Late Items Agenda of Ordinary Meeting - Thursday, 14 December 2023

RECOMMENDATION:

That Council:

1. Notes the report Wallum Subdivision DA 10.2021.575.1 - Response to Council Resolution 23-454.

2. Notes that the relevant plans under Conditions 6, 7, 8 and 9 DA 10.2021.575.1 as submitted have been assessed as compliant as they relate to the Early Stage 1 Ecological Rehabilitation Works for the subdivision.

3. That staff will now issue the Subdivision Works Certificate for the Early Stage 1 Ecological Rehabilitation Works for the subdivision to commence

Attachments:

1 Extract from the Commissioner’s Public Report into Wingecarribee Shire Council, E2023/127714 , page 31⇩

2 17.1021.575.1 Revised Wallum Vegetation Management Plan - AWC - Revision M 6/12/23, E2023/129124 , page 35⇩

3 17.1021.575.1 Revised Wallum Froglet Management Plan - AWC Revision I - 6/12/23, E2023/129023 , page 164⇩

4 17.1021.275.1 Construction Environmental Management Plan (CEMP) Ref: 1-211400_03d prepared by AWC - Revised 30/11/2023., E2023/128135 , page 262⇩

5 17.1021.575.1 Surface Water and Groundwater Management Plan (SWGMP) Ref: 1-211400_03e prepared by AWC - Revised 1/12/23, E2023/128125 , page 445⇩

6 17.1021.575.1 Peer Review from Martens and Associates of WFMP, E2023/129002 , page 498⇩

Report

Council resolved on 12 October 2023 under Part 5 of Resolution 23-454 the following:

5. Receives assessments of the Amended Management Plans submitted to Council for the development at Bayside Brunswick (DA10.2021.575.1) to ensure that those Plans comply with Consent Conditions set by the NRPP and with Federal, State and Local regulations, including separate assessments of Plans for:

a) Vegetation Management (Condition 6);

b) Wallum Froglet Management (Condition 7);

c) Construction Environmental Management (Condition 8);

d) Updated Surface and Groundwater Management (Condition 9);

e) Stormwater Maintenance Management (Condition 12);

f) Cultural Heritage Site Inspection (Condition 18).

Conditions 6, 7, 8 and 9 of the Development Consent DA10.2021.575.1. apply to the Early Stage 1 Ecological Rehabilitation Works for the subdivision. The applicant has submitted the relevant documents for approval under Subdivision Works Certificate 17.1021.575.1 Copies of the relevant documents are attached to this report.

(NB. Conditions 12 and 18 relate to subsequent stages of the development in terms of earthworks and civil construction of the subdivision and will be reported later to Council).

Conditions 6 and 7 have been assessed by an external consultant Ascentecology on behalf of Council with comments provided below against the specifics of the condition attributed to this consulting firm.

Conditions 8 and 9 have been considered by Council staff with comments provided below attributed to Council Environmental Health Officers.

It is noted that the Vegetation Management Plan and Wallum Froglet Management Plan have already been approved under Condition 1 of the consent and the condition only required the plans to be updated/amended to include additional detail. Comments on the four conditions are as follows:

Condition 6 Vegetation Management Plan

6) Amended Vegetation Management Plan – Early Stage 1

An amended vegetation management plan must be updated and submitted to Council for approval and include the following:

a. Provide an accurate plan at 1:200 scale that clearly indicates the location of compensatory plantings for the glossy black cockatoo and the koala as indicated in the VMP as approved under Condition 1

Comment: The Revised Vegetation Management Plan (Revision M – 6/2/2023) satisfies condition 6a of the DA10.2021.575.1. Accurate figures to the required scale are provided in Appendix B.

b. Provide details for the ongoing vegetation management of the mitchells rainforest snail habitat in Management Zones 1 and 4 and its long term protection

Comment: The Revised Vegetation Management Plan (Revision M - 6/12/2023) satisfies condition 6b of the DA10.2021.575.1. Management guidelines, canopy cover thresholds and mapping has been provided to detail how the Mitchell’s Rainforest snail will be managed.

c. Provision of 50 nest boxes designed for glossy black cockatoos and a range of arboreal mammals found in the area. The plan to show the location of the boxes to be installed together with details of the monitoring and reporting to Council of their use. The boxes to be installed as part of Early Stage 1. The plan to also include details of the monitoring with a 6 monthly inspection regime, and reporting of the boxes across the seven stages of the development with mitigation measures to replace boxes if damaged or utilized by pest including bees, mynas and other feral animals, termites and the like.

Comment: The Revised Vegetation Management Plan (Revision M - 6/12/2023) satisfies condition 6d of the DA10.2021.575.1. A nest box management plan is provided in Appendix D. The installation of nest boxes has been included as a management action with timing, KPI’s and adaptive management identified.

d. include details of strategies to be used to restrict breeding opportunities for the introduced Cane Toad Rhinella marina, such as the planting of dense sedges to widths of up to 5 m along watercourses.

Comment: The Revised Vegetation Management Plan (Revision M - 6/12/2023) satisfies condition 6d of the DA10.2021.575.1. Details of required landscape planting have been included in section 5.5 and drawings in appendix B.

§ The plan to be prepared by a suitably qualified Ecologist.

Comment: The plan has been prepared by suitably qualified ecologists from Australian Wetland Consulting.

Condition 7 Wallum Froglet Management Plan

7) Amended Wallum Froglet Management Plan

An amended Wallum Froglet Management Plan to be submitted to Council for approval prior to the issue of the Subdivision works certificate. The amended WFMP must contain a review of engineering plans including Basin Layout Plans prepared by Civil Tech Ref: 1133-GW5_A (Sheet 5 of 7), and Hydrological Assessment Ref: P2008063JR02V03 prepared by Martens P/L dated 25 August 2021. In particular the amended plan is to address:

a. Modelling results in terms of potential zero drawdown of groundwater levels in the retained habitat area (MZ-3A) adjacent to the proposed new stormwater drain, and a description of how such changes to hydrology and water quality/ chemistry will be managed in the context of recreating Wallum froglet habitat and the existing habitat within the existing drain.

Comment: Revised Wallum Froglet Management Plan (Revision I- 6/12/2023) satisfies condition 7a of the DA10.2021.575.1. Modelling has been provided in P2008063JR02V03 prepared by Martens P/L dated 25 August 2021.

b. Illustrate on maps of a suitable scale (1:200 or better) detailed engineering plans and word form identifying the donor Wallum Froglet habitat areas which includes the vegetation suite and dimensions (H/L/D) of the individual habitat areas and overall area of the habitat earmarked for translocation.

Comment: Revised Wallum Froglet Management Plan (Revision I - 21/11/2023) satisfies condition 7b of the DA10.2021.575.1. Drawings provided in Appendix B (1-211400_EW_09 -11).

c. Detailed engineering plans indicating the location of the translocated habitat plots as indicated in Northwest Landscape Plan, Southwest Landscape Plan Central Drain Habitat & Rehabilitation Zone Plan and Eastern Habitat & Rehabilitation Zone Plan of the Revised Vegetation Management Plan (Revision J - 09/11/22)

Comment: The Revised Wallum Froglet Management Plan (Revision I – 6/12/2023) satisfies condition 7c of the DA10.2021.575.1 Drawings provided in Appendix B.

d. Prior to the translocation of any Wallum Froglet habitat from the proposed house lot area, Wallum Froglet population surveys are to be carried out before and after rainfall events at these sites to establish both population size and density of existing Wallum Froglets in the Wallum Froglet habitat areas to be moved (Fig 1.3 – Wallum Froglet Habitat Mapping – Revised Wallum Froglet Management Plan). This will be used as a benchmark to rate success of planned translocation.

Comment: The Revised Wallum Froglet Management Plan (Revision I – 6/12/2023) satisfies condition 7d of the DA10.2021.575.1. Section 6.3.1 outlines number and type of sampling events required prior to habitat translocation.

e. A Habitat Translocation Plan to include WF survey methodology, Wallum Froglet translocation methodology, translocation timing and timeframes with Key Performance Indicators for the seven stages of the development, benchmarking completion and success at the end of each stage and mitigation measures if KPI at the end of that stage is not met. The KPIs must reflect current WF population and density benchmarks, with reporting and monitoring to be provided to Council as required including with each Subdivision Works Certificate (from early Stage 2, Civil Stage 1 to 5) and Subdivision Certificate (from Civil Stage 1 to 5).

Comment: The Revised Wallum Froglet Management Plan (Revision I – 6/12//2023) satisfies condition 7e of the DA10.2021.575.1. Table 3.2 outlines the habitat translocation plan, sufficient detail has been provided regarding KPI’s, adaptive management and mitigation measures.

f. Mitigation measures should the translocated habitat not survive and function as intended and how it is to be replaced over the seven stages of the development.

Comment: The Revised Wallum Froglet Management Plan (Revision I- 6/12/2023) satisfies condition 7b of the DA10.2021.575.1. Mitigation measures have been provided in table 3.2.

§ The Management Plan to be prepared by a suitably qualified ecologist and peer reviewed by a suitably qualified hydrogeologist prior to submission to council for approval.

Comment: The Management Plan was prepared by a suitably qualified ecologist with further commentary provided by a suitably qualified hydrogeologist (Martens and Associates)

in terms of the froglet breeding ponds construction and supervision and groundwater monitoring post construction. See attached correspondence to this report.

Federal, State and Local Guidelines

Ascent Ecology conducted a detailed review of the current federal, state and local regulations/ guidelines relating to the preparation of Vegetation Management Plans (VMP) and applicable threatened frog management plans (Table 1).

The Revised Vegetation Management Plan (Revision L- 21/11/2023) and Revised Wallum Froglet Management Plan (Revision I- 6/12/2023) were assessed against available guidelines (Table 2 and 3).

Table 1 State, Federal and Local Guidelines applicable to the VMP and WFMP

Legislation

Federal

State

Local

VMP

· No guidelines published

· Some criteria in the ‘Controlled activities – Guidelines for vegetation management plans on waterfront land’ (DPE 2022) are applicable.

· No other guidelines published

· ‘BSC Guidelines for preparing: Vegetation Management Plans (VMP) Biodiversity Conservation Management Plans (BCMP)’

WFMP

· ‘National recovery plan for the wallum sedgefrog and other wallum-dependent frog species outlines some management practices’ (DCCEEW 2006).

· The Wallum Froglet is not listed under EPBC Act, and no guidelines are published

· ‘Translocation operational policy’ (DPIE 2019) not applicable as the translocation proposal is in accordance with a development consent (BC Act s.2.8).

· No guidelines published

· ‘BSC Guidelines for preparing: Vegetation Management Plans (VMP) Biodiversity Conservation Management Plans (BCMP)’ can be reviewed to ensure management practices are in line with other Council practices.

Table 2 Vegetation Management Plan

Legislation

Compliance

State: Guidelines for vegetation management plans on waterfront land

The Revised Vegetation Management Plan (Revision M – 6/12/2023) has been assessed against Applicable Criteria identified in the Guidelines for vegetation management plans on waterfront land (Note: Criteria specifically related to waterfront land have been excluded).

Photographs of the site should be supplied, and photo points should be identified. To assist with future monitoring and reporting requirements, the photo points should be identified by GPS coordinates or by survey. This is particularly important for large-scale earthworks or extractive industries.

Complies: Establishment of permanent plots and photo points has been included in the VMP as part of reporting requirements.

Measures for controlling long-term access and encroachments (bollards, fences, etc.) into the riparian corridor should be identified.

Complies: The VMP identifies that exclusion fencing will be installed during construction phase.

Vegetation species composition, planting layout and densities should be identified.

Complies: Species selection and planting locations identified on landscape plans (Appendix B).

Seed or plant sources should be identified. Where possible, native plants and seed sources of local provenance should be used.

Complies: VMP specifies that local provenance should be used where available and plant stock should be hardened off in a nursery with similar climatic conditions to the site.

Maintenance requirements should extend for a minimum of 2 years after the completion of works or until such time as a minimum 80% survival rate of each species planted and a maximum 5% weed cover for the treated riparian corridor-controlled activity is achieved.

Complies: KPI’s (Table C1 of VMP) include 95% of woody weeds and exotic groundcover removed by end of year 2 and 90% survival of planted trees which align with this criterion.

Project tasks should be defined and described, including a schedule detailing the sequence and duration of works necessary for the implementation of the VMP.

Complies: Project tasks and timing are included in Table 7.1

Processes for monitoring and review, including a method of performance evaluation should be identified. This should include replacing plant losses, addressing deficiencies, problems, climatic conditions and successful completion of works.

Complies: KPI’s and adaptive management are included Table 7.1

Regular reporting on the implementation and status of works covering progress, success or failures and completion should be provided. The number and duration of reporting periods will be identified in the CAA. Works as executed plans and reports detailing how the components of the VMP have been implemented will be required prior to the release of any security held by the department.

Complies: VMP states that a brief report that outlines the progress of revegetation and restoration works over each monitoring event should be produced annually.

Local: BSC Guidelines for preparing: Vegetation Management Plans (VMP) Biodiversity Conservation Management Plans (BCMP)

The Revised Vegetation Management Plan-Revision M 06/12/2023 (VMP) has been assessed against the BSC Guidelines for preparing Vegetation Management Plans.

General requirements:

provide sufficient background information and site assessment to justify the proposed works;

Complies: The VMP includes details of the proposed development, current site attributes (soils, vegetation communities, weeds etc.) and clearly outlines areas impacted and how these impacts will be mitigated (through implementation of the VMP).

clearly describe specific ecological restoration and management requirements for fauna and flora including the timeframe required to meet each particular outcome;

Complies: The VMP includes specific management requirements such as nest box installation and koala and glossy black cockatoo feed tree planting, timeframes for implementation have been clearly identified in table format.

provide details of ongoing monitoring requirements including measurable outcomes;

Complies: The VMP includes measurable outcomes (number of nest boxes, percentage of canopy cover) in the implementation schedule and management actions plan.

contingency planning options in the case of system failure or natural events which hinder progression.

Complies: Hold points have been identified to ensure contingency planning options can be implemented in the case of system failure.

Introduction

The introduction details sufficient background information, property details (such as address, zoning and position within the landscape), a rationale for the plan (DA number and list of consent conditions) and a brief description of what the plan is trying to achieve.

Aims and Objectives

The aims and objectives of the VMP have been clearly stated. The objectives listed are achievable, measurable, and relevant to the aim.

Site Attributes

The site attributes are described with sufficient detail in the VMP. Sections detailing the current land use, geology and soils, topography and hydrology and vegetation communities (PCTs) have been included in the VMP. Maps (Figure 1.1 and Figure 3.1) show the site features and landscape context.

Maps

The VMP includes suitable maps which provide a visual representation of key site features including: The development footprint, Asset Protection Zones (APZs), vegetation communities, significant plant locations and fauna habitat features, significant weed infestations, management zones and monitoring locations. All maps include (where relevant):

· Title and date.

· Scale and orientation.

· Legend.

· Cadastral boundaries.

Vegetation description

The VMP includes details of the existing vegetation communities at the site classified as plant community types (PCTs) as per the BioNet Vegetation Classification (OEH). The report identifies that the Site is on the Biodiversity Values Mapping (BV). A list of flora recoded on the Site as been included in Appendix E.

Weed infestations

The VMP includes some detail (including maps) on the extent and relative abundance of invasive weed species located on the site including a threat rating (Biosecurity management tool/listing) under the Biosecurity Act 2015 and North Coast Regional Strategic Weed Management Plan 2017-2022.

Threatened and/or significant flora and fauna

The VMP has identified and provided sufficient management provisions for threatened species identified to be directly affected by the development.

This includes identifying protection measures and appropriate species specific compensation.

Management issues & site threats

The VMP adequately addresses issues and threats to vegetation on or adjacent to the site that are likely to influence ongoing management. Potential impacts that may impact future management of the site have been identified.

Planned management and restoration activities

The VMP has separated the site into four management zones (including size), these have been described in sufficient detail and appropriate maps have been provided.

Planting schedules have been provided in the landscape plans and section 6.2 and include details of species selection, timing of plantings, planting density and abundance, site preparation and methodology. The VMP has identified biosecurity risks and identified appropriate controls.

Implementation Schedule

An Implementation schedule and management actions table have been provided (Table 7.1 and 7.2). Works required in each management zones have been detailed as well as actions (measurable objectives) and performance indicators.

Licences

The VMP includes a section detailing the permits or licences required to implement the plan.

Monitoring

The VMP includes a monitoring strategy that sets out the intended monitoring methodology and performance indicators to address the management aims and objectives. Monitoring methodologies including establishment of permanent plots and photo monitoring points and monitoring frequencies have been provided and are of sufficient detail.

The plan (Table 4.1) includes a section which details provisions for adjusting the proposed management strategies in response to unanticipated circumstances (e.g. fire, drought, floods, planting failure and insect pests).

Reporting

The VMP includes sufficient detail on the progress/monitoring reports to ensure they include the required information.

Appendices

The VMP includes required appendices including site species lists (native and weed species), Site Maps, additional management plans and NPWS Checklist for bush regeneration activities

Table 3 Wallum Froglet Management Plan

Legislation

Compliance

Federal: National recovery plan for the wallum sedge frog and other wallum-dependent frog species outlines some management practices.

The National recovery plan for the wallum sedgefrog and other wallum-dependent frog species identifies nine guidelines for habitat management to ensure proper management of wallum frog habitat. The Revised Wallum Froglet Management Plan (Revision I – 6/12/2023) has been reviewed to ensure management practices are aligned with the recovery plan. Compliance with these guidelines in not a legislative requirement.

1-Minimising soil disturbance- Where earthworks are carried out in the vicinity of breeding habitat, runoff from earthworks must be appropriately contained.

Complies: An erosion and sediment control plan (E&SCP) for the project has been outlined for the bulk earthworks, WFMP also includes recommendations ensure retained Wallum Froglet (WF) habitat is not contaminated by site works.

2-Retention of vegetation- At a minimum, vegetation within 50m of breeding sites must be left intact.

Proposal does not comply: Not relevant to the WFMP.

3-Preventing nutrient enrichment- direct stormwater runoff away from breeding sites.

Complies: The (revised) Stormwater Management Plan (CivilTech Consulting Engineers) includes measures can be integrated with WF habitat creation and management. Stormwater runoff from perimeters roads will be directed into swales for treatment and detention and is contained for all rainfall events up to 15-minute 5yr ARI event.

4-Adaptive fire management- monitoring the response of wallum frogs to fire and modifying burning practices as necessary

Not applicable- A Bush Fire Safety Authority (BFSA) has been issued for the development.

5-Limiting use of biocides in wallum frog habitat- biocides should not be used in the immediate vicinity of wallum frog breeding sites.

Complies: WHMP specified that nonchemical weed control techniques (hand pull) must be implemented within WF habitat areas.

6-Managing recreational use of coastal lakes (National parks and conservation reserves)-visitor numbers and access to lakes and swamps must be reduced or boardwalks constructed to allow visitors access to water without reed beds being trampled.

Not applicable- Site is not a national park or conservation reserve

7-Managing the impact of feral animals

Complies: Monitoring and controlling pest species (in particular Cane Toads and Mosquito Fish) has been identified as part of the habitat translocation plan.

8-Road construction- Roads should be built around or over, not through, wallum frog breeding habitat

Proposal does not comply: Not relevant to the WFMP.

9-Monitoring- Where the impact of development is to be assessed, monitoring must be carried out a year or preferably more, before development starts.

Proposal does not comply: Proponent to update WFMP to specify that the ‘Prior to translocation sampling’ detailed on section 6.3.1 will be carried out at least one year prior to the development commencing.

Local: BSC Guidelines for preparing: Vegetation Management Plans (VMP) Biodiversity Conservation Management Plans (BCMP).

The Revised Wallum Froglet Management Plan-Revision I - 6/12/2023 (WFMP) has been assessed against the BSC Guidelines for preparing Biodiversity Conservation Management Plans (BCMP):

Provide management strategies to minimise threats to threatened species and ecological values of the site during development and ongoing use of the site;

Complies: The WFMP outlines several strategies to minimise threats to Wallum Froglets and Wallum Froglets habitat including: Orientating development footprint to avoid existing WF habitat, habitat translocation and habitat restoration.

Improved environmental outcomes of development by restoring and enhancing threatened species habitat;

Complies: The WFMP proposes a 7000m² (0.7ha) net gain in Wallum Froglets habitat.

Be consistent with relevant recovery plans, legislation and policy.

Complies: The WFMP meets applicable management requirements outlined in the ‘National recovery plan for the wallum sedge frog and other wallum-dependent frog species’. Currently no specific recovery plan exists for the Wallum Froglets under State Legislation.

Ecological Values- Survey methods

The WFMP has provided references to reports which contain details of previous Wallum Froglet surveys and records as well as details of survey methodology used.

Ecological Values- Fauna Management

The WFMP includes a description of the Wallum Froglet and Wallum Sedgefrog, including legislative status, habitat requirements and biology, and threatening processes. The locations of observed wallum Froglets and Wallum Sedgefrog have been provided.

Ecological Values -Feral animals

The WFMP includes a description of potential feral animals on site and identifies management provisions to mitigate their impacts.

Ecological Values -Biodiversity at a landscape level

Not applicable to the WFMP

Ecological Values -Biodiversity at a Genetic level

Not applicable to the WFMP

Ecological Values -Watercourses and riparian areas

The WFMP provides sufficient detail of watercourses and drainage lines located on and near the site.

Management Strategies-Fauna management

The WFMP provides specific management strategies necessary to satisfactorily manage significant fauna species (Wallum Froglets). This includes management of habitat (through habitat translocation and restoration) to ensure the continued success of Wollum Froglet populations. The WFMP is based on the principals of avoid, minimise and mitigate).

Management Strategies-Aquatic habitats protection & management

The WFMP includes an assessment of the hydrology on the site to ensure that constructed habitats are protected from overland flow. Mitigation measures to ensure appropriate hydrological conditions are maintained are included as part of the management strategies.

Management Strategies -Human land-use & activity management

Not applicable to the WFMP

Management Strategies-Pest & domestic animal management

The WFMP provides strategies and provisions to manage the impacts of pest species the Site.

Management Strategies-Fire Management

Not applicable to the WFMP

Management Strategies-Monitoring

The WFMP includes a monitoring strategy which sets out the monitoring methodology and performance to specifically address the aims and objectives of the plan. Performance indicators provided are measurable (population estimate, percentage cover of habitat) and are directly related to the aims and objectives (ensure conservation of Wallum Froglets).

Provisions for Baseline monitoring are also included, allow an assessment of the impact of the development on Wallum Froglet populations.

The WFMP also includes some provisions to adjust monitoring and management strategies in response to unanticipated circumstances such as habitat translocation failure.

Conditions 6 and 7 – Conclusion

It is considered the Vegetation Management Plan prepared by AWC Revision M dated 6/12/2023 and the Wallum Froglet Management Plan prepared by AWC Revision I dated 6/12/2023 satisfy Conditions 6 and 7 of Development Consent DA10.2021.575.1.

As detailed above it is also considered the conditions of consent have been satisfied with additional commentary provided in terms of Federal, State and Local Government regulations.

In terms of State legislation, the EPA Act 1979 and Associated Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021 also apply.

With the conditions satisfied this will enable the Subdivision Works Certificate to be issued under Section 6.15(c) of the EPA Act 1979, and pursuant to Section 34 of the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021.

Condition 8

8) Construction Environmental Management Plan

A detailed Construction Environmental Management Plan (CEMP) is to be prepared and submitted to Council. The CEMP shall document all environmental related commitments for each Stage of development including but not limited to mitigation, management, restoration, monitoring, and reporting detailed in the approved ASSMP, SMP, DMP, SWGMP, UFP, VMP, and WFMP.

The CEMP is to be developed so that it can receive new information gathered from ongoing monitoring and modelling and be adapted as necessary to accommodate any necessary design changes and /or contingency measures.

The monitoring requirements in the ASSMP, SMP, SWGMP, UFP, VMP, and WFMP shall be included the CEMP to include:

Comment: Report titled ‘Early Stage 1, Construction Environmental Management Plan (CEMP) Ref: 1-211400_03d prepared by AWC dated 30/11/2023. The detailed document provides the monitoring requirements for the ASSMP, SMP, SWGMP, UFP, VMP, and WFMP. The document has been reviewed by council officers and it can be confirmed that it was developed to receive new information gathered from ongoing monitoring and modelling and be adapted as necessary to accommodate any necessary design changes and /or contingency measures.

a. Analysis of all monitoring and sampling data against baseline data and approved thresholds (in the approved CEMP), limits and triggers; and

Comment: CEMP (AWC, Ref: 1-211400_03d, dated 30/11/2023) sets out all monitoring and sampling data against baseline data and approved thresholds, limits and triggers for the ASSMP, SMP, SWGMP, UFP, VMP, and WFMP References are outlined throughout the document and all approved reports are appended to the CEMP and therefore complies with part (a) of condition 8.

b. At least six (6) monthly reporting during subdivision construction works for at least five (5) years or until two years following the issue of a subdivision certificate for Stage 5, whichever is the later; and

Comment: CEMP (AWC, Ref: 1-211400_03d, dated 30/11/2023) sets out the reporting regime required in part (b) of condition 8. References to the required reporting framework of at least six (6) monthly reporting during subdivision construction works for at least five (5) years or until two years following the issue of a subdivision certificate for Stage 5 is outlined throughout the document therefore complies with part (b) of condition 8.

c. Reporting on the performance of the road pavement, bioretention basin, bio pods and the North South drain by the project engineer or other professional with sufficient experience and capabilities in road pavement, construction, and establishment of bioretention basins and stormwater detention systems for Council’s acceptance demonstrating compliance with the Approved Design; and

Comment: CEMP (AWC, Ref: 1-211400_03d, dated 30/11/2023) sets out requirements for reporting on performance on road pavement (s.4.22 on page 83) bioretention and bio pods (Table 4.21 on page 54) and North South drain (Table 4.16 on page 48). Reporting was undertaken by Adrian Leader (Environmental Consultant, AWC) and Wade Fletcher (Engineer, Civil Tech). Therefore, the CEMP complies with part (c) of condition 8.

d. In the event the report required by item c identifies failures, the report shall provide an alternative design that will prevent future and ongoing failures for the civil works of the subdivision; and

Comment: CEMP (AWC, Ref: 1-211400_03d, dated 30/11/2023) s. 4.7.4 on page 55 provides that in the event the monitoring report identifies failures, it shall also provide alternative design that will prevent future ongoing failure for the particular device, and therefore the CEMP complies with part (d) of condition 8.

e. Annual reporting hereafter until the final maintenance bond is returned.

Comment: CEMP (AWC, Ref: 1-211400_03d, dated 30/11/2023) states that ‘from the issue of the final certificate from Council, monthly sample collection for a further 12 months. An Annual report will be prepared detailing results and comparisons to the action criteria stipulated, or as amended in the interim until the final maintenance bond is returned’ (s.4.10.2.2 on page 65). Thus part (e) of condition 8 has been satisfied.

§ The CEMP, including the independent environmental audit of compliance with the CEMP, is to be submitted to Council for approval prior to the commencement of each stage. Any non-compliance/s are to be satisfactorily addressed before commencement of the following stage.

Comment: An independent audit report ref: ENV217959 for Early Stage 1, Construction Environmental Management Plan was prepared by ENV dated 8/11/2023. The audit resulted in amendments to the CEMP and a further review by ENV deemed it to be compliant with development consent conditions set out in DA10.2021.575.1.

§ The CEMP must specify that the successful contractor’ is to understand the interrelationships and potential conflict during construction between surface, groundwater, vegetation, acid sulphate soils, acid frog habitat and benthic invertebrates. The successful contractor is to nominate and retain a competent Environmental Manager and Environmental Consultants in hierarchy to ensure that that the CEMP is understood fully and implemented as required.

§ The names and contact details of the Environmental Manager are to be provided to Council and a prestart meeting must be arranged with Council Officers prior to commencement of any groundworks and must be noted in the CEMP. The CMP must be approved by Council.

Comment: The nominated Environmental Managers (Damian McCann and Jesse Munroe of AWC) have been endorsed following receipt of their CVs which are now attached to the CEMP. Relevant contact details for Damian McCann and Jesse Munroe included in the CEMP.

Condition 8 Conclusion

The condition is a “bespoke condition” imposed to require all environmental related commitments under the consent in one document. It is considered there is no specific Federal, State or Local Government Regulations that relate to its assessment, other than the condition must be satisfied to enable the Subdivision works certificate to be issued under Section 6.15(c) of the EPA Act 1979 and pursuant to Section 34 of the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021.

Based on the assessment provided above the Construction Environmental Management Plan (CEMP) Ref: 1-211400_03d prepared by AWC dated 30/11/2023 satisfies condition 8 of DA 10.2021.575.1 for Early Stage 1.

Condition 9

9) Updated Surface and Groundwater Management Plan – Monitoring, Analysis, Modelling and Contingency management

Prior to issue of a subdivision works certificate for each stage, an updated Surface and Groundwater Monitoring Plan (GMP) shall be prepared and provided to Council for approval.

Comment: Surface Water and Groundwater Management Plan (SWGMP) Ref: 1-211400_03e prepared by AWC dated 1/12/2023 has been submitted to council for review and is deemed to generally satisfy condition 9 of DA 10.2021.575.1 for Early Stage 1.

The SWGMP (AWC, 1-211400_03b, 14/09/2022) shall be updated to include monitoring of groundwater levels and quality prior to, during and following construction of the subdivision works as they progress, including, but not limited to:

a. Monitoring results of groundwater levels and quality from the commencement of Early Stage 1 works until the issue of a subdivision certificate for Stage 5 with submission of an updated report to Council prior to the issue of the subdivision works certificate for each stage of works.

Comment: SWGMP (AWC, Ref: 1-211400_03e, 1/12/2023) demonstrates that AWC collected a baseline data set of groundwater quality across the site from 2021 to 2022 from six bores (Fig 3.1) on page 12. shows their locations. Sampling was undertaken in accordance with Groundwater Sampling and Analysis – A Field Guide, (Sundarum at el, 2009) with all laboratory analysis being undertaken by EAL NATA accredited laboratory. The suite of analytes are provided by AWC in (Table 3.5) on page 14 and consistent with groundwater reporting requirements.

b. Monitoring of groundwater levels and quality at the end of each Stage.

Comment: SWGMP (AWC, Ref: 1-211400_03e, 1/12/2023) provides the scope and commitment for ongoing monitoring for groundwater level and quality for each stage is provided in s. 3.3 and 3.4 with surface water monitoring detailed in s. 4.1 pages 9 – 23.

c. Monitoring of groundwater levels and quality monthly for 12 months following the issue of a subdivision certificate for stage 5; and

Comment: s.3.5.2 SWGMP (AWC, Ref: 1-211400_03e, 1/12/2023) demonstrates the commitment from the issue of the final subdivision certificate from Council, monthly sample collection and level data logging will continue for a further 12 month. Six monthly reports will be prepared detailing results and comparison to the action criteria stipulates, or as amended in the interim. Table 3.9 provides detail on the monitoring program, schedule and reporting for the occupation phase.

d. Targets for groundwater quality and levels and the commitment to use these targets in required routine reporting.

Comment: SWGMP (AWC, Ref: 1-211400_03e, 1/12/2023) demonstrates that groundwater level and quality data have been collected to form a baseline data set with targets determined to detect adverse impacts. Surface water quality data been collected to form a baseline data set with targets determined to detect adverse impacts. Refer to s. 3.3.2, s. 3.4.2 and s. 4.1.1.

Action criteria are based on 80 percentile value of baseline data set with pH action criteria based on the existing recorded range. Action criteria are generally above ANZECC Guidelines due to function of the existing condition of groundwater reserves being impacted by existing urban land uses in the catchment. If there is an exceedance of one of the action criteria the Groundwater Action Response will be enacted (refer pages 16, 17). The action criteria are considered satisfactory given the existing recorded water quality for analytes. pH action criteria are considered representative of natural acidic groundwater conditions.

e. Groundwater data to be compiled and analysed and uploaded into a groundwater modelling report with updated results analysed; and

Comment: Groundwater data will be provided to Martens quarterly throughout the project refer page 3. Martens will compile and upload data into a groundwater modelling in preparation for AWC to routinely report back to Council.

f. Contingency Management to resolve any unforeseen groundwater matters.

Comment: SWGMP (AWC, Ref: 1-211400_03e, 1/12/2023) provides contingency management to resolve any unforeseen groundwater matters. AWC state that, ‘ongoing monitoring and comparison with the baseline data set and adopted action criteria will alert the Environmental Manager to a development related impact. Rectification of the impact will need to be investigated with consideration of spatial and temporal effects, stakeholder values and practicality.’ s 5 SWGMP (Ref: 1-211400_03e, 1/12/2023) on page 25 provides discussion of contingency actions. Strategies have been developed into the following 4 categories:

Ø Maintenance of Groundwater Levels (s. 5.1) page 25

Ø Groundwater Quality (s. 5.2) page 25

Ø Surface Water Quality (s. 5.3) page 25

Ø Risk Assessment and Emergency Response Plan (s. 5.4) page 25,26

Table 5.2 on page 27 provides a ‘risk assessment matrix’ that considers possible events, consequences, likelihood, risk ranking and emergency response. The highest risk raking is attributed to ‘high intensity rainfall’ (significant, likely, high) and the lowest ranking of (minor, rare, very low) being bushfire. Possible events have been provided with recommended emergency responses. An Action Response Plan is detailed in s. 6 of the SWGMP.

§ The groundwater monitoring shall consider the specific details of the site, proposed subdivision construction works methodology and subdivision layout. The construction stage monitoring must be designed and conducted as appropriate for each stage with details to be given in the CEMP.

Comment: Groundwater monitoring program for Early Stage 1 is detailed in s 4.2.1 and Table 4.4. Locations for collection locations, collection timing and reporting time are detailed in Table 4. 4. The regime is considered appropriate and will incorporate six existing groundwater bores shown in Figure 3.1.

§ The Surface and Groundwater Management Plan (AWC, 1-211400_03b, 14/09/2022) provides details on baseline groundwater levels and quality and this information is to be incorporated into the Updated Surface and Groundwater Management Plan.

Comment: Surface and Groundwater Management Plan (AWC, Ref: 1-211400_03d, 1/12/2023) has been cited in ‘Early Stage 1, Construction Environmental Management Plan (CEMP) Ref: 1-211400_03d prepared by AWC dated 30/11/2023. The document shall be amended to reflect the amended report (AWC, Ref: 1-211400_03e, 1/12/2023) and the report shall be appended to the CEMP when formally approved by council. This will take place prior to issue of the construction certificate for Early Stage 1.

§ The Plan must be prepared by a suitably qualified hydrogeologist or equivalent professional.

Comment: Surface Water and Groundwater Management Plan (SWGMP) Ref: 1-211400_03e prepared by AWC dated 1/12/2023 has been prepared by Jesse Munro (Senior Environmental Scient) and Adrian Leader (Environmental Consultant) employed with AWC P/L. Mr Munroe’s CV is contained in the CEMP and Mr Leader has provided council with a copy of his CV and it can be provided on request.

Condition 9 - Conclusion

The condition is a “bespoke condition” imposed to require all surface water and groundwater management commitments in one document. It is considered there is no specific Federal, State or Local Regulations that relate to it assessment, other than the condition must be satisfied to enable the Subdivision Works Certificate to be issued under Section 6.15(c) of the EPA Act 1979, and pursuant to Section 34 of the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021.

Based on the assessment provided above, it is considered the Surface Water and Groundwater Management Plan (SWGMP) Ref: 1-211400_03e prepared by AWC dated 1/12/2023 satisfies condition 9 of development consent DA 10.2021.575.1.

Strategic Considerations

Community Strategic Plan and Operational Plan

CSP Objective	CSP Strategy	DP Action	Code	OP Activity
4: Ethical Growth	4.1: Manage responsible development through effective place and space planning	4.1.1: Development assessment - Manage development through a transparent and efficient assessment process	4.1.1.1	Assess and determine development assessments in accordance with the relevant legislation
4: Ethical Growth	4.1: Manage responsible development through effective place and space planning	4.1.1: Development assessment - Manage development through a transparent and efficient assessment process	4.1.1.2	Certify development in accordance with relevant legislation

Recent Resolutions

· 23-454

Legal/Statutory/Policy Considerations

The Legal Services team staff hold concerns as to whether the elected Council can take the place of appropriately qualified Council staff in assessing the adequacy of documents submitted to satisfy consent conditions.

In other words, can the elected body of Council take the place of the certifier?

The relevant EP&A (Development and Certification and Fire Safety) Regulations dealing with the role of the certifier state as follows:

33 Determination of application for subdivision works certificate

(1) A certifier must ensure the certifier’s determination of an application for a subdivision works certificate contains the following information—

(a) the date on which the application was determined,

(b) whether the application is approved or refused,

(c) if the application is refused—

(i) the reasons for the refusal, and

(ii) if the certifier is a consent authority—the applicant’s right of appeal under the Act.

(2) Within 2 days after determining the application, the certifier must use the NSW planning portal to—

(a) give the determination to the applicant, and

(b) give a copy of the following to the consent authority and council—

(i) the determination and the application to which it relates,

(ii) a subdivision works certificate issued as a result of the determination,

(iii) the plans and specifications in relation to which the subdivision works certificate is issued,

(iv) other documents that were lodged with the application for the certificate or given to the certifier under section 32.

(3) In this Part, a reference to issuing a subdivision works certificate includes a reference to endorsing the subdivision work on the relevant plans and specifications.

Maximum penalty (subsections (1) and (2))—

(a) for a corporation—300 penalty units, or

(b) for an individual—150 penalty units.

34 Compliance with development consent and planning agreement

(1) A certifier must not issue a subdivision works certificate unless the design and construction of the subdivision work is consistent with the development consent.

(2) A certifier must not issue a subdivision works certificate under a development consent unless the following have been complied with—

(a) a condition of the development consent or an agreement referred to in the Act, section 4.17(6) requiring the provision of security before work is carried out,

(b) a condition of the development consent, referred to in the Act, section 7.11 or 7.12, requiring the payment of a monetary contribution or levy before work is carried out,

(c) a condition of the development consent that must be complied with before the subdivision works certificate may be issued,

(d) a condition of a planning agreement that must be complied with before the subdivision works certificate may be issued.

(3) In this section—

design and construction of subdivision work means the design and construction of the work described in the plans and specifications and other information given to the certifier under section 32.

Maximum penalty (subsections (1) and (2))—

(a) for a corporation—300 penalty units, or

(b) for an individual—150 penalty units.

73 Certifiers may be satisfied of certain matters

(1) If a condition of a development consent requires a consent authority or council to be satisfied about a relevant matter, the condition is taken to have been complied with if a certifier is satisfied about the matter.

(2) In this section—

relevant matter means—

(a) a matter that relates to the form or content of the plans and specifications for the following kind of work that will be carried out in connection with the erection of a building or the subdivision of land—

(i) earthworks,

(ii) roadworks, including road pavement and road finishing,

(iii) stormwater drainage work,

(iv) landscaping work,

(v) erosion and sedimentation control works,

(vi) excavation work,

(vii) mechanical work,

(viii) structural work,

(ix) hydraulic work,

(x) work associated with driveways and parking bays, including road pavement and road finishing, and

(b) a matter that relates to the external finish of a building.

Attachment 1 is an extract from the Commissioner’s Public Report into Wingecarribee Shire Council which touched on Councillor transgression into operational matters on planning considerations.

External Legal Advice can be sought to assist Councillors should that be the will of Council.

Financial Considerations

Should there be unnecessary delays in the finalisation of the Subdivision Works Certificate, the applicant would have rights of appeal through the Land Environment Court. Council would need to finance any defence and costs associated with it in terms of an appeal if it eventuated.

External consultants and legal advice fees vary and are an ongoing cost consideration for this matter.

Consultation and Engagement

Not applicable.