RFI - Attachment 4- Advice regarding offsets from HopgoodGanim

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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

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

24 April 2019

 

entered into). It is our view that the Council must consider this condition when assessing the
Development Application, as required by section 14(2) of the Environmental Offsets Act.

8. Finally, the Infrastructure Agreement remains in effect under the Planning Act 2016
(Planning Act) according to the terms and conditions of the document, even if the terms and
conditions could not be imposed under the Planning Act. The Planning Act applies to the
document as if the document had been made under the Planning Act.

9. In all of the circumstances, it is our opinion that the Council is precluded from imposing an
environmental offset condition on an approval of the Development Application. In summary:

(a) condition 12 of the Stage 1 Approval and the Infrastructure Agreement provided for
dedication to the Council of Open Space Areas A and B (comprising 12.63ha) of land
as part of Stage 1, which has been done;

(b) in the Infrastructure Agreement, the Council recognised that dedication to the Council
of Open Space Areas A and B was an appropriate commitment “to meet
environmental needs” of the Shire Business Centre land (including the subject Land);

(c) the Infrastructure Agreement provided for ongoing management of private open
space areas “to meet the environmental requirements”;

(d) given the above, the Infrastructure Agreement provided immunity from conditions in
development approvals for future stages (namely any subsequent development of
the Shire Business Centre) requiring any further dedication of land for, inter alia,
nature conservation, bushland preservation and like purposes;

(e) having regard to the above, the Council could not be satisfied that the proposed
development the subject of the Development Application will, or is likely to, have the
requisite significant residual impact;

(f) further, the Council must, in determining whether to impose an environmental offset
condition, consider condition 12 of the Stage 1 Approval and clause 4.1 of the
Infrastructure Agreement which resulted in the dedication of land for substantially the
same matter and impact, being the ultimate development of the Shire Business
Centre. Having considered the condition (and Infrastructure Agreement), the Council
could not reasonably form a view that an environmental offset condition is required
for the Development Application.

Yours faithfully

[Fy

HopgoodGanim Lawyers

 

Contact: Sarah Macoun
Partner
T 07 3024 0367
F 07 3024 0067
E [email protected]

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