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NSW Crest

Land and Environment Court
New South Wales

Medium Neutral Citation:
Western Sydney Conservation Alliance v Penrith City Council [2011] NSWLEC 244
Hearing dates:
31 October 2011, 1 and 3 November 2011
Decision date:
16 December 2011
Jurisdiction:
Class 4
Before:
Moore AJ
Decision:

1. That the operation of the consents to DA 11/0514, DA 11/0515, DA 11/0516 and DA 11/0517 be suspended in part.

2. The operation of the consents not be suspended to the extent necessary to carry out such development as is reflected in the undertaking of the second and third respondents noted in paragraph 7 of these orders.

3. The consents be validated upon the first respondent having regard to the details of the Cumberland Plain Recovery Plan gazetted 18 February 2011.

4. The application otherwise be dismissed.

5. Each party pay its own costs.

6. The second and third respondents be released from the undertaking given on 13 October 2011.

7. The Court notes the undertaking given to the Court by the second and third respondents, through their solicitor that they will not, by themselves their servants or agents or assigns, carry out development for the residential subdivision of land at the Western Precinct of the St Marys Release Area known as "Jordan Springs, Villages 2" pursuant to DA 11/0514, DA 11/0515, DA 11/0516 or DA 11/0517, other than within the areas identified as "Required Infrastructure Areas" marked in orange on the plan attached to the short minutes of order submitted by the second and third respondents on 13 December 2011.

Catchwords:
JUDICIAL REVIEW - whether consideration of recovery plan necessary - whether consideration given to particular recovery plan
Legislation Cited:
The Environmental Planning and Assessment Act 1979 (NSW)
The Threatened Species Conservation Act 1995 (NSW)
Cases Cited:
Aldous v Greater Taree City Council (2009) 167 LGREA 13
Homemakers Supacenta-Belrose Pty Ltd v Warringah Council (No 2) (2008) 158 LGERA 90
Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council [2010] NSWLEC 48
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55
Zhang v Canterbury City Council (2001) 51 NSWLR 589
Category:
Principal judgment
Parties:
Western Sydney Conservation Alliance Inc (Applicant
Penrith City Council (First Respondent)
Maryland Development Company Pty Ltd (Second Respondent)
St Mary's Land Limited (Third Respondent)
Representation:
Mr C D Norton (Applicant)
Mr A M Pickles (First Respondent)
Mr N A Hemmings QC (Second and Third Respondents)
Environmental Defender's Office (NSW) (Applicant)
Sparke Helmore (First Respondent)
Allens Arthur Robinson (Second and Third Respondents)
File Number(s):
40873 of 2011

Judgment

Introduction

1Metropolitan Sydney occupies much of the Cumberland Plain. On the Cumberland Plain the Juniper-leaved Grevillia and the Pultenaea parviflora are vulnerable and endangered flora species respectively. Similarly the Cumberland Land Snail is an endangered fauna species. Likewise the River-flat Eucalyptus Forest is an endangered ecological community while the Cumberland Plain Woodland is a critically endangered community . The Threatened Species Conservation Act 1995 (NSW) ("TSC Act") serves to protect these and other endangered species of flora and fauna and ecological communities in New South Wales.

2The Environmental Planning and Assessment Act 1979 (NSW) ("EPA Act") creates a statutory scheme for approving the development of land. In the present case it authorized Penrith Council ("the Council") to give development consent for the development of four parcels of land which formed part of a larger tract of land in Western Sydney. Consent was given in August 2011. In these proceedings the applicant, Western Sydney Conservation Alliance Incorporated ("the Alliance"), alleged the decisions giving consent should be set aside because the Council failed to act as required by the TSC Act and the EPA Act.

The background

3The following emerges from a statement of agreed facts and documents in a tender bundle. The land in dispute in these proceedings is situated within the local government area of Penrith and described as Lot 1127 in DP 1158660 which is located at The Northern Road, Jordan Springs (" Land" ).

4The Alliance is an association incorporated under the Associations Incorporation Act 2009 (NSW). The Council is a council under the Local Government Act 1993 (NSW) , and is the council of the local government area of Penrith. The Council, for the purposes of the TSC Act , is a public authority. The second respondent, Maryland Development Company Pty Ltd, and the third respondent, St Marys Land Limited are corporations incorporated under the Corporations Act 2001 (Cth). The third respondent is the registered proprietor of the Land.

5The Land forms part of the Western Precinct (" Western Precinct" ) which is the former Australian Defence Industries ("ADI") site at St Mary's ("ADI site"). The site covers 1,545 hectares, and is located approximately 45 kilometres west of the Sydney CBD, 5 kilometres north-east of the Penrith City Centre and 15 kilometres west of the Blacktown City Centre. It was endorsed by the NSW Government for inclusion on the Urban Development Program ("UDP") in 1993, as a "site under investigation for future urban development, due to its proximity to established suburbs, its single ownership and large area".

6The Land is identified by the Sydney Regional Environmental Plan No 30 - St Marys (" SREP 30" ) which says that the Land can only be developed and subdivided by consent from the Council. The Land is wholly within the broad shale basin of the Cumberland Plain in western Sydney and the area is identified in Figure 1 of page 4 of the "Cumberland Plain Recovery Plan" (" Recovery Plan" ). The Land does not lie within the proposed Wianamatta Regional Park, which is zoned "Regional Park" under SREP 30. In the Recovery Plan the Land is not within the "Priority Conservation Lands".

7In 1990 ADI produced a Statement of Environmental Effects ("SEE") and approached Penrith and Blacktown City Councils to seek permission to re-zone the site for urban purposes. The SEE was "submitted to Penrith City Council as part of a Development Application ("DA") for a further subdivision stage (2A) within the Western Precinct (Jordan Springs) of the St Marys land release site". The SEE was "to be read in conjunction with several other comprehensive DAs" that had been "approved" or were "being assessed" by the Council. These other DAs related to the staged development of the Western Precinct. The Councils decided that development of the Land should be considered as part of a wider Metropolitan Urban Development Program because of its size and environmental impact.

8Preliminary studies of the area were undertaken and the Minister for Planning decided that a Regional Environmental Study (RES) should be prepared to identify "potential land uses". The RES was completed in 1996 and the Minister then established a Committee under s 22 of the EPA Act which was to advise as to the extent of any proposed development on the ADI site.

9The Section 22 Committee prepared a report following a biodiversity assessment of the ADI site which identified areas of "high", "medium" or "low" biodiversity values and made recommendations to the Council. The minutes of a Council Meeting on 2 June 1997 record that it was resolved that:

"A. Council's prefered (sic) option is for the whole of the site to be provided for a Federation Park and only if funding is not made available for that option would Council agree to any development of the site.

B. in keeping with the positions determined by the Working Party:

(i) Council, having regard to the information obtained through the Regional Environmental Study, and subsequently under the direction of the Section 22 Committee, accept, in principle, the proposition advanced by Lend lease Developments as a (sic) adequate reservation of land for achieving Council's conservation objectives for the site subject to:

Exclusion of all intrusions from it including roadways and water management facilities (other than the central wetlands)

A strong connection being established between the proposed conservation zone and the South Creek Corridor.

(ii) Council adopt a position that any conservation zone or reserve provided on the site, should be accompanied by management arrangements adequate to immediately secure and, over time, enhance and sustain the conservation values of the site.

(iii) ..."

10On 20 February 1998 the Minister for Urban Affairs and Planning issued a news release "after consideration of the report of the Section 22 Committee and comments from Penrith and Blacktown Councils and the Australian Heritage Commission". The news release said:

"A draft Regional Environmental Plan for the ADI site is to be developed. The draft plan will include details that address transport management, employment, conservation zone, heritage and water quality issues."

The other uses to be considered for the ADI site included the Land.

11An ADI Update Report issued on 10 June 1998 stated that the 97/98 Tasks were to "participate in development of planning and regulatory administration of the ADI site and continue to advocate Council's position on the development of the ADI site".

12The ADI Update also reported that on 6 May 1998 a meeting had been held with representatives from the Reserves System Section of Environment Australia regarding an application by Council to the Natural Heritage Trust. The purpose of the meeting was:

"To provide a background and context in support of Council's Natural Heritage Trust application/

To elaborate on the merits of Council's proposal for a Regional Federation Park for Western Sydney on the ADI site St Marys.

To discuss future potential Management arrangements for a Regional Federation Park.

To determine whether additional information is required to assist in the consideration of Council's Natural Heritage Trust application."

13By letter of 11 May 1998 the Australian Heritage Commission ("AHC") wrote to the Council and proposed the listing of the whole ADI site on the Register of the National Estate under the Australian Heritage Commission Act 1975 (Cth) (" AHC Act" ).

14On 13 July 1998 the Council wrote to the Minister and raised the following concerns:

"The major concern that Council has, if the site is developed, is to ensure that conservation area identified through the regional planning process co-incides with the area finally determined by the Australian Heritage Commission for listing as an item of the National Estate.

Council will be placed in a most unsatisfactory position if a Regional Plan is made which allowed development to occur over part of the identified National Estate. We will effectively have no choice but to approve applications which will destroy in part an item of the National Estate. Widespread and intense criticism can be anticipated should this occur".

The Council sought conformity between the AHC listing and SREP 30.

15By letter dated 2 March 1999 the AHC wrote to the Council:

"After considering all the available evidence before it, the Commission decided, in accordance with section 23 of the Australian Heritage Commission Act 1975 , that part of the Western Sydney Shale Woodlands place should be entered in the Register. A may showing the extent of the area listed on the Register of the National Estate is attached. Public notice giving effect to this decision will appear in the Commonwealth Gazette in July 1999."

The listing included areas of the ADI site that were not part of the proposed Regional Park zoning under SREP 30.

16On 21 December 2000 the Minister made SREP 30. The boundaries of the proposed conservation open space (Regional Park zone) were consistent with the original draft and did not extend to the areas nominated by the AHC listing. The open space was marked in bright blue on a site map marked, "SREP 30 - St Marys zoning", and the Land was zoned for urban purposes.

17In December 2000 the Minister also made the St Marys Environmental Planning Strategy 2000 ("EPS"). The EPS, combined with SREP 30 and a proposed development agreement, established town planning, urban design and conservation principles to guide the long-term development and conservation of the site.

18On 7 February 2001 the Federal Minister for the Environment and Heritage wrote to the Minister for Finance and Administration:

"I recommend, in accordance with paragraph 9.3.1 of the Administrative Procedures under the Environment Protection (Impact of Proposals) Act 1974 , that to ensure protection of the Cumberland Plain Woodland ecological community, all the area which is listed on the Register of the National Estate should be excluded from the development proposal and included in a regional reserve".

In October 2001 the Minister announced that the Commonwealth would conserve an additional 250 hectares of Cumberland Plain Woodland (CPW) that had been listed by AHC, but which remained outside the Regional Park zone under SREP 30.

19The St Marys Development Agreement ("Development Agreement") was drawn up in December 2002 and commenced in June 2003. Parties who entered the Development Agreement included State and Local Government and the third respondent.

20The Development Agreement made provision for the transfer of:

"(a) the land that was at that time zoned Regional Park, pursuant to SREP 30 (cll 11.3-11.4); and

(b) that part of the ADI site that had been listed by AHC, but which remained outside the Regional Park zone under SREP 30 (cl 11.5);

to the Minister for National Parks and Wildlife for total consideration of $3".

21The Development Agreement made further provision for:

"(a) the establishment of a Plan of Management for the management of the proposed Regional Park (cl 11.11); and

(b) the contribution of $6,900,000 by the third respondent and Lend Lease Development Pty Ltd towards capital improvements identified in the Plan of Management for the proposed Regional Park (cl 11.21)".

22The NSW Minister for Planning announced an amendment to SREP 30 after the Development Agreement was entered into and it was placed on exhibition in 2006. The draft amendment to SREP 30 proposed the addition of areas identified by the AHC listing for incorporation into the Regional Park zone and SREP 30 Amendment 1 was made on 11 April 2006.

23In possibly May 2009 the Council adopted the Western Precinct Plan ("Plan") which related to the 200 hectares of urban zoned land in the area known as the Western Precinct in SREP 30. The Plan was designed to ensure that future development within the Western Precinct achieved the aims, objectives and requirements of SREP 30, the EPS and the St Marys Employment Development Strategy.

24The parties agreed that the following species and ecological communities were threatened if the Land under consideration was developed.

1. The Cumberland Plain Woodland in the Sydney Basin Bioregion, as described in the final determination of the Scientific Committee to list the ecological community ("Cumberland Plain Woodland"):

(a) was at all material times prior to 18 December 2009; listed in Pt 3 of Sch 1 of the TSC Act as an endangered ecological community; and

(b) subsequent to 18 December 2009, listed in Pt 2 of Sch 1A of the TSC Act as a critically endangered ecological community.

2. The River-Flat Eucalypt Forest on Coastal Floodplains of the New South Wales North Coast, Sydney Basin and South East Corner Bioregions, as described in the final determination of the Scientific Committee to list the ecological community ( "River-Flat Eucalypt Forest") is, and was at all material times, listed in Pt 3 of Sch 1 of the TSC Act as an endangered ecological community.

3. The Cumberland Land Snail ( Meridolum corneovirens ) is, and was at all material times, listed in Pt 1 of Sch 1 of the TSC Act as an endangered species.

4. The Bush Pea ( Pultenaea parviflora Sieber ex DC ) is, and was at all material times, listed in Pt 1 of Sch 1 of the TSC Act as an endangered species.

5. The Juniper-leaved grevillea ( Grevillea juniperina R Br subsp juniperina ) is, and was at all material times, listed in Pt 1 of Sch 2 of the TSC Act as a vulnerable species.

25The National Parks and Wildlife Service had commenced the preparation of the Recovery Plan in 1999. The draft REP No 3 issued in October 2000 said that the "majority of submissions raise issues relating to biodiversity". The report continued:

"The vegetation values of the site have been established through successive studies.

...

The natural values of the land are therefore not in dispute. The debate centres on whether the site should be left undeveloped to allow the native vegetation communities to regenerate further, and whether, if some development is permitted, the park boundary should be extended to include more of the vegetation which is on land now proposed for urban zoning. One commonly suggested area for extension is the land covered by the listing on the Register of the National Estate by the Australian Heritage Commission.

...

It has been suggested that the draft REP should not be finalised ahead of the completion of the Recovery Plan that is currently being prepared for the western Sydney Vegetation Communities. The view of NPWS is that the draft REP has been prepared in parallel with, and has been informed by, the investigations supporting the recovery plan and the draft SREP is therefore likely to be consistent with the recovery plan. Importantly, the NPWS considers that it is unnecessary to defer finalisation of the draft SREP in this regard."

26A decade later, on 17 June 2009, the Council received a letter from the Department of Environment and Climate Change NSW ("DECC") which said that the draft recovery plan had been prepared and acknowledged the Council's responsibility in the implementation of it. The letter said:

"DECC has no received and reviewed submission on the working paper and finalised a draft Recovery Plan for public exhibition. Under Section 59 of the TSC Act, a recovery plan must state what actions must be carried out to ensure the recovery of that species and identify the persons or public authorities that are responsible for the implementation of actions identified in the plan. Under Section 60 of the Act, a measure must not be included in a recovery plan for implementation by a public authority unless the Chief Executive Officer responsible for the public authority approves of the inclusion of that measure.

Accordingly, on behalf of the Director-General, I am now formally consulting with you regarding the measures that I consider Penrith City Council should be responsible for under the recovery plan with a view to seeking; your agreement on the actions. The actions that Penrith City Council would be responsible for implementing are summarised at Attachment 1 and have been developed as far as possible to be consistent with existing responsibilities (eg under the Local Government Act 1993 )."

The key actions in Attachment 1 were:

"Action 2.3: Local councils will have regard to the priority conservation lands identified in the recovery plan in identifying areas for inclusion in environment protection and regional open space zones.

Action 3.1: Preferentially target any future investment associated with the management of the Cumberland Plain's threatened biodiversity to the priority conservation lands where practicable.

Action 4.1: Support and promote the adoption of best practice standards for bushland management and restoration on public and private lands within the Cumberland Plain (as specified in Appendix 2).

Action 6.1: Local government agencies will manage, to best practice standards (as specified in Appendix 2), any lands which:

(a) Are under their ownership or for which they have care, control and management;

(b) Contain any of the threatened biodiversity addressed by the recovery plan; and

(c) Are located within the identified priority conservation lands or, if located outside these lands, have primary management objectives that are compatible with biodiversity conservation.

...".

27At a Council meeting on 30 November 2009 the Council resolved that the draft recovery plan was acceptable but addressed the following concerns:

"Council make a submission to the Department of Environment, Climate Change and Water regarding the draft Cumberland Plain Recovery Plan, requesting that the following concerns be addressed:

(a) Targeting any future investment associated with the management of the Cumberland Plain's threatened biodiversity to the priority conservation lands within the City should be the responsibility of the State Government.

(b) Further consideration should be given by DECCW to the importance of habitat/conservation corridors.

(c) Further clarification is provided regarding DECCW's expectations for local government to monitor and report on the Plans measures.

(d) The plan should adequately address the funding and resourcing implications on local government and to address the capacity restraints of local government to achieve the proposed measures."

28A formal reply from the Council on 8 December 2009 was sent to the Director Metropolitan Branch in reply to their letter dated 12 June 2009:

"This matter was reported to Council at its Ordinary Meeting on 30 November 2009. The proposed actions outlined in the draft plan are considered to be generally consistent with the Penrith City Biodiversity Strategy and Action Plan. However, some items of concern have been raised and it is requested that the Department of Environment, Climate Change and Water (DECCW) give further consideration to these matters".

29Early in 2011 the Minister for Climate Change and the Environment, being the Minister administering the TSC Act , approved the Recovery Plan under Part 4 of the TSC Act and it was gazetted on 18 February 2011.

30The Recovery Plan applied, inter alia , to the following threatened species and ecological communities located within the broad shale basin of the Cumberland Plain in western Sydney:

(i) Cumberland Plain Woodland;

(ii) River Flat Eucalypt Forest

(iii) Cumberland Land Snail

(iv) Bush Pea

(v) Juniper-leaved Grevillea

31The second respondent submitted six development applications to the Council mid 2011 and received the following application numbers (" Development Applications " for " the Development "):

(i) DA11/0511;

(ii) DA11/0512;

(iii) DA11/0514;

(iv) DA11/0515;

(v) DA11/0516; and

(vi) DA 11/0517;

32At the same time the second respondent submitted a Statement of Environmental Effects for each of the Development Applications to the Council and also submitted a species impact statement prepared by Cumberland Ecology in relation to the Development ( "SIS").

33It was noted that references in the SIS to the area of the Subject Site were references to the area of land the subject of the six development applications set out in paragraph 31, and references to any impact on a particular area by the "Development", was the subject land on the same six development applications. All areas of the subject land were defined on maps which were part of each development application.

34The total land area the subject of the development applications was 59.5 hectares. The applicant does not challenge the Council's decision to grant consent to DA11/0511 and DA11/0512.

35The applicant does challenge the Council's decision to grant consent to DA11/0514, DA11/0515, DA11/0516 and DA11/0517 and this area of land was 31.29 hectares.

36The SIS was an expansive document and indicated the following impacts on threatened species if any development to land that was subject of the development applications was carried out (the following is, I apprehend, a summary prepared by the parties and not an extract from the SIS):

"that the clearing of vegetation on the Land for the purpose of the Development would directly remove habitat for the following threatened species which were the subject of the recovery plan:

(i) Juniper-leaved grevillea;

(ii) Pultenaea parviflora; and

(iii) Cumberland Land Snail.

that any development would result in measureable loss of habitat for the following threatened species and endangered ecological communities which were the subject of the recovery plan:

(i) Cumberland Plain Woodland;

(ii) Juniper-leaved grevillea;

(iii) Pultenaea parviflora; and

(iv) Cumberland Land Snail.

that any development would result in the clearing of a total of 59.5 hectares of Cumberland Plain Woodland which was made up of:

(i) 23 hectares of regenerating CPW;

(ii) 0.8 hectares of Derived Native Grassland;

(iii) 35 hectares of Exotic dominated derived native grassland;

(iv) 0.3 hectares of Freshwater wetland; and

(v) 0.4 hectares of Plantings.

that any development would result in the removal, modification and/or isolation of River-Flat Eucalypt Forest in the following ways:

(i) 0.1 ha of River-Flat Eucalypt Forest would be removed as a result of the Development;

(ii) the River-Flat Eucalypt Forest to be removed as a result of the Development would not be important to the long term survival of the community within the locality; and

(iii) River-Flat Eucalypt of high conservation significance, considered to be more important than that within the Western Precinct, would be conserved within the proposed Regional Park and managed for conservation.

that any development would result in the removal of or impact on 167 Juniper-leaved grevillea plants in the following ways:

(i) the plants were estimated to occur at the perimeter of the Subject Site;

(ii) the plants formed part of a larger population, mainly extending south along the western boundary of the St Marys Property in the proposed Regional Park;

(iii) the Development would not disrupt the lifecycle of the known local population; and

(iv) the potential removal of the plants would not affect the long term viability of the larger population, which was adequately conserved in the proposed Regional Park.

that any development would result in the removal or substantial modification of all of the known and potential habitat for Juniper-leaved grevillea on the development site, and within the Western Precinct.

that:

(i) no areas of known or potential habitat would become isolated;

(ii) connectivity would be maintained in the short term around the eastern side of the study area and in the long term in the proposed Regional Park, which would connect plants that occurred to the north and south of the study area;

(iii) the habitat to be removed, modified or isolated as a result of the Development would not be important to the long-term survival of the species in the locality; and

(iv) areas of high quality habitat and large numbers of the species occur within the proposed Regional Park would be conserved within the proposed Regional Park and would be managed for conservation.

that any development would result in the removal or substantial modification of all of the known and potential habitat for Pultenaea parviflora on the development site, and within the Western Precinct.

that:

(i) only one occurrence of Pultenaea parviflora had been recorded on the Subject Site;

(ii) no areas of known or potential habitat would become isolated;

(iii) connectivity would be maintained in the short term around the eastern side of the study area and in the long term in the proposed Regional Park, which would connect plants that occurred to the north and south of the study area;

(iv) the habitat to be removed, modified or isolated as a result of the Development would not be important to the long-term survival of the species in the locality; and

(v) areas of high quality habitat and large numbers of the species occur within the proposed Regional Park would be conserved within the proposed Regional Park and would be managed for conservation.

that the 59.5 hectares of Cumberland Plain Woodland that would be removed as part of the Development represented a large area of habitat for the Cumberland Land Snail. The discrete subpopulations of Cumberland Land Snail in the Western Precinct were likely to be permanently removed by the removal and modification of CPW proposed as part of the Development.

that:

(i) a significantly greater density of snails was known to occur in the proposed Regional Park;

(ii) the habitat of the Subject Site was sparse and suitable CPW patches were small and infrequent and, as a result, it was questionable whether the subpopulation in the Subject Site would be viable in the long term;

(iii) the extent of habitat removal as a result of the Development was not considered likely to place the local population centred on the proposed Regional Park at risk of extinction; and

(iv) the large and continuous remnants present in the proposed Regional Park would be protected through a range of mitigation measures and retained in perpetuity."

37After the second respondent submitted the SIS the Council engaged Dr Hawkeswood of T J Hawkeswood Scientific Consulting to review it.

38The Council was then provided with a CD, under cover of a memorandum dated 10 August 2011 (" 10 August Memorandum" ) by Mr Paul Lemm, Development Services Manager of the Council. The CD contained the following:

(i) the SIS;

(ii) DECCW Threatened Species Assessment Guidelines; and

(iii) the Hawkeswood Report.

39Around August 2011, a report was compiled by Steven Chong, the Council's Senior Environmental Planner, and authorised by Paul Lemm, the Council's Development Services Manager. The report was entitled "Development Applications DA11/0511, DA11/0512, DA11/0514, DA11/0515, DA11/0516, DA11/0517 for Subdivision of the Western Precinct, St Marys Release Area (Jordan Springs) Lot 1036 DP 1149525 (No 1070-1170) The Northern Road, Llandilo" ("Officer's Report") and was prepared in relation to the development applications. The Officer's Report recommended that each of the development applications be approved subject to specified conditions.

40When the Council later made its determination the following documents were available and presented before them:

(i) Officer's report to Council prepared by Stephen Chong;

(ii) SIS prepared by Cumberland Ecology and dated May 2011;

(iii) DECCW Threatened Species Assessment Guidelines;

(iv) Hawkeswood report; and

(v) working files for each of the Development Applications that included the Development Applications, the Statements of Environmental Effects that accompanied each application, and the reports annexed to the applications and Statements of Environmental Effects.

41On 15 August 2011 the Council, having determined the development applications, granted the following consents, subject to specified conditions:

(i) DA11/0511;

(ii) DA11/0512;

(iii) DA11/0514;

(iv) DA11/0515;

(v) DA11/0516; and

(iv) DA 11/0517.

The statutory provisions

42At this point it is desirable to set out the statutory provisions of central relevance to the issues raised in these proceedings. Later in these reasons other provisions and the legislative history will be considered in more detail. The objects of the TSC Act are in s 3 which provides:

The objects of this Act are as follows:

(a) to conserve biological diversity and promote ecologically sustainable development, and

(b) to prevent the extinction and promote the recovery of threatened species, populations and ecological communities, and

(c) to protect the critical habitat of those threatened species, populations and ecological communities that are endangered, and

(d) to eliminate or manage certain processes that threaten the survival or evolutionary development of threatened species, populations and ecological communities, and

(e) to ensure that the impact of any action affecting threatened species, populations and ecological communities is properly assessed, and

(f) to encourage the conservation of threatened species, populations and ecological communities by the adoption of measures involving co-operative management.

43The preparation of recovery plans is addressed by s 56 of the TSC Act which provides:

(1) The Director-General may prepare a recovery plan for each endangered species (other than a species presumed extinct), population and ecological community and each critically endangered species and ecological community to promote the recovery of the species, population or ecological community to a position of viability in nature.

(2) ...

44The implementation of recovery plans is addressed by ss 69 to 73 of the TSC Act which provide:

69 (1) Minister and public authorities (including the Director-General) are to take any appropriate action available to them to implement those measures included in a recovery plan for which they are responsible and must not make decisions that are inconsistent with the provisions of a recovery plan.

(2) If the implementation of a recovery plan affects a statutory discretion of a Minister or public authority, this section does not operate to exclude the discretion, but the Minister or authority must take the recovery plan into account.

(3) This section does not operate to require or authorise any action by a Minister or public authority that is inconsistent with any statutory or other legal obligation of the minister or public authority.

....

71 (1) A public authority must not exercise a function in a manner that is inconsistent with the implementation of measures included in a recovery plan unless:

(a) in the case of a public authority other than the Director-General - it has given written notice of the proposed exercise of the function to the Director-General, or

(b) ...

(2) The Director-General must comply with any directions given by the Minister concerning a proposed departure from a recovery plan.

(3) This section does not apply in relation to anything authorised to be done by or under the State Emergency and Rescue Management Act 1989 that is reasonably necessary in order to avoid a threat to life or property.

(4) This section does not apply in relation to any thing authorised to be done by or under the Rural Fires Act 1997 in relation to any emergency fire fighting act within the meaning of that Act.

72 (1) The Director-General must, on receiving notice of a proposed departure from a recovery plan from a public authority, determine whether exercise of the function in the manner proposed is acceptable or whether it is likely to jeopardise the effective implementation of the plan.

(2) If the Director-General considers that the departure is acceptable, the Director-General must notify the public authority accordingly.

(3) If the Director-General considers that the departure is unacceptable because it is likely to jeopardise the effective implementation of the recovery plan, the Director-General must consult with the public authority in an endeavour to resolve the matter by modification of the action proposed or by other mutually acceptable means.

73 (1) A matter that has not been resolved after consultation between the Director-General and the public authority concerned must be referred by the parties to their respective Ministers.

(2) In the case of a council, the reference is to the Minister administering the Local Government Act 1993 unless the matter relates, in whole or in part, to the exercise of functions under the Planning Act. In that event, the reference is to be to the Minister administering the Planning Act.

(3) The Ministers, on receiving a reference, are to consult in an endeavour to resolve the matter by means that the Ministers consider to be appropriate.

(4) If the Ministers are unable to resolve the matter after consultation, it is to be referred to the Premier for resolution.

(5) A public authority (including the Director-General) must give effect to any decision of, or directions made or given by, the Premier on the matter and is, despite the requirements of any other Act or law, empowered to comply with any such decision or directions.

45The EPA Act addresses the question of how an evaluation is to be undertaken of the likely effect of certain matters on threatened species, populations and ecological communities in s 5A which provides:

(1) For the purposes of this Act and, in particular, in the administration of sections 78A, 79B, 79C, 111 and 112, the following must be taken into account in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats:

(a) each of the factors listed in subsection (2),

(b) any assessment guidelines.

(2) The following factors must be taken into account in making a determination under this section:

(a) in the case of a threatened species, whether the action proposed is likely to have an adverse effect on the life cycle of the species such that a viable local population of the species is likely to be placed at risk of extinction,

(b) ...,

(c) in the case of an endangered ecological community or critically endangered ecological community, whether the action proposed:

(i) is likely to have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction, or

(ii) is likely to substantially and adversely modify the composition of the ecological community such that its local occurrence is likely to be placed at risk of extinction,

(d) in relation to the habitat of a threatened species, population or ecological community:

(i) the extent to which habitat is likely to be removed or modified as a result of the action proposed, and

(ii) whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed action, and

(iii) the importance of the habitat to be removed, modified, fragmented or isolated to the long-term survival of the species, population or ecological community in the locality,

(e) whether the action proposed is likely to have an adverse effect on critical habitat (either directly or indirectly),

(f) whether the action proposed is consistent with the objectives or actions of a Recovery Plan or threat abatement plan,

(g) whether the action proposed constitutes or is part of a key threatening process or is likely to result in the operation of, or increase the impact of, a key threatening process.

(3) In this section:

assessment guidelines means assessment guidelines issued and in force under section 94A of the Threatened Species Conservation Act 1995 or, subject to section 5C, section 220ZZA of the Fisheries Management Act 1994.

key threatening process has the same meaning as in the Threatened Species Conservation Act 1995 or, subject to section 5C, Part 7A of the Fisheries Management Act 1994.

46A development application must, in certain circumstances, be accompanied by an SIS. This is provided for in s 78A:

(1) A person may, subject to the regulations, apply to a consent authority for consent to carry out development.

...

(8) A development application (other than an application in respect of State significant development) must be accompanied by:

(a) ...,

(b) if the application is in respect of development on land that is, or is a part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats - a species impact statement prepared in accordance with Division 2 of Part 6 of the Threatened Species Conservation Act 1995 .

47In deciding whether to grant consent to a development application, s 79C identifies considerations which must be taken into account:

(1) Matters for consideration-general

In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a) ...

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) ...

(d) ...

(e) the public interest.

The grounds of review

48It is convenient to set out, at this point, the grounds of review in a summary way. They were:

(i) The Council failed to consider or take into account the recovery plan when determining the development applications as it was required to do by s 69(2) of the TSC Act and s 79C off the EPA Act.

(ii) The Council failed to consider whether the Development was consistent with the implementation of measures included in the recovery plan.

(iii) The Council failed to consider what measures should be taken to implement the recovery plan.

(iv) The Council failed to notify the Director-General of departures from the recovery plan.

Does s 69 of the TSC Act apply?

49An important matter ultimately put in issue by the parties was whether s 69 of the TSC Act has any application to the exercise of the power by a council to grant consent to a development application under s 80 of the EPA Act. The answer to that question lies in a consideration of the language and objects of the two Acts, the operation of the relevant statutory schemes in the two Acts, how they are intended to interact and some legislative history.

50I first consider aspects of the legislative scheme in the EPA Act for the grant of consent to a development application. I will proceed to consider the scheme as it would apply to a council as the consent authority. Section 79C (set out earlier) identifies matters which must be taken into account by the council in so far "....as (they are) of relevance to the (proposed) development....". Those matters include the impact on the environment: s 79C(1)(b), and the public interest: s 79C (1)(e). In so far as these generally described matters might include consideration of the impact of the proposed development on threatened species, populations or ecological communities or their habitats, a procedure is established which, in appropriate cases, puts before council information and other relevant material to address that issue.

51If the application is in respect of the development on land that is "likely to significantly threatened species, populations or ecological communities" or their habitats, then the application must be accompanied by an SIS: s 78A(8). In deciding whether there is likely to be that effect, it is necessary to address the matters identified in s 5A which include the factors identified in subsection (2). One factor specified in s 5A(2)(f) is whether the action proposed is consistent with the objectives or actions of a recovery plan (which by operation of s 4 has, relevantly, the same meaning as in the TSC Act). Having regard to the statutory scheme, this assessment (whether there is likely to be that effect) will either be made by the applicant at some time before the application is lodged or thereafter but before the application is determined or by the council immediately before that latter time: Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council [2010] NSWLEC 48 at [82].

52What the SIS must address is specified by s 110 of the TSC Act (and any applicable regulations: see s 112) and in such requirements as may be imposed by the Director-General under s 111. Section 110 provides:

(1) A species impact statement must include a full description of the action proposed, including its nature, extent, location, timing and layout and, to the fullest extent reasonably practicable, the information referred to in this section.

(2) A species impact statement must include the following information as to threatened species and populations:

(a) a general description of the threatened species or populations known or likely to be present in the area that is the subject of the action and in any area that is likely to be affected by the action,

(b) an assessment of which threatened species or populations known or likely to be present in the area are likely to be affected by the action,

(c) for each species or population likely to be affected, details of its local, regional and State-wide conservation status, the key threatening processes generally affecting it, its habitat requirements and any recovery plan or threat abatement plan applying to it,

(d) an estimate of the local and regional abundance of those species or populations,

(e) an assessment of whether those species or populations are adequately represented in conservation reserves (or other similar protected areas) in the region,

(e1) an assessment of whether any of those species or populations is at the limit of its known distribution,

(f) a full description of the type, location, size and condition of the habitat (including critical habitat) of those species and populations and details of the distribution and condition of similar habitats in the region,

(g) a full assessment of the likely effect of the action on those species and populations, including, if possible, the quantitative effect of local populations in the cumulative effect in the region,

(h) a description of any feasible alternatives to the action that are likely to be of lesser effect and the reasons justifying the carrying out of the action in the manner proposed, having regard to the biophysical, economic and social considerations and the principles of ecologically sustainable development,

(i) a full description and justification of the measures proposed to mitigate any adverse effect of the action on the species and populations, including a compilation (in a single section of the statement) of those measures,

(j) a list of any approvals that must be obtained under any other Act or law before the action may be lawfully carried out, including details of the conditions of any existing approvals that are relevant to the species or population.

Sub-section (3) details substantially the same matters as they might arise in relation to an ecological community.

53Accordingly, when a Council is about to consider a development application which is "likely to significantly affect threatened species, populations or ecological communities" or their habitats, it will, if the requirements of the EPA have been met, have before it an SIS addressing the matters identified in s 110. I should, at this point, deal with one minor but important matter of construction. It can be seen that in s 110(2)(c) (and also in (3)(b)) there is a requirement to provide "details of..." followed by five identified matters. It is tolerably clear, in my opinion, that those words "details of" qualify each of the matters. Thus details must be provided of conservation status, processes, habitat requirements and any recovery plan or threat abatement plan.

54One further aspect of the scheme should be noted. If the development on the land or part of it is likely to significantly affect a threatened species, population, or ecological community or its habitat, development consent cannot be granted without the concurrence of the Director-General of the Department of Environment, Climate Change and Water: s 79B(3). In addition, s 79B mandates that the Director-General must take into account specified matters in deciding whether or not concurrence should be granted. They are found in s 79B(5) which provides:

(5) In deciding whether or not concurrence should be granted under subsection (3), the Director-General of the Department of Environment, Climate Change and Water or the Minister administering the Threatened Species Conservation Act 1995 must take the following matters into consideration:

(a) any species impact statement that accompanied the development application,

(b) any assessment report prepared by the consent authority,

(c) any submissions received concerning the development application,

(d) any relevant recovery plan or threat abatement plan,

(e) whether the development proposed is likely to reduce the long-term viability of the species, population or ecological community in the region,

(f) whether the development is likely to accelerate the extinction of the species, population or ecological community or place it at risk of extinction,

(g) the principles of ecologically sustainable development,

(h) the likely social and economic consequences of granting or of not granting concurrence.

Again, if the requirements of the EPA Act have been met, development consent will only be given to an application which is likely to significantly affect threatened species, populations or ecological communities or their habitats if the Director-General has given his or her concurrence and that would occur only if the Director-General has taken into account any relevant recovery plan: see s 79B(5)(d).

55The TSC Act also addresses the powers of a council in the sense that s 69 and related sections (set out earlier) concern the exercise of power by any public authority which is defined in s 4 to include a local authority constituted by or under an Act. Plainly enough that would include a council constituted under the Local Government Act 1993 (NSW). This is agreed by the parties. The Alliance's case was, in part, that s 69 was engaged when a council was deciding to grant consent to a development application under s 80 of the EPA Act. That was because in s 69(1) the concluding words "... and must not make decisions that are inconsistent with the provisions of the recovery plan" comprehend, amongst other decisions, a decision under s 80. Also, the expression "statutory discretion" in s 69(2) comprehends, it was submitted, the discretionary power conferred by s 80.

56If, according to the Alliance, the granting of consent to a development application was inconsistent with the provisions of (or the implementation of measures included in) a recovery plan, then the procedures in s 71 and consequential provisions must be followed. That is, notice of the proposed granting of consent must be given to the Director-General: see s 71(1)(a) and the consultations contemplated by s 72 must take place. If the matter is unresolved (because the Director-General has concluded that the departure from the recovery plan is unacceptable) then the relevant Ministers must be consulted under s 73 and if the matter remains unresolved after Ministerial consultation, the Premier is to resolve it. Before further considering the proper construction of s 69, it is convenient to refer to the legislative history of a number of these provisions.

57The TSC Act was enacted in 1995. It included in Division 2 of Part 4 a suite of provisions including sections 69, 71, 72 and 73 which were in virtually the same terms as those sections in their present form. The differences are immaterial. For the purposes of those sections the "Director-General" was then the Director-General of National Parks and Wildlife.

58Section 153 of the TSC Act when enacted also effected amendments to the EPA Act. The scheme created by these amendments concerning applications for development consent which might affect endangered species and the like, broadly corresponded with the existing scheme outlined above. However there were some differences. The 1995 amendments to the EPA Act included the insertion of the definition of "recovery plan" (discussed earlier) and the introduction of s 5A (in terms different to its present form) which identified factors to be considered in determining whether there was likely to be a significant effect on threatened species, populations or ecological communities or their habitats. If this effect was likely, a newly introduced provision (s 77(3)(d1)) required an application for development consent to be accompanied by an SIS.

59Also making this determination (about likely significant effect) was relevant because of s 77A, again introduced into the EPA Act at this time. That section prevented the grant of development consent by a council with this likely effect without the concurrence of the Director-General of National Parks and Wildlife. Under s 77A(3) the Minister administering the TSC Act could step into the shoes of the Director-General or review or amend any recommendation the Director-General might have been proposing to make. Also introduced was s 77C that identified matters to be considered by the Director-General in deciding whether or not concurrence should be granted under s 77A. That included any SIS that accompanied the development application (par (a)) and any relevant recovery plan (par (d)). Another feature of this scheme was s 77B which authorized the Planning Minister to determine a development application without the concurrence of, or consultation with, the Director-General. That power could be exercised if the Minister held the opinion it was expedient in the public interest to do so having regard to matters which the Minister thought of significance for the state or for regional environmental planning.

60The 1995 amendments to the EPA Act also added to the matters identified in s 90 (the legislative predecessor to s 79C) which had to be considered when deciding whether to grant consent to a development application. The additions included paragraphs (c3) and (c4) identifying, respectively, as a relevant matter "whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats" and "any relevant recovery plan".

61The obvious question, for present purposes, which is posed by the enactment of the TSC Act and the amendments to the EPA Act in the one Act is whether Parliament intended, at the time, to put in place a regime under Division 2 of Part 4 of the TSC Act which was to operate on the exercise of a council's power to grant a development application if the exercise of the power was inconsistent with the implementation of a recovery plan while at the same time putting in place a scheme under the EPA Act for dealing with applications for development consent which were likely to adversely affect threatened species, populations or ecological communities, or their habitats which would raise for consideration, expressly, any relevant recovery plan.

62In my opinion, Parliament did not intend this. Before discussing the terms of s 69 when originally enacted (bearing in mind it was in the same terms as now), it is necessary to describe the statutory context in which it then appeared. Part 4 of the TSC Act (when enacted and now) generally concerned recovery plans. Division I, as its title (forming part of the Act - s 35 of the Interpretation Act 1987 (NSW)) indicated, concerned the preparation of recovery plans. Section 56 (set out earlier) required the Director-General to prepare recovery plans.

63Section 59 identified what a recovery plan needed to address. It had to identify threatened species, populations or ecological communities to which it applied and their declared critical habitats. It had to identify threatening processes and what had to be done to ensure the recovery of the threatened species population or ecological community and to protect the critical habitat. It also had to state how the objects of the Act were to be implemented or promoted for the benefit of the threatened species, population or ecological community and the method by which progress towards achieving those objects was to be assessed. It also had to identify the persons or public authorities who were responsible for the implementation of the measures included in the plan. Thus, in summary, the plan was to be a mixture of objectives and means of achieving those objectives.

64Division 2 concerned the implementation of recovery plans. Section 69(1) (set out earlier) contained two elements. The first was to impose a duty on, amongst others, public authorities (including councils) to take any appropriate action to implement those measures in the plan for which they were responsible. That much is clear enough from the language used.

65However, the content of the second element, identified after to the word "and" was far less clear. Indeed it was quite obscure. Generally it was framed as an unqualified prohibition on the making of certain decisions, namely decisions inconsistent with the provisions of a recovery plan. Two questions arise. Was the reference to "decisions" only to decisions made while discharging the duty to implement measures (the matter addressed by the first element in the subsection) or was it to any decision the public authority might make. The second question arises from the use of the word "inconsistent". What was the nature of the inconsistency addressed by the subsection? A decision might be inconsistent with the provisions of a recovery plan if it tended to lead to action that was antithetical to achieving the objectives of the recovery plan. A decision might also be inconsistent if it prevented (in whole or in part), compromised or rendered less effective action identified in the plan itself as the means of achieving those objectives. That might be so as a direct and immediate effect of the decision or indirectly as a result of someone taking action that the decision authorized.

66The TSC Act is beneficial legislation and should not be narrowly construed. There would be no reason, in principle, for not giving the words identifying the second element as wide a meaning as they were capable of bearing. On that approach one would not favour a construction of s 69 confining the second element to decisions made while discharging the duty to implement measures addressed in the first element of the section. Accordingly the second element would be concerned with any decision which the identified decision-makers might make which was inconsistent with a recovery plan in the way discussed in the preceding paragraph. Some support for this was found in the reference in s 73(3) to "functions under the Planning Act", namely the EPA Act. However this conclusion does not end the inquiry as to whether s 69(1) addressed a decision whether to grant consent to a development application.

67In terms, the prohibition in the second part of s 69(1) was absolute. It does not appear to me that s 69(2) modified or qualified that absolute prohibition. The focus of that subsection was the preservation of a statutory discretion affected by the implementation of a recovery plan, not the exercise of a power inconsistent with the provisions of a plan.

68They are four features of the way s 69(2) was expressed to operate which inform its construction. The first was that its operation was conditional in the sense that it had effect "if the implementation of a recovery plan" affected a statutory discretion. The second feature was that it declared what s 69 in its entirety was not intended to do, namely exclude the statutory discretion. The third feature was to oblige the decision-maker to take the recovery plan into account. Fairly clearly this obligation was intended to arise when the condition (the first feature) was satisfied, namely the implementation of a recovery plan was liable to affect the exercise of the discretion.

69The fourth feature arises from what was not said in s 69(2). Its operation was not conditioned by a possible or potential inconsistency between the implementation of a recovery plan and the consequences of the exercise of the statutory discretion.

70But was s 69(2) intended to identify, however indirectly, the class of decisions the second part of s 69(1) concerned and thereby ameliorate the effect of the absolute prohibition? That is, did s 69(2) tell us that the prohibition concerned statutory discretions affected by the implementation of a recovery plan and notwithstanding the prohibition the discretion could be exercised as long as the decision-maker took into account the recovery plan. I think not because this construction would render otiose the words following "and" in s 69(1). Accordingly even if that class of decisions included discretionary decisions (and there is no reason to doubt that it did) s 69(2) was not intended to ameliorate in its entirety, or even perhaps at all, the effect of the absolute prohibition.

71As noted earlier, a recovery plan was to be a mixture of objectives and the means of achieving those objectives. What s 69(2) addressed, in my opinion, was a situation where steps or action taken or to be taken as one of the means of achieving those objectives affected the exercise of a discretionary power. In other words, the subsection required a recovery plan to be taken into account if a statutory discretion was to be exercised and its exercise impacted on steps taken or to be taken in furtherance of the recovery plan.

72On this approach to the construction of s 69(2), it left unaffected the absolute prohibition arising in the second part of s 69(1). But elsewhere the effect of the absolute prohibition was moderated. In my opinion, the statutory scheme ameliorated the effect of the absolute prohibition in s 69(1) by the processes found in ss 71 to 73. That is, a power could be exercised in a way prohibited by s 69(1) if the exercise of the power was acceptable for the purposes of s 73, resolved through Ministerial consultation or ultimately resolved by the Premier. However those processes concerned only the exercise by a public authority of a function in a manner that was inconsistent with the implementation of measures included in a recovery plan. This was a more limited class of decision than those possibly comprehended by s 69(1) just discussed in [66] above. In the result, it seems to me that the prohibition in the second element of s 69(1) concerned only decisions involving the exercise of a function in a manner that was inconsistent with the implementation of measures included in a Recovery Plan. This narrower construction of the second element in s 69(1) is more harmonious with the first element than the broader construction and consistent with the subject matter and purpose of the processes in ss 71 to 73.

73Could the grant of consent to a development application under the EPA Act potentially and depending on the facts, have involved the "exercise (of) a function in a manner that is inconsistent with the implementation of measures included in the recovery plan"? I doubt that it was intended to be. This expression appeared to speak of a direct relationship between the manner of the exercise of the function and the inconsistency with the implementation of measures. The grant of consent could not have, of itself, effected the implementation of relevant measures. It is a singular and confined administrative act. It was true that potentially activities might have been undertaken by the successful applicant for the consent which may have impinged on the implementation of measures in the recovery plan. But that ultimate effect is not the result of the exercise of the function (of deciding whether to grant consent and doing so) in a manner inconsistent with implementation. The manner of the exercise of the function would be entirely neutral on the implementation of measures.

74Also supporting this construction of s 69 was the creation of two schemes in 1995 operating for what might be viewed as the same general purpose but potentially following different pathways of decision-making with the possibility of different results. Let it be assumed that certain consequences would have flowed from consent being granted to a development application. Assume further that activities, which might have been undertaken because consent had been given, would be likely to have had a significant effect on threatened species, populations or ecological communities, or their habitats. The applicant could have been expected to have prepared a SIS when applying for consent and that statement can be assumed to have identified this likely significant affect.

75The scheme under the EPA Act when amended in 1995 could well have operated this way. Council would have needed to seek under s 77A the concurrence of the Director-General who would have had to consider under s 77C any recovery plan in deciding whether to give concurrence. If concurrence was granted, council could then have granted consent to the development application. Without that concurrence, consent could not be granted. Also the Minister acting under s 77B might avoid the need for this concurrence. If the Director-General was proposing not to grant concurrence it would have been possible for the Minister to have intervened under s 77A(3)(a) or undertaken a review under s 77A(3)(b).

76If s 69(1) of the TSC Act also applied to the granting of consent (I assume, contrary to what I have already said, this was so) and granting it was inconsistent with the implementation of measures included in a recovery plan then notice had to be given to the Director-General under s 71. Given the nature and purpose of recovery plans, the inconsistency would most likely arise from the activities authorized by the consent which would likely adversely affect, threatened species, populations or ecological communities, or their habitats to which the plan was directed. By this route, the Director-General would have had to determine whether that the departure from the plan was acceptable. If not there was a process of review involving consultation between Ministers which, in certain circumstances, could lead to a determination by the Premier.

77While these two schemes had, superficially, common characteristics they were nonetheless different. While they could both operate with the same ultimate result (both resulting in the grant of consent or both resulting in the refusal of consent to the development application) this was not assured particularly given the potential involvement of the Premier in one scheme but not the other.

78In my opinion, s 69 of the TSC Act when first enacted in 1995, was not intended to operate on a decision by a council whether to grant consent to a development application. The effect of the possible grant of consent on threatened species and the like and whether consent should be granted was to be assessed and determined through the operation of the newly introduced provisions of the EPA Act.

79Since the enactment of the TSC Act and the 1995 amendments to the EPA Act, the applicable provisions of the former Act have remained substantially the same but the applicable provisions of the latter Act have been amended on several occasions since 1995. Have those amendments altered the position created by the 1995 legislation? That is, have the more recent amendments to the EPA Act manifest a legislative intention to render operative provisions of the TSC Act to the exercise of the power by council to determine whether to grant consent to a development application. I think not.

80The more significant amendments have been to change the test in s 5A for determining whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats. Another has been the removal of express reference in s 79C (replacing s 90) to whether there was likely to be a significant effect on threatened species, populations or ecological communities, or their habitats (para (c3)) and any relevant recovery plan (para (c4)) as matters which must be considered when deciding whether to grant consent to a development application. However the retention of the requirement that a development application, if it is likely to have this effect, must be accompanied by a SIS (which must address any applicable recovery plan) makes it quite clear that a council must still consider the matters formerly addressed by paras (c3) and (c4) but under the more general rubric of environmental impacts and the public interest. I discuss this matter later.

81While looking at the history of legislative provisions and then moving to the way they are currently formulated in determining the meaning and effect of the current formulation might be thought to be unorthodox, it is justified in the present case. That is because quite plainly whatever Division 2 of Part 4 of the TSC Act was intended to achieve was determined in a context where simultaneous amendments were made to the EPA Act. This comparatively unusual history is of considerable importance in determining what Division 2 of Part 4 was intended to achieve.

82In the result, s 69 does not apply, in my opinion, to the determination by a Council of whether consent should be given to a development application.

Ground 1

83The Alliance contended the Council failed to consider or take into account the Recovery Plan when determining the development applications as it was required to do by s 69(2) of the TSC Act and s 79C of the EPA Act. The essence of Alliance's submission was that the Council failed to give "proper, genuine and realistic consideration" to the Recovery Plan when deciding to give approval: Zhang v Canterbury City Council (2001) 51 NSWLR 589.

84In considering this argument, a logical first step is to consider further what is required under the EPA Act. Section 5A mandates that certain matters must be taken into account in determining whether for the purposes of, inter alia, administering s 79C, there is likely to be a significant effect on threatened species, populations or ecological communities or their habitats. The identification of the matters is replete with references to "the action proposed" or the "proposed action". Mostly these references involve some direct or indirect physical consequence or effect of the "action". In the context of the administration of s 79C which addresses the determination of development applications, it is tolerably clear that the relevant "action" is not the act of approving but rather activities proposed to be undertaken by an applicant in carrying out the project or development flowing from the grant of approval. It is those activities, but not the approval, which would potentially cause the contemplated physical consequence.

85One of the matters is whether the action proposed is consistent with the objectives or actions of a recovery plan: s 5A(2)(f) EPA Act. Thus it is mandatory to consider whether the activities proposed to be undertaken by the applicant in carrying out the project or development are consistent with the objective or actions of a recovery plan. However this mandated consideration arises in determining whether there is likely to be a significant effect on threatened species, populations or ecological communities or habitats if, for present purposes, the development application was granted. An affirmative answer to that question would require the submission of a SIS which, in turn, must contain details of any recovery plan: s 110(2)(c) (and (3)(b)) of the TSC Act.

86Section 79C does not, in terms, require a recovery plan to be considered as part of the consideration of the environmental impacts of the development: s 79C(1)(b), or the public interest: s 79C(1)(e).

87However it appears to me that if an SIS has been prepared and submitted by the applicant, the Council must proceed on the basis that the applicant has formed the view that activities proposed to be undertaken by the applicant in carrying out the project or development is likely to have a significant effect on threatened species, populations or ecological communities or their habitats. Cases may arise, in fact, where the lodging of a SIS might be done defensively (in the sense that the applicant might wish to avoid a situation where such a statement might later be said (contrary to the views of the applicant) to be required as a condition precedent to the consideration of the application - which was the import of the second and third respondents' submission in this matter). However in such cases I do not think that Council can, in exercising its power under s 80, gainsay the apparent purpose (based on the legislation) of the statement's lodgement by the applicant. That is not to say a council cannot form its own view of the likely effect of the proposed development. It probably does have to in order to determine whether s 79B has been engaged.

88An SIS is an important document in the statutory scheme for the consideration of applications for development consent. Indeed the creation of an SIS can, in appropriate cases, condition the exercise of the very power to grant consent: see Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55. It appears to me there is little room to doubt that a council is obliged to consider and have regard to an SIS lodged with a development application or otherwise furnished for the purposes of the application's assessment. Accordingly, a council must consider the SIS as a necessary relevant consideration in exercising its power under s 80.

89It is not, in my opinion, too large a step to view this requirement as comprehending, as subsidiary requirements, consideration, in appropriate cases, of the matters the SIS must address, which include the details of any recovery plan: see s 110(2)(c) and, more generally, a full assessment of the likely effect of the "action" (viz. the activities proposed to be undertaken by the applicant in carrying out the project or development) on any threatened species or population: see s 110(2)(g). Other matters the SIS must address and which must be considered are a description of any feasible alternatives to the action that are likely to be of lesser effect and the reasons justifying the carrying out of the action in the manner proposed having regard to environmental and other considerations and the principles of ecologically sustainable development: see s 110(2)(h) and a full description and justification of the measures proposed to mitigate any adverse effect of the action on the species and populations: s 110(2)(i). A similar suite of requirements arises in relation to ecological communities: see s 110(3).

90It may well be that the obligation to consider the details of a recovery plan only arises if the SIS identifies some effect of the proposed development on threatened species, populations or communities or their habitats. However, it is unnecessary to explore this possible qualification because, in fact in this case, the SIS did identify those effects (a matter I discuss in the next paragraph).

91It is now necessary to consider whether these statutory requirements have been met and, if not, the consequences of non-compliance. The Council had before it the SIS. The SIS expressly identified the Juniper-leaved Grevillia, the Pultenaea parviflora and the Cumberland Land Snail as threatened species and noted that the clearing of vegetation for the development would directly remove habitat. Likewise it identified the River-flat Eucalyptus Forest as an endangered ecological community, and identified an area (0.1 ha) of the Forest which would be cleared by the development (or future development). It also identified the Cumberland Plain Woodland as a critically endangered community but did not identify this community as one which would be the subject of clearing within the boundaries of the land the subject of the development application . The SIS did however, note potential indirect impacts on Cumberland Plain Woodland . It also noted the clearing of 23 ha of regenerating Cumberland Plain Woodland as a result of the development. A distinction was drawn in the SIS between Cumberland Plain Woodland and regenerating Cumberland Plain Woodland. More detail is referred to earlier in these reasons at [36].

92What did the SIS say about the Recovery Plan? As noted earlier, the Recovery Plan was approved by the Minister in January 2011 and thus then became effective. The SIS was dated May 2011. When the SIS was published, the Recovery Plan was in effect. In Chapter 7 of the SIS (headed "Assessments of Significance") it addressed each of the matters in s 5A(2) of the EPA Act under the subheadings concerning critically endangered ecological communities, flora and fauna. In each instance there was a paragraph or a number of paragraphs with a sub-heading " whether the action proposed is consistent with the objectives or actions of a recovery plan or threat abatement plan ".

93Under this sub-heading concerning each of the Juniper-leaved Grevillia, the Pultenaea parviflora and the Cumberland Land Snail the SIS said, "a recovery plan has not been prepared for this species". This is wrong. In relation to the River-flat Eucalyptus Forest, the SIS said, "the DECC is currently preparing a draft recovery plan for the endangered ecological communities on the Cumberland Plain, though this is yet to be finalized". This is wrong in that it did not mention the Recovery Plan, already prepared by the Department and then in effect.

94In relation to the Cumberland Plain Woodland the SIS said, "(t)he draft recovery plan for the Cumberland Plain has been placed on public exhibition". This is wrong insofar as it implies the Recovery Plan was in a draft form. Under this heading for the Cumberland Plain Woodland the SIS said:

"The draft recovery plan for the Cumberland Plain has been placed on public exhibition. The main actions proposed in the recovery plan include:

Building the protected area network;

Delivering best practice management;

Promoting awareness, education and engagement; and

Enhancing information, monitoring and enforcement.

The proposed development is consistent with these actions because the largest and best quality areas of CPW in the SMP will be conserved within the Regional Park, adding to the protected area network with opportunity to deliver best practice management. The patches and sparse patches of CPW in the study area are comparatively small and degraded compared to the representation in the Regional Park and will not greatly add to the viability of the community if retained, once the study area is developed for urban purposes.

There are no threat abatement plans relevant to CPW."

95Accordingly, because of the erroneous assumptions referred to in the preceding two paragraphs, the SIS did not set out the details of the Recovery Plan save to the extent that aspects of it were summarized, in a comparatively superficial way, in the passage just quoted concerning the Cumberland Plain Woodland.

96What then are the practical and legal consequences of the failure of the SIS to set out sufficient of the details of the Recovery Plan? The relevant details were identified in submissions by counsel for the Alliance. Counsel accepted, correctly, that the primary focus of the Recovery Plan was the preservation of threatened species and communities in priority conservation land. He accepted that the land to which the development applications related was adjacent to but not within priority conservation land. However he referred to a number of references in the Plan to other areas of local conservation significance, which the Plan indicated should not be overlooked as areas capable of promoting conservation.

97Insofar as private land (and public land as well) was concerned, the Plan identified as a responsibility of the Council (amongst others), the promotion and adoption of best practice standards for bushland management. Those best practice standards were detailed in appendix 2 to the Plan. In relation to private lands, the standards contemplated the preparation of a site action or management plan which addressed the management of threatened biodiversity and which was consistent with the Recovery Plan. It further contemplated the management of the land in accordance with the site action or management plan.

98As already mentioned, the SIS did not, in terms, discuss these matters save for what was said in relation to the Cumberland Plain Woodland. The SIS did contain an assessment of the likely effect of the "action" (viz. the activities proposed to be undertaken by the applicant in carrying out the project or development) on any threatened species or population: see s 110(2)(g) and made some reference to steps which might be taken to ameliorate those effects. At base, the SIS concluded the effect of the development on endangered species and communities was insignificant having regard to the creation of the contiguous Regional Park.

99As noted earlier, Council did retain its own expert, Dr. Haweswood, to undertake a critique of the SIS. He was critical of some of its content. He also undertook the task of considering whether the SIS satisfied, inter alia, each of the requirements of s 110. He did so by reference to the sub-sections and paragraphs of the section. In relation to s 110(2)(c) he set out, as a heading, the terms of the paragraph including the requirement to include details of any recovery plan. It is clear from elsewhere in his report he was aware of the Recovery Plan though he misdescribed it as the "Cumberland Plain Woodland Recovery Plan". Somewhat surprisingly he concluded the requirements of s 110(2)(c) had been met. His reasoning was that the main community dealt with by the SIS was the Cumberland Plain Woodland and "any recovery plan.... applying to it, (has) been outlined within the SIS". I doubt this is correct in relation to what was said about the Cumberland Plain Woodland and he certainly failed to point out the errors referred to in the preceding paragraphs.

100Dr. Haweswood did, however, later in his report and under the heading Cumberland Plain Woodland Recovery Plan, identify actions outlined in the Recovery Plan concerning Penrith City Council. His report said:

" 4.0. Cumberland Plain Woodland Recovery Plan

This document is important for the Penrith City Council in regards to the Regional Park, the present SIS and for the Cumberland Plains Woodlands in determining if the DA's for the proposed development at Jordan's Springs are to be approved. The recovery plan identifies recovery objectives which are intended to be undertaken in liaison with OEH (previously DECCW). The following actions outlined in the recovery plan are relevant for the Penrith City Council.

Action 1.4 Local councils will have regard to the priority conservation lands in identifying areas for inclusion in environment protection and regional open space zones.

Action 2.2 Support and promote the adoption of best practice standards for bushland management and restoration (as specified in Appendix 2) on public and private lands with the Cumberland Plain.

Action 2.5 Local government will manage to best practice standards (as specified in Appendix 2) any lands which are under their ownership or for which they have care, control and management which:

Contain any of the threatened biodiversity listed in Table 1;

Are located within the priority conservation lands, or if located outside these lands, have conservation as a primary management objective.

Action 3.4 Work collaboratively with local government authorities and other organisations to inform communities about the value and role of remnant vegetation on the Cumberland Plain, the best practice standards for its management, and any opportunities to participate in the recovery program.

Action 3.5 Work with Aboriginal communities, landowners, community groups, and students to deliver best practice management in the priority conservation lands, and to identify other opportunities for involvement in the recovery program.

Action 3.7 Develop interpretative programs for key local reserves that contain examples of the threatened biodiversity addressed in the recovery plan.

Action 4.3 DECCW will encourage local councils to prepare or review biodiversity strategies to be consistent with the recovery plan that guide protection, management and strategic investment in threatened biodiversity, both within and outside of the priority conservation lands.

Action 4.4 DECCW will work collaboratively with local councils to enhance the compliance and enforcement program with regard to the unauthorised clearing of bushland on the Cumberland Plain."

101The significance of this is that the Council did have before it something of a summary of the Recovery Plan at least as it concerned what the Council might be required to do by way of action under the plan. What, of course, was missing was any intimation that this action might have relevance to flora and fauna other than Cumberland Plain Woodland.

102As noted earlier, a council officer (a Senior Environmental Planner) prepared a report dated 15 August 2011 concerning the environmental impacts of the proposed development. He critiqued both the SIS and Dr Hawkeswood's report. However the officer's report did not, in my opinion, remedy the failure of the SIS and Dr Hawkeswood's report to provide details of the Recovery Plan as it related to flora and fauna other than Cumberland Plain Woodland.

103Part of the respondents' case, was that Council can be assumed and have knowledge of matters arising from its consideration of other issues or deliberations leading to earlier decisions and that assumed knowledge is to be treated as knowledge it had when considering whether to grant the consents challenged in these proceedings. Of particular relevance to this argument were the events leading to the consideration by the Council in November 2009 of the draft recovery plan and its response in December 2009.

104It is unnecessary, in my opinion, to review the authorities relied on by both the respondents and the Alliance concerning the extent to which and the circumstances in which reliance can be placed on assumed knowledge of this character. That is because any consideration of the Recovery Plan was not referable to the protection of a sub-set of particular endangered species or ecological communities. In other words the consideration of the Recovery Plan in late 2009 was not directed to the particular circumstances of the Juniper-leaved Grevillia and the Pultenaea parviflora as vulnerable and endangered flora species, the Cumberland Land Snail as an endangered fauna species, the River-flat Eucalyptus Forest as an endangered ecological community and the Cumberland Plain Woodland as a critically endangered community . Moreover the SIS, which was a document actually before Council when it consented to the development applications on 15 August 2011, asserted, positively, that there was no recovery plan for three of the species.

105For the preceding reasons, I am satisfied that the Council did not have before it "details of the recovery plan" as it applied to flora and fauna other than Cumberland Plain Woodland. In the result it failed to consider, in the relevant legal sense, a matter it was required to consider (the details of the Recovery Plan) and this failure would, in my opinion, invalidate the consents. Though invited to by the second and third respondents, I would not exercise my discretion to refuse relief at all notwithstanding the long history of consideration of the environmental effects of the development of the ADI site.

106That is not to say that history is irrelevant to the question of relief. That is because of Division 2 of Part 3 of the Land and Environment Court Act 1979 (NSW). That Division must be considered. Not only is that mandated by s 25E but, in addition, the Council raised it as an issue for determination.

107It is convenient, at this point, to set out the relevant statutory provisions. Section 25B provides:

(5)The Court may, instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part, make an order:

(5)suspending the operation of the consent in whole or in part, and

(5)specifying terms compliance with which will validate the consent (whether without alterations or on being regranted with alterations).

(5)Terms may include (without limitation):

(5)terms requiring the carrying out again of steps already carried out, or

(5)terms requiring the carrying out of steps not already commenced or carried out, or

(5)Iterms requiring acts, matters or things to be done or omitted that are different from acts, matters or things required to be done or omitted by or under this Act or any other Act.

108Also relevant is section 103 which provides:

(5)This section applies to a development consent granted, or purporting to be granted, by a consent authority, to which an order of suspension applies under section 25B of the Land and Environment Court Act 1979.

(5)The consent authority may revoke a development consent to which this section applies, whether or not the terms imposed by the Court under section 25B of the Land and Environment Court Act 1979 have been complied with.

(5)However, if the terms imposed by the Court have been substantially complied with, the consent authority may revoke the development consent to which this section applies and grant a new development consent with such alterations to the revoked consent as the consent authority thinks appropriate having regard to the terms themselves and to any matters arising in the course of complying with the terms. Such a grant of a development consent is referred to as a regrant of the consent.

(5)No preliminary steps need be taken with regard to the regrant of a development consent under this section, other than those that are required to secure compliance with those terms.

(5)Section 81 and such other provisions of this Act as may be prescribed by the regulations apply to development consents regranted under this section.

109The Council submitted an order should be made under s25B. The Alliance resisted the suggestion that any such order should be made and referred to a number of authorities including the judgment of Biscoe J in Aldous v Greater Taree City Council (2009) 167 LGREA 13. In that matter Biscoe J doubted (at [99]) the section had application when there had been a failure to consider and matter are required to be considered by s 79C and also indicated (at [100]) it would be generally inappropriate to exercise the discretion by ordering the council to consider the matter as it would reopen the whole process and may lead to a refusal.

110Certainly in the facts of this case, I do not believe these constraining considerations warrant no such order being made. Firstly, it is tolerably clear that s 25B and s 103 are intended to operate in tandem. Even though 25B(1)(b) speaks of the consequence of compliance with a condition imposed by the court as being that it "will validate the consent", a council may nonetheless revoke the consent and do nothing more: s 103(2) or regrant the consent, to use the language of s 103(3).

111The consideration by the Council of the particular development applications to which these proceedings relate occurred against a background in which the environmental effects of the development of the ADI site had been addressed, as a planning matter, for over two decades. This is not a case in which Council's eyes were viewing for the first time the environmental effects of a particular development but partially blinded by a failure to consider a specific matter where that failure could, potentially, radically alter the picture which would emerge from the Council's deliberative processes. In my opinion, on the facts of this case, there is a real prospect that were Council to consider the details of the Recovery Plan as part of a reconsideration of the applications it would lead to the same result, approval on the same basis as before. But even if it did not, s 103 provides the Council with power to determine a range of possible outcomes including revoking the consents and doing nothing more or regranting the consents cast in different terms.

112I should emphasize that the orders I will make are framed having regard only to the issues raised in these proceedings. It has not been part of the Alliance's case that, in fact, the development was likely to significantly affect a threatened species, population or ecological community or their habitats and that s 79B has been engaged though no concurrence was sought. Whether s 79B has been engaged, and indeed whether there is a need for the Council to address this question, are matters for the Council to consider and, if thought appropriate, to take advice about. Section 103 appears to me to provide the Council with a matrix of powers sufficient to deal with any collateral issues not raised in these proceedings.

Ground 2, 3 and 4

113It is to be recalled that grounds 2, 3 and 4 were respectively, the Council failed to consider whether the Development was consistent with the implementation of measures included in the Recovery Plan, the Council failed to consider what measures should be taken to implement the Recovery Plan and the Council failed to notify the Director-General of departures from the Recovery Plan. As I understood the Alliance's argument, these three grounds assumed the applicability of s 69 and following provisions of the TSC Act to the facts of this case. In view of my conclusion that these provisions have no application, it is unnecessary to consider these grounds further.

Conclusion

114I propose to order that the operation of the consents be suspended and that the applications be reconsidered by Council having regard to the details of the Recovery Plan. The effect of the suspension will be ameliorated by a qualification allowing some work on the development to continue under the consents within the confines of an agreement between the Alliance and the second and third respondents reflected in short minutes of order forwarded to the Court on 13 December 2011.

115As to costs, the outcome of these proceedings has been a mixture of success and failure on the part of the parties. While the ultimate outcome favours, in a sense, Council it nonetheless involved a vindication of the position adopted by the Alliance concerning the failure of the Council to consider, as the EPA Act required, the details of the Recovery Plan. In these somewhat unusual circumstances, it appears to me the appropriate costs order is that each party pay its own costs. While accepting that the exercise of the discretionary power to order costs should ultimately turn on the facts of any given case, I am fortified in reaching this conclusion by the approach of Pain J in Homemakers Supacenta-Belrose Pty Ltd v Warringah Council (No 2) (2008) 158 LGERA 90. Given the order I propose to make, it is unnecessary to hear the parties, as Alliance invited, on Rule 4.2(1) of the Land and Environment Court Rules 2007 .

116I make the following orders:

1. That the operation of the consents to DA 11/0514, DA 11/0515, DA 11/0516 and DA 11/0517 be suspended in part.

2. The operation of the consents not be suspended to the extent necessary to carry out such development as is reflected in the undertaking of the second and third respondents noted in paragraph 7 of these orders.

3. The consents be validated upon the first respondent having regard to the details of the Cumberland Plain Recovery Plan gazetted 18 February 2011.

4. The application otherwise be dismissed.

5. Each party pay its own costs.

6. The second and third respondents be released from the undertaking given on 13 October 2011.

7. The Court notes the undertaking given to the Court by the second and third respondents, through their solicitor that they will not, by themselves their servants or agents or assigns, carry out development for the residential subdivision of land at the Western Precinct of the St Marys Release Area known as "Jordan Springs, Villages 2" pursuant to DA 11/0514, DA 11/0515, DA 11/0516 or DA 11/0517, other than within the areas identified as "Required Infrastructure Areas" marked in orange on the plan attached to the short minutes of order submitted by the second and third respondents on 13 December 2011.

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Decision last updated: 17 December 2011