BT Goldsmith Planning Services Pty Limited v Blacktown City Council

BT Goldsmith Planning Services Pty Limited v Blacktown City Council - [2005] NSWLEC 210 - NSWLEC 2005 case summary — Zoe

[4]

Relevant Legislation

Under s 78A(8)(b) of the EP&A Act a development application must be accompanied by a SIS: … if the application is in respect of development on land that is, or is a part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats.
Under s 4 of the EP&A Act: endangered ecological community means an endangered ecological community within the meaning of the Threatened Species Conservation Act 1995 … threatened species , populations and ecological communities and threatened species , population or ecological communityhave the same meaning as in the Threatened Species Conservation Act 1995…
Under s 4 of the TSC Act: endangered ecological community means an ecological community specified in Part 3 of Schedule 1. endangered species, populations and ecological communities means species, populations and ecological communities specified in Schedule 1 and endangered species, population or ecological community means a species, population or ecological community respectively specified in that Schedule. threatened ecological community means an ecological community specified in Part 3 of Schedule 1 or Part 2 of Schedule 2. threatened species, populations and ecological communities means species, populations and ecological communities specified in Schedules 1 and 2 and threatened species, population or ecological community means a species, population or ecological community specified in either of those Schedules.
The Scientific Committee, established by the TSC Act, made a final determination to list CPW as an endangered ecological community under Pt 3 of Sch 1 of the TSC Act on 13 June 1997. CPW, as described by the Scientific Committee, is the accepted name for the assemblage of plant species that occurs on soils derived from shale on the Cumberland Plain. The Scientific Committee also made a final determination to list "Clearing of native vegetation" as a key threatening process in Sch 3 of the TSC Act on 21 September 2001.
The determination that an assemblage of species is an endangered ecological community is then linked to the development control process under s 78A(8)(b) of the EP&A Act which refers to whether an application is likely to significantly affect a "threatened ecological community". While the Scientific Committee made a final determination to list CPW as an "endangered ecological community", for the purposes of s 78A(8)(b) of the EP&A Act, CPW can relevantly be considered to be a "threatened ecological community" because the definition of "threatened ecological community" includes as a subset any endangered ecological communities specified in Pt 3 of Sch 1 of the TSC Act.
Section 5A of the EP&A Act specifies certain factors that "must be taken into account" in deciding whether the development is likely to have a significant effect on threatened ecological communities such as CPW. Those factors are commonly known as "the eight part test" and are: (a) in the case of a threatened species, whether the life cycle of the species is likely to be disrupted such that a viable local population of the species is likely to be placed at risk of extinction, (b) in the case of an endangered population, whether the life cycle of the species that constitutes the endangered population is likely to be disrupted such that the viability of the population is likely to be significantly compromised, (c) in relation to the regional distribution of the habitat of a threatened species, population or ecological community, whether a significant area of known habitat is to be modified or removed, (d) whether an area of known habitat is likely to become isolated from currently interconnecting or proximate areas of habitat for a threatened species, population or ecological community, (e) whether critical habitat will be affected, (f) whether a threatened species, population or ecological community, or their habitats, are adequately represented in conservation reserves (or other similar protected areas) in the region, (g) whether the development or activity proposed is of a class of development or activity that is recognised as a threatening process, (h) whether any threatened species, population or ecological community is at the limit of its known distribution.
This list is not exclusive. There may be other matters which in the circumstances are appropriate to be taken into account in deciding whether there is likely to be a significant affect on CPW, for example any ameliorative measures proposed as part of the development (Smyth v Nambucca Shire Council (1999) 105 LGERA 65 at 69).
In Timbarra Protection Coalition Inc v Ross Mining NL & Ors (1999) 46 NSWLR 55 Spigelman CJ held at 73 that the decision as to whether a SIS was required in accordance with Div 2 of Pt 6 of the TSC Act was to be construed as a jurisdictional fact (or condition precedent) which the Land and Environment Court had to determine for itself, where the validity of a development application is challenged for the lack of a SIS. Applying Timbarra, in Plumb v Penrith City Council & Anor[2002] NSWLEC 223 Pearlman J also had to determine the question of whether the proposed development was likely to significantly affect CPW and therefore whether a SIS was required.
The parties disagreed as to whether having applied the eight part test under s 5A the development was likely to have a significant effect on CPW.

[5]

Expert Evidence in relation to s 5A of the EP&A Act

A number of reports were provided to the Court by the Court appointed ecological expert, Dr Robertson, and the Applicant's ecological expert, Dr Mills: (i) Ecological Assessment June 2003 prepared by Dr Mills contained in the Statement of Environmental Effects submitted with Development Application No. 03-2975; (ii) Statement of Evidence Concerning Flora and Fauna Issues April 2004 prepared by Dr Robertson; (iii) Statement in Reply April 2004 prepared by Dr Mills; and (iv) Joint Statement April 2004 prepared by Dr Robertson and Dr Mills ("the joint statement").
Dr Robertson and Dr Mills came to the same conclusion in relation to the majority of the factors set out in s 5A of the TSC Act. It was agreed that subsections (a), (b) and (e) are not relevant. The relevant provisions of s 5A of the EP&A Act which apply to this matter are s 5A(c), (d), (f), (g) and (h). In relation to s 5A(d) both Dr Robertson and Dr Mills agreed that the habitat is already isolated from interconnecting or proximate areas of CPW. In relation to s 5A(f) both experts agreed that CPW is not adequately represented in other areas in the region. In relation to s 5A(g) both Dr Robertson and Dr Mills agreed that the vegetation clearing for the proposed subdivision is a threatening process. In relation to s 5A(h) the experts agreed that the CPW is not at the limit of its known distribution at this site.
In relation to s 5A(c) set out above, the principal area of disagreement between the two experts was that in Dr Mills' opinion the land does not contain a significant area of habitat, while Dr Robertson maintains the opposite view, that the site does contain such an area of habitat. In the joint statement Dr Robertson stated that the reasons for his belief that the site does contain a significant area of known habitat are that:

the Cumberland Plain Woodland on the site is "known" to occur, as evidenced by the Urban Bushland Biodiversity Survey (UBBS) of the National Parks and Wildlife Service (now Department of the Environment and Conservation) and in the latest mapping of the Cumberland Plain by the DEC;
the occurrence on the subject site constitutes more than half of a patch of woodland that is large enough to be viable in the long term;
one of the primary reasons for listing of the Cumberland Plain Woodland by the TSC Act and the EPBC Act was that a high proportion of this vegetation type has been cleared in the past, thus threatening the long term viability of the community;
clearance of the subject site also has the potential to indirectly impact and modify the quality of the vegetation of the adjacent reserve by means of edge effects;
the eight part test is a simple threshold test of significance that is intended to determine whether or not a significant impact is likely. Therefore in relation to part (c) the question of whether or not a significant area of known habitat is to be removed or not must be answered irrespective of (and disregarding) whether or not compensatory measures such as replanting are proposed. Overall Dr Robertson held that a SIS is required to accompany the development application for the subject land.

In the joint statement Dr Mills stated that he formed his view that the site does not contain a significant area of known habitat because:

The area of CPW on the subject land covers 3.86 hectares; this is 0.0137 percent of the woodland in all classes mapped by NPWS (2002) on the Cumberland Plain (i.e. 28,175 ha). Having regard to part (c) in the "eight-part test", this woodland could not be regarded as a "significant area of known habitat" for CPW.
The area of woodland involved is only 0.27 percent of the CPW in all classes remaining within Blacktown LGA.
The maps prepared by NPWS (2002) showing the extent of native vegetation on the Cumberland Plain define the woodland on the subject land as "other remnant vegetation"; they could have chosen to class it as "core habitat" or "support for core habitat", but did not. This mapping must be seen as updating anything that the same organisation stated in their 1997 report, so often quoted by Dr Robertson.
Those who have investigated the woodland on this site since 1993 have generally regarded it as moderate to average quality woodland, rather than a site of especially high value site for the conservation of CPW. Inspection of the NPWS (2002) maps indicates that there are numerous patches of woodland of a similar size and quality throughout the Cumberland Plain. Dr Mills therefore concluded that a SIS is not required, primarily because the site is relatively small in size, is isolated and of average quality.

[7]

Extent of CPW on the Cumberland Plain

The Scientific Committee listed CPW as an endangered ecological community on 13 June 1997. The Scientific Committee's Final Determination states that CPW originally occurred throughout the Cumberland Plain but that only 6 per cent of the original extent of the community remained in 1988. The evidence provided to the Court by Dr Robertson, the Court appointed expert, is that 90 per cent of the CPW with an existing understorey has been cleared, placing it at risk of extinction.
The NPWS conducted an aerial photographic survey of CPW across the whole of the Cumberland Plain in 1997 and prepared maps detailing the results of the survey in 2000.
Based on the data compiled by NPWS in 1997 in the Blacktown local government area, there are 10 sites identified as primary remnants of CPW (areas between 40ha and 400ha) and 10 sites identified as secondary remnants of CPW (areas less than 17ha). The largest area of CPW is 400ha in area and is located at Prospect Reservoir approximately one kilometre to the south of the site. The site is classified as a secondary remnant of CPW due to its size.
A further series of maps of CPW were produced by the NPWS in October 2002. Four maps relating to the Cumberland Plain area were presented during the hearing and referred to at length by both experts ("the NPWS 2002 Maps"). Two of the NPWS 2002 Maps contained information in relation to native vegetation present in the Cumberland Plain ("the NPWS 2002 Native Vegetation Maps"): (i) Native Vegetation of the Cumberland Plain, Blacktown LGA, NSW National Parks & Wildlife Service - 1: 25,000 Series Map Series - Map 12 of 16; and (ii) Native Vegetation of the Cumberland Plain, Western Sydney, NSW National Parks & Wildlife Service - 1: 100,000 Series Map Series - Map 16 of 16. Two other maps contained information in relation to the conservation significance of vegetation in the Cumberland Plain ("the NPWS 2002 Conservation Significance Maps): (iii) Conservation Significance of Vegetation of the Cumberland Plain, Blacktown LGA, NSW National Parks & Wildlife Service - 1: 25,000 Series Map Series - Map 12 of 16; (iv) Conservation Significance of Vegetation of the Cumberland Plain, Western Sydney, NSW National Parks & Wildlife Service - 1: 100,000 Series Map Series - Map 16 of 16.
The NPWS 2002 Native Vegetation Maps categorised CPW present on the Cumberland Plain into several distinct categories. Category A, B, C CPW, being areas which contain the necessary assemblage of CPW species at ground level and with a tree canopy of greater than 10 per cent, were represented as solid colours. Category TX, TXR and TUX, being areas with tree canopy cover less than 10 per cent, are shown as hatched on the maps. Category TX and TXR are in rural zones, and Category TUX areas are in urban zones. On the NPWS 2002 Native Vegetation Maps Shale Plains Woodland is identified by yellow shading and Shale Hills Woodland is identified by blue shading. Shale Plains Woodland and Shale Hills Woodland together comprise the more general term, CPW. According to the maps, the Norman Street site is classed as category A, B or C Shale Plains Woodland, as indicated by its solid yellow shading.
According to the NPWS 2002 Native Vegetation Maps, CPW in the A, B and C categories is located on about 11,054ha. A larger area of 28,175ha also includes areas containing the TX, TXR and TUX categories.
One of the difficulties in assessing the evidence in relation to significance is that there is lack of certainty in the NPWS data. The maps produced by NPWS are based on aerial surveillance and, no doubt because such an exercise would be very labour intensive and costly, many sites on the maps have not been checked by NPWS on the ground as to whether they are correctly categorised. Further, while the maps were produced in October 2002 Dr Robertson advised that for much of the eastern Cumberland Plain which includes the Prospect area, no new data has been added since the aerial survey data in 1997. There is some new data in the October 2002 maps in relation to the western part of the Cumberland Plain, presumably in part because large areas are proposed for release for urban use, being now in rural zones.
Both experts agreed that some areas that are solid coloured on the NPWS 2002 Native Vegetation Maps and some that are hatched may not be correctly categorised but it is simply unknown on present data to what extent that may be the case. A further difficulty with the NPWS data is that there is no mechanism that requires the NPWS to be notified when areas of CPW are cleared. According to Dr Robertson it is not possible to determine how much CPW has been cleared since 1997 when CPW was first listed as an endangered ecological community.
The Ecological Assessment June 2003 prepared by Dr Mills contained in the Statement of Environmental Effects lodged with the development application detailed a ground survey conducted by Dr Mills in 1998 in the Blacktown local government area of 18 CPW patches, including the patch of CPW on the Norman Street site. From the ground survey, Dr Mills concluded that the site does not appear to be unique in terms of its vegetation type, the number of native plant species present or area of bushland. The Court is not able to draw any specific conclusions on the extent of CPW in the Blacktown local government area based on this survey and the extent this may vary from the NPWS 2002 Native Vegetation Maps.
Dr Mills also concluded in his earlier report Conservation Assessment Bushland at Norman Street Prospect dated 1998 and prepared for this Applicant that the site was a "relatively small bushland area and one of many in the Western Sydney region, including the Blacktown local government area".

[8]

Evidence on vulnerability

In the course of the hearing the Court asked the following questions of the experts: (a) Out of 11054 hectares (solid colour areas of Category A, B and C CPW on National Parks and Wildlife Service (NPWS) Map 2002) how much is in urban zones? (b) How many small isolated parcels of CPW (solid colour areas) are in urban zones? (c) How many hatched areas (in NPWS Map 2002) are in urban zones? (d) How much hatched and solid colour areas are already developed for urban purposes? (e) Is it possible to provide this information in a table?
Based on NPWS data, Dr Robertson provided the Court with his preliminary observations in relation to these questions in a memorandum dated 28 April 2005, marked MFI 1. Dr Robertson acknowledged that no data was at hand to provide accurate measures of how much of the remaining CPW is in urban zones at present. However, in relation to question (a) he estimated that 40 per cent to 60 percent of CPW would be located within urban zoned areas, urban release areas or areas which are under consideration for urban or other development uses. In relation to question (b) Dr Robertson also stated that, again, while difficult to calculate there was a sizeable number of smaller, scattered patches of CPW located in urban zones. In relation to question (c) Dr Robertson stated that the hatched areas that represent TX areas (with tree canopy cover less than 10 per cent) were widespread in urban zones. Dr Robertson gave evidence that some suburbs, such as Prospect, have broad areas where the canopy cover has been retained in suburban blocks. Dr Robertson stated that there was no accurate data in relation to question (d). Dr Mills agreed that it would be difficult to obtain data in relation to question (d).
In response to Dr Robertson's evidence, the Applicant relied on table 6(a) from the Interpretation Guidelines for the Native Vegetation Maps of the Cumberland Plain, Western Sydney ("NPWS 2002 Native Vegetation Guidelines"). Table 6(a) provides the following information in relation to the extent of CPW by reference to zones across the Cumberland Plain: Sub-total - 9 & 10 Cumberland Plain Woodland (ha) Zones ha Rural 6,034.1 Residential 232.5 Commercial 36.2 Industrial 176.3 National Parks 752.0 Special Uses 1,711.8 Environment Protection 692.6 Open Space 1,122.2 Transport 6.7 Deferred 290.0 TOTAL 11,054.5
The Applicant's counsel argued this table showed that relatively little CPW was in residential zones, being only 232.5ha. Urban zones arguably include residential, commercial, industrial, open space, transport and possibly special uses, depending on what they are. The NPWS 2002 Native Vegetation Guidelines were published in October 2002, however the data contained in the guidelines and table 6(a) are based on an analysis conducted in 1997 and may now possibly be out of date. In oral evidence Dr Mills said that with ground surveying of sites identified in the NPWS 2002 Maps, which are based on aerial data, it is possible that more areas of CPW have also been found. He was not able to quantify the extent to which this has occurred across the region.
As Dr Robertson stated in his analysis the precise amount of CPW in urban zones is unknowable on current data. It is difficult to know therefore whether his estimate in MFI 1 of 40 to 60 per cent of CPW being in urban zones is accurate but his views suggest that CPW is more rather than less vulnerable in terms of the zoning of areas of CPW across the Cumberland Plain.
Dr Robertson also obtained a table of data from Mr Robert Humphries of the Threatened Species Unit of the NPWS that provides data prepared from the NPWS 2002 Native Vegetation Maps of the proportion of Shale Plains Woodland category of CPW (yellow shading on the NPWS 2002 Native Vegetation Maps) that remain in various patch sizes ranging from less than 5ha through to the largest patches throughout the Cumberland Plain. The data provided by Mr Humphries is detailed and contained in exhibit 5. Dr Robertson's preliminary comments in MFI 1 about it were as follows: ● DEC have counted the numbers of patches of Shale Plains Woodland (the form of CPW that is the type that occurs on the Norman Street site) and have counted 6855 patches in total remaining ● DEC counted 434 patches of woodland between 5ha and 10ha in size ● DEC counted 191 patches between 10ha and 25ha ● DEC counted 37 patches between 25ha and 100ha ● DEC counted 3 patches between 100ha and 200ha ● DEC counted 1 patch greater than 200ha It is also notable that the above counts include all classes of vegetation including higher quality patches (types A, B and C which are shown as solid colour on the vegetation maps) and TX (scattered trees which lack an understorey). As such many of the patches, particularly the smaller patches, have already had understorey removed. For example, over 2000 of the patches of CPW patches less than 5ha in size are TX patches. The DEC table shows that 15007ha of Shale Plains Woodland exists, a total which includes TX vegetation. Of this, patches of less than 3ha compromise 7134ha, while patches between 5ha and 10ha comprise 2975ha. Patches that are equal in size to the patch at Norman Street, or smaller than it total 67 percent of the remaining Shale Plains Woodland.
The NPWS did not provide the same data for the Shale Hills Woodland (blue shading on the NPWS 2002 Native Vegetation Maps), the other sub-category of CPW identified by NPWS. This data makes clear that the large majority of Shale Plains Woodland regardless of category is on sites less than 5ha which number 6,189 sites.

[9]

Conservation significance

The NPWS 2002 Conservation Significance Maps identify "core habitat", "support for core" and "other remnant vegetation" for CPW. The Guidelines for the Conservation Significance Assessment of the Native Vegetation of the Cumberland Plain, Western Sydney ("the NPWS 2002 Conservation Significance Guidelines") state that "core habitat" areas comprise areas that constitute the backbone of a viable conservation network across the landscape or areas where the endangered ecological community is at imminent risk of extinction. The NPWS 2002 Conservation Significance Guidelines state more specifically that "core habitat" contains "all remnants of 10ha or more of the mapped vegetation category" and "all remnants of critically endangered communities".
The "support for core" category contains areas which are contiguous to core habitat areas which have canopy cover of less than 10 per cent. The maps identify the CPW on the site as "other remnant vegetation".
The NPWS 2002 Conservation Significance Guidelines state at p 8 in relation to remnant size: Within fragmented environments, remnant size has been found to influence reproduction, survival and persistence of a range of organisms including: birds, (Keast, 1995; Reid 1999; Fore et al 2001), plants (Cunningham 2000; Ross et al 2002); insects (Gibb & Hochuli 2002), mammals (Andren, 1994) and reptiles (Hadden and Westbrooke 1996). Ideal minimum remnant size will vary among life-histories and organisms, but for the purposes of this study it was necessary to identify a minimum size for the highest conservation significance category. There is a paucity of data available to assist in defining this, However, the woodlands of the Cumberland plain support a bird assemblage referred to as 'shale birds' or 'woodland birds' (Hoskin et al 1991; Keast 1995), and there is enough information for the woodland birds to suggest 10 hectares as a useful delineation of the minimum size of the highest conservation significance category for the purposes of this study (Ford et al 2001; Seddon, Briggs & Doyle 2001).

[10]

Section 5A(c) of the EP&A Act

In relation to the application of s 5A(c) of the EP&A Act, the Applicant submitted that the proper approach was found in the decision of Pearlman J in Plumb v Penrith City Council & Anor [2002] NSWLEC 223. In reaching the conclusion that the area to be modified or removed was not significant in relation to the regional distribution, Pearlman J at [44] had regard to the relative size of the known habitat compared to the regional distribution and at [45] to [47] the conservation value of the area in comparison to the regional distribution of the habitat.
In the present matter the area of known habitat to be modified or removed on the site is 3.86ha. The Applicant submitted that on a quantitative assessment it could not be said that the subject land is a significant area in relation to the regional distribution. This was because the site constituted only 0.0349 per cent of the total area of 11,054ha of "prime" CPW, meaning Category A, B or C CPW, or 0.0137 per cent of the 28,175ha of all mapped categories.
The Applicant also submitted that on a qualitative assessment it could not be said that the subject land is a significant area within the meaning of s 5A(c). In making this submission, the Applicant relied on the evidence of Dr Mills who was of the view that the site was degraded, lacked connectivity with other bushland, was not unique and was not a viable patch of CPW in its urban context. Dr Mills' evidence was that any area of bushland less than 10ha in an urban setting could not be rendered viable unless completely fenced off and patrolled regularly. As these measures were not practical this site was not viable.
The Applicant also relied on the NPWS 2002 Conservation Significance Maps that showed that the site was not identified as "Core habitat" or "Support for Core" to argue that the site was not a significant area in relation to the regional distribution.
In its submissions, the Applicant argued that Dr Robertson's application of s 5A(c) was legally flawed. The Applicant argued that the proper approach under s 5A(c) was to analyse the impacts on the regional distribution, not the impacts clearing might have locally on the site and Timbertop Reserve, as Dr Robertson had done. The Applicant submitted that as Dr Robertson had taken a "local" approach to the determination of s 5A(c) and made no quantitative or qualitative assessment of the habitat on the land in relation to the regional distribution of the habitat, his conclusion that the site was "significant" was flawed.

[15]

Relevant objectives and principles

While the requirement to do a SIS arises under the EP&A Act the essential legislative framework underpinning the determination of an endangered ecological community arises under the TSC Act. I consider the objects of both Acts need to be taken into account when considering the legislative scheme concerning SISs. The TSC Act objects are: (a) to conserve biological diversity and promote ecologically sustainable development, and (b) to prevent the extinction and promote the recovery of threatened species, populations and ecological communities, and (c) to protect the critical habitat of those threatened species, populations and ecological communities that are endangered, and (d) to eliminate or manage certain processes that threaten the survival or evolutionary development of threatened species, populations and ecological communities, and (e) to ensure that the impact of any action affecting threatened species, populations and ecological communities is properly assessed, and (f) to encourage the conservation of threatened species, populations and ecological communities by the adoption of measures involving co-operative management.
The definition of ecologically sustainable development ("ESD") adopted under the TSC Act is contained s 6(2) of the Protection of the Environment Administration Act 1991 which states that: … ecologically sustainable development requires the effective integration of economic and environmental considerations in decision-making processes. Ecologically sustainable development can be achieved through the implementation of the following principles and programs: (a) the precautionary principle - namely, that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. In the application of the precautionary principle, public and private decisions should be guided by: (i) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and (ii) an assessment of the risk-weighted consequences of various options, (b) inter-generational equity - namely, that the present generation should ensure that the health, diversity and productivity of the environment are maintained or enhanced for the benefit of future generations, (c) conservation of biological diversity and ecological integrity - namely, that conservation of biological diversity and ecological integrity should be a fundamental consideration, (d) improved valuation, pricing and incentive mechanisms - namely, that environmental factors should be included in the valuation of assets and services…
The EP&A Act objectives now relevantly include principles of ESD in s 5(a)(vii) of the EP&A Act. McClellan J in BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 considered the application of ESD principles under the EP&A Act in deciding whether or not planning approval ought be given for a particular development, a different issue to that before me. He analyses the origins of those ESD principles at [90] - [97] of the judgment, which analysis I adopt. McClellan J concluded that s 79C of the EP&A Act requires the decision-maker to have regard to the principles of ESD where relevant issues arise, including the precautionary principle where there is a lack of scientific certainty (at [110]).
The Council relied on the objects of the TSC Act in its arguments and I consider these do warrant consideration in the context of this case in addition to the objectives of the EP&A Act. These objectives and the relevant principles of ESD need to be kept in mind when considering issues such as whether a SIS is required. The preparation of a SIS is an important requirement in relation to the assessment of the impact of clearing on CPW. The objects of the TSC Act are directed, inter alia, to the conservation of endangered ecological communities and to ensuring that the impact of any action affecting these is properly assessed. The principles of ESD are set out above and in this context (a) the precautionary principle and (c) the conservation of biological diversity and ecological integrity are particularly pertinent.

[16]

Applying s 78A(8)(b) and s 5A generally

The Court must determine for itself as a jurisdictional fact whether an SIS is required. While it is assisted by the evidence of the respective experts and the submissions of the parties it is ultimately a matter about which it must form its own view.
In Plumb the applicant challenged the validity of a development consent granted by the council on the basis that the development application was likely to significantly affect CPW and should have been accompanied by a SIS. I adopt what Pearlman J stated in relation to "likely" and "significant" at [22] as follows: The jurisdictional fact calls for a determination of "likely" and "significant". In referring to s 77(3)(d1) (the predecessor of s 78A(8)(b)) in Oshlack v Richmond River Council (1993) 82 LGERA 222, Stein J (as he then was) made the following statement at p 233 (omitting citations): A body of law has developed in relation to the interpretation of Pt 5 of the Act and the meaning of "likely" and "significantly" … In the context of Pt 5 "likely" has been held to mean a "real chance or possibility" and "significantly" to mean "important", "notable", "weighty" or "more than ordinary": … I see no reason why these constructions should not be imported into the similarly worded provisions of ss4A, 77(3)(d1) and 90(1)(c2). The same statute is involved and similar approaches are dictated … I agree, with respect, with that proposition and I approach the Court's task accordingly. … And, as I have pointed out in par 19, the jurisdictional fact relates to the instigation of the statutory decision-making process. It underpins the making a valid development application, and therefore triggers the whole assessment process generally. It also triggers the need for concurrence of the Director-General, and a requirement for public notice of the development application hinges upon the relevant inquiry. These matters support a conclusion that the time for determination of likely significant affect is when the development application is made (cf Helman v Byron Shire Council and Anor (1995) 87 LGERA 349 at 358 - 360).
In relation to the application of the eight part test Pearlman J noted at [37] that the application of the eight part test mandated by s 5A is only part of the inquiry of whether there is likely to be a significant effect on threatened species, and further at [38] that it is not simply any likely effect which will require an affirmative answer to the inquiry - it must be significant. This was relied on by the Applicants to argue that the legislation cannot intend that every proposal to clear CPW triggers the requirement to do a SIS. That of course must be correct given the wording of the legislation.
In terms of assessing the likelihood of significance under s 5A the experts have agreed that CPW is not adequately represented in other areas in the region (s 5A(f)) and that clearing is a key threatening process (s 5A(g)). They also agree it is isolated (s 5A(d)) although I note it is mapped as adjoining TUX category land, meaning there are some remnant CPW tree species in the adjoining residential area.

[17]

Applying s 5A(c) of the EP&A Act

In relation to s 5A(c) of the EP&A Act, Pearlman J found in Plumb at [44] that the removal of up to 7ha of CPW would be insignificant compared to the size of CPW areas across the region. Her Honour took into account the relatively tiny size of the CPW on the subject site compared to the area of CPW that remains on the Cumberland Plain. The evidence apparently suggested this amount was 26,724ha and the 7ha at issue represented only 0.026 per cent of the area of CPW. There does not appear to have been any differentiation in the evidence between the A, B or C categories of intact CPW and the larger areas of remnant trees identified as TS, TXR and TUX. Pearlman J also took into account the conservation value of the area (or lack of in that case), including the diversity of CPW species in the area and the ability of the area to regenerate. As acknowledged in the judgment, there is not a closed list of matters to consider under s 5A(c). In relation to s 5A(c) in this case, I consider conservation values and scarcity, regional patterns of distribution, mobility/connectivity with other areas of CPW and vulnerability of CPW are all relevant matters to consider.
Dr Mills' approach to s 5A(c) of the EP&A Act involved both a quantitative and a qualitative analysis of the conservation value of the known habitat to be removed. Dr Mills' quantitative analysis identified the very small percentage of the area of known habitat to be removed compared to the total area of CPW. Dr Mills' qualitative analysis involved a determination of whether the known habitat was core CPW habitat and whether the site was of any significant or special quality. Dr Mills concluded that in relation to the regional distribution of the habitat, the site was not a significant area because the clearing of a relatively small, isolated patch of CPW that is of moderate to poor quality is not likely to significantly affect CPW in the region.
Dr Robertson's approach to s 5A(c) of the EP&A Act involved only a qualitative analysis of the conservation value of the known habitat to be removed. Dr Robertson concluded that the known habitat was a significant area because it constituted a viable patch of CPW, and clearing of the CPW on the site would impact on the quality of CPW on surrounding areas of CPW. In his report, Dr Robertson also concluded that the site had significance because it contributed significantly to regional and local biodiversity. Apart from this observation Dr Robertson did not, however, appear to discuss the significance of the site in relation to the regional distribution of the habitat. The Applicant's counsel criticised Dr Robertson for determining "significance" without regard to its regional distribution as required by s 5A(c), which criticism has some validity. I do not consider his evidence is without weight, however, particularly in relation to the conservation significance of the site.
Neither of the approaches of the two ecological experts were correct in the Court's view in applying the test in s 5A(c), although Dr Robertson's evidence was clearly more cognisant of the intent of the TSC Act and its objectives than that of Dr Mills.
Section 5A(c) does refer to "regional distribution". Section 4 of the TSC Act defines a "region" as: Region means, for the purposes of the provision in which it is used, a bioregion defined in a national system of bioregionalisation that is determined (by the Director-General under subsection (4)) to be appropriate for those purposes. If the bioregion occurs partly within and partly outside New South Wales, the region consists only of so much of the bioregion as occurs within New South Wales.
Both Dr Mills and Dr Robertson identify the Sydney bioregion as the correct bioregion to consider in this instance (see par 13 of Dr Mills' Statement in Reply at Exhibit G). Whilst the Sydney bioregion generally extends from the Illawarra in the south to the Hunter region in the north, both Dr Mills and Dr Robertson agree that this region is larger than that on which the CPW is found, namely the Cumberland Plain. For practical purposes, the region in which to assess the distribution of CPW is the Cumberland Plain.

[18]

(i) A precautionary approach?

The evidence on the extent of CPW and its conservation value in the Cumberland Plain is not exact and it is therefore difficult to understand precisely the current situation of CPW across the region in undertaking the assessment of likely significance under s 5A(c) of the EP&A Act. I have set out in brief the NPWS reports and relevant maps at par 19 - 39 above as I consider this information is the bare minimum needed in order to make the assessment I am required to make. Further and more up to date data from NPWS or elsewhere is ideally needed if the current position of CPW in the regional context is to be accurately understood.
One of the ESD principles to which the EP&A Act and the TSC Act objectives refer is the precautionary principle. In Leatch v National Parks and Wildlife Service & Anor (1993) 81 LGERA 270 Stein J said of the precautionary principle at 282: [it] has already been applied by decision-makers in appropriate circumstances prior to the principle being spelt out. It is directed towards the prevention of serious or irreversible harm to the environment in situations of scientific uncertainty. Its premise is that where uncertainty or ignorance exists concerning the nature or scope of environmental harm (whether this follows from policies, decisions or activities), decision-makers should be cautious. Leatch concerned a challenge to the grant of a license to take or kill endangered fauna.
In BGP Properties McClellan J considered the major judgments of this Court which have considered the precautionary principle. Most cases concerned whether development consent ought be granted taking into account factors under s 79C (or its predecessor s 90) of the EP&A Act. In BGP Properties McClellan J stated at [113] - [114] that: In my opinion, by requiring a consent authority (including the Court) to have regard to the public interest, s 79(C)(e) [sic] of the EP&A Act obliges the decision-maker to have regard to the principles of ecologically sustainable development in cases where issues relevant to those principles arise. This will have the consequence that, amongst other matters, consideration must be given to matters of inter-generational equity, conservation of biological diversity and ecological integrity. Furthermore, where there is a lack of scientific certainty, the precautionary principle must be utilised. As Stein J said in Leatch , this will mean that the decision-maker must approach the matter with caution but will also require the decision-maker to avoid, where practicable, serious or irreversible damage to the environment.
Should the precautionary principle apply here where no final decision is being made as to whether development consent ought be granted but rather a step in the assessment process is being considered, namely whether a SIS is required? Observations in Conservation Council of South Australia v Development Assessment Committee and Tuna Boat Owners Association (No 2) [1999] SAERDC 86 are particularly pertinent to consider in this context. The Environmental Resources and Development Court of South Australia was considering the application of the precautionary principle in relation to whether tuna farms should be established in Spencer Gulf. At [20] - [25] the Court considered the development of the precautionary principle in what I consider to be a useful analysis, also set out in BGP Properties. At [22], the judgment states: There would appear to be general agreement amongst the authors of articles on the precautionary principle that it was developed in response to the recognition, based upon observation, that the environment could not assimilate all the consequences of activities impacting upon it. Implicit in this recognition is an acknowledgment that science and the scientific method have limitations. Because of the limitations, it is unlikely that the full consequences of the impact of a particular act or activity upon the environment can be known in advance. The scientific process involves deriving knowledge from the testing of a hypothesis. A number of biases have been identified in the process, giving rise to comments such as 'the normal process of scientific reasoning is not as logically water-tight as one might imagine' (Fisk, David Environmental Science and Environmental Law 10 J Env.L 3 (1998). The scientific method does not necessarily give the quality of certainty to the opinion or assessment of a scientist. Indeed, one writer has suggested that a scientific opinion might be best evaluated for reliability by testing it against seven types of uncertainty he identified as being likely to be found in any scientific assessment or opinion, namely conceptual uncertainty, measurement uncertainty, sampling uncertainty, mathematical modelling uncertainty, causal uncertainty, testing uncertainty and communicative and cognitive uncertainty (P.Brad Limpert, Beyond the Rule in Mohan: A New Model for Assessing the Reliability of Scientific Evidence 54 Univ Toronto L Rev. (1998)). Thus, the inherent uncertainty or bias in the scientific method combined with (generally speaking) a perennial lack of resources and a consequential lack of data to assist scientists, leads inevitably to the conclusion that there is likely to be an incomplete understanding of the full extent of the environmental impacts of any particular act or activity proposed. That prospect, supported by empirical observations gathered world-wide, led to the development of the precautionary principle as a commonsense approach to avoid or minimise serious or irreversible harm to the environment.
It is clear that the precautionary principles can have wide application. In Murrumbidgee Ground-Water Preservation Association v Minister for Natural Resources[2004] NSWLEC 122 McClellan J stated at [178] that statutory recognition of the precautionary principle has made it: … a central element in the decision making process and cannot be confined. It is not merely a political aspiration but must be applied when decisions are being made under the Water Management Act and any other Act which adopts the principles. In Murrumbidgee McClellan J held at [186] that the Minister was required to be informed by the precautionary principle when deciding to make a water management plan. I consider the application of the precautionary principle is not merely confined to the final decision as to whether development consent, a license or approval ought be granted. Rather, decision-makers must consider the precautionary principle whenever decisions are being made under an Act that adopts the precautionary principle as is the case here.
In this matter there is uncertainty in the data provided by NPWS given it is likely to be out of date, having been collected in 1997, and it is not presently known how much CPW has been cleared or how much has been "found" since 1997. There are differences of view between Dr Robertson and Dr Mills as to whether more or less CPW exists than when the data was collected in 1997. CPW is an endangered ecological community due to the relatively small amount left on the Cumberland Plain. A precautionary approach to the consideration of factors relevant to determine the likelihood of significant impact is warranted.

[19]

(ii) Conservation values/scarcity of "prime" CPW

It is highly relevant to consider the conservation value of the site and linked to this issue is the scarcity of "prime" CPW. The evidence before me suggests that there is relatively little "prime" CPW, meaning category A, B or C CPW, remaining in the Cumberland Plain given that only 11,054ha is so identified, based on data which could well be out of date. According to the table of data from Mr Robert Humphries of the Threatened Species Unit of the NPWS, 6,745ha of "prime" Shale Plains Woodland remains in fragmented patches. As Dr Robertson observed, the table of data from Mr Robert Humphries of the Threatened Species Unit of the NPWS at par 35 above shows that 15,007ha of Shale Plain Woodland exist, including TX vegetation. Patches of less than 3ha amount to 7134ha. Patches between 5ha and 10ha comprise 2,975ha. Sixty-seven per cent of remaining Shale Plains Woodland is in sites of equal or less area than the Norman Street site.
While parts of the site are degraded, as identified above at par 4 above, there has been no suggestion made by either expert that it does not fall into the category A, B or C CPW presently allocated to it by NPWS. This suggests that the land does have conservation value sufficient to suggest that, given its size, clearing it will impact on a significant area of known habitat, in my view. I do not agree with the Applicant's submissions based on Dr Mills' evidence that the CPW on the site has to have some special significance over and above being identified as being characteristic CPW, such as having a rare assemblage of plants, as necessary to justify a finding that it has significant conservation value. Given that it is identified by the NPWS as in the A, B or C category of CPW and therefore within the 11,054ha of CPW (or 6,745.30ha of Shale Plains Woodland) where all relevant parts of the assemblage are present, I consider that alone renders it of marked conservation value.
If Dr Mills' approach that because it is not of special quality and is partly degraded so that it is not of high quality conservation value is taken, I surmise that many of the fragmented areas of CPW which are identified as being in the A, B or C category would be regarded as having little conservation value if partially degraded, despite CPW having been declared as an endangered ecological community and there being relatively little of it left. Given the lack of recent data for the eastern Cumberland Plain where the NPWS data was collected by aerial photographic survey of CPW in 1997, this figure is no longer likely to be correct. It is apparently unknown how much has been cleared or how much has been discovered since 1997.
Further, if Dr Mills' approach of applying the NPWS criteria for conservation of "core significance habitat" (see par 37 - 39 above), which uses 10ha as the relevant cut off, is adopted as a fixed approach to classifying areas of CPW areas this would automatically render the majority of CPW "fragments" as not significant from a conservation value perspective. This would not be a desirable outcome given the framework of the legislation and the highly fragmented state of CPW. The Court did not have the benefit of evidence from NPWS officers about the extent, if at all, its maps and explanatory guidelines were intended to be used in the exercise before me. If the definition of "core habitat" areas of 10ha or more is applied, as Dr Mills argued, as the test of whether an area has sufficient conservation value to be significant, many of the existing smaller areas of CPW not contiguous with another area of CPW will fail to meet such a test. I simply do not know how many such sites there are but consider it is likely to be a considerable number given the fragmented nature of CPW sites.
I would need a far more definitive statement from the NPWS about whether such an approach based on their data was scientifically justifiable before adopting such a "rule of thumb". As is clear from the extract above at par 39 there is a lack of data about what is an appropriate remnant size. Further, the extract suggests that the 10ha has been chosen in relation to habitat preservation for woodland birds, rather than the CPW itself.

[21]

(iv) Quantitative approach

The Applicant relied heavily on a quantitative approach, relying on the reasoning in Plumb, meaning that the percentage to be cut down is so small given the remaining 28,175ha, 0.0137 per cent of CPW or, if revised to 11,054ha, 0.0349 per cent of "prime" CPW in the Cumberland Plain, that this area simply cannot be significant. This approach was said to be supported by the wording of s 5A(c) which refers to a significant area of known habitat is to be modified or removed. The Applicant argued that this meant a reference to the size of the area. I do not consider in the context of the TSC Act and its objectives that such an approach to "significant area" is appropriate given the other factors I have taken into account in this case.
Given that a high proportion of the remaining CPW identified by the NPWS 2002 Maps is in fragmented patches of varying degrees of quality, this approach in the context of threatened species conservation legislation is not helpful in achieving the objectives of the TSC Act. The understanding of the highly fragmented distribution of CPW gained from viewing the NPWS 2002 Maps is reinforced by data supplied by the Threatened Species Unit of the NPWS as summarised by Dr Robertson at par 35 above in relation to Shale Plains Woodland. Apart from determining that an area is small, medium or large, whether it is a tiny fraction of the remaining CPW does not appear to progress the conservation objectives of the TSC Act at all if the conservation value of the area is high. Most patches of CPW inevitably will be a tiny fraction of the regional whole. Well over half are likely to be 7ha or less applying the table obtained by Dr Robertson from the Threatened Species Unit of the NPWS concerning Shale Plains Woodland. This site together with Timbertop Reserve is arguably of reasonably large size when viewed on a regional distribution basis of CPW areas.
Given the circumstances of this case I do not intend to apply the quantitative approach taken by Dr Mills and the Applicant.

[26]

Cumulative impact

The list of matters in s 5A which I must take into account when considering s 78A(8)(b) of the EP&A Act is not exhaustive. One matter not specifically identified in s 5A raised with the parties by the Court is the extent to which the cumulative impact of clearing of CPW can be taken into account in determining whether there is likely to be a significant effect on the CPW resulting from a single clearing event at one site. The Applicant argued that the wording of s 78A(8)(b) means that the decision as to whether an event is significant can only be made in relation to the single event before me and that cumulative impact cannot be taken into account. While not adopting the argument that cumulative impact is relevant, the Council's counsel argued that the objects of the TSC Act clearly suggest that such an issue could be relevant.
The difficulty with assessing cumulative impact is often that no single event, be it clearing or another threatening process, can be said to have such a significant impact that it will irretrievably or significantly harm a particular habitat or endangered ecological community. In the case of CPW, which is now highly fragmented, it is the cumulative impact of clearing which has caused it to be listed as an endangered ecological community. The Applicant's counsel argued that legislative action was necessary if cumulative impact was to be assessed under s 5A as this involved a policy change which required legislative amendment to implement. I reject that submission as I consider the broad discretion I have under s 78A(8)(b) of the EP&A Act in light of the objects of the TSC Act does mean that taking into account cumulative impact is a relevant matter. By rejecting the quantitative approach as I have done above in par 80 - 82 above I have essentially dealt with one important aspect of a cumulative impact assessment. Arguing that a single site is a tiny percentage of what remains is really an argument which fails to acknowledge cumulative impacts.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (28 paragraphs)

Parties

Cases Cited (9)