Beatty Hughes & Associates is delighted to see development consent granted by the NSW Land & Environment Court to our client’s rural residential subdivision in Mardi on the Central Coast.

The development application the subject of the decision in Stevens Holdings Pty Limited v Central Coast Council [2025] NSWLEC 1384 was first lodged in 2021. Following amendments to take into account views expressed by Council, the proposal ultimately included 182 residential lots and a number of Biodiversity Management areas (BMAs).

The proposal also contemplates the establishment of a large Biodiversity Stewardship Site (BSS) on adjoining land, in which a number of threatened and endangered species and ecological communities have been identified.

A large number of issues were raised in the proceedings, including:

• the accuracy and extent of the ecological assessment undertaken;
• whether the proposal demonstrated adequate avoidance and minimisation of impacts on biodiversity values;
• whether the proposal would cause a serious and irreversible impact on biodiversity values (SAII);
• flooding;
• the importation of fill to the subject site;
• the identification and treatment of watercourses on the subject site;
• bushfire and landscape management;
• visual impacts; and
• ongoing ecological and landscape management obligations.

Ultimately, subject to consent conditions, the Court found in favour of the Applicant on each of these issues.

Ecological Impacts and Survey Effort

The Court concluded that the proposal would result in a number of ecological improvements to the subject site, including establishing a BSS and BMAs, removing the existing grazing use which was having a detrimental effect on a number of ecological features of the subject site, repairing watercourses, and the protection, regeneration and reinstatement of fauna habitat.

In terms of the extent of the assessment of impacts, the survey effort was deemed to have been appropriately “diligent”, as set out in the Biodiversity Development Assessment Reports (BDARs), and consistent with applicable standards. The Court also concluded that insofar as there was any variability in survey results in the BDARs, this was reflective of the fact that the development application had been on foot for several years, and such variability is to be expected given the passage of time and natural processes.

The Court emphasised that the survey and assessment standards required to be met are those in the applicable statutory regime, Biodiversity Assessment Method and relevant, published guidelines, not the standards determined by one party or expert.

Avoid and Minimise

The Court held that, contrary to the Respondent’s contentions, the proposal reflected adequate avoidance and minimisation of impacts on biodiversity values consistently with s 6.2 of the Biodiversity Conservation Act 2016 by (inter alia):

• reducing the number of residential lots so as to set aside an area in which a considerable number of endangered Rhodamnia Rubescens (Scrub Turpentine) were located, notwithstanding its residential zoning;
• establishing a 10-metre buffer between the subdivision and the surrounding BSS to reduce the risk of indirect impacts on trees;
• the proposed treatment of myrtle rust with fungicide;
• measures to improve water quality and aquatic habitat;
• the establishment of community education programs;
• aligning the off-site services so as to avoid ecological impacts along the servicing route, including by underboring in certain locations; and
• the implementation of a Trigger Action Response Plan for ecosystem regeneration intervention, and a range of other ongoing ecological management measures in the BMAs.

The Applicant was able to demonstrate adequate avoidance and minimisation notwithstanding Council’s contention that there remained other, additional opportunities to further avoid and minimise impacts.

SAII

Three flora species and two endangered ecological communities (EECs) were assessed by the Applicant against SAII criteria in the Biodiversity Assessment Method. Of those, only one species, the Rhodamnia, was considered to be a SAII candidate. The Applicant’s ecologist then concluded that there would be no SAII on the Rhodamnia.

The Court accepted this approach and conclusion, noting the broader distribution and availability of the other species and EECs.

In respect of the Rhodamnia, the Court held that the proposal would not cause a SAII, given that 96.5% of the individuals in the study area would be retained. Rather, any SAII that could arise would be caused by the spread of myrtle rust – an existing, widespread threat to the species in Australia – not the proposal.

Historical Slashing

The Court was also asked to determine how grassland slashing that had occurred on the subject site over many years ought to be regarded in understanding the ecological impacts of the proposal and the offsetting requirements of those impacts.

The Council contended that that slashing had the effect of reducing the Vegetation Integrity on the subject site in a manner not addressed in the BDARs, resulting in an under-estimation of the offset liability and a benefit to the Applicant. Council also contended that the slashing was not the subject of a demonstrated approval pathway.

In its own submissions, the Applicant set out a detailed historical chronology that it contended meant that the slashing was lawful (see [60]), and that the assessment of those grasslands was appropriate. The Court accepted that chronology, as well as the distinction between the circumstances in this case and those in White v Ballina Shire Council [2021] NSWLEC 1468. In that case, as opposed to this one, that applicant had sought to benefit from an established unlawfulness to which it had already plead guilty.

At [67] the Court accepted the history as being “one of farming, including the grazing of cattle and of land management practices consistent with that use, and that the VIS arises from that chronology and use”, and found in the Applicant’s favour on this issue.

Watercourses

The parties’ flooding and engineering experts disagreed as to the presence and nature of watercourses on site, and accordingly what works could be done near or to them, including realignment and piping works. Generally put, Council’s expert relied on governmental and other online mapping tools as well as on-site observations to assert the presence of certain orders of watercourses on-site, while the Applicant’s experts relied on “ground-truthed” analysis and on-site observations.

At [194], the Court preferred the Applicant’s “ground-truthed” analysis and characterisation of asserted watercourses. In doing so, the Court had regard to its own on-site observations of what it considered to be man-made interventions involving almost vertical channel sides and unnatural mounds/deposits along one side of that channel.

Accordingly, the works proposed by the Applicant, which its experts contended would ultimately improve the ecological integrity and habitat quality of the aquatic ecosystem on-site, were deemed permissible.

Conclusion

This decision is the Court’s latest consideration of a number of issues that have been the subject of consequential case law in recent years, particularly in respect of SAII and measures to avoid and minimise impacts on biodiversity values.

The conclusions reached in this case may be relevant to other development proponents facing similar challenges in their own proposals – particularly when the presence of biodiversity values has been demonstrated on-site.

Beatty Hughes & Associates commends the work of the experts and consultants who gave evidence for the Applicant in the proceedings:

Ecology and arboriculture: AEP

Flooding and engineering: Northrop and Chris Thomas

Surveyors: ADW Johnson

Town planning: BBC

Bushfire: Building Code & Bushfire Hazard Solutions

Urban Design: One Collective

Landscape architecture: Terras

Acoustic: Acoustic Directions

Aerial Imagery: Arjan Wilkie

Disclaimer: Beatty Hughes & Associates acted for the Applicant in these proceedings.