M OUNTAINS W ORLD H ERITAGE A REA A report by Alexander Gold and - - PDF document

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THE NEED FOR A STRONG BLUE MOUNTAINS LOCAL

ENVIRONMENTAL PLAN TO SAFEGUARD THE GREATER BLUE

MOUNTAINS WORLD HERITAGE AREA

A report by Alexander Gold and John Merson Blue Mountains World Heritage Institute May 2013

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Table of Contents

Executive Summary Page 3 Introduction

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Local Environmental Planning in the Blue Mountains 6 Maintaining adaptive protections for significant vegetation 9 Threshold conditions protecting sensitive vegetation outside of EP zones 13 Case Study – 4 Turella Street, Glenbrook 15 Significant vegetation protection under the SI-LEP 19 Climate change adaptation: providing space for vegetation adaptation 19 Provisions for site coverage and stormwater control 22 Case Study – Upland swamps in the Blue Mountains 23 Site coverage and stormwater within the SI-LEP 27 Climate change adaptation: managing changing rainfall patterns 29 The relevance of current provisions for the GBMWHA 31 LEP provisions and impacts on the GBMWHA 32 Climate change and the GBMWHA: the importance of cross-tenure 34 conservation of ecosystem processes Upland swamps as critical components of GBMWHA adaptive capacity 35 Conclusion: policy implications of changes to Blue Mountains 37

LEP provisions

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Executive Summary

 This report was commissioned by the Blue Mountains City Council (BMCC) to explore the consequences of aligning existing Blue Mountains local environmental plans (LEPs) with the NSW Government’s Standard Instrument LEP (SI-LEP) template. Consequences to be explored include impacts on environmental assets under BMCC’s tenure as well as those within the surrounding Greater Blue Mountains World Heritage Area (GBMWHA).  Urban planning controls within a local government’s LEP can mitigate or exacerbate the impacts of climate change on the natural environment depending on its provisions moderating the impacts of urban development.  BMCC manages a corridor of urban townships that bisects the GBMWHA. Aware of its position as a city within a World Heritage Area, BMCC has developed LEPs with unique environmental protections.  All councils in NSW have been directed to redraft their LEPs to be consistent with the SI-LEP template handed down by the NSW Department of Planning and Infrastructure. There is concern over whether the SI-LEP allows for the same degree of environmental protection that currently exists in Blue Mountains LEPs.  One provision included in the current Blue Mountains LEPs, and not in the SI-LEP, is the protection of significant vegetation communities listed within a schedule of the LEP. Tying protections to their description within a schedule, as opposed to relying simply

• n zoning protections, allows for the protection of vegetation regardless of whether it is

mapped by BMCC at the time of drafting the LEP. This protection provides adaptive capacity by accounting for uncertainty as to current vegetation extent and how it may change with a changing climate.  Other provisions that would be weakened under the current SI-LEP template relate to site coverage and stormwater management. Maintaining these provisions as they now stand within the BMCC LEPs is important for maintaining the integrity of groundwater dependent ecosystems, such as upland swamps.

4  Any reduction of these provisions that protect vegetation, as well as those that minimise impacts from stormwater runoff within the urban corridor, may impact on the integrity and adaptive capacity of the GBMWHA. Although the future impacts from climate change are uncertain, it is prudent to maintain or enhance provisions mitigating the impacts of development within the urban corridor. Otherwise, should urban development exacerbate climate change impacts on the GBMWHA, concerns about the urban corridor and its potential impacts that were raised at the time of the GBMWHA nomination may re-surface.

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Introduction

In NSW, the principal environmental planning instruments controlling development are local environmental plans (LEPs), which are developed by local governments, known generally in NSW as councils, for their respective local government areas (LGAs). LEPs divide a LGA into zones, establish permissibility of land uses, and include standards that regulate the extent of development. Innovative LEP provisions with strong environmental protections may allow for societies to undergo development while minimising environmental degradation. Within a context of climate change, environmentally sensitive LEP provisions may reduce the likelihood of urban development exacerbating climate change impacts and may even allow for the harnessing of any opportunities climate change may bring. LEP provisions that allow for negative impacts on the natural environment, on the other hand, may exacerbate environmental degradation at the hands of climate change, with a corresponding deterioration in social fabrics and confidence in local government to ensure social-ecological wellbeing.1 Therefore when it comes to built and natural assets that a community wishes to protect, LEP provisions form important components of an asset’s adaptive capacity in the face of threats such as climate change and large-scale urban

• development. Given the importance of LEPs, when it comes to ecosystem conservation in

the face of urban development, a natural asset’s adaptive capacity should not be construed as its capacity to adapt to any climatic change on its own (i.e. autonomous adaptation). Rather, it must include the social capital necessary to plan for and manage the impacts of

1 In this paper, the use of the term “social-ecological” comes from the concept of a social-

ecological system. Social-ecological systems denote linked systems of people and nature in which people depend on nature and nature is influenced by people (Berkes and Folke 1998).

6 any changes (i.e. planned adaptation), and an important part of such social capital resides in the relevant LEP and its planning provisions (Tompkins and Adger 2005; Engle 2011). Despite the important role local governments have in environmental management through land-use planning, Measham et al. (2011) point out that NSW councils have been slow to include climate change adaptation considerations into planning controls. When it comes to climate change, the authors argue that councils appear more concerned with mitigation (for example, through reduction of greenhouse gases emitted through their

• perations) than introducing development controls and planning provisions geared toward
• adaptation. The authors also suggest that planning for climate change adaptation, which
• ften requires taking action now to protect against uncertain and long-term threats, has

found it hard to compete for resourcing amongst an already crowded agenda featuring more immediate concerns. Finally, the authors note a silo mentality that defines climate change as an “environmental” problem, with local government assigning responsibility for the “response” to climate change to the environment section of the council. With climate change not on the urban planning section’s radar, land use planning often assumes a stable climate, “thus substantially constraining any attempt to incorporate climate adaptation into municipal planning” (Measham et al. 2011 p. 905).

1.1 Local Environmental Planning in the Blue Mountains

This report focuses on the Greater Blue Mountains World Heritage Area (GBMWHA), particularly the urban planning provisions governing development within the urban corridor of townships that bisects it. Although the GBMWHA consists of protected areas under the management of the NSW National Parks and Wildlife Service, Blue Mountains

7 City Council (BMCC) is responsible for the management and planning decisions for the urban corridor as well as other areas of the Blue Mountains LGA that fall outside of the protected area estate. BMCC’s land-use planning thus has the potential to affect environmental values not only within the townships themselves, but also the GBMWHA, especially as the GBMWHA sits downstream from the townships and thus serves as the “receiving environment” for urban runoff, sediment, nutrients, and the like. Aware of the sensitivity of the urban and surrounding environments, the current LEPs governing land use planning in the Blue Mountains feature provisions designed to protect and enhance environmental values within urban areas as well as provide an urban- bushland buffer interface to limit impacts of urbanisation on the downstream GBMWHA. Urban development within the Blue Mountains LGA is governed by either the Blue Mountains Local Environmental Plan 2005 (BMCC 2005) or the Local Environmental Plan 1991 (BMCC 1991), herein referred to simply as LEP 2005 or LEP 1991, respectively. In 1982, BMCC gazetted LEP No. 4, which zoned only urban areas. In 1991, BMCC gazetted LEP 1991, which rezoned certain non-urban areas, and extended LEP coverage to rural and environmentally significant areas outside of urban areas and thus not covered by LEP No. 4. LEP 2005 replaced LEP No. 4, and so is concerned with urban areas although it also contains some general planning considerations. LEP 1991 remains the relevant instrument for non-urban lands. Figure 1 provides a schematic of LEP development in the Blue Mountains.

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Figure 1. Schematic of the development of LEPs in the Blue Mountains. At present, both LEP 2005 (urban) and LEP 1991 (non-urban) are in force.

Despite LEP 2005 being a recent LEP when compared to other councils in NSW, the NSW Department of Planning and Infrastructure (DPI) has directed BMCC to redraft its LEPs in accordance with the Standard Instrument LEP (SI-LEP) program. In 2006, the NSW Government initiated the SI-LEP Program to create a common format and content for LEPs. According to the DPI, prior to the introduction of the SI-LEP Program, plans were difficult to understand and used diverse approaches, resulting in an increasingly complex local planning system (DPI 2013). The ultimate aim of the SI-LEP Program is to have one LEP for each LGA, using a standard suite of 35 land use zones and approximately 250 land use definitions. BMCC is in the process of “translating” its LEPs into the SI-LEP format. In doing so, however, concerns have emerged regarding the capacity for the SI-LEP to accommodate BMCC’s environmentally sensitive LEP provisions. As will be argued in this report, with climate change a present reality and likely to continue unabated, these provisions are vital for the adaptive capacity of BMCC assets as well as the GBMWHA. Many of these provisions are not part of the current SI-LEP template, so in order to maintain this adaptive capacity BMCC must negotiate with the DPI as to their inclusion in the Blue Mountains SI-LEP. At LEP No. 4 (urban) LEP 1991 (non-urban) LEP No. 4 (urban) LEP 1991 (non-urban) LEP 2005 (urban) 1982 1991 2005-present

9 the time of writing, the DPI has published several “model local provisions”2 that address issues raised by councils but were not included in the original SI-LEP template. One avenue

• f including existing LEP 2005 provisions into the forthcoming Blue Mountains SI-LEP,

therefore, is to gain agreement from the DPI as to their inclusion as model local provisions. In order to have a local provision considered (and potentially turned into an accepted model local provision), BMCC must first liaise with their relevant regional office (i.e. Sydney West) of the DPI, before it is considered by the policy team within the DPI’s head office, and then finally settled by the Parliamentary Council’s Office. Final approval of any SI-LEP rests with the Minister. The rest of this report argues why select provisions within both LEP 2005 and LEP 1991 that, at present, are not included in the SI-LEP template, are vital for the adaptive capacities of both BMCC-managed assets and the GBMWHA. These provisions allow for the protection of significant vegetation independent of zoning, and relate to site coverage and stormwater management. The significant vegetation protections are covered in section 3, whereas provisions for site coverage and stormwater management are covered in section 4. Each section outlines why the provisions provide a special degree of protection from urban development, gives a case study example of their protection in action, and explains their importance in building adaptive capacity to climate change. Section 5 then explores the consequences of a loss of these protections for the GBMWHA and provides a conclusion.

2 The DPI also refers to model local clauses as “additional provisions,” “local provisions,”

“model local clauses,” and “settled clauses.”

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2 Maintaining adaptive protections for significant vegetation

Both LEP 2005 and LEP 1991 contain strong provisions to mitigate the impact of development on native vegetation, including rare and endangered species and

• communities. At present, it is unclear whether the SI-LEP template would allow BMCC to

maintain these protections. In particular, LEP 2005 includes a schedule of sensitive vegetation and then restricts development on the basis that it will have an adverse impact

• n such vegetation regardless of the zone within which the vegetation occurs. The SI-LEP

template, on the other hand, does not allow restrictions to be tied to a schedule of significant vegetation, but rather requires vegetation to be protected via zoning at the

• utset. Tying protections to a schedule rather than zoning is important because it allows

for the vegetation to be protected even if it is unmapped, as will now be discussed. Schedule 5 of LEP 2005 lists significant vegetation communities in the Blue Mountains LGA. The schedule describes each community by its characteristic plant species, along with

• ther information such as where in the Blue Mountains it tends to occur, characteristic soil

types, altitudes, and the like. Some, but not all, of these communities are listed under the Threatened Species Conservation Act 1995 (NSW)(TSC Act). LEP 2005 zones mapped existences of these communities, as well as mapped watercourses and steep slopes, as Environmental Protection (EP)(Figure 2). EP zoning attracts the most prohibitions on development and thus the highest protection. A ten metre buffer around the vegetation is also zoned EP, and a further fifty metres is designated as a Protected Area – Ecological Buffer Area (Figure 3). Should the community and/or its buffer occur on a private lot, the lot’s zoning will be split between EP and the zone type allowing the dwelling or other

11 structure (Figure 2.). At present, it appears that the SI-LEP can accommodate both the current restrictions of the EP zone,3 as well as the capacity to split lots into multiple zones such that sensitive vegetation on private land can gain requisite protection.

Figure

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portion of a LEP 2005 map showing lots and zoning around Bellata Circuit, Glenbrook. Zones (and their indicative colours) are: Living - Bushland Conservation (yellow); Living - Conservation (tan); Environmental Protection - Private (orange); Environmental Protection – Open Space (dark green). Note that some blocks contain more than one zone, as is the case when a scheduled vegetation community occurs on private land (multiple lots in the figure are split between Living – Bushland Conservation and Environmental Protection – Private). The slightly paler yellow section in the bottom-right corner of this map is a reserve and is zoned as Environmental Protection under LEP 1991.

3 The most restrictive zone outside of National Parks and Nature Reserves in the SI-LEP is

E2 Environmental Conservation. It appears that the E2 zone can accommodate the provisions of the LEP 2005 and LEP 1991 EP zones, such that they will be rezoned E2 but maintain the protections of the existing EP zoning.

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Figure 3. The same portion of the map around Bellata Circuit, showing Ecological Buffer Areas (green hatched polygons).

Scheduled vegetation occurring at a specific location will have been zoned EP, and thus protected from development, however, only if BMCC knew it existed there at the time of drafting the relevant LEP. That is, its extent would have had to have been identified and mapped beforehand. Allowing for the possibility that significant vegetation may not have been mapped, LEP 2005 includes provisions restricting development that impacts on scheduled vegetation even if it is unmapped and therefore the land on which it occurs is not zoned EP. It does this by including significant vegetation protection within “threshold conditions” in Parts 3 and 4 of LEP 2005 that a proponent must satisfy with respect to the proposed development.

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2.1 Threshold conditions protecting sensitive vegetation outside of EP zones

The objectives of Part 3 of LEP 2005, titled “Assessing the site and environmental context,” are (a) to require the impact of development on the natural and built environment to be taken into account as part of the site planning process, and (b) to establish a sound basis for design or management responses to be incorporated into development proposals to minimise that impact. Clause 44 of Part 3 contains threshold conditions that must be met for consent to be granted to any development that impacts on a significant vegetation

• community. Of relevance here is that the conditions refer to either any significant

vegetation community or to development excluded land. Land on which any significant vegetation community is located is also defined as development excluded land.4 For example, clause 44(2) restricts subdivision unless BMCC is satisfied any related development will have no impact on development-excluded land. Clause 44(3) says BMCC must not consent to development within a Living – Bushland Conservation zone unless it is satisfied, by means of a detailed environmental assessment, that the development will have no adverse impact on any development excluded land. Finally, clause 44(4) forces proponents of any development not subject to either clause 44(2) or 44(3) to apply an “avoid, minimise, mitigate” test. The test suggests that proponents must design and site their development so as to have no adverse impact on any significant vegetation community (i.e. avoid any impact).5 Where adverse impact on the community cannot be

4 Blue Mountains Local Environment Plan 2005 cl 6(1). 5 In addition to (a) any significant vegetation community, subclause 44(4) also suggests

proponents must avoid impact on (b) the habitat of any threatened species, populations or ecological communities, (c) any rare species of flora, (d) any fauna corridor, (e) the hydrological aspect of the locality, (f) any watercourse or wetland, and (g) any significant natural features, including rock outcrops, rock ledges and cliffs. So while we will refer to

14 avoided, clause 44(5) requires the proponent to design development to have minimum possible adverse impact, to incorporate effective measures to remedy or mitigate any adverse impact, and to offset the impacts through restoration of existing disturbed areas on the site. Part 4 of LEP 2005, which contains general provisions relating to subdivision, infrastructure, vehicular access, and other developmental considerations, also refers to significant vegetation communities. When subdividing a lot, subclause 90(9)(e) requires that a lot created within the Living – Bushland Conservation zone intended as a site for a dwelling house must include a development space that is not development excluded land. This provision effectively protects significant vegetation communities from becoming dwelling house lots in the Living – Bushland Conservation zone. Of importance when it comes to these provisions in Parts 3 and 4, as well as others referring to significant vegetation communities, is that the existence of the significant vegetation community (as defined in Schedule 5) triggers the protections accorded by the provisions regardless of whether it is mapped. The provisions thus provide a safety net that protects significant vegetation even if it is not zoned EP because it was not mapped at the time LEP 2005 was

• created. The case study of a recently proposed development at 4 Turella Street, Glenbrook,

provides an example of the importance of such provisions when it comes to protecting significant vegetation communities regardless of whether they were mapped. significant vegetation communities, the “avoid, minimise, mitigate” test is relevant for impacts on these other features as well.

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2.2 CASE STUDY – 4 Turella Street, Glenbrook

In Leaney v Blue Mountains City Council [2012] NSWLEC 1090 (Leaney), Mr. Leaney appealed BMCC’s refusal to subdivide a Living – Bushland Conservation lot (Figure 4). The proposal was to subdivide the lot into three lots, all with access off Turella Street. The existing dwelling (seen from satellite in

Figure 5) would be contained within one new lot at the northern end of the existing lot, with new central and southern lots created with frontages on Turella Street (hence the reference to 4 Turella Street). The existing lot is nearly surrounded by BMCC reserve lands. Bellata Reserve (zoned EP, the dark green polygon in Figure 4) borders the lot to the north and west, while Lapstone Reserve (zoned EP under LEP 1991, and represented by the paler yellow area across Turella Street in the bottom-right corner of Figure 4) borders the lot to the east, across Turella Street. In fact, the existing lot contains substantial woody vegetation (with the exception of the dwelling house and its yard) indistinguishable from the reserved lands (Figure 5).

Figure 4. The LEP 2005 map showing the lot proposed for subdivision by Mr. Leaney (denoted by the red star). Turella Street forms the southwestern boundary of the lot.

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Figure 5. Satellite view of the lot proposed for subdivision. For reference purposes, Bellata Circuit is seen at the top-left, and Turella Street is seen toward the bottom-right (and also forms the southwestern boundary of the lot). Although the lot that was proposed for subdivision is zoned Living – Bushland Conservation, it is clear from the satellite image that much of the vegetation on the lot is of the same nature to that of the surrounding Environmental Protection lands. Image courtesy Google Earth.

In Leaney, ecologists from both sides identified the whole of the lot as Shale Sandstone Transition Forest (SSTF), with the exception of the footprint of the existing dwelling, associated structures, and the area immediately around them. SSTF is a significant vegetation community under Schedule 5 of LEP 2005 as well as an endangered ecological community under the federal Environment Protection and Biodiversity Conservation Act 1999 (Cth) and the aforementioned TSC Act. Because SSTF is a significant vegetation community according to LEP 2005, the land on which it occurs is development excluded land. In the ruling, it was found that since SSTF extended across the entire site with the exception of the existing dwelling, the proposed new lots would be entirely SSTF and thus entirely development excluded land. Clause 90(9) of LEP 2005 requires a Living – Bushland Conservation lot to include a development space that meets all subclauses in

17 clause 90(9). One of the subclauses (cl 90(9)(e)) says the development space cannot be development-excluded land. Because SSTF extends across the entirety of the proposed lots, by definition, they cannot provide a development space since SSTF is a significant vegetation community according to Schedule 5 and is thus development-excluded land. Thus the subdivision was denied on the basis that it could not meet the requirements of clause 90(9). As SSTF is also an endangered ecological community under the TSC Act, the potential for the development to impact on SSTF would have triggered certain administrative procedures regardless of whether it had been mapped by BMCC. Development likely to significantly affect TSC-listed species, populations, or ecological communities (such as SSTF) must have a species impact statement prepared by the proponent and subsequently considered by the consent authority upon reviewing the development application.6 In Leaney, the ecologists for both Mr. Leaney and BMCC concurred that the proposed subdivision and associated development activities would have an adverse impact on SSTF but not a significant adverse impact. Therefore, TSC Act provisions would not have been triggered and the development would not require a species impact statement. As described above, clause 90(9) of LEP 2005 proved to be the determining provision for refusal of the development in Leaney. However, earlier we mentioned clause 44(2) of LEP 2005, which states that consent shall not be granted to the subdivision of any land unless there are measures to ensure that the development and any asset protection

6 Determining whether an impact is significant requires applying the 7-part-test set out in

the Environmental Planning and Assessment Act 1979 (NSW) s 5A(2). In the case of endangered ecological communities (such as SSTF), considerations include whether its local occurrence is likely to be placed at risk of extinction (s 5A(2)(c)), among others.

18 zones will have no adverse impact on any development excluded land. Clause 44(2) applies to subdivision proposals for any zone (unlike clause 90(9), which only applies to Living – Bushland Conservation). It should be noted that although consent may be given to subdivision provided the consent authority is satisfied with protective or remedial measures, the test that a development or subdivision have no adverse impact is stronger than that of having a significant impact. In essence, LEP 2005 requires prevention or remedial measures for any impact on significant vegetation (some of which are endangered ecological communities), whereas the TSC Act only requires special attention given to significant impacts. The TSC Act alone, therefore, cannot be relied upon as a means of ensuring the same strength of provisions that currently mitigate the impacts of urban development within LEP 2005.

2.3 Significant vegetation protection under the SI-LEP

As described earlier and shown in the 4 Turella Street case study, the provisions of Parts 3 and 4 of LEP 2005 featured in this report allow for a high degree of protection for significant vegetation communities by requiring an assessment of each development site and triggering protection of any significant vegetation identified. The provisions thus provide a safety net for sensitive vegetation that may occur on a lot zoned for development and allow for vegetation to be identified and protected on a case-by-case basis rather than expecting all significant vegetation to be identified and protected at the outset. The only way to protect vegetation from development under the current SI-LEP template is through zoning, which means that in order to protect significant vegetation, it must be mapped and zoned accordingly at the outset. It is unlikely, however, that all occurrences of significant

19 vegetation communities will be mapped at the drafting of the SI-LEP (with the 4 Turella Street case study serving as a recent example). Rather, some significant vegetation may be zoned for development simply because it is unmapped. At present, the SI-LEP does not contain provisions similar to those in LEP 2005 that protect significant vegetation regardless of zoning, thus leaving such vegetation more vulnerable under the SI-LEP. Now the report turns to consider the importance of these provisions under a changing climate. 2.3.1 Climate change adaptation: providing space for vegetation adaptation Climate change is expected to cause shifts in species and community distributions as new areas become climatically suitable and existing ones decline in suitability (Dunlop et al. 2012). The composition and functioning of communities and ecosystems themselves is also expected to change, with new communities emerging for which there is no historical analogue (Williams and Jackson 2007; Steffen et al. 2009; Rehfeldt et al. 2012). Literature has suggested that in order to set the stage for adaptation in environments impacted by human activity, the emphasis is on “making space” and opportunities for ecosystems to self-adapt and reorganise (Steffen et al. 2009). Development controls, therefore, are increasingly relevant for reducing non-climatic stressors on valued ecosystems and providing them with the “space” they need for adaptation (Prober and Dunlop 2011). This capacity to moderate the interaction between urban development and climate change is how LEP provisions may enhance local adaptive capacity. The LEP 2005 provisions that allow for protection of significant vegetation, regardless of whether it is zoned for conservation or for development (i.e. regardless of whether it is mapped or unmapped), provide this space for adaptation and thus form an

20 important component of adaptive capacity within LEP 2005. As described earlier, the provisions of clause 44 require an assessment of every development as to its potential to impact on significant vegetation communities, which are set out in Schedule 5. This allows for significant vegetation to be identified and protected even if it was not mapped at the drafting of the LEP and thus not zoned for protection. Therefore, should climate change result in changes to vegetation extent such that scheduled vegetation comes to occupy areas zoned for development, the vegetation and its contribution to Blue Mountains biodiversity will remain protected. It is thus given “space” to move. The provisions are thus described as “adaptive” because they provide the flexibility necessary to account for uncertainties related to vegetation communities’ current distribution and future movements. Without the capacity to maintain a schedule of significant vegetation and to include provisions such as clause 44 that limit impacts of development and subdivision on significant vegetation identified during a site assessment, the protection of unmapped significant vegetation zoned for development is, at best, uncertain (earlier it was described how the TSC Act allows for protection only if the vegetation is listed and if the proposed impact is deemed to be significant). The SI-LEP template reliance on zoning or otherwise mapping areas of significance as the only means of protecting significant vegetation essentially “freezes” the protections and does not allow them to accommodate changes in vegetation extent. The use of zone restrictions as the primary control for development impact on sensitive vegetation, therefore, assumes not only that all significant vegetation will be known to BMCC (and mapped), but also that its extent and character will remain

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• static. Such assumptions within the SI-LEP template, however, are unsurprising given

evidence that planning frameworks in NSW assume a stable climate (Measham et al. 2011). In conclusion, BMCC (2010) states that the less bushland retained in the city, the more likely that there will be a decrease in biodiversity. This decrease in biodiversity will be exacerbated by any negative impacts of climate change, placing greater urgency on conserving vegetation across the landscape regardless of zoning. The LEP 2005 provisions described earlier allow for such landscape-level protection of vegetation by having protections tied to a schedule of significant vegetation and requiring a site assessment of each development for the presence of such vegetation. Such provisions are not found within the current SI-LEP template, which is cause for concern given the need to provide space for climate change adaptation.

3 Provisions for site coverage and stormwater control

Because the townships of the Blue Mountains sit on ridgetops at a higher altitude than the surrounding GBMWHA, LEP 2005 contains provisions for site coverage7 and stormwater management aimed at reducing the likelihood of urban impacts affecting World Heritage values downstream. Site coverage requirements vary by precinct and are given in Schedule 1 and Schedule 2 of LEP 2005. A precinct in Winmalee, for example, is prescribed a maximum site cover for buildings as 55% of the total site area, and a minimum area to be retained as soft, pervious or landscaped area (excluding hard surfaces)

7 Site coverage means the total area of the footprint of any building or proposed building,

and includes the footprint of any building ancillary to the main building, and the area of any swimming pool or tennis court, expressed as a percentage of the total allotment area.

22 as 35% of the total site area. Catchment urbanisation is known to degrade downstream ecosystems, with the level of degradation increasing dramatically as catchment imperviousness increases because of the impact of impervious surfaces on groundwater recharge and stormwater runoff (Walsh and Kunapo 2009; Burns et al. 2012). Increased impervious surface cover causes water to concentrate along drainage lines and run off the land to other locations. The maintenance of soft or pervious surfaces allows for recharge of groundwater on site rather than allowing impervious surfaces to divert it elsewhere. LEP 2005 also includes provisions pertaining to the quality and quantity of stormwater runoff from urbanised areas. Clause 57(1) requires development to incorporate effective measures to manage stormwater runoff for the life of the development and to ensure: . (a) surface water run-off will be diverted away from all disturbed areas on the site, and . (b) the quality of surface or ground-water leaving the site will not be reduced in the short or long term, and . (c) the development will minimise or eliminate point source and diffuse source pollution by the use of best management practices, and . (d) the development will not adversely alter the quantity and flow characteristics of stormwater leaving the site, and . (e) the development is designed and sited to minimise stormwater run-off from impervious surfaces leaving the site, and . (f) the development optimises on-site retention and re-use of stormwater run-off, through measures such as dual plumbing and infiltration devices. Clause 57 also requires certain types of development, such as on an allotment having impervious surfaces in excess of 40% of the allotment area, to develop a stormwater management plan geared toward mitigating impacts of stormwater runoff and maximising the use of water permeable surfaces to promote infiltration of water on-site. The ensuing

23 case study of upland swamps in the Blue Mountains and the discussion on stormwater management within the SI-LEP that follows will illuminate the importance of the existing LEP 2005 controls.

3.1 CASE STUDY – Upland swamps in the Blue Mountains

LEP 2005 controls regarding site coverage and stormwater have strong implications for the conservation of upland swamps in the Blue Mountains LGA. Upland swamps refer to swamps of the significant vegetation community 5B – Blue Mountains Swamps within Schedule 5 of LEP 2005. The description of the significant vegetation community notes that it includes the grouping of Newnes Plateau Shrub Swamps, a listed endangered ecological community under the TSC Act, as well as Blue Mountains Swamps, listed as a vulnerable ecological community under the TSC Act. Both of these TSC-listed communities are included within the Temperate Highland Peat Swamps on Sandstone ecological community, listed as endangered under the federal Environment Protection and Biodiversity Conservation Act 1999 (Cth). Upland swamps may exist at low-lying sites on valley floors (valley swamps) or in the headwaters of creeks and on steep hillsides (hanging swamps). Hanging swamps form on steeper valley sides where groundwater seeping down through permeable sandstone is trapped and channelled to the surface (cliff face or hillside) by horizontal, impermeable layers of claystone, ironstone, and shale. This percolation of water creates a seepage line and hanging swamps form in the constantly wet and anaerobic environment, further details of which will be described shortly when discussing swamp

• structure. The swamps appear to “hang” off the cliff face or hillside. Overall, upland

swamps exhibit considerable variability across the Blue Mountains. A swamp may be a

24 combination of valley swamp and hanging swamp, and it may receive its water from feeder streams, groundwater, or some combination of the two.

Figure 6. Hanging swamps can occur on the faces of outcrops and are fed by groundwater percolating out from impermeable claystone layers.

Although research cannot ascertain an exact date, swamps such as the upland swamps in the Blue Mountains began forming some 15,000 years ago (Barrows et al. 2001; Hope 2003). Swamps formed in areas with specific hydrogeomorphological conditions that created slow rates of runoff and that featured a climate of relatively low evaporation and high rainfall. Many thousands of years ago, sediment began to accumulate in these areas and eventually they were able to support vegetation. Both the vegetation and the sediment retained water because of the slow runoff rates, creating positive feedbacks between the presence of vegetation and water retention. Waterlogged soils tend to be anaerobic, causing organic matter to break down slower than in drier soils (Keith 2004). Over time, with persistent waterlogging because of the slow runoff rates, the sediment built up enough organic matter to form peat. Peat is highly organic soil that results from the

25 preservation of partially decomposed organic matter, which accumulates over time in a vertical sequence of layers (Keith 2004). Maintaining peat, and thus maintaining the swamp, requires persistent waterlogging, as dried peat is highly susceptible to erosion and is unsuitable for swamp vegetation. One way that swamps can lose water, and thus allow for the peat to dry, is through channelisation (e.g. Arachchi and Lambkin 1999; Figure 7, Figure 8). Channelisation refers to the creation of one or more channels, gullies, streamlets,

• r the like, through the swamp. Channelisation is of concern because if channels form

within a swamp, water will flow quickly through these channels rather than slowly percolating across the swamp and maintaining the waterlogging required for healthy peat. A common method of channelisation is through delivery of concentrated stormwater into the swamp, the force and persistence of which can incise a channel that leads to loss of water and swamp drying (BMCC et al. 2010).

Figure 7. Deep and extensive channelisation of a swamp in Wentworth Falls. The top and bottom of the photo feature intact or near-intact swamp, however the channel is seen running from left to right through the middle of the photo. The channel resulted from fire followed by heavy rainfall, and the

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water table adjacent to the channel has lowered such that it is less suitable for groundwater-dependent swamp biota (I. Baird, personal communication). Photo credit I. Baird. Figure 8. Intense or frequent fires can dry out swamps and lead to cracking of the swamp surface as shown in this photo. Cracks can lead to further collapse and result in channelisation and dewatering. Photo credit I. Baird.

The site coverage and stormwater provisions set out in LEP 2005 are important for maintaining the health of swamps in urban areas because they promote groundwater recharge and minimise the likelihood of stormwater runoff causing channelisation. If a swamp catchment (that is, the land from which water drains into the swamp) is highly impervious, most rainfall will be diverted to drains and gullies, thus intensifying stormwater flows into the swamp and increasing the likelihood of channelisation. Swamps also suffer from reduced groundwater levels where high percentages of impervious surfaces divert what would otherwise be groundwater recharge. The provisions for site coverage and stormwater in LEP 2005, on the other hand, require minimisation of runoff through retention of soft surfaces and avoidance or minimisation of stormwater impacts.

27 These provisions, therefore, help maintain adequate groundwater recharge for swamps while simultaneously reducing the likelihood of swamp channelisation.

3.2 Site coverage and stormwater within the SI-LEP

The existing SI-LEP template does not contain any provisions for site coverage. Should BMCC wish to retain site coverage restrictions, it will require approval for inclusion as a local provision. Regarding stormwater management, the DPI has published a model local provision for stormwater management that may be included in a SI-LEP. However, the model local provision does not require the same high degree of stormwater controls as required by clause 57 of LEP 2005 (as described earlier). At present, clause (3) of the SI-LEP model local provision for stormwater management says consent must not be granted to development on land to which the clause applies unless the consent authority is satisfied that the development: (a) is designed to maximise the use of water permeable surfaces on the site having regard to the soil characteristics affecting on-site infiltration of water, and (b) includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater, or river water, and (c) avoids any significant impacts of stormwater runoff on adjoining downstream properties, native bushland and receiving waters, or if that impact cannot be avoided, minimises and mitigates the impact. Subclause (3)(c) of the model local provision is of concern because it provides a pathway for stormwater to legally impact on downstream areas. It does so by leaving open the

28 possibility for development with significant downstream impacts of stormwater runoff to proceed, provided the impact is “mitigated,” which is likely to include offsets or other compensation.8 This avoid, minimise, mitigate test is less stringent than the existing LEP 2005 clause 57(1) directed at stormwater control, reproduced in part earlier. The LEP 2005 clause 57(1) does not allow for mitigation or remediation of impact, but rather requires the consent authority to be satisfied the development will minimise or eliminate stormwater pollution, will not adversely alter stormwater flow, and will minimise stormwater runoff from impervious surfaces, among other provisions (see above). When mitigation of impact is a possibility, it allows for a “drift” of development standards. In this context, drift means that although the LEP was drafted with the intention to avoid stormwater impacts, should a development be allowed to have an impact and mitigate it, say through proving an offset elsewhere, this development may set a precedent such that allowing stormwater impacts with mitigation becomes the norm despite the original intention to avoid such impacts.

3.3 Climate change adaptation: managing changing rainfall patterns

The LEP 2005 provisions for site coverage and stormwater control also serve as important components of adaptive capacity, particularly for upland swamps. Because swamps are dependent on hydrogeomorphological and edaphic conditions of a particular

8 “Mitigate” can take on a variety of meanings, and it is sometimes equated to avoiding or

minimising impact altogether. However, should the writers of the model local provision have intended for mitigation to be equivalent to avoidance and/or minimisation, there would be no need to include it in the clause with “avoid” and “minimise.” Rather, when it comes to environmental impact, mitigation is sometimes included to allow for rehabilitation or compensation when the impact is neither avoided nor minimised (e.g. New Hampshire Department of Transportation 2004; Sutley 2010; State of Florida 2011; Southern Nevada Water Authority 2013).

29 area, there is little room for them to migrate and adaptation must occur in situ. While certainty as to projected climatic changes in the Blue Mountains is difficult given the complex suite of microclimates generated by its unique topography, concern exists that the region may become drier through the combined effects of less overall rainfall and increased evaporation (CSIRO 2007; CSIRO and BOM 2007; DECCW 2010). The same sources also express concern that extreme conditions may become more frequent, with more severe droughts and increased incidence of intense rainfall. Moreover, climate change is likely to affect the El Niño Southern Oscillation (ENSO), which has a strong impact on climate variability across eastern Australia. According to the NSW Department of Environment, Climate Change, and Water (DECCW 2010), ENSO events are likely to bring greater climatic

• extremes. Future El Niño events will be drier and hotter, creating intense water stress and

leading to more extreme impacts. La Niña events are likely to be wetter than average but also warmer. These potential climatic changes will impact on upland swamps regardless of urban development impacts. Therefore, LEP provisions will determine the degree to which urban development does or does not exacerbate these impacts. Swamp extent is known to expand and contract with long-term increases and decreases in rainfall levels, respectively (Keith et al. 2010). Should the Blue Mountains climate become drier overall, therefore, one may expect individual swamps across the landscape to experience a general contraction of their extents. Provisions for site coverage and stormwater management that maximise groundwater recharge on site, therefore, may assist swamps by ensuring crucial water supplies during drier times.

30 Provisions for site coverage and stormwater management will also help swamps adapt to impacts of any changes to rainfall patterns and seasonality, particularly any increased incidence of intense rainfall. High site coverage and inadequate stormwater management could result in the increased incidences of intense rainfall delivering especially strong pulses of stormwater into the headwaters of a swamp and increase the likelihood of channelisation. A drier Blue Mountains would place increasing pressure on swamps to retain intact hydrology to maintain waterlogged peat. An increased likelihood

• f channelisation because of intense rainfall and a lack of adequate site coverage and

stormwater management provisions, therefore, would disturb swamp hydrology and reduce swamp waterlogging over the period where retaining intact waterlogging is most

• crucial. It would reduce the adaptive capacity of upland swamps by allowing for urban

development to exacerbate any negative impact of climate change.

4 The relevance of current provisions for the GBMWHA

Should the SI-LEP not be able to accommodate the strong protections of LEP 2005 and thus allow for urban development to have greater impact on the surrounding environment, there may be negative consequences for the GBMWHA. In fact, when considering the World Heritage nomination for GBMWHA back in 1999, the International Union for Conservation of Nature (IUCN) expressed concern over “the central corridor

• ccupied by the City of the Blue Mountains and a national transport artery that splits the

nominated area in two.” They pointed out “all of this corridor is upslope from the nominated area and poses a number of threats to the site… With a major city running along

31 a rocky ridge above the nominated area runoff into the Grose and Nepean rivers will always be a problem and will always detract from the integrity of the site” (IUCN 1999 pp. 175–176). In response to these concerns, Environment Australia noted that between the townships lie “substantial areas of native vegetation, which…serve to link the northern parts of the Blue Mountains National Park with those in the south, providing corridors for the movement of native species. The NSW National Parks and Wildlife Service (NPWS) works closely with BMCC to ensure that these areas are managed in a way consistent with the adjoining GBMWHA and the value of vegetation corridors is recognised and maintained” (Environment Australia 2000 p. 20). They also mentioned that “extensive areas of private land have been zoned for environmental protection, where only utilities, roads, walking tracks, and bushfire management are allowed” (Environment Australia 2000 p. 20). Finally, they pointed out that “stormwater runoff from the City is also being addressed through management regimes” (Environment Australia 2000 p. 20). Maintaining the integrity of the GBMWHA, therefore, is dependent on management of impacts from the urban corridor. As LEP provisions play important roles in managing such urban impacts, this section explores potential consequences for the GBMWHA should the SI-LEP bring a lower level of protection from urban development.

4.1 LEP provisions and impacts on the GBMWHA

Within LEP 2005 and LEP 1991, the zoning of vacant land or significant vegetation as EP and provisions for stormwater management are two ways by which the impacts of the urban corridor on the GBMWHA are minimised. Reducing the protections offered by

32 these LEP provisions, therefore, may reignite the initial concern expressed by the IUCN at the time of the GBMWHA nomination. Earlier we mentioned that it appears the current EP protections will be able to be accommodated within the E2 zone of the SI-LEP template. Should this be the case, then the extensive areas of EP land to which Environment Australia refers to above, should be preserved. These areas serve as an urban-bushland buffer interface between the heavily urbanised township centres and the GBMWHA. BMCC notes, however, that because the land is “protected by the planning instruments LEP 1991 and LEP 2005, it is unlikely these areas will be developed significantly in future years unless the planning instruments are revised” (BMCC 2010 p. 22). Development of the Blue Mountains SI-LEP, represents a revision of planning instruments and thus an opportunity to change the development status of EP lands within LEP 1991 and LEP 2005. Even though the SI-LEP E2 zone may accommodate the protections of the existing EP zone, of concern is that the NSW Government has indicated a desire to include 7,000 new dwellings in the Blue Mountains LGA by 2031 (Department of Planning NSW 2007). The revision of the Blue Mountains LEPs is important because the DPI has suggested that councils will incorporate targets such as the inclusion of 7,000 more dwellings in the Blue Mountains “into their LEPs at the first opportunity.” Moreover, “[t]hese targets represent a minimum and councils are encouraged to plan for higher capacity where appropriate” (Department of Planning NSW 2010 p. 114). It is likely, therefore, that the negotiation of the Blue Mountains SI-LEP will involve a balancing act between BMCC’s desire to maintain its vast areas of vacant land zoned for environmental protection and the NSW Government’s desire to see an expansion of development capacity in the Blue Mountains. Of concern is not that BMCC will be unable to provide EP

33 protections to urban-bushland interface lands (it is assumed the E2 zone is adequate), but rather that the NSW Government may wish to see more new land zoned for development. Should BMCC be pressured to open some of its urban-bushland buffer interface to development, concerns over the integrity of the GBMWHA may resurface. Similar concerns exist for stormwater management. Earlier this report pointed out how the provisions in LEP 2005 were stronger than the current model local provision for stormwater management in the SI-LEP template. Should BMCC be forced to adopt the current model local provision for stormwater management, a drift in standards may ensue whereby downstream impacts are allowed provided they are “mitigated.” These downstream impacts may detrimentally affect upland swamps in urban areas as mentioned earlier in this report, and may also directly affect GBMWHA water bodies through siltation. In the GBMWHA Strategic Plan (NPWS 2009), siltation of streams was listed as a threat from adjacent land use. The plan declares “[a]ny adverse impacts on water quality and quantity within the GBMWHA arising from…upstream land uses…are eliminated or, at least, minimised” (NPWS 2009 p. 40; emphasis added). Like LEP 2005, the GBMWHA Strategic Plan does not leave room for mitigation of downstream impact and instead requires its absolute minimisation. Reducing the strength of stormwater management LEP provisions such that impact is allowed with mitigation, would allow for impacts to the GBMWHA and affect its integrity. A look at the importance of cross-tenure conservation under climate change further underscores the importance of strong LEP protections for the integrity of the GBMWHA.

4.2 Climate change and the GBMWHA: the importance of cross-tenure conservation of ecosystem processes

34 Climate change has prompted a reassessment of conservation management priorities, and underscored the need for efforts to cut across land tenures (i.e. protected areas, public land, private land, etc.) and work at the landscape scale. Steffen et al. (2009) argue that management objectives will need to be reoriented from preserving all species in their current locations to maintaining the provision of ecosystem services through a diversity of well-functioning ecosystems. Dunlop (2012) concurs, suggesting a focus on maintaining ecological processes rather than preserving current ecological states. At the landscape scale, the focus turns to conserving a diversity of habitats to provide options for species to shift and reassemble and, in some cases, restoring connectivity that will facilitate these shifts (Prober and Dunlop 2011). The need for “space” for vegetation to shift as described here was raised earlier when discussing the importance of LEP provisions that protect significant vegetation. Although the GBMWHA itself enjoys the protections afforded to protected areas, conservation of the ecosystem processes sustaining the GBMWHA must extend outside of protected area boundaries. Given the importance of maintaining ecosystem processes under changing climatic conditions, cross-tenure management of such processes is vital for enhancing the adaptive capacity of the GBMWHA. Given fauna movements and even the potential for vegetation communities to expand or contract, the protection of vacant land within the townships serves the important purpose of maintaining connection corridors between the northern and southern portions of the GBMWHA. The importance of these corridors, as well as the urban-bushland buffer interface, was discussed in the previous

• subsection. The report now returns to the case study of upland swamps within the urban

35 corridor, and investigates their linkages with the GBMWHA and its adaptive capacity in the face of climate change. 4.2.1 Upland swamps as critical components of GBMWHA adaptive capacity The movement of water throughout a landscape epitomises the fact that ecosystem processes do not adhere to socio-political land tenure boundaries. As water is the lifeblood

• f the environment, maintaining functional hydrology for the GBMWHA is crucial for its

integrity, and will depend on the management of hydrology within the urban corridor. BMCC notes the importance of upland swamps, particularly hanging swamps that sit at the headwaters of streams and rivers, when it comes to landscape hydrology: Hanging swamps are dependent on the availability of groundwater and provide a range of free ecosystem services and are home to a variety of threatened species. Hanging swamps are a feature of the Blue Mountains water cycle. They act like massive sponges, soaking up water and releasing it gradually to provide life-sustaining moisture for downstream ecosystems (BMCC 2010 p. 11). Upland swamps, therefore, provide crucial, life-sustaining water stores for the downstream GBMWHA. Their importance is magnified given concerns that climate change may bring more severe droughts and drier conditions overall to the Blue Mountains, as discussed earlier. Should such conditions prevail, maintaining functional hydrology for the GBMWHA will increasingly depend on the health of upland swamps within the urban corridor, their capacity to store water, and their provision of a slow release of water during drier times to the downstream GBMWHA. Earlier in this report, however, it was discussed how urban development threatens swamp integrity. A lack of groundwater recharge may

36 lead to swamp drying, and pulses of stormwater runoff may lead to swamp channelisation (amongst other factors that can lead to channelisation, such as improper human use). As described, LEP 2005 contains provisions relating to site coverage and stormwater management geared toward avoiding or minimising impacts on significant ecosystems such as upland swamps. The current SI-LEP template, on the other hand, lacks provisions for site coverage and may generate a drift in standards for stormwater management that allow for swamps to be impacted. The current SI-LEP provisions, therefore, allow for an increased chance of swamp channelisation and drying. A channelised swamp is unable to provide the vital water storage and provision services that may be necessary for the GBMWHA to adapt to a warmer and drier climate. Should climate change bring more severe droughts and drier conditions overall, a loss of upland swamp capacity for water storage and slow release would have downstream impacts on the

• GBMWHA. By failing to protect the hydrology of the GBMWHA through protection of

upland swamp capacity in the urban corridor, the GBMWHA may experience greater drought-related stress and dieback. The current SI-LEP template provisions, therefore, reduce the capacity of upland swamps to serve as crucial water stores within the Blue

• Mountains. Given the important hydrological linkages between upland swamps and the

GBMWHA, a reduction of upland swamp adaptive capacity because of weaker SI-LEP provisions also means a reduction of GBMWHA adaptive capacity, which in turn would ultimately impact on the water supply of the Sydney Basin region.

4.3 Conclusion: policy implications of changes to Blue Mountains LEP provisions

37 Whatever climate change has in store for NSW, land use planning provisions of LEPs are vital components of the adaptive capacity of an LGA’s population and natural

• environment. LEP provisions are relevant for adaptive capacity because they will

determine the extent to which urban development mitigates or exacerbates any climate change impacts. Aware of its unique position as a city within a World Heritage Area, BMCC has developed a suite of provisions within its current LEPs that can effectively regulate the impacts of urban development on the natural environment of the Blue Mountains. As BMCC has been asked to redraft its LEPs in line with the SI-LEP program, this report has illuminated some of the protections that may be lost as a consequence of the redrafting because they are not yet included as part of the SI-LEP template. Loss of these provisions, namely the capacity to protect a schedule of significant vegetation regardless of zoning and provisions for site coverage and stormwater management that promote groundwater recharge and reduce runoff, would reduce the adaptive capacity of natural systems within the urban corridor. Also of concern, however, are the flow-on effects that a reduction in environmental protections at the hands of the SI-LEP in the Blue Mountains would have on the GBMWHA. At the time of the GBMWHA listing, the IUCN expressed great concern over the impacts of the urban corridor bisecting Blue Mountains National Park. This concern was alleviated when the IUCN was made aware of the strong environmental protections afforded by zoning and stormwater runoff provisions. Past literature has shown that managing urban hydrology is important for issues such as siltation of GBMWHA streams (NPWS 2009). This report has added, however, that urban hydrology is intimately connected to GBMWHA hydrology, and that upland swamps in urban areas may have an increasingly important

38 role in GBMWHA adaptive capacity in a changing climate. Through potential impacts on upland swamps, urban development thus has the capacity to interact with climate change for better or worse, despite the GBMWHA consisting entirely of protected areas. Within the World Heritage Convention, UNESCO reserves the right to list a property

• n the List of World Heritage in Danger if it becomes threatened with urban development,

among other serious and specific dangers.9 The report has shown how the adaptive capacity of the GBMWHA is dependent on the strong provisions of LEP 2005 and LEP 1991 that restrict and regulate development within the urban corridor. Should these provisions not be carried over to the SI-LEP and especially if BMCC is pressured by the DPI to accommodate increased levels of development, the adaptive capacity of the GBMWHA will be reduced. While the future impacts of climate change on the GBMWHA are uncertain, the prudent way forward would be to maintain or enhance its adaptive capacity to account for the uncertainty rather than diminish its adaptive capacity by reducing development standards in the urban corridor. Should climate change bring a stressful, hotter, and drier climate to the GBMWHA, any weakening of development controls at the hands of the current SI-LEP would only serve to exacerbate the impacts of such change. Should the local vegetation be unable to adapt, and suffer from collapsed hydrological function upstream, the initial fears of the IUCN regarding the urban corridor may be realised, and open up a debate over whether the GBMWHA belongs on the List of World Heritage in Danger.

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