Central West Environment Council Inc. v Orange City Council And Anor

Central West Environment Council Inc. v Orange City Council And Anor - [2003] NSWLEC 131 - NSWLEC 2003 case summary — Zoe

[15]

The Assessment contained the following recommendations: The following recommendations are made for Council's consideration: At present Council continue to deny use of the Spring Creek Reservoir for a broad range of recreational activities including speed boats, water-skiing, swimming, sailing, sailboarding, fishing, general recreation and general rowing. Council consider Suma Park Reservoir as a more appropriate location for limited recreational activities such as rowing training, because of the larger water surface area available and the length-width dimensions of the reservoir. A series of trial rowing training sessions be organised on the Spring Creek Reservoir to assess specific logistical problems associated with year one of the Kinross Wolaroi proposal (the introduction of single sculls) and to develop specific action protocols needed to support the activity: It is possible that a Fauna Impact Statement will need to be prepared to assess the impact of the proposed activity on the Freckled Duck, an endangered species as well as potential use by other endangered species, if the proposal is progressed to the next stage; Particular importance should be directed to the impacts on water birds and their breeding (eg wake created, flight escape response of birds to rowing craft on open water and in nesting site etc.) as well as on water quality. If the trials are successful and further action is approved by Council, then a management plan should be prepared but only for the proposed year one activity (the introduction of single sculls) that will identify the appropriate protocols needed to carry out this activity; Council consider further the complexities associated with years 2-4 of the Kinross Wolaroi rowing proposal and seek further clarification from the school re its response to the environmental issues raised in this report. Council consider developing a city eco-tourism plan to incorporate areas such as the Spring Creek Reservoir with its potential to attract specialist tourists to the Orange area.

[17]

On 11 October 2000, the Council adopted the draft Plan of Management under the Local Government Act 1993 that had been prepared and resolved to place it on public exhibition. Section 7.3 of the draft Plan of Management deals with "Recreational Use" of the Reservoir. After referring to the study prepared by Professor Goldney and Dr Beard, the draft Plan sets forth the following "Objectives" and "Means of Achieving Objectives": OBJECTIVES AND PERFORMANCE TARGETS The plan provides for limited, controlled and supervised recreational use of the Spring Creek Reservoir for recreational activities. This is consistent with that part of the Core Objective under section 361(a) (sic) of the Act relating to and the physical, cultural, social and intellectual welfare or development of individual members of the public. The provision of facilities and controlled recreational use of the reservoir will require a lease or license to be granted in respect of the land which is consistent with the Core objective under section 361(b) (sic) of the Act. MEANS OF ACHIEVING OBJECTIVES The objective of controlled recreational use of the Reservoir is achieved by providing for the establishment of a rowing club with associated facilities on the land to operate in a controlled manner in order that the habitat values and water supply are not adversely affected. This plan provides for: Establishment of a boat shed and associated amenities on the Reservoir foreshore generally within the location as indicated on Map 2. The amenities shall comprise toilets only located clear of the reservoir foreshore and incorporating a pump out waste tank. Rowing training only to be carried out on the reservoir including the use of 4 stroke flat bottomed punts. Each punt shall be inspected annually to ensure that the motors are operating according to specification will not emit No regattas or activities involving spectators are to be held at the Reservoir. Rowing to be limited to areas outside that part of the Reservoir categorised as a Natural Area (As indicated as a rowing exclusion zone in Map 2) with the northern and southern most ends of the training course being defined by buoys or other suitable markers. Access to the Reservoir shall be limited to participating rowers and training personnel only. Only one vehicle per training session shall access the site. Rowing shall be supervised at all times to ensure that no person deliberately enters or pollutes the reservoir. A lease or license shall be effected for the rowing operations including provisions to ensure that rowing is undertaken in accordance with the measures required by this plan. Council may suspend or restrict rowing training on the reservoir as a consequence of water quality being unlikely to meet health requirements, or upon the water level falling below 4 metres from Full Supply Level (FSL).

[18]

Section 7.4 of the draft Plan of Management deals with "Habitat Conservation" and includes the following contents - As a consequence of the modified environment provided by the reservoir and associated foreshore vegetation Spring Creek Reservoir provides high quality habitat for a significant number of native water birds (Beard and Goldney, 2000: 14). Small numbers of the freckled duck, an endangered species, has been recorded at the reservoir during summer in 1994 (maximum number of birds observed at a sighting was 4), 1995 (2) and 1997 (2). There were also 3 sightings in April 1995. As a consequence of seasonal recording of birds at the reservoir, Spring Creek Reservoir is recognised as a significant drought refuge within the Murray Darling Basin. Foreshore areas have been identified as having habitat values and observed as breeding areas by Beard and Goldney (2000: 9, 15-17). Beard and Goldney recommended that the rowing training course be excluded from the northern and southern extremities of the reservoir and from within 50 metres of the foreshores. The area available for rowing according to these principles as indicated on Map 2 comprises about 40 hectares which corresponds to less than 40% of the FSL of the reservoir. OBJECTIVES AND PERFORMANCE TARGETS The objectives/performance targets of this plan in respect to habitat conservation are to maintain habitats for the use of water birds associated with Spring Creek Reservoir. MEANS OF ACHIEVING OBJECTIVES Exclusion areas for rowing activities being established to protect bird habitats and breeding areas generally in accordance with Map 2. Protocols for rowing being developed, monitored and reviewed as required to ensure that rowing training is carried out in a manner that minimises disturbance to waterbird habitats. A strategy being developed for weed management at and adjacent to the foreshore to enhance the habitat values of the site. Access to the habitat areas being limited to Council water supply operations and scientific research. Scientific research may be undertaken subject to Council authorisation and subject to any data on water bird distribution and numbers being provided to Council to monitor habitat management.

[28]

The "Terra" Report describes the proposed development in Section 3 as follows: 3.1 OVERVIEW Kinross Wolaroi School (KWS), Orange seeks approval to establish a rowing training program at Spring Creek Reservoir, Orange. The proposal involves: The conduct of rowing training entirely within a specified training course defined within the reservoir; The establishment of exclusion zones to mitigate against potential impacts upon reeds and emergent wetland plants as well as waterbird lifecycles; The construction of a boat shed within the near shore margin, for the storage of sculls, motorised punts and associated equipment. The boat shed will also provide an office and change room facilities; The construction of a separate toilet block which is to be set back from the near shore margin. Effluent and solid wastes will be directed to a storage tank which will be pumped out regularly so as to avoid the need for on site effluent disposal; and The implementation of an Environmental Management Plan and Compliance Program to ensure that the activity operates in accordance with protective measures and protocols to ensure satisfactory environmental performance. This proposal is strictly for rowing training only. Racing and other competitive events will not be staged and no racing infrastructure will be established. Although KWS is the applicant for this proposal, it is intended that the rowing program on Spring Creek Reservoir be available for use by other Orange schools. In this regard it is understood that KWS has formally invited other schools to register an interest in the program and has also offered to share storage facilities and possibly boats and equipment as the program progresses (Refer Annexure B). 3.2 PROPOSED WORKS The proposal will involve the following works: 3.2.1 Boat Shed It is proposed to construct a boat shed at the location depicted in Figure 3. A concept plan of the building is shown in Figures 4 and 5. The boat shed would comprise facilities for the storage of rowing boats, the motorised punts and associated rowing equipment. It would also provide space for an office and female and male change rooms. As indicated in the attached plans the boat shed would be sited within the near shore margin and above the Full Supply Level. Provision would also be made to allow the addition of a future pontoon. 3.2.2 Toilet Building It is proposed to provide a toilet building at a location that is well setback from the foreshore area and on a site that slopes away from the Reservoir. There will be no on-site effluent disposal. Effluent disposal will occur via a fully sealed fail safe pump out system and transported from the site for disposal into Council's sewerage system. Bunded areas will be established to guard against accidental spills. This arrangement is in accordance with the requirements set down in Section 7.3 of the PoM so as to limit the potential for adverse impacts upon water quality. The toilet building would contain one urinal, one WC and one hand basin for males; and two WC's and one hand basin for females. 3.2.3 Marking of Training Course It is proposed to place buoys to delineate exclusion zones for the use of the Reservoir for rowing training. In this regard, and in accordance with the recommendations of the SKM report it is proposed that the following occur: Define the entry and exit corridor as a straight line from the boat shed to the middle of the training course. The corridor would be wide enough to allow 2 boats to pass and would be marked on both sides with single coloured buoys at intervals no greater than 50 metres; Buoys would be placed at 50 metre intervals to mark the southern and northern waterbird exclusion zones. Warning buoys would be placed at 30 metres from the exclusion zone so as to provide a buffer; Buoys would be placed to delineate the exclusion zone within 50 metres of the Reservoir foreshore; Buoys would be placed to mark the 75 metre exclusion zone around the dam wall and spillway; The corners of the training course would be marked by single buoys; and Three points along the training course will be marked by single buoys to define assembling points for tuition and coaching. 3.3 PROPOSED ACTIVITIES The proposal is strictly for rowing training. There will be no races or competitive events staged on the Reservoir. The use of the Reservoir for rowing training (based on the findings of the SKM report and the requirements of the PoM) is proposed as follows: All activities to be in accordance with the course delineation and defined exclusion zones; The width of the course will be sufficient to accommodate a maximum of six (6) sculls abreast; The KWS rowing training program will have a maximum of 80 rowers (40 boys and 40 girls) with boys training in the morning and girls training in the afternoon. The maximum capacity for participants on the Reservoir at anyone time is forty (40) rowers plus coaching staff. The number of rowing boats using the course at anyone time will be capped at ten (10); The number of rowing boats to be stored in the boat shed includes ten (10) single sculls; five (5) pairs; four (4) fours; and two (2) eights; A maximum of two (2) flat bottom motorised punts will be used for coaching and safety. Punts are less likely to cause wave disturbance and their motors will be limited to a 9.9 horsepower 4-stroke engine, sufficient to allow coaching staff to keep pace with the rowing boats; Coxens will communicate with rowers via small electronic megaphones ~ that direct voice to each rower below their seat so as to minimise potential noise impacts; Assembling areas for coaching purposes will be defined at three (3) locations within the training course; Entry to the Reservoir will be via school vehicles only, where participants are marshalled at their school and transported to the site on each occasion; and In accordance with the findings of the SKM report, rowing training would occur only in the period October to April during the following hours: - 6.00 am to 10.00 am and 3.30 pm to 6.00 pm (7.00 pm in daylight saving time) on weekdays. - 7.00 am to 10.00 am and 3.00 pm to 6.00 pm (7.00 pm in daylight saving time) on weekends. It is proposed to implement the training program over a staging period as follows: -Year one to include the intake of 20 rowers (10 boys and 10 girls); and -Each subsequent year, 20 year 8 students would be inducted into a 4 year program, with the club to have a maximum of 80 rowers (ie 40 boys and 40 girls) at anyone time. The use of the rowing training course by other schools will be conducted within the maximum capacity and hours of operation outlined above.

[37]

Section 6.2 of the Study contains a discussion of the "Nature of Potential Threats" posed by the proposed development by the School. That discussion included in this section of the study the following: In summary, the proposed activity, unless suitably mitigated, could be associated with the following threats: The effects of the rowing and motorised craft (and subsequent waves, noise or physical presence) may result in the disruption of behavioural patterns, visitation and populations of the overall diversity and abundance of waterbird species on . Spring Creek Reservoir. This may include the two threatened fauna species known to occur, the Blue-billed and Freckled Duck. Furthermore, such activities may modify breeding displays or disrupt nesting activities either from disturbance near nests or disruption of feeding activities during the period of nestling dependence. This may affect threatened (Blue-billed Duck) and locally significant waterbird species (Great-crested Grebe). In relation to threatened species, the key threats result from displacement of visitation patterns by Freckled Ducks and breeding activities by Blue-billed Ducks; Vehicle movements near dam edges and human access to foreshores may regularly displace waterbirds from refuges, shelter and nests on the margins of the waterway, causing the abandonment of breeding, shelter or feeding grounds; Vehicle movements along the access track may cause dust generation and settlement on vegetation and riparian habitats and create water quality threats; The proposal may be associated with an increase in the indirect effects of human visitation including litter generation, effluent, increased dispersal of weeds, water pollution from vehicle movements and vegetation trampling and structural decline of foreshore habitats, which may affect threatened species and waterbird assemblages through disruption of lifecycle activities, direct mortality from ingesting plastics and other gross products or hinder the ability of waterbirds to access nests, shelter or feeding grounds; The use of motorised craft on the waterway, vehicle movements at the access roads and the storage of fuels and oils in the boat shed may increase the risks associated with chemical pollution of the waterway through spills and accidents. Any spills have the potential to modify benthic fauna, wetland plants and affect waterbirds by direct poisoning or bio-accumulation; The effects of watercraft may cause shoreline recession, erosion or disruption of foreshore vegetation through the creation of waves; and The construction of the boat shed may result in a loss of vegetation or hollows providing habitat or terrestrial fauna and displace native vegetation. There are several complexities associated with the assessment of potential threats and the identification of protective strategies. This includes the general lack of any monitored scientific precedents for activities of this nature on waterbirds and the sliding scale of potential threats associated with the four-year incremental extension of rowing training activities on waterbird presence and nesting behaviour. These key threats must be demonstrably mitigated through protective strategies to ensure that conservation protocols are suitably met. The protective measures to minimise ecological risks and preserve waterbird diversity and abundance are outlined below.

[38]

Section 6.3 of the Study contains a Summary of "Methods to Minimise Threats". This Section includes the following: 6.3.1 Environmental Objectives In order to be able to quantify protective strategies and protocols it is important to establish background environmental objectives. The environmental objectives associated with this proposal are as follows: The proposed rowing training should be designed and operated in a manner that preserves the present waterbird diversity and abundance of Spring Creek Reservoir. This includes the established visitation rates and in-passage refuge usage of the waterbody by nomadic and dispersive species; The proposed rowing training should not affect the current nesting patterns of the waterbirds present in Spring Creek Reservoir; The proponent in association with Council and relevant interest groups should enhance the non-aquatic habitats of the study area; and No impacts on water quality should result from the proposed rowing training, particularly from chemical spills associated with fuels and oils as well as effluent. A range of key protection strategies and measures has been identified in an attempt to ensure that the stated environmental objectives of the Spring Creek Reservoir are met. These measures are detailed below in Section 6.3.3. 6.3.2 The Need for Monitoring and Compliance Orange City Council has previously stated the intention to require monitoring of impacts as a condition of any development consents issued. Considerations may also be given to limiting the period of the consent with the extension reliant upon demonstrated compliance with established standards. One of the major considerations for the prevention of potential impacts and maintenance of waterbird nesting and species diversity is the strict compliance relating to all identified protective measures and strategies and monitoring of the effects of the activities, especially during the incremental development of the four-year program. This is the responsibility of the proponent, Kinross Wolaroi School and Orange City Council. Adequate and documented procedures for compliance testing and monitoring of the effects of the activity on water quality, bird diversity and abundance and nesting behaviour must be documented and implemented prior to any commencement of rowing training. Further discussion is provided in Section 8.0.

[43]

The Study ends with the following "Concluding Remarks": This assessment has used knowledge of the field survey waterbird assemblage, detailed field assessments, discussions with relevant authorities and documented knowledge in reference texts to critically and precautionarily assess the impacts of the proposed rowing training on threatened species within Spring Creek Reservoir. This assessment has concluded that because of the strict protection measures devised for adoption and the operational nature of the proposed activity that: q Impacts on threatened species presence, abundance, lifecycle and local distribution is unlikely to be significantly altered. The known usage patterns of the Freckled Duck and Blue-billed Duck and potential presence of the other threatened species considered likely inhabitants (Yellow-bellied Sheathtail Bat, Large Bent-wing Bat, Australasian Bittern and Barking Owl) are not likely to be significantly altered, disrupted or modified. This is critically dependent on the complete adoption of all protective, compliance, monitoring, management and enhancement measures identified in the text. On this basis, it is concluded that a significant impact on threatened species would not occur. A Species Impact Statement is not deemed required under the provisions of the EP&A Act and TSC Act. Consequently, there does not appear to be any impediment to prevent the establishment of rowing training in the study area based on threatened species issues, if the protective controls are adopted. q The proposed works would not affect any matter of national environmental significance as listed in the EPBC Act. No referral of the proposal to the Commonwealth Environment Minister would be required for this proposal; and q The proposal does not contravene the stated aims and objectives of the Draft Plan of Management for the Spring Creek Reservoir. Furthermore, while it is not a legislative responsibility to assess general waterbird species diversity and abundance in the study area, it is considered that the proposal, because of the strict protective measures, would not cause the depletion of species abundance and diversity in the Spring Creek Reservoir. This includes the prevention of impacts on nesting populations of the locally significant Great-crested Grebe. The enhancement works over time should allow increased habitat quality and be a positive land management response. The proposal allows the formulation of management committees to guide overall reservoir management to facilitate an enhanced environment through community cooperation. Over time, through tree planting, wetland rehabilitation and establishment and weed controls, the study area landscape would be significantly enhanced. Furthermore, this management structure would be able to oversee the acquisition of resources via environmental grants to benefit the local environment and further liaise with the National Parks and Wildlife Service over the optimal protection zonings for those parts of the reservoir deemed important wetland areas. Consequently, this report has concluded that rowing training as proposed and with all identified protective measures is permissible within the provisions of the relevant local, State and Commonwealth environmental legislation.

[47]

That advice included the following: As it is the responsibility of the consent authority to determine whether it is likely to be a significant effect pursuant to s 5A of the EP&A Act, it is necessary for council to determine whether the information provided within the Threatened species Assessment Report SKM 2001), along with other information known to Council, is sufficient to address s.5A of the Act. It is also a requirement that Council, in assessing the Development Application, considers the potential impacts of the proposed activity on the natural environment, pursuant to s 79C of the EP&A Act. I have read and reviewed the Threatened Species Assessment Report prepared by Sinclair Knight Merz (2001). Whilst I have not inspected the Spring Creek Reservoir, the Report provides sufficient information (including aerial photographs) to enable me to assess to adequacy of information provided. It is my opinion that; · the information available to Council, contained within the Threatened Species Assessment Report (SKM 2001) and other information which would be in the possession of Council, is sufficient to enable Council to consider this development pursuant to its responsibilities under s 5A and s 79C of the EP&A Act; · the nature of the proposed development and the potential impacts which may be imposed on the natural environment in general and threatened species in particular are adequately addressed within the SKM (2001) Report; · by virtue of the nature of the proposed activity, and the extent of suitable habitat within the Spring Creek Reservoir and elsewhere in the general locality and region, the potential for adverse impacts to be imposed upon threatened biota (particularly wetland and water birds) is clearly limited; · the conclusion that a significant effect is not likely to be imposed upon any threatened species populations or ecological communities, or their habitats pursuant to s 5A of the EP&A Act is appropriate and reasonable. It is open to Council to reach that conclusion on the basis of the available information; and · it is also open to Council to conclude that any adverse impacts which will or may be imposed upon the natural environment, pursuant to s 79C of the EP&A Act, are neither unreasonable nor unacceptable. In my opinion, it is open to Council to conclude that the proposed activity would not impose adverse impacts upon the natural environment (either in general or with respect to threatened biota) sufficient to warrant refusal of the development.

[49]

The Service letter included the following comments - The NPWS has reviewed the infoffi1ation in support of the development application prepared by Terra Consulting for the above development. Based on the infoffi1ation contained within this report, the NPWS has a number of concerns in relation to the proposed rowing training centre. These concerns are centred around the possible effects of the proposal on Blue-billed Duck (Oxyura australis) population, but similar impacts could be expected to apply to other non endangered water bird species as well. The NPWS's concerns and comments are outlined below. 1. Habitat It is currently estimated that up to half the wetlands in the Murray Darling Basin have been destroyed since European settlement. This is a severe contraction in the amount of available habitat for waterbirds and increases the importance of any wetland with recognised habitat. The fact that the reservoir is used by Threatened species such as Blue-billed Duck and Freckled Duck (Stictonetta naevosa) (both listed as Vulnerable under Schedule 2 of the Threatened Species Conservation Act 1995), increases its importance. The NPWS notes that the Sinclair Knight Mertz (SKM) report could not identify alternative habitat within the sub region for Blue-billed Ducks that may be displaced by the proposal. The NPWS also notes the SKM report identifies the reservoir as a significant contributor to the available habitat available for this species (Blue-billed Duck) in this region. Any activity which causes waterbirds to abandon otherwise suitable habitat contributes to the further loss of wetland habitat for waterbird populations. The NPWS recognises the habitat on Spring Creek Reservoir has a large component of introduced plants and could be improved with planting of suitable native species. To this end, the NPWS supports the recommendation in the SKM and Goldney & Beard reports that a program of habitat improvement be undertaken at the reserve. 2 Disturbance to birds The NPWS believes it is likely that the proposal will have an impact on waterbirds using the reservoir through disturbance caused by rowing activities. The NPWS has a number of concerns with the activity, despite the proposed safeguards. The disturbance test conducted by SMZ indicated that waterbirds moved when a single boat approached within 50 m and that therefore a 50 m exclusion zone is required. No mention is made of the distance moved before resettling on the water by the birds in response to approaching boats. It Cannot be assumed that birds will always move away from the path of travel of boats when disturbed. It is possible that birds could settle further up course, resulting in multiple disturbances from rowing boats. The SMZ report assumes that birds will eventually settle in one of the exclusion zones away from the course, however there is no guarantee that this will occur and the potential exists for some birds to abandon the reservoir because of repeated disturbance. Rowing activities will coincide with any attempted summer breeding by the Blue-billed Duck. Early morning and late afternoon training sessions will also coincide with periods of higher daily activity. The NPWS recognises the breeding stronghold for this species is further west, and that Spring Creek Reservoir may be marginal breeding habitat. However it is significant that breeding has taken place at least once in the period 1994 -1999 and that continued disturbance may result in the Blue-billed Duck abandoning attempts to breed on the reservoir. The SKM report recommends that rafts of waterbirds must be approached sensitively by training craft and motor boats. Rafts of birds will be very low in the water which will reduce their visibility to crews in rowing boats. If crews in rowing boats have trouble seeing the rafts, then their ability to slow down as they approach the rafts is compromised, particularly when six rowing boats are moving down the course in simulated race conditions. For this reason, the NPWS believes it may be difficult for the proponent to comply with this safeguard. It is noted that SMZ have qualified their assessment and the impact of the proposal on Blue-billed Ducks and has stated that the safeguards need to be tested via a monitoring, feedback and management program to ensure the safeguards are working and that Blue-billed Duck is not being adversely affect by the activity. 3 Northern exclusion zone The proposed northern exclusion zone in the Terra Consulting report is different to those proposed by Goldney and Beard in their report of April 2000. Goldney and Beard identified waterbird habitat around the island and proposed the exclusion zone commencing from the southern end of the island (see attached map). The proposed rowing course identified in the development application extends into Goldney and Beard's exclusion zone along side the eastern side of the island, finishing approximately 200 metres north of the island (see attached map). From this map it appears the rowing course comes within 50 metres of the island's eastern shore and associated habitat of the island. Islands offer extra protection for waterbirds because they offer refuge away from predators such as foxes, dogs and cats. The NPWS is concerned that the extension of the rowing course into the proposed exclusion zone will increase disturbance impacts on waterbirds in the area of the reservoir which is identified in the SKM report as the area of highest waterbird concentrations.

[54]

The Report includes in its "Conclusions" the following recommendation - The development application process follows a number of previous processes that have occurred regarding the establishment of a rowing training facility at Spring Creek reservoir . These include a report prepared by Beard and Goldney titled Assessment of the Potential for Rowing and Other Recreational Activities on Spring Creek Reservoir, Orange City (2000), which was commissioned by Council. This report contributed to :he preparation of a draft Plan of Management for Spring Creek Reservoir. A Water Bird Survey and Rowing Trial Report was prepared by Terra Consulting in January 2001. A public hearing was subsequently conducted in May 2001 on the draft POM. The POM was subsequently adopted by Council in June 2001. The report submitted in support of this application prepared by Terra Consulting provides written detail and plans of the proposal and addresses planning and environmental issues that are of relevance to this proposal. The application is also accompanied by a Threatened Species Assessment Report prepared by Sinclair Knight Merz. Council has received advice from Gunninah Environmental Consultants giving opinion that: [there is here set fort the abovementioned advice from Mr Dominic Fanning] It is therefore recommended that Council grant consent to this application. In granting the consent, however, it is recommended that Council attached the conditions included in the attached Notice of Approval. Included are conditions that required the preparation of Environmental Management Plans for both the construction phase and for the operational phase of the development. As indicated above, and as highlighted in the Sinclair Knight Merz report, there is a crucial need to implement a strict monitoring program that should operate for the life of this development. This should be carried out by way of an Environmental Management Plan which should be drafted to include the abovementioned environmental objectives and the protective measures and strategies. Such Plan will also need to be consistent with the Plan of Management as adopted by Council. Council may consider the inclusions of key environment groups within the Environmental Management Plan Reservoir Committee.

[95]

Mr Jones' report discussed that paper in the following extracts at p 5 and 6: Terra Consulting, in their report on the limited trial conducted, indicate that the impact of rowing training is minimal and suggest a number of amelioration measures. While this finding may be considered to support the Beard and Goldney suggestion that rowing training is a low impact activity, it needs to be considered having regard to reliance upon a single event observation. Although the findings of Terra Consulting are limited, they do provide an indication that the impact upon the bird population of an unfamiliar event. It would be reasonable to expect the impact to have been greater due to the unfamiliarity. Potentially, where rowing training is conducted as suggested the impact may be further reduced due to habituation as discussed by Patton, Ziembicki, Owen and Heddle (May 2000). Patton and others, discuss habituation to human activity suggesting that birds may be less sensitive to frequent human activity, although note that there is no confirmation data available. Having regard to the unknown nature of habituation the exclusion zones proposed could be considered an attempt to provide buffer zones and allow sufficient areas to escape from any disturbance. Orange City Council in the draft management plan, appears to have considered the Beard and Goldney recommendations by limiting the area available to rowing training through adoption of the exclusion zones. While there may be concerns in regard to disturbance of the bird population, there appears to be divergent opinions of the consequences of that disturbance. Environmental reporting has provided recommendations in regard to measures to minimise impacts the bird population by the introduction of the proposed uses. The draft plan of management provides for reasonable measures to minimise adverse impacts generally in accordance with the reports. These measures specifically establish areas for the exclusive domain of the bird population, an environment that currently does not exist.

[170]

The relevant passages of Mr Fanning's cross-examination which occur at pp 14 to 16 of the transcript of 14 February 2003 are as follows: Q. And in relation to the flight response you cannot say in relation to either the blue billed duck or the freckled dug, whether or not their flight response will, over time, cause them to abandon the reservoir or whether they will be content with settling in the areas contained within the exclusion zones? A. I can only say on the basis of my observations of other waterbirds, the observations of other waterbird species by Dr Goldney in fact, and on just my general observations of those species elsewhere, even on small water bodies, that bird -individuals will take off and then land further away in the water body. So -but I can't say with absolute certainty that some birds won't - would not abandon the Spring Creek Reservoir as a result of those activities, I can't say that. Q. It's a possibility isn't it? A. It is a possibility. Q. And in relation to the term habituate-- A. Yes. Q. --you also can't say that the blue billed duck or the freckled duck would readily habituate to the intensity of the development proposed such that they would be content to remain within the exclusion zones and have no flight response? A. I can't say that they would be content to remain with the exclusion zones and have no flight response. I can say that it is extremely likely on the basis of other bird species and their responses that they would habituate, that is blue billed ducks and freckled ducks, would become habituated to the activity on the reservoir and would, in my opinion, not be likely to abandon it. But I can say no higher than that. Q. There's still a possibility they would? A. There's still a possibility. Q. And it's an equal possibility? A. No I don't believe it's an equal possibility. I think it's extremely unlikely that the birds would abandon the reservoir. Q. But it's a possibility? A. It's a possibility. Q. And when we're looking at likely and unlikely? A. Yes. Q. In your experience Mr Fanning something is likely if it's more probable than not? A. The approach to likelihood is that it has a high likelihood of occurring rather than is related to probabilities. Q. And what does a high likelihood of occurring mean Mr Fanning? A. Well there's no -there's no mathematical way of expressing it but-- Q. Well what's the difference between a high likelihood and a low likelihood. Is one more probable than not and one only a possibility? A. Well no one's - it's a matter of whether - something that has a low likelihood is only a possibility. It's possible rather than more likely than not to happen. High likelihood is where it's not a certainty but there's a very high chance that it will occur. Q. And in relation to your expression of opinion as to whether or not there is likely to be a significant impact on a species, you look to a high likelihood and discount those which are low likelihoods? A. No I look to the - number one the significant - the level of significance of the effect and then the likelihood as to whether or not there's a - it is something that is more likely than not to occur. Q. And if something is more likely than not to occur then you say that there is a likelihood of an impact - A. Yes. Q. --in that test. And if it's not more likely than not, it's not likely to have an impact? A. No it's not likely -I didn't say it's not likely to have any impact at all. Q. Not likely to have a significant impact? A. Significant effect is the - yes. It's a matter of significance, not simply the effect. Q. And in relation to significance, what indicia do you use to identify significance? A. Again it's a matter of judgment. There aren't any mathematical indicia of significance in this case. One would perhaps consider the abandonment or near abandonment of the reservoir by the species or the prevention of breeding by the blue billed duck on the reservoir as a - potentially a significant effect on those birds that occur on the reservoir. Q. And you would accept that both of those scenarios, even with the ameliorative effects are still a possibility, even on this case? A. A remote possibility. Q. And in relation to significance, if there was a change which in ecological terms was notable for example the bird, the duck stopped using a certain part of the reservoir that it had frequently used in the past, would that be notable, would that be worthy of observation in ecological terms? A. It may be, it depends on what function the birds were using it for and in what time of the year they were using it. Q. And in relation to that type of effect, that would fall well below your consideration of significance in considering whether or not there was a likelihood to be a significant impact on a certain species? A. Well again that's a generality which doesn't apply across the board. If-- Q. I'm just trying to understand Mr Fanning your thresholds if you like? A. Well again, as I say, there are no thresholds in these assessments. If the activity were for example to impinge upon breeding habitat for the blue billed duck such as to prevent the blue billed duck from breeding on the reservoir-- Q. At all? A. At all. I would consider that a significant effect on the bird -on these birds. Not on the species which is what section 5A asks about, but on these birds at this location. If however, the impacts of the activity are on, for example, what's commonly referred to as loafing activities, which is when the birds tend to congregate-- Q. And have a chat? A. And they don't always do that -and have a chat, yes that's right, bob about on the briny and discuss the day's proceedings. During the day -and that's something they tend to do more during the winter than during the summer, then I would not consider that to be a significant effect on the species. So it depends on the element of the biology of the species which is being adversely affected and to what extent that is occurring. Q. And in your analysis of likelihood of significant effect it's also fair to say Mr Fanning that you see yourself confined to those factors which have become known as the eight part test set out in section 5A? A. Not entirely but they primarily establish the test for threatened species but they are, as section 5A states, these are factors which must be taken into account, they're not exclusive. Q. And you see, as part of that consideration, inappropriate to exclude a consideration upon impact on individuals but rather look to the species as a whole for a population as a whole? A. Apart from where the factors specifically talk, for instance factor A talks about a viable local population. But section 5A itself, in the body of the section, requires a consideration as to whether there'd be a significant effect on the species or its habitat, not on - it doesn't say on individuals of the species.

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Judgment (218 paragraphs)

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Cases Cited (12)