Attachment 4- Advice regarding offsets from HopgoodGanim

 

Stockwell Development Group Pty Ltd
C/- Leanne Porter
Development Manager

24 April 2019

 

(3) provides that the Council recognises that the dedication of Open Space
Areas A and B is an appropriate commitment “to meet environmental needs”
of the land and is taken to be a contribution to community infrastructure;

(4) requires ongoing management of private open space areas “to meet the
environmental requirements”;

(5) given the above, provides that applications for development approvals for
future stages (namely any subsequent development of the Shire Business
Centre) are immune from conditions requiring any further dedication of land
or payment of contributions or charges for, inter alia, conservation reserves,
conservation areas, nature conservation, bushland preservation and like
purposes.

3. Under the Environmental Offsets Act 2014 (Environmental Offsets Act), the Council may
impose an offset condition only if satisfied:

(a) the proposed development will, or is likely to, have a significant residual impact?
on a non-juvenile koala habitat tree in an area of bushland habitat, high value
rehabilitation habitat or medium value rehabilitation habitat; and

(b) all reasonable on-site mitigation measures for the proposed development have been,
or will be, undertaken.

4, Importantly, when making a decision about whether to impose an offset condition, the
Council must consider any offset condition that has been imposed for the same, or
substantially the same, impact and prescribed environmental matter’. Further, the Council
may impose an offset condition only if the same, or substantially the same, impact and
prescribed environmental matter has not been assessed under, relevantly, the
Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (EPBC
Act)°. This restriction applies whether or not the assessment resulted in the imposition of an
offset condition, but significantly, is only enlivened where the proposal has been assessed as
a controlled action under the EPBC Act.

5. Pursuant to condition 12 of the Stage 1 Approval and clause 4.1 of the Infrastructure
Agreement, the Council has previously received a land dedication of 12.63 hectares for open
space and nature conservation.

6. Firstly, given that clause 4.2 of the Infrastructure Agreement acknowledges that this land
dedication is an appropriate commitment of land to satisfy the environmental needs of the
land within the Shire Business Centre, it is arguable that the Council has previously
assessed and accepted that any impact caused by the development of later stages,
including the proposed development, is appropriately offset and counterbalanced by the land
dedication provided, such that development of later stages should not be regarded as
resuiting in significant residual impact.

7. Secondly, it is also arguable that the imposition of an offset condition on an approval of the
proposed development would only serve to address the same, or substantially that same,
impact and prescribed environmental matter for which condition 12 of the Stage 1 Approval
was imposed (and in respect of which the Infrastructure Agreement was subsequently

3 As defined by s8(1) of the Environmental Offsets Act
* Section 14(2) of the Environmental Offsets Act
5 §.45(1) of the Environmental Offsets Act

1932235 - 19035368_1.docx Page 2 of 3