(Justice Tim Moore, Land and Environment Court Hearing 4th November 2019) and map of final layout.
Final Hearing Day 6th November, 2019, notes: It was a full day in court with the 2 ecologists (Dr David Robertson, proponent, and Andrew McGahey, Council, questioned, mainly by Justice Moore. The main issue all along has been the ESBS (rather than impacts on neighbours, including St Michaels) and on the last day it came down to how much would be destroyed and what could be considered ESBS. Because Andrew (witness for Council) had ‘successfully’ translocated patches from remnant sites (with NPWS supporting EPBC referral) at Prince Henry it was difficult for him to argue that it couldn’t be moved. Andrew kept referring to the Scientific Committee’s definition of ESBS which strictly applies to remnants in situ undisturbed. But Justice Moore eventually satisfied himself that while there would be a loss in the short-term that within 10 years the site would be ‘better’ than it is today and that it would be functionally ESBS. Unfortunately, as this site has not been managed according to the 2004 Recovery Plan, and as translocation had been approved before, this made the argument easier. As he states in the determination, the regulator wouldn’t recognise the translocated ESBS but he and Andrew would. There was agreement to reduce the Asset Protection Zone to minimise loss and Justice Moore also mandated a full protection regime which included ecological burns. What concerns me is this: “I am satisfied, as Mr McGahey indicated, it will be entirely indistinguishable from and entirely botanically and biologically consistent with such community” . …….I think they needed an expert from the Scientific Committee to judge whether it would be ‘biologically consistent”. Does it come down to an interpretation of ‘consistent’. I don’t know but I think there could be implications for other threatened plant communities so it will be interesting to read expert commentary. There needed to be pressure on Council to resolve the zoning when the community was declared in 1997 and then under the EPBC in 1999 and certainly under the most recent LEP when in draft in 2011. To retain medium density residential zoning was absurd particularly given recommendations of the experts in the OEH. The money applied to fund legal challenges might have been used (along with a State grant) to purchase the site. There is no evidence that this was explored. It is this failing that has made it so difficult for the Land and Environment Court. Link to Land and Environment Court Decision.
The battle on Jennifer Street to protect Critically Endangered Eastern Suburbs Banksia Scrub (ESBS) and provide habitat corridors between the National Park and Prince Henry continues. Over 1000 people have already signed a petition to protect these parcels of land. Jennifer Street ESBS was subject to an earlier battle in the 1980s which resulted in a portion of the land being incorporated into the National Park and a parcel handed to the La Perouse Local Aboriginal Land Council. The NSW Threatened Species Conservation Act 1995 (TSC) provided protection for ESBS (scheduled in 1997) and further protection was afforded Federally with the Environment Protection and Biodiversity Conservation Act 1999 (EPBC). A recovery plan was subsequently published in 2004 with landholders required to produce Plans of Management to protect sites under their protection. In December 2017, ESBS was rescheduled as Critically Endangered under the Biodiversity Conservation Act 2016 which replaced the TSC. Despite the significance of the plant community and the native fauna it supports there have been plans for medium density residential development proposed since 1999 (see SMH 2004 report “The bay of plenty that ended up returning so little“) The problem all along has been the land zoning failing to align with environmental protection legislation and poor management of the site.
Randwick Council in the discussion paper for its Draft LEP 2011 proposed that the inappropriate zoning be addressed: “The Jennifer Street holdings, with an area of about 11,400 m2, are currently zoned 2B (Residential B). This unoccupied land contains a significant amount of ESBS and the ESBS buffer zone, as identified by the Office of Environment and Heritage (requiring more detailed investigation and confirmation). The consideration of suitable zone/s should protect the valuable natural vegetation on the site.” In the report discussed at Council 6/12/2011, pp.176-7: The OEH “Recommend an Environmental Conservation zoning be applied over the ESBS remnants in several sites (ie Jennifer St LALC holdings, St Michaels Driving Range, and the Telstra land at the end of Jennifer. St) particularly as these are contiguous and geographically linked with larger ESBS patches in the adjacent Botany Bay National Park and Prince Henry site.” Council response: ” Zoning and other planning provisions for all LALC holdings will be resolved as part of the future planning study. Action 9.2.7 of the ESBS Recovery Plan states that DEC will continue to liaise with the La Perouse and MALC regarding the management of land that contains ESBS. · The St Michaels Driving Range, as consulted and agreed with Crown Lands Division and DoPI, is proposed to be zoned Public Recreation (RE1), consistent with the lease extension for golf purposes. The ESBS on this land will be mapped and the land will be subject to the new Biodiversity clause in the draft LEP whenever a development application is considered.”
Regardless, LALC holdings remained zoned as residential medium density. Because of this failure to address the problem for the 2012 LEP, Council sent a message that it still considered the land suitable for housing rather than requiring environmental protection. After the new LEP confirmed residential zoning, Lot 11 was sold in 2012 and Lot 27 – the 4798 sqm strip adjacent St Michael’s Golf Course – was sold in December 2013 for $1.1million.
There have been previous development applications submitted in 2013 eg. Jennifer-St-Multi-Storey Development and 2016 for Lot 11, as well as expensive Land and Environment Court hearings. The most recent DA was submitted in January 2018. In September residents attended a hearing for No.11 and then earlier this month for No.27.
Last month an amendment to the No. 11 – Ref Number: DA/101/2018 was submitted. Background details are available on Council’s website. Anyone who opposes the development will need to make a submission. (plan for 40 dwellings as per Council webpage – on page 11 of SEE states 45 dwellings)
SUBMISSIONS TO COUNCIL CLOSE 5th April: Email email@example.com (Att. Frank Ko) All the papers are on Council’s Planning Page(this link). Previous submissions will NOT be held over as Council is looking at this afresh. Note: The Statement of Environmental Effects (SEE)(this link) is important to read. This is where the consultants for the proponent attempt to address the ‘problem’ of ESBS protection. The Consultant is Paul Grech (B.Town Planning (Hons) UNSW) of GLN Planning
The consultant responsible for the Species Impact Statement(SIS) is Cumberland Ecology. They have already received criticism for their SIS for the Cooks Cove Development as well as other developments.
The Species Impact Statement was provided in August 2017 just before the status of ESBS was changed from Endangered to Critically Endangered. A referral to the Federal EPBC Act was made in March 2018. The Federal Department deemed it a controlled action in August 2018 and when further information is provided will assess it. The Species Impact Statement was peer reviewed by Total Earth Care who identified major shortcomings. Cumberland Ecology provided a response in January 2018. (Species list attached) The proposal includes the removal of 0.241 ha of ESBS. The latest SEE seeks to diminish the importance of ESBS, but fails to report that the landholders have been negligent in in not protecting the ESBS as required under the 2004 Recovery Plan. Had they, for instance, conducted an ecological burn and weed and rubbish removal it is highly likely there would be greater floristic diversity. See paper from volunteers of North Head Sanctuary Foundation on the importance of ecological burns and fencing and more on their website. If this DA is approved it will reward poor environmental managers. Intensifying residential development adjacent the National Park is also likely to inhibit Parks in carrying out ecological burns of the neighbouring Jennifer Street ESBS.
On the 11th December 2002 NSW Cabinet endorsed the Southern Sydney Catchment Blueprint which on page 17 stated: “From 2003 no clearing of Endangered Ecological Communities”. In 2003 James Woodford wrote about the removal of .15ha at Prince Henry. Also link to submission to the Review of the EPBC Act detailing issues with this clearing.
Submission for reference:
On the 12th March 2019 the Land and Environment Court conducted a hearing for the 27 Jennifer Street Development on site. There was no resolution and this will be dealt with in court at a later date. This is another one to watch and question the appropriateness of the rezoning to residential.