Carriage v Stockland Development Pty Limited & Ors

Carriage v Stockland Development Pty Limited & Ors - [2005] NSWLEC 272 - NSWLEC 2005 case summary — Zoe

[12]

13 The Applicant therefore alleged that by carrying out fill works on the area of Lot 235 zoned Residential 2(b) that: (i) The First Respondent's contractors picked and/or harmed SCESFC contrary to s 118A(2); and (ii) By placing fill on the area of Lot 235 zoned Residential 2(b) that the First Respondent's contractors are causing damage to SCESFC contrary to s 118D(1) by a key threatening process, being the alteration of the natural flow regime. (i) Picking or damage of the SCESFC on Lot 235 Applicant's Submissions 14 The Applicant argued that the SCESFC had been "picked" or "harmed" by the First Respondent contrary to the NPW Act and that this was not authorised by the Stages 2-6 Consent. The Applicant relied on the affidavits of Mr Robert Miller: (a) dated 6 November 2002, which stated at par 4 that: " On 20th May 2002, I inspected the area known as [Lot 235]. I observed [that] … the area had been slashed impacting upon significance [sic] vegetation forming part " of the SCESFC; and (b) dated 12 February 2003, which stated at par 3 that: " On 2 February 2003 I viewed the video taken by Mr Tony Stephenson on 5 July 2002 which illustrates work being undertaken that has resulted in the removal of the last remnants of the [SCESFC] "; as evidence that the SCESFC had been "picked" or "harmed". 15 The Applicant also relied on the affidavit evidence of his surveyor, Mr David Tanner, dated 8 February 2004 which stated that works had been carried out outside the "Connell Wagner line" and in the riparian buffer zone. It was also argued that the plans prepared by Mr Tanner purport to show that the roadworks have extended to the north of the Connell Wagner line and into the SCESFC by more than 1m further along the boundary road away from the area of Lot 235 zoned Residential 2(b). The Applicant's agent made submissions to the effect that the road works carried out in this area of the riparian buffer included the placement of fill and rock matter, the planting of weed species, the placement of bark mulch and the spraying of a herbicide.

[17]

Accordingly, "pick" is defined for the purpose of s 118A of the NPW Act . 20 In the Points of Claim the Applicant alleges both "picking" and/or "harm" to the SCESFC under s 118A(2) of the NPW Act. It should be noted that while the Applicant referred to "harm" to the SCESFC in his Points of Claim, the term "harm" is only referred to in s 118A(1) in reference to animals and s 118A(1) was not included in the Applicant's pleadings. Section 118A(2) refers only to the "picking" of plants, although quite obviously "picking" could equate to "harming" plants. It is not necessary that I make a separate finding in relation to "harm" under s 118A(2) given the clear reliance in the Applicant's arguments and evidence on "picking". 21 I agree with the Respondents that the Applicant has not established where the "slashing" of the SCESFC which was seen by Mr Miller occurred. Accordingly, the evidence of Mr Hedge that no SCESFC was picked or harmed within the area of Lot 235 west below the riparian boundary must stand. Further, the evidence of the surveyor Mr Tanner is consistent with the fill being within the area of Lot 235 that is zoned Residential 2(b), and not within the riparian or SCESFC zones as defined in the Connell Wagner plan boundaries. Therefore, I consider that the evidence relied on by the Applicant does not establish that there has been picking of the SCESFC in the area of Lot 235 zoned Residential 2(b) where the fill has been placed and, accordingly, the Applicant has not proved that the First Respondent has acted in breach of s 118A(2) of the NPW Act. 22 I note for completeness given the Applicant's argument in par 15 above that Mr Tanner identified on Sheet 2 on Plan 754 contained in Annexure D of his affidavit dated 8 February 2004, work along the road bordering Lot 235 beyond the area of Lot 235 zoned Residential 2(b) which he said was carried out beyond the Connell Wagner line. This area is not in the area where fill has been placed and not the area to which my orders concerning invalidity of the construction certificates relate. I am not clear on the legal basis on which the Applicant can press any claim in relation to this work assuming that this evidence is correct. I make no finding on this evidence nor draw any conclusion on the legal basis of any claim in relation to this area. (ii) Damage to the SCESFC Caused by the Hydrological Impacts of the fill placed on Lot 235 Applicant's Submissions 23 The Applicant argued that the placement of fill on Lot 235 by the First Respondent is causing damage to the SCESFC because there is an alteration to the flow regime in Tramway Creek. "Alteration to the natural flow regimes of rivers and streams and their floodplains and wetlands" is a key threatening process listed under Sch 3 of the TSC Act. In this regard I note that the Applicant's written submissions traversed matters not covered by the Points of Claim concerning the First Respondent's activities beyond the fill area on Lot 235. I do not intend to deal with these issues in this judgment.

[19]

Preliminary determinations of law 25 It is necessary to make some preliminary determinations on the following legal issues raised by the Applicant's submissions before considering the evidence relied on by the parties to support those submissions. (i) Eight Part Test Assessment 26 The Applicant's written submissions state that: … there was no consideration of the impact of the key threatening process in carrying out the work on Lot 235 in the development consent process. Without such consideration the First Respondent has predisposed an Endangered Ecological Community to damage, as well as, picked or caused damage to an Endangered Ecological Community contrary to ss 118A(2) and/or 118D(1) of the National Parks and Wildlife Act 1974. 27 The Applicant argued that an eight-part test should have been conducted pursuant to s 5A of the Environmental Planning and Assessment Act 1979 ("the EP&A Act) before the filling activity took place because of the likely impact of this activity on the SCESFC as an ecological community. Section 5A of the EP&A Act provides that eight specified matters must be taken into account in deciding under s 79C(1) of the EP&A Act whether the proposal is likely to have a significant effect on threatened species, populations or ecological communities, or their habitats. This process is known as the "eight part test". 28 The requirement for an eight part test is essentially a separate legal issue under the EP&A Act to that raised by the Applicant's pleadings here, namely, whether or not the hydrological impacts resulting from the placement of fill on Lot 235 will result in damage being caused to an endangered ecological community under s 118D(1) of the NPW Act. The fact that there has been no such assessment does not, however, necessarily predispose the SCESFC or its habitat to damage or provide evidence that such damage will result from the carrying out of the development. All that can be said is that any impact has not been assessed. This argument is not therefore directly relevant to the Applicant's case on s 118D(1).

[26]

40 Accordingly, s 118D(1) can relate to processes such as alteration of the natural flow of the creek taking place now, caused by the actions or omissions of the First Respondent, which will cause damage to the habitat of the SCESFC in the future. The Applicant bears the onus of proving, on the balance of probabilities in civil enforcement proceedings such as these, that damage will occur in the future as a result of the fill on Lot 235 which will alter the hydrology in and around Tramway Creek in such a way that the SCESFC is damaged. Proving to the requisite standard that damage will occur in the future to the SCESFC as a result of the fill placed on Lot 235 is likely to be difficult, given the inherent uncertainty in predicting the future. (iv) Change Does Not Equate To Damage 41 A further hurdle for the Applicant's case is that s 118D(1) requires the Applicant to prove that "damage" is or will be caused to the SCESFC, as opposed to proving that change in the SCESFC will result. Change alone is not automatically "damage". As I held at par 37 above, "damage" in the context of s 118D(1) of the NPW Act must be shown to have resulted from change to the habitat of the SCESFC such that the habitat will suffer a "loss or detriment caused by hurt or injury affecting estate, condition or circumstances". Accordingly, assuming there is evidence of change in the natural flow, an issue disputed by the First Respondent, change in the natural flow alone may not be sufficient to demonstrate there will be damage to the habitat of the SCESFC. The Evidence 42 Given these conclusions and observations it is necessary to review the expert evidence adduced by the parties to see if the Applicant has established on the balance of probabilities that damage is or will be caused to the SCESFC by the fill placed on Lot 235. 43 The Applicant relied on the evidence of Dr Terry Lustig, an expert hydrologist, and Dr Paul Adam, an expert plant ecologist, to argue that the placement of fill on Lot 235 will result in changes to groundwater level on the land in future and that these changes will cause damage to the SCESFC. Dr Lustig's written evidence is contained in four affidavits dated 15 December 2003, 29 March 2004, 1 April 2004 and 5 April 2004. Dr Lustig also gave further oral evidence. Dr Adam's written evidence is contained in an affidavit dated 26 November 2003. 44 The First Respondent relied on the affidavit dated 17 March 2004 of Dr Noel Merrick, an expert hydrogeologist and geophysicist, and Mr Geoffrey Sainty, an expert wetland scientist, to support its argument that no damage is or would be caused to the SCESFC in the future as a result of the fill placed on Lot 235. Mr Sainty's evidence is contained in an affidavit dated 18 March 2004. Both experts also gave oral evidence and were cross-examined at length by the Applicant's agent, Mr Oshlack.

[27]

Dr Lustig 45 Dr Lustig's evidence, as contained in his first affidavit dated 15 December 2003, is that the fill placed on Lot 235 will: (a) increase the depth at which the water table is located; and (b) increase the groundwater velocity because of steeper gradients; resulting in a decrease in the frequency of times the water table rises up to reach the zone in which the generally shallow rooted plant species which form the SCESFC are located. Dr Lustig states in relation to the fill at par 24 of his affidavit dated 15 December 2003 that: As far as I could tell, the ground near the Creek has been raised by as much as 2 metres. In some areas further south and still within the SCESFC area, the fill may be as much as 2.5 metres, according to Drawing No SK02 in Robinson GRC (2003). This fill would change the depth to groundwater such that it would be beyond the normal range for most, if not all species comprising the SCESFC. In some sections, the ground appears to have flatter slopes than what was on the site before, and this will improve infiltration. In other areas, the slope may now be steeper, and this will reduce infiltration. In order that Council might give informed consent, it would be necessary for it to have an assessment of the changes to infiltration. I do not know if such an assessment has been provided. 46 Dr Lustig's view is that small changes in groundwater can have significant effects on the SCESFC ecosystem along Tramway Creek. Changes in the median groundwater profile will have adverse impacts on the plants forming the SCESFC if these changes result in a profile which is lower than the depth of the roots of the shallowest plant species of the SCESFC. Dr Lustig's evidence is that changes of more than 0.2m could result in adverse impacts and even smaller fluctuations may have serious effects. 47 At the time of preparing his first affidavit Dr Lustig did not have access to a report of Dr Merrick dated November 2001 prepared as part of the development consent process. This report is entitled "Preliminary Hydrogeological Assessment of the Proposed Sandon Point Re-Development" ("the Hydrogeology Report") and is attached to Dr Merrick's affidavit. When he did have this following receipt of Dr Merrick's affidavit dated 17 March 2004 he was critical of Dr Merrick's methodology in that report in his later affidavit of 29 March 2004. Dr Adam 48 The Applicant also relied on the evidence of Dr Adam, who states at par 13 to15 of his affidavit that: Activities already carried out during site development, including placing of fill on the flood plain, have the potential to alter flows. Alteration of flow regimes could have continuing impacts leading to alteration and degradation of the SCESFC. … In my opinion prior to emplacing any fill in the floodplain, or conducting any other activity with the potential to alter flow regimes, the impacts on SCESFC should be considered. …

[32]

Dr Lustig's criticisms of Dr Merrick 56 Dr Lustig is critical of the conclusion reached by Dr Merrick that there would be a negligible impact on the SCESFC as a result of the fill as this conclusion is based on the theoretical modelling in the Hydrogeology Report. Dr Lustig considers this model to be inadequate because it is essentially a desktop model, using data from only two transects AA and BB across the development site and provides only preliminary results. Neither transect was across Lot 235. The Hydrogeology Report stated that further assessment would be needed to determine the groundwater regime and that this should be based on data collected weekly from at least eight piezometers over a reasonable period, particularly after storm events and during periods of short-term high flow in Tramway Creek. Dr Lustig considers that this analysis is necessary in order to determine the mean water table level. The oral evidence of Dr Merrick is that the eight piezometers were installed on site in order to carry out the further assessment suggested by the Hydrogeology Report but when Dr Merrick returned to collect the data from these piezometers all but two were damaged or destroyed and therefore unusable. Accordingly the necessary data to confirm and verify the model's predictions was not obtained. 57 Further criticisms relate to Dr Merrick's finding that the groundwater level at the creek at the transect A-A appeared to be lower than the water level in the creek bed, a circumstance Dr Merrick has not found to exist anywhere else. In his third affidavit dated 5 April 2004 Dr Lustig criticises a conclusion drawn by Dr Merrick from his modelling that the groundwater table at transect A-A is lower than the creek bed by about 1.5m. Transect B-B showed the groundwater level was at the same level as the water in the creek, a more likely scenario. Dr Merrick claimed that his model represented long-term average groundwater profiles, yet he had not checked rainfall for a relevant period before the two visits made to the site to take measurement which, Dr Merrick argued, could affect the groundwater levels. In cross-examination he agreed that the long-term average profile should be higher than were shown in his modelling. Further criticism was also made of Dr Merrick's consideration of evapotranspiration and the impact this would have on the groundwater levels. 58 Dr Merrick's own evidence in relation to the impacts of urbanisation underestimated that impact. Taking into account the underestimate of the level of the mean groundwater profile, and the higher coverage of the whole of the subdivision area with hard surfaces, the impact of the development would be significantly greater than forecast.

[33]

Mr Sainty 59 The evidence of Mr Sainty, wetland scientist, was that the SCESFC on the land is currently badly degraded and is overrun with weeds due to the impacts of unconstrained European settlement in some of its catchment, the construction of a railway line in the 1800s through the land, the coke ovens, the tramway located on the land and general neglect. The SCESFC on the First Respondent's land was in its badly degraded state before any development commenced. He concluded that the SCESFC on the southern side of Tramway Creek where Lot 235 is located has lost most of its diversity as a result. To that end, condition 113 of the Stages 2-6 Consent required the preparation of a Vegetation Management Plan for the restoration of the SCESFC from its current degraded state. Mr Sainty prepared the required Vegetation Management Plan dated November 2001 on the conservation and restoration of the SCESFC as required by condition 113. 60 Condition 113 of the development consent states that: Vegetation management is considered key to maintaining stream bed and bank stability and is integral to restoration, protection and/or enhancement of the ecological integrity of the riparian zone. To ensure stream bed and bank stability and an environmentally sustainable outcome, a vegetation management plan must be submitted to DLAWC with the Part 3A permit application. The vegetation management plan must: (a) aim to restore, protect and enhance the Endangered Ecological community listed under the Schedules of the Threatened Species Conservation Act, 1995, known as the Sydney Coastal Estuary Swamp Forest Complex (SCESFC) (b) be prepared in accordance with the Department's guidelines on How to Prepare a Vegetation Management Plan (attached) (c) utilise species inherent to the vegetation units that comprise the assemblage known as the SCESFC, these being, reedland, Eucalyptus robusta forest and Melaleuca stypheloides Scrubland (d) protect and enhance remnant areas of the SCESFC and its component vegetation units (e) build upon the concepts and conceptual landscape cross-sections as described in the Sandon point Flora and Fauna Assessment, Section 6.1 and Figures 6.1a, b, c (f) be prepared by a person or persons with experience and knowledge of bush regeneration and establishment and maintenance of native vegetation 61 According to Mr Sainty the Vegetation Management Plan describes the method for major replanting of the SCESFC in Tramway Creek. He states in his affidavit sworn 18 March 2004 at par 17: The Vegetation Management Plan describes the method for major replanting of the Tramway Creek SCESFC. It focuses on the conservation of existing species especially Swamp Mahogany and Bracken Fern (west near railway), and Blady Grass in many patches, some covering 100 sq metres, downstream. In the Plan emphasis was given to conserving Isachne globosa and Phragmites australis especially where these species extend up the riparian slope. However, where these species do not grow the dominant replant will be deep-rooted SCESFC trees and shrubs. 62 Mr Sainty relies on the evidence of Dr Merrick that while there will be long term changes to the groundwater, the depth of the groundwater in the SCESFC zone will not "shrink beyond its normal zone of fluctuation" in drawing conclusions on the impact of the fill on the SCESFC. Mr Sainty states at par 24 of his affidavit that: The changed groundwater regime may diminish the potential for shallow rooted SCESFC species to grow upslope, but not reduce the growth near the waters edge [at Tramway Creek]. However, Dr Merrick notes at paragraph 23 of his affidavit that a seepage face will occur at about 30 metres upslope from the southern creek bank and this will, based on the width of the riparian [zone] which includes most of the SCESFC, have a high water table under it. 63 In re-examination Mr Sainty stated the fill placed on Lot 235 would not affect the conservation significance of the vegetation on Lot 235. It was his view that if changes in water levels take place there may be a change in the mixture of plants with the more robust of the SCESFC species taking the place of the less robust, but the vegetation would remain as SCESFC provided there was a weed control program implemented. Further if the soil moisture content in the bank remained at over 90 per cent, it would probably sustain the more wet tolerant species within the SCESFC.

[34]

Dr Lustig's criticism of Mr Sainty 64 Dr Lustig is critical of Mr Sainty's evidence because Mr Sainty accepts Dr Merrick's views that the changes in groundwater will be negligible yet says that Mr Sainty also agrees that this would place many of the SCESFC species outside their optimal range. Dr Lustig states at par 31 of his affidavit of 29 March 2004 that in his view: This change would represent an ecological disturbance whose impact on the SCESFC community is unknown, and at this stage, unknowable, because of the lack of scientific information. To be able to state that the decline in groundwater levels will be negligible would require a degree of knowledge of the SCESFC ecosystem that does not yet exist. 65 In par 30 of that same affidavit Dr Lustig states: I agree with Dr Merrick's paragraph 23, lines 7 to 10, that a permanent variation in groundwater level will be manifested more as a shift in the position of the seepage face, and less as a significant change to the groundwater level at the creek. It would seem however, that Dr Merrick may not appreciate that this is my point. A change to the shape of the groundwater profile relative to the ground surface can profoundly affect the species composition. By "species composition", I mean the component species, their abundances, their spatial distributions, and the variations of all these over time under the influence of a continually changing environment. It follows axiomatically that a permanent variation to the groundwater level must have a significant effect on the community. Whether this effect is "beneficial" or "adverse" is currently unknown, because of the dearth of scientific studies of the SCESFC communities. 66 The affidavit of Mr David Robinson dated 16 February was also filed by the First Respondent in relation to the flood study impacts of a 1 in 100 year impact. Attached to the affidavit is a report analysing the potential flood effects of landfill operations on Lot 235. Dr Lustig, in his affidavit dated 15 December 2003, is critical of Mr Robinson's affidavit and report because it does not deal with other likely flooding scenarios which may have an impact on the SCESFC in his view.

[39]

72 There clearly will be some changes in groundwater levels under the fill on Lot 235 in the future, the general nature of which the Applicant's and First Respondent's experts appear to agree on in relation to the fill activity on Lot 235. Dr Merrick's evidence was that changes in the water table will occur with a permanent variation in groundwater level away from the creek, the fill being some 30m from the creek/riparian zone. This will be manifested more as a shift in the position of the groundwater level along the seepage face of the fill, not as a significant or any change to the groundwater level at the creek. Dr Lustig accepted the changes identified in this manner by Dr Merrick (affidavit of 29 March 2004 par 30 referred to at par 65 above). 73 There is substantial disagreement about the impact of any such changes however. Dr Lustig stated (affidavit 29 March 2004 par 30) that changes in the groundwater profile relative to the ground surface can profoundly affect the species composition. He stated that changes of more than 0.2m could result in adverse impacts on shallow rooted SCESFC plants, and even smaller changes can have serious impacts. Dr Merrick's evidence was that the SCESFC will benefit from a more reliable water source which will result from the fill placed on Lot 235. 74 Dr Merrick and Dr Lustig both appear to be well qualified experts on issues of hydrology with long experience in the field, making the assessment of their differing points of view challenging. It is difficult to separate the evidence and submissions relied on by the Applicant on the alleged adverse impact on the SCESFC of the whole subdivision development from those impacts alleged in relation to the fill placed on Lot 235. The only written evidence relied on by the Applicant in relation to that fill is that of Dr Lustig at par 22-30 in his first affidavit dated 15 December 2003 and that is relatively general in nature. A great deal of the three affidavits sworn by Dr Lustig thereafter are taken up with criticising the methodology and conclusions drawn by Dr Merrick in the Hydrogeology Report prepared for the development consent process, his subsequent conclusions set out in the affidavit prepared for this Court case, and further evidence he gave about the behaviour of the groundwater table along transect A-A.

[44]

82 Mr Sainty stated when cross examined that a drop of 10cm in the water table would not cause any alteration in shallow rooted SCESFC plants but that a drop of 20cm may impact on shallow rooted plants over time, meaning from five to fifty years, so that they could change depending on the types of species competing with them. When asked in cross-examination if a drop in the groundwater table in the SCESFC while equilibrium is established would be suboptimal conditions, Mr Sainty considered that the two SCESFC plants now immediately adjacent to the fill would not be affected. As to the introduction of other plants he considered there could be a change over time but that change was inevitable and dependent on numerous factors such as long term seasonal changes in rainfall, for example. Because the SCESFC is a mosaic and not a single entity any change has to be understood as occurring in that context. Mr Sainty stated in re-examination that where there could be a change in the assemblage of SCESFC species with the more robust replacing the less robust, that would still constitute SCESFC which may be more or less species rich. Further he considered that if the soil moisture content in the bank remained at 90 per cent or more that would probably sustain the more wet tolerant species within the SCESFC. 83 Mr Sainty was also cross-examined about various aspects of his evidence by the Applicant's agent but there was no matter raised which suggested that his evidence should be discounted in my view. I also note that Mr Sainty is well qualified and has long experience in this field. Once again some of the cross-examination focussed on whether there had been adequate assessment of the impacts of the fill as part of the development assessment process, not a matter relevant to the legal issue raised in this case. 84 As Dr Lustig has stated (see par 64 above), the future effect on the SCESFC at this stage as a result of the fill is unknown. A further difficulty in concluding that there will be an impact is that the SCESFC presently on the site is substantially degraded and it does not appear that anyone can say with certainty what the "ideal" assemblage of SCESFC plant community is for the site. I note Mr Sainty's evidence that there are up to thirty plant communities which can make up a SCESFC assemblage, of which nineteen are shallow rooted. Mr Sainty described the SCESFC as a mosaic of different plant assemblages depending on the precise conditions across the SCESFC zone.

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Judgment (47 paragraphs)

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Cases Cited (5)

Cited By (2)