proposing to carry out development in the urban release area. There is no restriction imposed by the EPA Act that the provisions of a development control plan must reasonably and fairly relate to particular development or particular [NAME] in the urban release area. That is not the purpose of the provisions of a development control plan.

5.

Accordingly, the fact that the provisions of [NAME] of [NAME] identifying an indicative road connection and bus route through [ADDRESS] provide for a desired planning outcome, rather than directly relate to any particular development to be carried out on the property, is not a reason to give less weight to the provisions. The purpose of the provisions is to provide guidance to persons proposing to carry out development on [NAME] identified in Figure DX, including [ADDRESS], so that they can propose development that is consistent with the provisions and hence achieve the desired planning outcomes.

6. The need for a reasonable and fair relationship with the development the subject of a development application does not arise upfront in the development application process, but only at the end of the process if the consent authority determines the development application by the grant of consent. At this juncture, the consent authority is constrained to impose conditions of consent that reasonably and fairly relate to the development the subject of the development application and that are not otherwise manifestly unreasonable. But the existence of this constraint at the later stage of the imposition of conditions of consent to the carrying out of development does not impact on the earlier strategic planning stage of a development control plan providing guidance on the planning outcomes to persons proposing to carry out development.

Insufficient justification for variation of street layout in [NAME] 1. [NAME].2 of [NAME] of [NAME] permits variations from the street layout required by [NAME].1 and Figure DX. [NAME].2 provides: "Street layout variations are permitted where an access point is provided to [NAME], or [ADDRESS], or [ADDRESS], or where a development application provides sufficient justification that a variation will achieve the above objectives and satisfy other requirements of this DCP."

1. The justification required by the second limb of this clause is twofold: first, that a variation will achieve the objectives in cl [NAME].A and second, that a variation will satisfy other requirements of [NAME], which include the requirements for connectivity in [NAME].3 and [NAME].4 and transport movement hierarchy in [NAME].4-[NAME].7.

2. The applicants submitted that they had provided sufficient justification as required by the clause. They relied on the evidence of their planner, [NAME], in his individual expert report dated 19 April 2021. [NAME]'s six reasons for seeking a variation to the street layout shown on Figure DX were set out in paragraphs 47-56, 58, 61 and 62 of his report.

3. First, [NAME] asserted that the development application proposes "an alternative street layout". This is not correct: no "street" is [NAME] to be constructed on the site but instead two, disconnected, private driveways are [NAME]. [NAME] noted that these driveways will provide vehicular access for each lot to a public road, either [ADDRESS] to the south or [ADDRESS] to the north. Access from these public roads is provided to higher order roads such as [NAME], either directly in the case of [ADDRESS] or indirectly in the case of [ADDRESS] by [ADDRESS] to [NAME]. [NAME] contended, therefore, that the two driveways will achieve the objective of connecting the lots of the [NAME] to existing roads.

4. Whilst it is no doubt correct to say that the driveways enable the lots of the [NAME] to access either [ADDRESS] or [ADDRESS], this is not the objective sought to be achieved by [NAME] or Figure DX. There is no through road provided by the [NAME], so that none of the lots will be able to access both [ADDRESS] and [ADDRESS] or the facilities and services provided for in the areas that are able to be accessed from these existing roads. The connection of the existing roads of [ADDRESS] and [ADDRESS] to other local streets or higher order roads, such as [NAME], is an existing situation, unaffected by the [NAME].

5. Secondly, [NAME] criticised the street layout in Figure DX that directly links [ADDRESS] to the north with [ADDRESS] to the south through the site. [NAME] expressed concern that this: "would create a long and generally straight road alignment through residential areas that: (a) does not link any apparent internal destinations, such as a centre, local shops or community facilities; (b) has potential to be used as an internal 'rat run' within the area to access [NAME]; (c) has potential for higher vehicle speeds given the generally straight alignments of the potential links; and (d) is not required to enable [NAME] of the subject [NAME], which has separate road access to both the north and south." 1. [NAME]'s concerns are valid or not, this cannot provide a justification that the variation [NAME] in the development application will achieve the objectives of street layout and transport network in [NAME].A. The justification required by [NAME].2 is that the variation in street layout [NAME] in the development application "will achieve the above objectives and satisfy the other requirements of this DCP", not that the street layout required by Figure DX is not desirable.

2. Thirdly, [NAME] contended that: "There are no apparent attractors or destinations such as a centre, local shops or community facilities in the surrounding residential areas that would give rise to the need for an additional road connection between [ADDRESS] and [ADDRESS]. The area served by two separate open spaces areas, as shown on the following Figure [Figure D17 – Open Space areas and surrounding area], and these are unlikely to warrant a road connection being provided through the subject [NAME]."

1. Again, this cannot provide the justification required by [NAME].2 that the variation of street layout [NAME] by the development application will achieve the objectives and satisfy the other requirements of [NAME] of [NAME].

2. Fourthly, [NAME] noted that one of the functions of the road link through the site between [ADDRESS] and [ADDRESS] is to provide a bus route extension for the existing Route 141 bus service linking the area to the [ADDRESS] centre. The disconnected driveways [NAME] by the [NAME] of the site would not allow for this bus route through the site. [NAME] contended, however, that there are alternatives to the bus route shown in Figure DX. One alternative bus route he suggested could be from [ADDRESS] to [ADDRESS] via [ADDRESS] to the west of the site and then [ADDRESS] to join [ADDRESS]. A second alternative bus route was suggested at the hearing to be via [ADDRESS] to the east of the site then along [NAME] before turning down [ADDRESS] to join [ADDRESS].

3. Neither of these alternative bus routes are capable of being currently implemented. Considerable sections of the first alternative bus route along [ADDRESS] and [ADDRESS] are not constructed within a carriageway width or to the standard required for a bus route. Similarly, [ADDRESS] to the east of the site and [NAME] are not currently constructed with a carriageway width or to the standard required for a bus route. Indeed, the section of [ADDRESS] in front of 2 and [ADDRESS] is currently an unsealed dirt road. The applicants offered, if the Court were minded to grant consent to the [NAME], for the Court to impose a condition of consent that the applicants construct, or pay the Council to construct, [ADDRESS] to the standard required for it to serve as a bus route. This might address this section of the second alternative bus route but not the balance of the route.

4. In any event, the potential for there to be alternative bus routes other than through the [NAME] to be subdivided which is designated as the bus route, does not provide sufficient justification for the [NAME] of the site not allowing for the designated bus route through the site. The "variation" provided by the [NAME] is not to provide the designated bus route identified in Figure DX, rather than to provide any alternative bus route. Hence, it is this non-provision of the designated bus route through the site that must be shown to achieve the objectives and satisfy the other requirements of [NAME] of [NAME]. This is not shown by suggesting that there might be alternative bus routes.

5. Fifthly, [NAME] contended that the [NAME] variation to the street layout meets the objectives in [NAME].A for the reasons he gave in paragraphs 58 and 61 of the report. He said that: "…the proposal will maintain connectivity between local streets and the street network, with connection being provided between the [NAME] and existing residential areas by way of [ADDRESS] and an extension of [ADDRESS], and the proposal will not impact on the accessibility of residents to access the main collector [NAME] via both [ADDRESS] and [ADDRESS]. Considering resident needs, there is a lack of internal attractors or destinations in the surrounding residential areas that would warrant an additional vehicular link being provided through the subject [NAME], and the proposal would not impact on the usability of local streets for residents to access any facilities or services, or the main road network."

1. These reasons are not materially different to the reasons [NAME] had given in paragraphs 47 to 56 of his report. They similarly do not provide the justification required by [NAME].2. The disconnected private driveways do not provide, let alone "maintain", connectivity through the site between existing streets and the street network, or connectivity between the lots of the [NAME] and both of the existing roads of [ADDRESS] and [ADDRESS] and the facilities and services provided in the areas accessed by those roads.

2. Sixthly, [NAME] suggested in paragraph 62 that the variation to the street layout required by Figure DX would enable retention of the existing metal garage on the site. Construction of the local street identified in Figure DX would necessitate removal of the garage. This may be accepted, but it does not provide the justification required by [NAME].2, which is that the variation will achieve the objectives and satisfy the other requirements of [NAME] of [NAME]. Retention of the existing garage cannot achieve these objectives or requirements.

3.

For these reasons, the applicants have not provided sufficient justification that a variation will achieve the objectives and satisfy the requirements of [NAME] of [NAME].

No reasonable alternative solution to [NAME] in development application 1. Finally, the applicants contended that, pursuant to s 4.15(3A) of the EPA Act, the Court should be flexible in applying the provisions of [NAME] of [NAME]. The applicants submitted that the [NAME] is a "reasonable alternative solution" that achieves the objects of the standards in Part C1 [NAME] and [NAME] of [NAME]. Their reasons were the same as those they had advanced for submitting that they had provided sufficient justification under [NAME].2 of [NAME] for the variation of the street layout [NAME] by the [NAME].

2. I do not agree. As I observed in Saffioti v Kiama Municipal Council [2019] NSWLEC 57 at [27]-[28]: "The 'reasonable alternative solutions' referred to in s 4.15(3A)(b) of the EPA Act are alternative solutions embodied in the development that is the subject of the development application. The development might not comply with certain of the standards set by the provisions of a development control plan with respect to aspects of the development but nevertheless the development might provide an alternative solution that does achieve the objects of those standards. If so, the consent authority is directed by cl 4.15(3A) 'to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development'. The onus is on the applicant for development consent to proffer, in the development application for the development, the alternative solutions that achieve the objects of the standards for dealing with the relevant aspects of the development. The consent authority can then evaluate whether the proffered alternative solutions are 'reasonable alternative solutions' that do 'achieve the objects of those standards for dealing with that aspect of the development'."

1. In the present case, the alternative solution proffered by the applicants was embodied in the [NAME] plan [NAME] in the development application. The [NAME] plan [NAME] disconnected private driveways to access the existing roads, rather than a local street, constructed as a bus route, through the site to provide the connection with the existing roads, as is required by [NAME] of [NAME]. This [NAME] access, even if it could be described as an "alternative solution", is not a "reasonable" alternative solution or one that achieves the objects of the standards for dealing with street layout and transport network in Part C1 or [NAME] of [NAME]. My reasons include those I gave earlier in dealing with the applicants' argument that they had provided sufficient justification that a variation of the street layout would achieve the objectives and satisfy the other requirements of [NAME] of [NAME].

2. In addition, the [NAME] access to be provided by the disconnected driveways will not achieve the objectives of either Part C1 dealing with [NAME] generally or [NAME] dealing with the [NAME] urban release area particularly.

3. With respect to the objectives in C1.A, the [NAME] does not provide the local street identified in Figure DX but instead provides disconnected driveways. These driveways are not "well-connected" to the street network, by reason of their internal disconnection. The driveways do not provide "obvious pedestrian and cycle links" to any street, let alone higher order streets. The development application does not propose any pedestrian or cycle links through the site.

4. The applicants did suggest that, if the Court considers that the non-provision of pedestrian and cycle links is unsatisfactory, the Court could impose by way of condition of consent a requirement that the applicants construct a shared pathway/cycleway and register on title a right of way entitling the public the right to use this shared pathway/cycleway.

5. As I have earlier found, this shared pathway/cycleway is inappropriate. It is not [NAME] to be constructed as a separate footpath in the verge of a public road, to the standard required for a public footpath, and with adequate marking, signage and lighting. In these circumstances, it does not answer the description of being an "obvious" pedestrian and cycle link.

6. The disconnected driveways will not meet all of the needs of residents of the lots of the [NAME]. No lot will have access to both of the existing roads of [ADDRESS] and [ADDRESS] or to the facilities and services in the areas accessed by these roads. The designated bus route would not be provided as required by Figure DX, so that the residents would not have the ease of access to a bus service at their doorstep. No pathway through the site is [NAME] in the development application, although a shared pathway/cycleway could be required by a condition of consent. However, the shared pathway/cycleway suggested by the applicants that could be required by condition of consent does not follow desire lines, but rather is shared for a large section with one vehicular driveway, skirts around the existing garage, and crosses another vehicular driveway.

7. With respect to the objectives in cl [NAME].A, the [NAME] disconnected driveways do not "ensure that a well planned and connected street layout for the area is delivered". Instead, this desired well planned and connected street layout for the area will be "compromised by development of a single site", being the [NAME] of this site.

8. The [NAME] in the development application does not provide pedestrian, cycle or public transport connectivity between the lots of the [NAME] and precincts, the local centre and nearby service areas. The designated public transport route of the bus route identified in Figure DX through the site is not achieved by the [NAME]. Pedestrian and cycle links through the site are not provided in the development application, and the shared pathway/cycleway that is suggested could be required by condition of consent is inappropriate for the reasons given earlier.

9. The disconnected driveways do not provide "efficient and equitable" connectivity between the lots of the [NAME] and precincts, the local centre and nearby service areas, by reason of the internal disconnection of the lots to both of the existing roads of [ADDRESS] and [ADDRESS].

10.

For these reasons, the development application does not provide a reasonable alternative solution that achieves the objects of the standards for dealing with the street layout and transport network in Part C1 and [NAME] of [NAME].

Conclusion on inconsistency of [NAME] with [NAME]

1. The provisions of [NAME] dealing with the desired street layout and traffic network should be given significant weight. The applicants have not demonstrated sufficient justification for giving the provisions less weight or for departing from compliance with the provisions. The [NAME] in the development application is inconsistent with the provisions in material respects. In these circumstances, consent to the [NAME] should be refused.

Unacceptable impact of [NAME] on biodiversity

The biodiversity of the site 1. The site has significant biodiversity value in two respects. First, native vegetation on the site is part of an endangered ecological community, the Hunter Lowland Redgum Forest in the Sydney Basin and NSW North Coast bioregions (the EEC). Surveys confirmed the presence of many species characteristic of this EEC, as listed in paragraph 1 of the [NAME]'s final determination listing the EEC, including trees, such as Eucalyptus tereticornis (Forest Redgum); grasses, including Microlaena stipoides (Weeping Grass), Cymbopogon refractus (Barbed Wire Grass), Echinopogon caespitosus (Bushy Hedgehog Grass) and Entolasia stricta (Wiry Panic); mat rushes, including Lomandra multiflora (Many Flowered Mat Rush); herbs, including Desmodium varians (Slender Tick-trefoil), Dichondra repens (Kidney Weed) and Pratia purpurascens (White Root or Purplish Pratia); and ferns, including Cheilanthes sieberi (Narrow Rock Fern).

2. Native vegetation of this EEC occurs in two vegetation zones on the site. Vegetation zone 1 has a moderately intact understorey consisting of small trees, shrubs and vines. The ground layer is dense, unmanaged and infested with weeds. Vegetation zone 1 occurs in the southern part of the site, fronting [ADDRESS]. Vegetation zone 2 has a predominantly cleared and managed understorey, with only a few native shrubs scattered around the site. The ground layer is very sparse and contains a mix of native grasses and forbes and exotic grasses. Vegetation zone 2 forms the balance of the site, starting to the north of vegetation zone 1.

3. Second, the site has been mapped as preferred koala habitat, with many koala feed trees of Forest Redgum. [NAME] Planning Map 2007 mapped the southern half of the site as "preferred koala habitat" and the balance of the site mostly as "50m buffer over cleared" and less as "link over cleared". The area mapped as containing preferred koala habitat coincides with the area of the EEC, the Forest Redgum being both a koala feed tree and a characteristic species of the EEC.

The regulatory framework for assessing the impacts on the site's biodiversity 1. In relation to the EEC, the applicants' ecologist, [NAME], determined that the [NAME] development is likely to significantly affect the EEC or its habitat on the site, pursuant to s 7.2 and s 7.3 of the Biodiversity Conservation Act 2016. The application for development consent was thereby required to be accompanied by a biodiversity development assessment report: s 7.7(2) of the Biodiversity Conservation Act. A biodiversity development assessment report is a report prepared for the purpose and with the content required by s 6.12 of the Biodiversity Conservation Act.

2. The applicants lodged with the development application a Biodiversity Development Assessment Report for a [NAME] at [ADDRESS], [ADDRESS], prepared by [COMPANY], dated 19 September 2019. This report was updated and replaced by a Biodiversity Development Assessment Report prepared by [COMPANY], dated 16 April 2021. This updated report was supplemented by an Addendum BDAR for [ADDRESS], [ADDRESS] by [COMPANY], dated 12 May 2021. 3. [ADDRESS], exercising the function of the consent authority, when determining the development application, is required to take into consideration the likely impact of the [NAME] development on biodiversity values as assessed in the biodiversity development assessment report that relates to the application, and may otherwise further consider the likely impact of the [NAME] development on biodiversity values: s 7.13(2) of the Biodiversity Conservation Act.

4. If the Court decides to grant consent and the Biodiversity Conservation Act applies to the [NAME] development (which it does), the conditions of the consent must require the applicants to retire biodiversity credits to offset the residual impact on biodiversity values of the number and class specified in the report. The residual impact is the impact after the measures that are required to be carried out by the terms or conditions of the consent to avoid or minimise the impact on biodiversity values of the [NAME] development (being measures in which the report was based): s 7.13(3) of the Biodiversity Conservation Act. 5. [ADDRESS] may reduce or increase the number of biodiversity credits that would otherwise be required to be retired if it determines that the reduction or increase is justified having regard to the environmental, social and economic impacts of the [NAME] development: s 7.13(4) of the Biodiversity Conservation Act. 6. [ADDRESS] is not limited to a consideration of the measures to avoid or minimise the impact on biodiversity values of the [NAME] development recommended in the biodiversity assessment report, but may take into consideration: "(a) in relation to the impact of [NAME] development on biodiversity values, the measures that a consent authority may require to avoid or minimise those impacts or the power of a consent authority to refuse to grant consent because of those impacts": s 7.13(6)(a) of the Biodiversity Conservation Act.

1. In relation to koalas, the parties agreed that State Environmental Planning Policy (Koala Habitat Protection) 2020 ("Koala SEPP 2020") applies. The applicants had lodged the development application for [NAME] of the site in 2019 before Koala SEPP 2020 commenced, However, the savings provision of Koala SEPP 2020, cl 19, did not save a development application that had been made in relation to [NAME] but not finally determined before the Policy applied to the [NAME]. Koala SEPP 2020 was in turn repealed by State Environmental Planning Policy (Koala Habitat Protection) 2021 ("Koala SEPP 2021"). This time, however, the savings provision, cl 18, did provide that: "A development application made in relation to [NAME], but not finally determined before this Policy applied to the [NAME], must be determined as if this Policy had not commenced in its application to the [NAME]."

1. Koala SEPP 2020, therefore, applies to the [NAME] and regulates the Court's consideration and determination of the applicants' development application. The savings provision of Koala SEPP 2020 did have some work to do, taking a plan of management provided under State Environmental Planning Policy No 44 – Koala Habitat Protection, that was kept in force by cl 16 of State Environmental Planning Policy (Koala Habitat Protection) 2019, to be a plan of management made under Koala SEPP 2020: cl 19(a). The Council had approved the Port Stephens Council Comprehensive Koala Plan of Management 2002 ([NAME]). The parties agreed that [NAME] was a plan of management that was taken, by cl 19(a) of Koala SEPP 2020, to be a plan of management under Koala SEPP 2020. 2. [NAME], the site was located within the [NAME] ([NAME]). The performance criteria for development applications in Appendices 4 and 5 were identified as the most appropriate means of conserving koala habitat in the [NAME]. Appendix 4 identified the performance criteria for all developments [NAME] on sites that contain or are adjacent to Preferred or Supplementary Habitat, Habitat Buffers or Habitat Linkage Areas. The performance criteria include: "a) Minimise the removal or degradation of native vegetation within Preferred Koala Habitat or Habitat Buffers; b) Maximise retention and minimise degradation of native vegetation within Supplementary Koala Habitat and Habitat Linking Areas; c) Minimise the removal of any individuals of preferred koala food trees, where ever they occur on a development site. In the Port Stephens LGA these tree species are Swamp Mahogany (Eucalyptus robusta), Parramatta Red Gum (Eucalyptus parramattensis), and Forest Red Gum (Eucalyptus tereticornis), and hybrids of any of these species. An additional list of tree species that may be important to koalas based on anecdotal evidence is included in Appendix 8 d) Make provision, where appropriate, for restoration or rehabilitation of areas identified as Koala Habitat including Habitat Buffers and Habitat Linking Areas over [NAME]. In instances where Council approves the removal of koala habitat (in accordance with dot points 1-4 of the above waive clause), and where circumstances permit, this is to include measures which result in a "net gain" of koala habitat on the site and/or adjacent [NAME]; e) Make provision for long term management and protection of koala habitat including both existing and restored habitat…". 1. [NAME] allows the consent authority to waive the provisions of performance criteria (a), (b) and (c): "only for the purposes of establishing a building envelope and associated works, and only if the proponent can demonstrate:

1. That the building envelope and associated works including fire fuel reduction zones cannot be located in such a way that would avoid the removal of native vegetation within Preferred or Supplementary Koala Habitat, Habitat Buffers, or Habitat Linking Areas, or removal of preferred koala food trees;

2. That the location of the building envelope and associated works minimises the need to remove vegetation as per 1 above;

3. That, in the case of subdivisions, they are designed in such a way as to retain and enhance koala habitat on the site and are consistent with the objectives of this appendix; and 4. That koala survey methods (as per the Guidelines for Koala Habitat Assessment in Appendix 6) have been used to determine the most appropriate location for the building envelope and associated works (so as to minimise the impact on koala habitat and any koala populations that might occur on the site)."

1. A map that was subsequently prepared, [NAME] Map, identifies the southern half of the site at [ADDRESS] as Preferred Koala Habitat, most of the northern half as a habitat buffer, being "50m Buffer over Cleared", and a smaller area in the north-eastern corner of the site as a habitat linking area, being "Link over Cleared".

2. Returning to Koala SEPP 2020, the consent authority, in determining a development application for consent to carry out development on [NAME] to which Part 2 of Koala SEPP 2020 applies, is required to undertake the three step analysis in Part 2. Step 1 involves determining whether or not the [NAME] is a potential koala habitat: cl 8(1). "Potential koala habitat" is defined in cl 4 to mean "areas of native vegetation where trees of the types listed in Schedule 2 constitute at least 15% of the total number of trees in the upper or lower strata of the tree component". One of the trees listed in Schedule 2 as a feed tree species is Eucalyptus tereticornis or Forest Redgum. The applicants' ecologist, [NAME], identified that Forest Redgum trees do constitute at least 15% of the total number of trees in the upper or lower strata of the tree component, at least in the southern half of the site mapped as Preferred Koala Habitat. The Council's ecologist, [NAME], agreed. The site is, therefore, potential koala habitat.

3. The second step involves determining whether or not the [NAME] is a core koala habitat: cl 9(1). "Core koala habitat" is defined in cl 4 to mean "an area of [NAME] with a resident population of koalas, evidenced by attributes such as breeding females, being females with young, and recent sightings of and historical records of a population." [NAME] and [NAME] agreed that the site is not core koala habitat, as it does not support a resident population of koalas. As a result of the site not being a core koala habitat, the Court, exercising the function of the consent authority, is not prevented, because of Koala SEPP 2020, from granting consent to the development application: s 9(3)(a).

4. This answer to the second question means that it is unnecessary to proceed to the third step in cl 10. The restriction in cl 10(2), that the determination of the development application must not be inconsistent with the plan of management, does not therefore apply. Nevertheless, the Court, exercising the function of the consent authority in determining the development application, may (but is not required to) consider the [NAME] development's consistency with the plan of management. In this case, the Court may consider the [NAME] development's consistency with the performance criteria in Appendix 4 of [NAME].

The [NAME]'s impacts on the site's biodiversity 1. The [NAME] plan lodged with the development application [NAME] the removal of the majority of the EEC on the site, with only the most degraded areas of EEC (some trees around the existing dwelling) [NAME] to remain, and the removal of 16 of the 26 koala feed trees on the site. However, of the 10 koala feed trees [NAME] to be retained, four would be impacted by the development due to conflicts with boundary lines, stormwater piping and cut and fill earthworks. Hence, only six of 26 koala feed trees were potentially retainable.

2. The parties' ecologists, [NAME] for the applicants and [NAME] for the Council, conferred and produced a joint expert report. The ecologists agreed that, in order to avoid and minimise the impact of the [NAME] on the EEC, before resorting to offsetting the residual impacts, a large lot should be created in the southern part of the site fronting [ADDRESS] to allow for the retention of the area of highest condition EEC (in vegetation zone 1) and more of the koala feed trees. [NAME] suggested that this could be achieved by combining the then [NAME] 202, 203 and 204, which contain most of vegetation zone 1. 3. [NAME] suggested an alternative lot layout in Figure 1: Biodiversity values to be avoided and added, which consolidated and reorientated the four lots fronting [ADDRESS], so that instead of running roughly north-south they would run roughly east-west. An area closest to [ADDRESS], containing 571sqm of vegetation zone 1 of the EEC, would be retained and conserved. An area closest to [ADDRESS] to the east of the first area, containing 270sqm of vegetation zone 2 of the EEC, would be revegetated and conserved. Together, these areas would conserve 841sqm of the EEC. These two areas extend for the length of the [ADDRESS] frontage from [ADDRESS] in the east to the [NAME] driveway to the west.

4. To the north of these two areas would be an area of 788sqm of vegetation zone 2 of the EEC, which would be managed as an asset protection zone (APZ). The koala feed trees of Forest Redgum would be able to be retained in the APZ, but the understory would need to be cleared. To the north of this area of APZ would be the first of the residential lots. 5. [NAME] agreed that [NAME]'s revised lot layout would achieve a suitable level of avoidance and minimisation of impacts on the EEC. 6. [NAME] and [NAME] also recommended the number of koala feed trees to be removed should be minimised wherever possible.

7. At the hearing, in partial response to the ecologists' recommendations, the applicants amended the [NAME] plan in an endeavour to retain more of the EEC and more koala feed trees. The amended [NAME] plan retained the roughly north-south orientation of the lots fronting [ADDRESS], rather than reorientating the lots to be roughly east-west as [NAME] had recommended, and consolidated only two of the lots, not the four lots that [NAME] had recommended. The two lots that were combined were the western, former Lots 203 and 204, leaving the eastern, former Lots 201 and 202 as originally [NAME]. The combined lot, now called Lot 203, [NAME] an area of retained vegetation of 418sqm that extended for the width of the lot along its frontage with [ADDRESS] and to a depth of 16.6m from that frontage. This area of 418sqm is only half of the area of retained vegetation that [NAME] had recommended and [NAME] agreed was the minimum area of vegetation to be retained.

8. Behind, or to the north of, this area of retained vegetation would be an asset protection zone, with the same width as the area of retained vegetation but with a depth of 8.7m. This APZ would extend into the lot to the east of the combined lot, still called Lot 202, for around three quarters of the width of that lot. The combined area of the APZ on Lots 202 and 203 would be 422sqm. Of this area of APZ, 147sqm would be vegetation zone 1, largely contained in Lot 202, and 275sqm would be vegetation zone 2, less in Lot 202 and more in Lot 203. The 422sqm area of vegetation in the APZ is again only half of that recommended by [NAME] and agreed to by [NAME]. The management required of an APZ would result in the removal of the understorey of both vegetation zones, which is of more significance for vegetation zone 1 than for vegetation zone 2, as the former has denser and more intact understorey than the latter.

9. The amended [NAME] plan identified [NAME] building envelopes on all lots other than the lot on which the existing dwelling, garage and granny flat are located, now called Lot 208. The identification of [NAME] building envelopes was intended to allow for the retention of more koala feed trees. In result, however, only one more koala feed tree was able to be retained (11 trees instead of 10 trees). [NAME] identified in Figure 1.2: Site Map in the addendum BDAR dated 12 May 2021, the 11 koala feed trees to be retained within the site. The [NAME] plan shows the retention of those 11 koala feed trees, of which three are in the [NAME] area of retained vegetation on Lot 203, one is in the area of Lot 203 to the north of the APZ, one is in the APZ on Lot 202, two are in Lot 201 with a third on the boundary of Lot 201 and the property to the east of [ADDRESS], one is in the rear of Lot 204 and two are in the front of Lot 205. Many koala feed trees are, however, still [NAME] to be removed. Nine trees are to be removed in Lot 203, one in Lot 202, and two in the area of the [NAME] driveway off [ADDRESS]. These 11 koala feed trees are within the area of the site mapped as Preferred Koala Habitat. There are also two koala feed trees to be removed in the northern end of the site mapped as either 50m Buffer over Cleared or Link over Cleared. 10. [NAME] recommended in the addendum BDAR dated 12 May 2021 that the 418sqm area of retained vegetation in [NAME] 203 be weeded of exotic flora species and revegetated with native flora species typical of the EEC and that a Vegetation Management Plan be prepared to outline how this would be achieved. The Vegetation Management Plan would be submitted to the Council for approval prior to any vegetation clearing being undertaken on the site. [NAME] recommended that an instrument under s 88B of the Conveyancing Act 1919 impose a restriction on the use of the [NAME] and create a positive covenant to establish and manage the area of retained vegetation in perpetuity.

11. With this amendment of the area of EEC to be cleared, [NAME] recalculated the ecosystem credits required to offset the loss of the EEC on the site. [NAME] calculated that 13 credits of PCT 1598 Forest Red Gum grassy open forest on floodplains of the Lower Hunter would be required. 12. [NAME]'s recommendations were incorporated in the applicants' [NAME] conditions of consent. [NAME] condition 2.0(8) requires the preparation of a Biodiversity Management Plan to the satisfaction of the Council and the submission of that Plan to the Council for its approval. The Plan is required to include:

1. Identification of the development site as per the Biodiversity Development Assessment Report (BDAR) and approved plans.

2. Identification of the areas of [NAME] that are to be retained as outlined in the BDAR.

3. Construction impacts must be restricted to the development site and must not encroach into areas of retained native vegetation and habitat. All materials stockpiles, vehicle parking, machinery storage and other temporary facilities must be located within the areas for which biodiversity impacts were assessed in the BDAR.

4. The Biodiversity Management Plan must include: Measure Timing Responsibility Appropriate weed control and restoration measures to be implemented by a qualified bush regeneration contractor to ensure the restoration and management of the area of Hunter Lowland Redgum Forest within Lot 203 On-going in perpetuity Owner of lot 203 The Plan is to include clear management objectives, performance targets, monitoring requirements and a schedule of works.

1. [NAME] condition 2.0(1) requires the retention of the 11 Forest Redgum trees identified as being trees to be retained in Figure 1.2: Site Map in the addendum BDAR dated 12 May 2021.

The [NAME]'s impacts on biodiversity are unacceptable 1. I find that the [NAME], as amended, will have unacceptable impacts on the EEC and preferred koala habitat on the site. The biodiversity mitigation hierarchy requires, in order, avoiding impacts, minimising impacts and only then offsetting or compensating for residual impacts that remain after all steps are taken to avoid or minimise these impacts. The [NAME] fails to take all appropriate avoidance and minimisation measures.

2. Starting with avoiding impacts, the [NAME] layout does not implement the avoidance measures agreed by the parties' ecologists to create a large lot at the [ADDRESS] end of the site to allow for the retention of the area of highest condition EEC. [NAME] has recommended that this objective be achieved by combining the then [NAME] 202, 203 and 204, which contained vegetation zone 1, while [NAME] had recommended that this objective be achieved by consolidating and reorientating the then [NAME] 201 to 204 to allow for the retention of vegetation zone 1 and the revegetation of vegetation zone 2 in a 841sqm area of retained vegetation of the EEC, together with a 788 sqm area of native vegetation, largely trees, including Forest Redgums, to be managed as an asset protection zone.

3. The [NAME], however, halves the areas of native vegetation to be retained, in both the designated area of retained vegetation (418sqm instead of 841sqm) and APZ (422sqm instead of 788sqm). Not only does this reduce the area of retained vegetation to be conserved, it increases the potential for edge effects on the smaller area. Furthermore, the area of highest condition EEC, in vegetation zone 1, is reduced by the inclusion of 147sqm of vegetation zone 1 in the APZ. The dense understory of vegetation zone 1 contributes to its high condition as an EEC. Management of this area as an APZ will result in the removal of this dense understory.

4. There is also a risk that some of the Forest Redgums, which are both characteristic species of the EEC and koala feed trees, may need to be removed in the APZ in order to comply with the condition of consent required to be imposed by the NSW Rural Fire Service (NSW RFS). By letter dated 24 June 2019, NSW RFS issued General Terms of Approval, under Division 4.8 of the EPA Act, and a Bush Fire Safety Authority, under s 100B of the Rural Fires Act 1997. With respect to asset protection zones, NSW RFS advised: "The intent of measures is to provide sufficient space and maintain reduced fuel loads so as to ensure radiant heat levels of buildings are below critical limits and to prevent direct flame contact with a building. To achieved this, the following conditions shall apply:

1. At the issue of [NAME] certificate and in perpetuity the entire property shall be managed as an inner protection area (IPA) as outlined within section 4.1.3 and Appendix 5 of 'Planning for Bush Fire Protection 2006' and the NSW Rural Fire Service's document 'Standards for asset protection zones'."

1. Satisfaction of this condition may require the removal of some of the Forest Redgums, especially trees in clumps with touching canopies. [NAME] and [NAME] acknowledged that some trees might need to be removed to comply with NSW RFS's condition of consent but did not identify which or how many trees might need to be removed. The [NAME] plan of [NAME] identifies indicative building envelopes. These are relatively small for [NAME] 201 and 202 (500sqm and 514.5sqm respectively) and larger for [NAME] 203 (1106sqm), and are in close proximity to Forest Redgum trees [NAME] to be retained. The proximity of these trees to any future dwelling increases the risk that the trees may be removed in the future, to protect the buildings from direct flame attack and critical radiant heat levels.

2. Turning to minimisation impacts, inadequate minimisation measures are [NAME]. The applicants did not tender a draft Biodiversity Management Plan, prepared by a suitably qualified and experienced ecologist or bushland regeneration expert, that demonstrated how the [NAME] area of retained vegetation comprising the EEC would be managed and conserved in perpetuity. It is not sufficient, as [NAME] had recommended and the applicants' condition of consent [NAME], to defer consideration of this critical issue to another time (after consent has been granted and prior to vegetation clearing being undertaken) and another decision maker (for the approval of the Council). [ADDRESS], exercising the function of the consent authority to determine the development application, must weigh up and consider all relevant matters, and having done so, determine the development application. It cannot exercise this function if it leaves a critical issue of the impact of the development on the EEC, namely whether the area of retained vegetation will be managed and conserved in perpetuity to maintain and enhance its biodiversity values as an EEC, to a time after consent has been granted and to a decision maker other than the Court: see Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88 at [91]-[96].

3. In relation to the koala habitat on the site, the [NAME] does not achieve the performance criteria in Appendix 4 (a) to (e) of [NAME], as the [NAME] does not minimise the removal or degradation of native vegetation within Preferred Koala Habitat; minimise the removal of koala feed trees, the Forest Redgums; make appropriate provision for the restoration and rehabilitation of sufficient areas of koala habitat; or make provision for long-term management and protection of sufficient areas of koala habitat, including both existing and restored habitat.

4. There is a further issue as to the practicality of requiring one lot owner, the [NAME], to manage and conserve an area of retained vegetation as an EEC. In the absence of a draft Biodiversity Management Plan, it is not possible to assess the extent, difficulty and cost of work that would be required to manage and conserve this area as an EEC. Nevertheless, the work required to revegetate and conserve the EEC could be considerable and most likely would need to be undertaken in perpetuity by a qualified and experienced ecologist or bushland regeneration expert, at an ongoing cost to the owner. As the extent, difficulty and cost of implementing a Biodiversity Management Plan increases, so does the risk that the owner will fail to comply with any condition of consent requiring implementation of the Biodiversity Management Plan. This evidently would lead to the degradation and potential loss of the EEC on the site.

5. Together, the inadequacies of the [NAME] avoidance and minimisation measures lead to an unacceptable risk that the [NAME] will have adverse effects on the EEC and preferred koala habitat on the site, justifying refusal of consent to the [NAME].

Conclusion and orders 1. The site is within an urban release area and is suitable for [NAME] for residential lots. The particular [NAME] by the applicants, however, is not one that is an appropriate [NAME] of the site. First, the [NAME] layout fails to provide for a local street, constructed to the standard of a bus route, connecting [ADDRESS] to [ADDRESS] through the site, as required by [NAME] of [NAME]. The problem is not that the applicants do not propose to construct this local street and dedicate it to the Council free of cost, it is that they have not provided such a local street at all. The disconnected driveways are not functionally equivalent to the local street required by [NAME].

2. Second, the [NAME] does not avoid or mitigate to an acceptable degree the adverse effects of the [NAME] on the EEC and preferred koala habitat on the site. A different [NAME] layout could have avoided and mitigated those adverse effects to a greater extent.

3. The development application for the [NAME] should be refused. The applicants need to prepare a different [NAME] layout to address the shortcomings and the adverse effects of the current [NAME] layout. 4. [ADDRESS] orders:

1. The appeal is dismissed.

2. Development application no 16-2019-266-1 for the [NAME] of Lot 16 DP32005 known as [ADDRESS], [ADDRESS] is determined by refusal of consent.

3. The exhibits except for Exhibits V, X and Y, are to be returned to the party tendering the exhibit.

********** 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. Decision last updated: 02 June 2021