Central Coast Council has outlined its frustrations over DA refusals made on environmental grounds being overturned by the State Government in a submission to a NSW Parliamentary Committee.
It cited a case at Wamberal, where Council had refused an application for a residential subdivision of land at 51 and 53-73 Warnervale Rd to try to save the known habitat of a threatened glider species, only to have its decision reversed in the Land and Environment Court.
“The applicant appealed Council’s decision in the NSW Land and Environment Court, where Council’s concerns around the site being important for remaining populations of the Squirrel Glider and presenting a Serious and Irreversible Impact were dismissed and a consent was granted,” Council said in its submission.
“Based on this decision, it is unclear how declining threatened species such as the Squirrel Glider that occur on development sites should be treated.”
The Parliamentary Committee is looking into the Planning System and the Impacts of Climate Change on the Environment and Communities.
In its submission, Council noted: the legislative rules that made it hard to prosecute people who cleared land illegally; the importance of legislating no-go areas when planning development; and the need for protection of ecological corridors.
Council said there was no formal NSW-wide biodiversity impact monitoring program to provide an understanding of the proposed biodiversity impact of a proposed development.
“An understanding of decline in biodiversity value and ecological function is essential in determining if a proposed biodiversity impact as a result of proposed development is acceptable,” Council said.
The submission also talked about the need for a mechanism to appropriately conserve no-go areas, as land zoning on its own was not effective.
Areas with biodiversity values are often zoned under a Local Environmental Plan (LEP) to allow for intensive development, primarily residential and industrial subdivision.
Council said there was a conflict between the land use intended by the LEP such as low-density residential housing and retaining biodiversity values.
At times large areas of land zoned for a land use other than biodiversity conservation are avoided as clearing the habitat would have either triggered a Species Impact Statement or the Biodiversity Conservation Act 2016.
But while councils may impose ecological management plans over the land, sometimes the management actions are not applied and the threatened species decline.
“This issue reinforces the need for strategic biodiversity certification led by the NSW Government that identifies no go areas, including potentially in areas that have been zoned for a higher land use,” Council said.
“There is the need for a mechanism to appropriately conserve no-go areas, as land zoning on its own is not effective management.”
The submission also addressed the need for protecting ecological corridors.
“For example, a cleared area may have very low ecological values but could connect two key areas of habitat,” Council said.
“At present there is not a mechanism to support the protection of such areas to allow for future revegetation.”
The northern area of the Central Coast contains the habitat for several threatened terrestrial orchids, some of which have an area restricted to an area of less than 1000 hectares.
One species, the Wyong Sun Orchid, occurs in disturbed habitats such as along road reserves that receive slashing, making its conservation difficult.
“Mechanisms that support landowners that contain areas that have lands that are of a high biodiversity value are required, including on land that has zoning that allows for urban development,” the submission said.
Climate change will require that large areas of habitat and any area of habitat that contains known threatened species are appropriately managed into the future if further species declines are not to occur, Council said.
“Large tracts of forested land on the Central Coast are privately held and some of these lands have previously been identified for future acquisition by Council,’’ it said.
But increasing property prices in recent years have reduced Council’s ability to acquire further lands.
The submission says alternative strategies may be more effective for achieving conservation outcomes on these properties but land zonings do not specifically drive effective land management and very few landowners on the Coast have established any Biodiversity Conservation Trust (BCT) programs, such as Biodiversity Stewardship Sites and Conservation Agreements.
“In an urbanised LGA, often there are multiple landowners of a single patch of vegetation,” Council said.
“This will mean that even though the patch is of a high value, the size of an individual parcel is below what will be considered by the BCT.”
On even smaller patches of land there can be very rare species, such as an Endangered Orchid which occurs on the edge of a bus depot.
A greater emphasis in the planning system is required, Council said, to support landowners to value and protect this biodiversity.
Council said it was aware of clearing without development consent that has occurred on land that contains high biodiversity values.
“Additional resources are required in the NSW Government to investigate and prosecute such breaches of the Biodiversity Conservation Act 2016; however the Act requires that a breach only occurs when a landowner is aware of the biodiversity values that they are harming,” it said.
“The burden of a regulator in demonstrating this is high.
“Instead legislation should consider that if an area of native vegetation is being disturbed or cleared, that it should be assumed that the works will harm threatened species unless otherwise established by at least desktop investigation.”
The submission was authorised by the Administrator Rik Hart at the October 31 meeting of Council.
Merilyn Vale