Carriage v Stockland Development Pty Limited & Ors

The Construction Certificate On 8 February 2002 the Fifth Respondent issued a number of construction certificates in relation to the Stage 2-6 Consent, including construction certificate No 214/02 and construction certificate No 215.03 ("the construction certificates"). The construction certificates certified that, amongst other things, work done pursuant to plans 31/137/02, which show the extent of engineering and fill work on the site, would " comply with the requirements of section 81A(5) of the Environmental Planning and Assessment Act 1979."

3 An ecological community known as the Sydney Coastal Estuary Swamp Forest Community ("the SCESFC") existed on Lot 235 prior to the placement of fill on Lot 235 by the First Respondent. The Stages 2-6 Consent included conditions relating to the restoration of the SCESFC around Tramway Creek. The riparian boundary was identified as part of the Court proceedings which gave rise to the Stages 2-6 Consent. The Stages 2-6 Consent contemplated that work would be carried out in proximity to the SCESFC and the riparian boundary along Tramway Creek including a road is to be constructed along the boundary of Lot 235 outside the riparian buffer zone ("the boundary road"). The relevant plan, known as the Connell Wagner Plan, is specifically referred to as one of the plans given development consent as "A1 size plan of location of SCESFC community and buffer zone - Tramway and Woodlands Creek". The Connell Wagner plan defines, in blue, the riparian boundary and, in green, the limits of the SCESFC. Condition 111 of the development consent refers to this plan and specifies that: The proponent's proposal for a riparian buffer zone along the southern side of Tramway Creek as is portrayed in the [Connell Wagner Plan] is to be, under no circumstances, reduced in its dimensions or altered in any way without written approval from the Department. 4 In ground 3, the Applicant argued that works carried out on Lot 235 constituted acts contrary to the National Parks and Wildlife Act 1974 ("the NPW Act) and states: That the First Respondent picked or caused damage to an endangered ecological community on land known as "Lot 235" contrary to s 118A(2) and/or s 118D(1) of the National Parks and Wildlife Act 1974.

5 Section 118A(3)(b) and s 118D(2)(b) of the NPW Act states that it is a defence to a prosecution under s 118A(2) and s 118D(1) respectively if the act constituting the alleged offence had development consent.

6 In Carriage v Stockland Development Pty Ltd & Ors [No 7] [2004] NSWLEC 148 ("Carriage No 7") I made the following declarations:

1. Construction Certificates 214/02 and 215/02 issued by the Fifth Respondent to the First Respondent on or about 8 February 2002 are, to the extent that they refer to work relating to that part of Lot 235 DP1048602 zoned residential 2(b) under the Wollongong Local Environmental Plan 1990, invalid.
2. The First Respondent by itself, its servants, agents and contractors has carried out development requiring development consent on that part of Lot 235 zoned residential 2(b) under the Wollongong Local Environmental Plan 1990 without first obtaining a valid development consent in breach of s 76A(1) of the Environmental Planning & Assessment Act 1979.

7 It is therefore appropriate that I consider ground 3 in relation to that part of Lot 235 zoned Residential 2(b) as I have held that construction certificates for works carried out on that land are invalid in part and consequently that the work did not have development consent. Relevant legislative provisions 8 The SCESFC occurring in the Sydney Basin Bioregion is listed as an endangered ecological community in Sch 1 Pt 3 of the Threatened Species Conservation Act 1995 ("the TSC Act"). Section 5 of the NPW Act provides that "endangered ecological community has the same meaning as in the Threatened Species Conservation Act 1995". Accordingly, the SCESFC is an endangered ecological community to which s 118A(2) and s 118D(1) of the NPW Act applies.

9 Section 118A(2) of the NPW Act provides that: A person must not pick any plant that is of, or is part of, a threatened species, an endangered population or an endangered ecological community. 10 Section 118D(1) of the NPW Act provides that: A person must not, by an act or an omission, do anything that causes damage to any habitat (other than a critical habitat) of a threatened species, an endangered population or an endangered ecological community if the person knows that the land concerned is habitat of that kind. Issues 11 In the Fifth Further Amended Application Class 4 the Applicant sought the following declaration at prayer 6: A declaration that the First Respondent, by itself, its servants, agents and/or assigns, picked plants and or caused damage to plants that were a part of an endangered ecological community contrary to ss 118A(2) and or 118D(1) of the National Parks and Wildlife Act 1974 . 12 In the Fourth Further Amended Points of Claim the Applicant claimed: Prior to the carrying out of the [works on Lot 235] an ecological community known as the Sydney Coastal Estuary Swamp Forest (SCESF) occurred on Residue Lot 235.

SCESF in the Sydney Basin Bioregion is an endangered ecological community listed in Sch 1 Pt 3 of the Threatened Species Conservation Act 1995, and is accordingly an endangered ecological community within the meaning of the National Parks and Wildlife Act 1974.

In carrying out [works on Lot 235] the First Respondent, by itself, its servants, agents and/or assigns, picked and or harmed plants or caused damage to an endangered ecological community (namely, SCESF). … By reason of paragraphs 22-25 and 31-34, the carrying out of [works on Lot 235] was contrary to ss 118A(2) and 118D(1) of the National Parks and Wildlife Act 1974.

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.

First Respondent's Submissions 16 The First Respondent argued that the evidence does not support the claim by the Applicant that the First Respondent damaged or harmed SCESFC contrary to the NPW Act. 17 There are two portions of the SCESFC boundary which extend south of the riparian boundary in Lot 235. One of these areas is the area of Lot 235 which is zoned Residential 2(b). It is in this area the Applicant argued there has been a breach. The First Respondent relied on the evidence of Mr Hedge contained at par 30 to 32 of his affidavit dated 18 March 2004 where Mr Hedge stated that: There is a portion of the SCESFC Community which falls within the land described as Lot 235 West below the riparian boundary. No works have been undertaken in this pocket of land.

The First Respondent has yet to undertake work above the riparian boundary on Lot 235 in accordance with the Stage 2-6 Consent, specifically vegetation management works, weed removal and SCESFC enhancement. In carrying out its development works on Stages 1-6, the First Respondent relied upon the description of the SCESFC in the Flora and Fauna Assessment and the boundaries of the location of the SCESFC delineated in that report.

As a result, none of the development work on Stages 1-6 has involved picking plants that were a part of, or had any adverse impact upon, the SCESFC in Lot 235. 18 The First Respondent argued that this evidence indicates that none of the SCESFC required to be retained in the Connell Wagner Plan was picked or harmed as a result of the carrying out of the works on Lot 235.

Finding in relation to issue (i) 19 "Pick" is defined in s 5 of the NPW Act as follows: pick a native plant (including a threatened species, population or ecological community) means gather, pluck, cut, pull up, destroy, poison, take, dig up, remove or injure the plant or any part of the plant.

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.

First Respondent's Submissions 24 The First Respondent argued that there was no harm being caused to the SCESFC as a result of its activities on Lot 235.

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).

(ii) Key Threatening Process 29 An unstated implication of the Applicant's argument is that the fact that the alteration of the natural flow is a key threatening process under the TSC Act indicates that any alteration to the natural flows of the creek must result in damage to the habitat of the SCESFC within the meaning of s 118D of the NPW Act. That submission cannot be correct given the legal framework of the relevant Acts.

30 Section 4 of the TSC Act defines "threatening process" as: threatening process means a process that threatens, or may have the capability to threaten, the survival or evolutionary development of species, populations or ecological communities. 31 Key threatening processes are those threatening processes listed in Sch 3 of the TSC Act. Section 15 of the TSC Act the eligibility for listing as a key threatening process: A threatening process is eligible to be listed as a key threatening process if, in the opinion of the Scientific Committee, it: (a) adversely affects 2 or more threatened species, populations or ecological communities, or (b) could cause species, populations or ecological communities that are not threatened to become threatened.

32 The Applicant is correct in stating that the statutory effect of listing a key threatening process is that it triggers obligations under s 5A of the EP&A Act in relation to the assessment of development applications and the preparation of threat abatement plans under Pt 5 of the TSC Act. However this is separate to the question of whether there is "damage" under s 118D(1) of the NPW Act. 33 While the listing of "Alteration to the natural flow regimes of rivers and streams and their floodplains and wetlands" as a key threatening process is an important indication that alteration of natural flow regimes may adversely affect an ecological community, the listing does not necessarily mean that damage to an endangered ecological community will take place if that occurs. It is not sufficient proof for the Applicant to argue damage must be caused because a key threatening process is involved without any evidence of damage. The listing of a process as a key threatening process is merely an indication that, in the opinion of the Scientific Committee, the process is one that can threaten species, populations and ecological communities, for the purposes of s 5A of the EP&A Act and s 74-90 of the TSC Act. This is distinct from a finding that the Respondent has actually caused damage to an endangered ecological community. It is necessary for the Applicant to show that "damage" is caused.

(iii) "Causes Damage" 34 The issue of how the phrase "causes damage" in s 118D(1) of the NPW Act is to be interpreted must also be considered. The Applicant's Fifth Further Amended Application Class 4 states that the First Respondent caused damage to plants that were part of an endangered ecological community. This use of "caused" suggests the allegation relates to damage that has already occurred. Assuming the intended pleading is "causes damage", the First Respondent argued that "causes damage" requires damage to actually have been caused to the habitat of the SCESFC before an offence under s 118(D)(1) of the NPW Act occurs. The First Respondent argued that as all of the Applicant's evidence on this issue is directed to the future possibility of damage to the SCESFC as a result of a change in the natural flow regime, which is not proscribed under s 118D(1), the Applicant's evidence, even taken at its highest, does not show that the First Respondent has caused, or is causing, damage. 35 The terms "damage" or "causes damage" in s 118D(1) of the NPW Act are not defined. While I note that the phrase "causes damage" appears in a number of other statutes including: (a) s 203B of the Crimes Act 1900 ; (b) s 220ZC and s 220ZD of the Fisheries Management Act 1994 ; (b) s 102 and s 137 of the Roads Act 1993 ; and (c) s 14 of the Dangerous Goods Act 1975 ; the phrase is not defined in any of these statutes so these provide little assistance in construing s 118D(1) of the NPW Act.

36 In Donnelly v Delta Gold Pty Ltd & Ors (2001) 113 LGERA 34 Bignold J considered what is meant by "damage" in s 118D(1). Bignold J held at [291] that the test contained in s 118D was different from the assessment of whether there is a "significant increase in the environmental impact" under s 58 of the Protection of the Environment Operations Act 1997. He continued at [293]: As a prelude to determining the question of the alleged breach of s 118D, there are a few relevant observations to be made concerning s 118D, namely-- (i.) The term "damage" is not defined in the NP&W Act. Accordingly, it is to be interpreted, subject to context, according to its ordinary meaning. The Shorter Oxford Dictionary defines it (ie the noun "damage" ) as follows: 1. Loss or detriment caused by hurt or injury affecting estate, condition or circumstances. 2. Injury, harm. 3. A disadvantage; a misfortune, a pity.

The primary Dictionary meaning was applied in Flaherty v Girgis (1985) 4 NSWLR 248 at 266 where McHugh JA, speaking of the word "damage" in a different context said "...it includes all the detriment, physical, financial and social, which the plaintiff suffers as a result of the tortious conduct of the defendant" . In the context of s 118D, I think that the first of the meanings given in the Shorter Oxford Dictionary is the most apt meaning to be ascribed to the word "damage". 37 I consider that the definition of "damage" adopted by Bignold J in Donnelly should be applied so that the reference to "damage" in s 118D(1) of the NPW Act is to be interpreted as a reference to the "loss or detriment caused by hurt or injury affecting estate, condition or circumstances." 38 There is no definition of "cause" under the NPW Act so I should apply its ordinary meaning as appropriate in this legislative context. I have not had the benefit of legally relevant submissions on this issue from the Applicant's agent. I am prepared to define "cause" in accordance with the Macquarie Dictionary, namely "that which produces an effect" or that "from which something results". 39 I consider that, in the context of s 118D(1), the phrase "causes damage" can include processes which have commenced and which will cause damage even if that has not yet occurred because "causes" includes the results or the effect produced by a particular activity.

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.

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. …

Dr Merrick 49 Dr Merrick produced the Hydrogeology Report required by condition 42 of the Stages 2-6 Consent for the First Respondent. Condition 42 states: The developer must submit with the construction certificate application a report from a suitably qualified Hydrogeologist detailing the engineering measures to be implemented so that the proposed subdivision provides for the maintenance of the mean water table level within 500mm at the creekside edge of the riparian zone (levee) … 50 In producing this report Dr Merrick had regard to the "Sandon Point Flora and Fauna Assessment" prepared by Mr Sainty and Connell Wagner Pty Limited in June 2001. The "Sandon Point Flora and Fauna Assessment" did not include an assessment of the impacts on the SCESFC of the fill to be placed on Lot 235.

51 Dr Merrick was asked by the First Respondent to review his earlier findings in the Hydrogeology Report in light of the fill placed on Lot 235 and to interpret how this might affect the groundwater regime. His evidence is that the depth of the water table will increase beneath the fill, but in the riparian zone the depth of the water table will either be unaffected or it will decrease. He did not consider that there was a risk that SCESFC vegetation adjoining the fill would be deprived of groundwater. Dr Merrick agrees with Dr Lustig that hydraulic gradients will become steeper as groundwater rises beneath the fill. In his view this will result in a higher discharge of groundwater through a seepage face along a steep bank bordering the riparian zone. He considered at par 29, 30 of his affidavit that this would guarantee a steady supply of water to the vegetation in the SCESFC which would be to its benefit.

52 In Dr Merrick's opinion, at the present state of the development of Stages 2-6 before the lots are populated with houses, any changes in groundwater conditions would be negligible. In the long term groundwater conditions will change due to the fill on Lot 235. Dr Lustig's conclusions on whether there have already been changes in the groundwater conditions which must have resulted in disturbances to the SCESFC are not entirely clear. At par 31 of his affidavit, Dr Merrick concluded that there were no demonstrated changes to the current groundwater conditions and, accordingly, that the SCESFC had not already been impacted by altered groundwater conditions caused by the fill. 53 Dr Merrick undertook "numerical" modelling of Lot 235 in order to determine the likely rise in the water table beneath the fill and considered that the water table is likely to ultimately rise by 1.5m. The watertable will reach half of this height about nine months after the soil has wetted up, and will reach 90 per cent of this final height one year later. At par 34 of his affidavit Dr Merrick stated that his view was that the altered groundwater conditions resulting from the fill placed on Lot 235 will ensure a more reliable supply of groundwater to SCESFC vegetation by establishing a permanent and stable seepage face up gradient of the riparian zone.

54 In re-examination Dr Merrick was asked whether the placement of the fill in Lot 235 would lower the groundwater table north of the batter zone, extending down towards the creek. He replied that the groundwater table to the north of the filled area on Lot 235 will either remain unchanged or become higher as a result of the fill. He did not consider it would fall as a result of the adjacent fill on Lot 235 as the rainfall would seep into this new thickness of soil and establish a new watertable which is somewhat higher than the present watertable. Dr Merrick's modelling suggested that this change in the watertable would be an increase of 1.5m, occurring in the future, probably in a decade's time. This would generate a higher hydraulic gradient, going from the fill towards the creek, and cause the groundwater to flow across the batter zone towards the SCESFC. Dr Merrick's evidence was that there would be no change in the elevation of the watertable at the creek or in the bank of the creek as a result of the fill placed on Lot 235. 55 Dr Merrick was also asked in re-examination what was the impact on his modelling and his conclusions about the groundwater if his finding based on transect A-A was wrong so that the groundwater level was at the same height as the creek bed. He considered this would improve the groundwater level to the benefit of the SCESFC because this suggests the conditions based on his model along transect A-A were similar to drought conditions. Accordingly, the groundwater conditions for the SCESFC could only improve.

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.

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.

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.

Finding in relation to issue (ii) 67 The Applicant bears the onus of proving that damage is or will be caused to the SCESFC as a result of the fill on Lot 235 effecting change in the natural flow of water in and around Tramway Creek. It is necessary to consider all the experts' evidence to determine its relevance as not all material relied on by the Applicant's agent was relevant to the particular issues before me.

68 Dr Adam is clearly well qualified as an expert. Dr Adam's evidence is general in nature, relates to the separate issue of the need for adequate assessment of the fill activity as required under the EP&A Act before it was undertaken, and does not enable the Applicant to discharge its onus of proof that damage is or will be caused to the SCESFC as a result of the fill activity on Lot 235. Dr Adam does not appear, unfortunately, to give evidence on the key issues of relevance to this case. 69 There is no concrete evidence presented by the Applicant to suggest that there is already harm caused to the SCESFC by the placement of the fill on Lot 235 with resultant adverse changes to the groundwater impacting on the SCESFC. Dr Lustig does make the statement in par 24 of his first affidavit that "…This fill would change the depth to groundwater such that it would be beyond the normal range for most species comprising the SCESFC". This does not make clear if the damage is already occurring or will occur. Dr Merrick concluded that there is not yet any change to groundwater levels as a result of the fill. Consequently there could not yet be any impact on the SCESFC. The presentation of the evidence of the hydrology experts focussed on possible future impact and I consider that is what the Applicant's case was directed to. I consider the issue in relation to damage of the SCESFC is whether there will be damage to the SCESFC, not that there is currently damage to the SCESFC as a result of the fill being placed on Lot 235.

70 According to par 12 of Dr Merrick's affidavit, the conclusions Dr Merrick arrived at in the Hydrogeology Report in relation to the whole site were as follows: (a) groundwater level measurements carried out at eight locations verified prior modelling of the water table profiles; (b) rainfall infiltration on the land is in the order of 5 per cent of rainfall; (c) after the site is developed with housing: (i) the expected reduction in recharge to the water table will be about 40 per cent; (ii) at the southern edge of the riparian zone, which is a maximum of 30m from Tramway Creek, groundwater levels are expected to decline by 0.5 to 1m; (iii) at 10 metres from the creek bank, groundwater levels are expected to decline by 0.2 to 0.3m; and (iv) at the creek edge, there would be negligible decline in groundwater levels; and (d) any significant fluctuations in the groundwater level at the edge of the creek would be natural seasonal behaviour which the SCESFC would have already have adjusted to.

71 In his affidavit Dr Merrick set out further conclusions based on this earlier report in relation to the placement of fill on Lot 235 as set out at par 51-54 above. Much of the Applicant's expert evidence of Dr Lustig and cross examination of Dr Merrick sought to criticise his conclusions because of alleged inadequacies in the data available or the methodology applied by him. The major criticisms made are detailed at par 56-58 above.

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.

75 As against Dr Lustig's evidence there is the more detailed evidence of Dr Merrick who was responsible for the most relevant study, albeit with preliminary findings given the lack of data available, about the water table in the Tramway Creek area. Dr Merrick concluded that the changes in the groundwater table will not harm the SCESFC as did Mr Sainty based on the predictions of Dr Merrick.

76 A number of the criticisms of Dr Merrick's Hydrogeology Report and subsequent conclusions about Lot 235 by Dr Lustig appear well founded. Dr Merrick says of his own modelling that it was a preliminary desk top study and while consistent with two later piezometer measurements available from the site (not located at Lot 235) it cannot be verified by that little amount of data. He agreed in cross-examination that the monitoring program he recommended in his 2001 Hydrogeology Report was necessary if his model was to be verified. He also stated that it would be very useful to have piezometers in the riparian zone adjacent to the fill at Lot 235 in order to obtain an accurate picture of the mean groundwater profiles for that area. Rainfall measurements over an extended period for the site were also desirable.

77 While accepting all these shortcomings, Dr Merrick maintained that his conclusions in relation to the groundwater were able to be relied on in considering the impact of the fill on Lot 235. He confirmed in oral evidence the conclusions reached in his report and was able to explain how he had reached these during lengthy cross-examination by the Applicant's agent. I do not consider that the cross-examination resulted in any fundamental undermining of the conclusions reached by Dr Merrick. In cross-examination Dr Merrick was asked about his evidence that there would be a small reduction in the groundwater level in the SCESFC adjacent to the fill while the groundwater equilibrium is reached over the estimated 5 to 10 year period that it will take to rise 1m to 1.5m. He considered the lowering would be in the vicinity of centimetres only. His responses in re-examination on the issue of whether there would be a drop in the groundwater table while the equilibrium level under the fill was achieved over several years and the likely result if his modelling of lower groundwater levels along transect A-A was wrong (par 54-55), suggest that his conclusions are not necessarily wrong. I do not therefore accept Dr Lustig's more general evidence over that of Dr Merrick. 78 My finding in this respect should not be considered as any criticism at all of Dr Lustig's evidence as I consider he has done the best he could on the basis of the instructions he received. I have to decide, however, in terms of the legal issue before me what is the relevant evidence and what is the appropriate weight it should be given in light of all the evidence provided.

79 I am inclined to agree with the Applicant's submissions that more data and analysis is warranted if a conclusive view about the likelihood of adverse impact on the SCESFC is to be drawn, based on Dr Merrick's evidence. I am not able to adequately assess however, whether the alleged methodological shortcomings of Dr Merrick's model and approach are warranted. Even if I did so hold that does not progress the Applicant's legal claim before me which requires that the Applicant prove on the balance of probabilities that damage will result to the SCESFC. 80 What is also disputed as between the experts is whether the change in groundwater hydrology near Tramway Creek will cause a change over time in the composition of the species forming the SCESFC so that in several years there will be fewer deep rooted plants in the SCESFC or a change in the composition of species present. Accordingly, it is unclear whether this change will lead to damage meaning "loss or detriment caused by hurt or injury affecting the estate, condition or circumstances" of the SCESFC. 81 The undisputed evidence of Mr Sainty was that the SCESFC was already degraded and weed infested before the First Respondent carried out the fill works on Lot 235. Mr Sainty's evidence was that much of the diversity of the SCESFC has been lost and that parts of the SCESFC were difficult to identify due to its degraded quality. This is not disputed by the Applicant's evidence. Dr Lustig also stated that there were many weed species located near Tramway Creek. Dr Lustig was critical (affidavit dated 29 March 2004 par 40) of the planned revegetation with sturdy species of SCESFC plants, blady grass and bracken, which happen to be considered weeds elsewhere. According to Mr Sainty however this is part of the proposal in the Vegetation Management Plan required by the development consent conditions, particularly condition 113.

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.

85 I am not able to draw any conclusions about the likelihood of adverse flood impacts on the SCESFC. The Applicant's case on this material (see par 69 above) was directed to showing that the impacts were not adequately assessed.

86 Given the state of the parties' evidence neither party has been persuasive as to whether there will or will not be harm caused to the SCESFC in the future. I do not think the Applicant has discharged the onus of proof he bears to show that the fill on Lot 235 will alter the hydrology in and around Tramway Creek in such a way that the SCESFC will be damaged. Therefore I decline to make the declaration sought by the Applicant that the First Respondent causes damage to plants that are part of an endangered ecological community contrary to s 118D(1) of the NPW Act. This should not be interpreted as a finding that the SCESFC will not be harmed by the fill on Lot 235. Orders 87 The Court makes the following orders that:

1. Prayer 6 of the Fifth Further Amended Application Class 4 is dismissed;
2. The question of costs is reserved;
3. The exhibits are to be returned.

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