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[2003] NSWLEC 131
Land and Environment Court (NSW)
2003-05-27
Bignold J
Original judgment source is linked above.
(A copy of Map 2 is annexed hereto and marked "A" The surface area of the Reservoir is some 110 hectares.)
The Council placed the draft Plan of Management on public exhibition from 4 November to 1 December 2000 inviting public inspection and submissions, and after receiving a number of written submissions advised that the Council would hold a public hearing on the matter on a date to be notified.
In January 2001, the Council received a written Report from Terra Consulting (NSW) Pty Ltd of "an observational survey conducted at the Reservoir" on 15 January 2001 "to record the impact upon water birds by a single scull training event and look for the presence of freckled Duck and Blue-billed Duck". The Report detailed observations made of the various waterbirds on the Reservoir and of their behaviour when the single scull and accompanying motor boat passed along the waters. Section 4 of the Report noted a number of measures that "would assist in reducing any potential impacts from sculling activity to waterbird species inhabiting Spring Creek Reservoir".
On 23 April 2001, the Council conducted a public hearing in respect of the submissions received to the draft Plan of Management. The Meeting which was attended by 26 residents and 4 Council staff members occupied some two hours during which a number of persons spoke and made presentations in support of their written submissions. The Meeting was presided over by Mr Brian Jones, a town planner independent of the Council, who submitted his written report to the Council on 23 May 2001 (a copy of which was subsequently supplied by the Council to all persons who had made submissions and had attended the public meeting).
In his written report, Mr Jones discusses the issues raised at the Public Hearing and provides his evaluation of the matters there ventilated. The conclusions contained in the Report include the following: I find that the draft Plan of Management for the Spring Creek Reservoir is an adequate plan for the proposed management of the area. In making this observation it is recommended that: A limit of the total number of craft upon the water surface at any time is restricted to ten is included in the plan, The plan is amended to ensure that rowing training will be restricted at times when the water level falls below 4 metres below full supply level, That routine water quality testing is implemented, Any development consent granted is limited to one year unless impact monitoring of rowing training indicates that the impacts are not adversely affecting the bird population, That any development application proposing increased level of use is supported by appropriate investigations, and Council reconsider the closure of the Huntley Road and Lone Pine Avenue crossing.
On 7 June 2001, the Council adopted the Plan of Management subject to the six amendments to the draft as recommended by the Council's Acting Director Environmental Services in his report dated 31 May 2001.
Those amendments essentially adopted the amendments that had been recommended in Mr Jones' Report on the Public Hearing that he had conducted.
On 4 February 2002, the Council commissioned Mr Fanning, Environmental Consultant, to provide assistance in determining whether the Threatened Species Assessment Report (which it had received as an advance copy, which was proposed to accompany a development application for rowing activities on the Reservoir) "would meet the reasonable requirements of s 5A of the EP&A Act and that the report's conclusion that "a significant impact on the threatened species would not occur" would be appropriate for considering a development proposal for the activity under s 79C of the Act.
On 2 May 2002, the Council received the School's development application for the rowing training course and associated boatshed building and toilet block at the Reservoir. The development application was supported by a written report prepared by Terra Consultant (NSW) Pty Ltd (the "Terra" Report) which annexed the Threatened Species Assessment Report prepared by Sinclair Knight Merz (the SKM Study).
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.
In Section 4.5 of the "Terra" Report, there is a detailed discussion of the "likely impacts of the development" (s 79C(1)(b)) which includes Section 4.5.6 "Effect on Threatened Species, Ecological Communities or their Habitats".
This section of the "Terra" Report comprises direct quotations from, or summaries of, relevant contents of the SKM Study which will be considered separately hereafter.
Section 4.8 of the "Terra" Report discusses the "public interest" (s 79C(1)(e)) noting that "the proposal to conduct rowing training on Spring Creek Reserve has generated considerable public interest, particularly in the form of submissions on the draft Spring Creek Reservoir Plan of Management". Reference is then made to the report of the Public Hearing in respect of submissions to the draft Plan of Management and the subsequent decision of the Council to adopt the Plan of Management.
After quoting from subsection 7.3 of the Plan of Management (which I have earlier recited) the Terra Report concludes: In consideration of the above, it is submitted that the proposal detailed in this application complies in all matters
The Terra Report conclusions as expressed in Section 5 are as follows: The proposal as submitted can be supported on the following grounds: The proposal is permissible with the consent of Council and can be demonstrated to be consistent with the objectives of the No. 7 Zone and the relevant provisions of Orange LEP 2000; The proposal can be demonstrated to be entirely consistent with the objectives for recreational use and means to achieve those objectives as detailed in Section 7.3 of the Spring Creek Reservoir Plan of Management; The proposal is considered to be acceptable in terms of section 79C of the EPA Act, 1979; The SKM report indicates that there are no ecological constraints that would preclude the establishment of a rowing program and associated infrastructure on the Reservoir. The concerns in regard to impact on waterbird lifecycles and threatened species have been adequately addressed by the SKM report and the mitigative measures detailed therein; Other impacts are expected to be reasonable and may be addressed by responsible management practices and appropriate conditions of consent; The proposal to commence rowing training on Spring Creek Reservoir further reflects the school's investment in and contribution to the local community, particularly as the school will bear the cost of establishment of the program and buildings but is prepared to share these facilities with other local schools that register an interest in developing rowing programs for themselves; and The introduction of the rowing training program will enhance the range of sporting pursuits that are available to students of KWS and other local schools, as well as contribute to Orange's maturity as a centre for education.
The SKM Study is a document comprising some 75 printed A4 pages. Despite severe criticisms made by the Applicant of its content (which I shall consider hereafter), the Study is, on its face, a comprehensive, professionally prepared document, as can be appreciated from its contents page which is as follows (omitting page references): 1. Introduction 1.1 Background 1.2 Relevant Legislation 1.2.1 Environmental Planning and Assessment Act 1979 1.2.2 Environment Protection and Biodiversity Conservation Act 1999 1.2.3 Spring Creek Reservoir Plan of Management 1.3 Aims and Objectives 1.4 Report Format 2. Literature Review 2.1 Threatened Species of Spring Creek Reservoir 2.2 Threatened Species of the Study Locality 2.2.1 Endangered Populations/Communities in the Study Region 3. Description of the Habitat 3.1 Spring Creek Dam Aquatic Environment 3.2 Spring Creek Dam Riparian and Near-Dam Environment 4. Potential Subject Species 4.1 Species Known to Occur 4.2 Species Considered Likely to Occur 4.3 Threatened Populations and Communities 4.4 Summary of Subject Species 5. Species Descriptions 5.1 Freckled Duck 5.1.1 Distribution 5.1.2 Conservation Status and Occurrence in Reserves 5.1.3 Habitat 5.1.4 Key Threats and Listed Threatening Processes 5.1.5 Ecology 5.1.6 Use of Spring Creek Dam 5.2 Blue-billed Duck 5.2.1 State Distribution 5.2.2 Conservation Status and occurrence in Reserves 5.2.3 Habitat 5.2.4 Key Threats and Listed Threatening Processes 5.2.5 Ecology 5.2.6 Use of Spring Creek Dam 5.3 Other Potential Subject Species 5.3.1 Large Bent-wing Bat 5.3.2 Yellow-bellied Sheathtail Bat 5.3.3 Australasian Bittern 6. Proposed Activity and Potential Threats 6.1 Details of the Activity 6.2 Summary of Nature of Potential Threats 6.3 Summary of Methods to Minimise Threats 6.3.1 Environmental Objectives 6.3.2 The Need for Monitoring and Compliance 6.3.3 Protective Measures and Strategies 6.3.4 Recommendations to be Considered by Council 6.4 Impact/Response Table
The SKM Study identified no endangered plant populations or ecological communities within the Spring Creek Reservoir Study Area but identified six potential threatened fauna species including the Blue-billed Duck and the Freckled Duck. Section 5 of the Study contains detailed species descriptions of the Freckled Duck and Blue-billed Duck detailing, in respect of each species, the following matters - i. State distribution ii. Conservation status and occurrence in reserves iii. Habitat iv. Key threatening processes v. Ecology; and vi. Use of Spring Creek.
In respect of each species' use of the Reservoir the Study relies upon detailed recorded sightings since 1994 undertaken by Dr Jill Campbell (a local resident, who gave evidence in the proceedings on behalf of the Applicant) and who had been actively involved in the local community's response to the Council's preparation and adoption of the Spring Creek Reservoir Plan of Management.
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.
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.
Section 6.3.3 of the Study species "Protective Measures and Strategies". These include detailed requirements relating to the following subjects -
A. Exclusion Zones B. Waterbird Abundance, Diversity and Lifecycle Protection C. Operational Aspects of Rowing Training D. Shoreline Protection E. Control on Vehicle Movement Impacts F. Protection of Foreshore Vegetation G. Solid Waste Management H. Effluent Management I. Water Quality Protection J. Boatshed Construction K. Noise Impacts L. Dam Water Levels M. Education Program N. Compliance Program and Environmental Management Plan.
Section 7 of the Study contains an assessment whether there is a need for the 8 part test (as formulated by the EP&A Act, s 5A) for threatened species, concluding that such a test is required for three species of fauna, the Freckled Duck, the Blue-billed Duck and the Australasian Bittern. The 8 part test respectively undertaken for the Freckled Duck and for the Blue-billed Duck occupies eight pages and nine pages respectively in the Study. The same conclusion is expressed in respect of the 8 part test undertaken in respect of each of the threatened duck species, namely that a significant impact on each species "is not expected to result from the proposed activity" and that an SIS is not required.
Each conclusion incorporates the following statement: It is important that all identified protective, enhancement, monitoring, reporting and compliance strategies are adopted to ensure that significant impacts do not result from the proposal.
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.
Following receipt of the School's development application, the Council decided to give public notice of its receipt, making it available for public inspection for 14 days from 15 May 2002 with an invitation for submissions to be made to the Council. Additionally, the Council sought from selective public authorities comments on the development application and written comments were received from the Department of Land and Water Conservation and the National Parks and Wildlife Service (the Service).
In so publishing the development application and seeking consent from the public authorities, the Council appreciated that there was no statutory obligation for such action because the development proposal was neither designated nor advertised development.
In the meantime, the Council received the written response from Mr Dominic Fanning whose advice had been sought in respect of the SKM Study.
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.
The Service's written comments are contained in its letter dated 31 May 2002. This letter was received after the Report dated 29 May 2002 by the Council's Manager - Development Approvals was prepared. That report was considered by the Council's Planning, Building and Health Committee on 3 June 2002 and again by the same Committee and thereafter the Council at its meeting held on 6 June 2002 when the Council adopted the recommendation contained in the Report for the grant of development consent subject to stipulated conditions. At the Meeting of the Committee, noted that it had received the letter from the Service as a "late item" and resolved that it be considered in conjunction with the Council's consideration of the School's development application. At that Meeting, the Committee was addressed by Mr Tinsey representing a local group of conservationists and by the Principal of the School.
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.
The Report of the Council's Manager - Development Approvals on the School's development application comprises 19 x A4 pages. As submitted to the Council's Committee Meeting held on 3 June 2002, it included some 150 pages of Annexures comprising copies of the following documents -
(i) the Terra Report; (ii) the SKM Study; (iii) Dominic Fanning's advice; (iv) written comments from the Department of Land and Water Resources; (v) written objections against the proposal received following the Council's public notification process; and (vi) the Plan of Management for the Reservoir.
The Report contains a detailed evaluation of the likely impacts of the proposed development, including a consideration of the requirements of the EP&A Act in respect of impact on flora and fauna. This consideration essentially summarises the SKM Study and the advice on that study received from Mr Dominic Fanning.
The Report contains a section under the heading "Public Submissions" which includes the following passages: PUBLIC SUBMISSIONS The subject application is not designated development or advertised development as , defined by the Environmental Planning and Assessment Act. Therefore, the application j was not required to be advertised to seek public comment. In view of the considerable amount of public interest relating to the abovementioned Plan of Management, it was decided to place an advertisement in the Central Western ~ to advise members of the public that a development application had been received and that it was available for inspection for a period of 14 days up to 29 May 2002. A total of eight (8) submissions have been received objecting to the proposal. These are attached. The issues raised in the submissions predominantly relate to the possible effect of rowing activities upon bird life at Spring Creek Reservoir, particularly in relation to threatened species. The majority of submissions address this general issue. A few submissions, particularly that from the Orange Field Naturalist and Conservation Society Inc, are directed to the Sinclair Knight Merz report. The points raised in the submissions are quite numerous and it would be impractical to attempt to address each of those issues in this report. As indicated above, the Threatened Species Assessment Report prepared by Sinclair Knight Merz has been independently reviewed by Gunninah Environmental Consultants and in its opinion is sufficient to enable Council to consider the application pursuant to its responsibilities under the Act. A number of submissions raise the issue of alternative locations for the establishment I of this facility, In particular Suma Park Reservoir. The Director-Technical Services has addressed this issue under separate report. The Director-Technical Services recommends that rowing activities not be allowed on Suma Park Reservoir.
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.
The Report annexed a draft Notice of Determination granting development consent subject to stipulated conditions.
At its meeting held on 6 June 2002, the Council resolved to adopt the Report and the Notice of Determination.
On 7 June 2002, the Notice of Determination in respect of the School's development application was issued by the Council granting development consent subject to 34 stipulated conditions which included the following: 1. The development shall be carried out in accordance with the approved development plan/s (numbered 201218DA/1-6J, written reports submitted with the application, specifications and the Spring Creek Reservoir Plan of Management, as amended in accordance with any conditions of this consent; and in accordance with the Building Code of Australia 1996, Orange Local Environmental Plan 2000, the Local Government Act 1993 and Regulations, and the Environmental Planning and Assessment Act 1979. Reason: to ensure that the development is carried out in accordance with the terms of Council's approval. 2. An operational Environmental Management Plan shall be prepared and presented to Council for approval prior to Council granting its consent as owner of the subject land for the application for Construction Certificate to be made. The Environmental Management Plan shall adopt the Environmental Objectives listed at page 34 of the Threatened Species Assessment Report, December 2001 prepared by Sinclair Knight Merz which accompanied the subject development application; shall include the protective measures and strategies listed in part 6.3.3 of the Sinclair Knight Merz report and include the requirements of the Spring Creek Reservoir Plan of Management.
Furthermore, the Environmental Management Plan shall provide for the formation of an Environmental Plan Management Review Committee which shall be formed under the direction of Council whereby that Committee shall upon an annual basis consider a report prepared by Kinross Wolaroi School which shall outline compliance, non-compliance, environmental events and details of any protection and management projects.
The Construction Environmental Management Plan shall adopt the Environmental Objectives listed at page 34 of the Threatened Species Assessment Report, December 2001, by Sinclair Knight Merz, shall include the protective measures and strategies in part 6.3.3 of the report that relate to construction activities. The Construction Environmental Management Plan shall address the suitability of the selected construction method, proposed traffic movements, on-site storage of materials, measures to prevent turbidity and measures to prevent impact upon fauna. Furthermore, the Construction Environmental Management Plan shall provide for the formation of a Construction Environmental Management Plan Review Committee which shall be formed under the direction of Council whereby that Committee shall meet at regular intervals during the construction phases. Reason: to ensure protection of the environment surrounding the proposed development. C. APPLICANT'S CHALLENGE TO THE VALIDITY OF THE DEVELOPMENT CONSENT BASED ON ADMINISTRATIVE LAW GROUNDS
Counsel for the Applicant in her written submissions summarised the Applicant's case as pleaded in the Amended Points of Claim based upon the following established grounds of administrative law -
(i) the grant of the development consent was manifestly unreasonable;
(ii) in granting the development consent the Council failed to have regard to relevant considerations;
(iii) in granting the development consent the Council took into account irrelevant considerations; and (iv) the conditions imposed upon the grant of the development consent rendered the consent void for uncertainty.
I shall separately determine each of these allegations. (i.) Manifest unreasonableness
In support of this ground, the Applicant submitted that it was manifestly unreasonable for the Council to rely upon the SKM Study because -
(a) that Study did not justify any finding as to the possible impacts upon the threatened species or fauna generally; and
(b) in the alternative, that Study was predicated upon the stated "ameliorative effect" of certain recommended measures which were impractical, unenforceable and/or uncertain.
In amplification of this ground, the Applicant submitted that the SKM Study was fatally flawed by virtue of the following deficiencies in the Study -
(i) that Study had concluded that the "flight response" of the threatened ducks was critical in the assessment of the impact of the proposal;
(ii) no testing had been undertaken to ascertain the flight responses of the threatened species;
(iii) the limited testing that was undertaken was not representative of the proposal and concerned waterbird species different from the two identified threatened species;
(iv) the relevant opinions expressed in the Study were so qualified to the point of being virtually meaningless;
(v) the relevant opinions were expressed to be based upon "current knowledge" which was acknowledged to be insufficient for the purposes of the opinions expressed;
(vi) the Study was not supported by a literature review when there existed a clear body of relevant scientific literature; and
(vii) the Study relied upon ameliorative measures that were not proposed by the development application, namely the "truthing" of the assumptions and the cessation of rowing if those assumptions proved incorrect.
Three important observations should be immediately made of the Applicant's submission that the SKM Study was fatally flawed. Firstly, the elaboration of the submission is quite different from the particulars supporting par 27 of the Applicant's Amended Points of Claim which asserts that the opinion in the SKM Study that the proposed development was unlikely to have a significant effect on threatened species, was "not founded on any, or any sufficient, evidence".
In these circumstances, the Applicant's case must be taken to be that ultimately advanced at the hearing rather than the case as pleaded.
Secondly, both the case advanced at the hearing and the case as pleaded does not clearly distinguish between the asserted unreasonableness of the Council's decisions (i) to conclude that the proposed development was unlikely to have a significant effect on threatened species with the result that no SIS was required to accompany the development application; and (ii) to grant development consent, having regard to the likely impact of the development (including environmental impacts on both the natural and built environments): vide s 79C(1)(b) of the EP&A Act.
Accordingly, I must consider the Applicant's allegations of legal unreasonableness as applying to both relevant decisions made by the Council.
Thirdly, the Applicant's case and argument, in truth, do not proceed upon the conventional understanding of the ground of judicial review of "legal unreasonableness" (emanating from the decision of the English Court of Appeal in Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223), but proceeds upon a different basis of judicial review, namely the "no evidence" rule (although it should be noted that Sir William Wade in "Administrative Law" (7th ed) at p 312 sees the "no evidence rule" as having "something in common with the principle that perverse or unreasonable action is unauthorised and ultra vires").
The Applicant's argument relied upon the principles applicable to judicially reviewing findings of fact collected by Spigelman CJ in Bruce v Cole (1998) 45 NSWLR 163 at 187 to 189 leading to the Chief Judge's conclusion (at 189): I accept that a finding of primary fact by the Conduct Division will be vitiated if there was no probative evidence to support it. Similarly, an inference of fact is vitiated if it is not open on the primary facts properly so found.
In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Mason CJ discussed at 355 to 360 the extent to which findings of fact could be judicially reviewed under the Commonwealth Administrative Decisions (Judicial Review) Act 1977 culminating in his Honour's conclusion (at 359/360) that a finding of fact (that constitutes a relevant "decision" under the Commonwealth Act) "will then be reviewable on the ground that there is no probative evidence to support it and an inference will be reviewable on the ground that it was not reasonably open on the facts, amount to the same thing".
Earlier, Mason CJ had stated at 356: Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis or an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.
At 358/359 Mason CJ referred to decisions of the Federal Court of Australia which had adopted the statements made by the House of Lords in Reg v Hillingdon London Borough Council: Ex parte Puhlhofer (1986) AC 484 to the effect that Courts exercising judicial review should leave the finding of facts to the public body appointed for that purpose by the legislation except where the public body acts perversely , noting that perversely signifies acting without probative evidence.
In my judgment, the Applicant has not established that the SKM Study provided no probative evidence of the fact that the proposed development was not likely to significantly affect threatened species. The Council, in my judgment, was entitled to rely upon the SKM Study in coming to its relevant decisions (i) that the proposed development was not likely to significantly affect threatened species; and (ii) to grant the development consent subject to conditions.
Moreover, in so deciding, the Council not only had the "probative" evidence provided by the SKM Study. It additionally had the following reports, which provided some substantial corroboration for the relevant opinions contained in the SKM Study -
(i) the Report of the Council's Manager - Development Approvals on the Schools' development application;
(ii) Mr Dominic Fanning's independent advice based upon his review of the SKM Study;
(iii) the Council's adopted Plan of Management for Spring Creek;
(iv) Mr Brian Jones' independent report of the public hearing into submissions made to the draft Plan of Management;
(v) the 2000 Assessment Report of Professor Goldney and Dr Beard.
The Applicant's submission that each of the other reports considered by the Council all relied upon the SKM Study and hence stood or fell with it, is simply not factually accurate. Since the Plan of Management, Mr Jones' independent report in the public hearing, and Professor Goldney's and Dr Beard's Assessment Report all preceded the SKM Report.
In respect of these corroborative materials, it is important to note that Mr Jones' independent report particularly addressed the 2000 paper by Patton, Zeimbecki, Owen and Heddle "Disturbance distances for water birds and the management of human recreation with specific reference to the Coorong Region of South Australia" (which had been specifically raised at the public hearing into the draft Plan of Management by the submission of, and presentation by, the Orange Field Naturalist and Conservation Society).
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.
The Applicant's attack on the SKM Study was premised on an appraisal of its contents such as might inform decisions to be given to questions of its admissibility and weight in legal proceedings as expert evidence in terms of s 79 of the Evidence Act 1995. In my judgment, this argument misconceives the true nature of the statutory tasks (i) impliedly imposed upon the Council under the EP&A Act, s 78A(8)(b) and (ii) expressly imposed by the EP&A Act, s 79C(1)(b) and the legitimacy of the Council in undertaking those statutory tasks to rely upon materials, such as the SKM Study, supporting the School's development application. The Legislature cannot have intended that in undertaking those identified statutory tasks consent authorities would operate as if they were Courts of Law insofar as they evaluated development applications, including the materials (often prepared by experts) supporting the development applications.
Similarly, the scope of the no evidence rule as it has developed within the sphere of judicial review does not translate the role of a public authority in making an administrative decision (such as the two decisions made by the Council in the present case in terms of the EP&A Act, s 78A(8)(b) and s 79C(1)(b) respectively) into the role of a Court of Law. Nor does it translate materials upon which such a decision is based into materials that are admissible evidence in Court proceedings
The question arises in the present context as to what is precisely meant when the courts have said "there is no probative evidence" to support the relevant finding of fact.
In Bond Mason CJ at 356 emphasised that no error of law would be involved if there was some evidentiary basis for the relevant finding and he went on to cite a statement from the Privy Council decision in Mahon v Air New Zealand (1984) AC 808 to the effect that "natural justice requires that the decision to make a finding must be based upon some material that tends logically to show the existence of facts consistent with the finding…"
In the Evidence Act 1995, the phrase "probative value of evidence" defined in the Dictionary to that Act as meaning the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue
In the present case, the relevant "fact in issue" was the likelihood of the proposed development to significantly affect threatened species etc, being a fact which the Chief Judge in Plumb said was "not truly an objective fact - it must always be a matter of opinion".
In this context, the severe criticisms made by the Applicant's Counsel of the SKM Study culminating in the following crescendo - In effect the SKM Study failed to find a likelihood of impact because they had no idea what the impacts were or whether the ameliorative measures were going to work.
have not established that the relevant opinions contained in the Study lacked any probative value. Moreover, when regard be had to the other corroborative materials that were available to, and considered by, the Council in making its relevant decisions the Applicant's flourishing attack simply dissipates into mere rhetoric.
Another source of corroborative evidence is provided by the Service's response to the proposed development that I have earlier mentioned. That response certainly expressed the Service's concerns about the proposed development and "its belief that the activity will have a negative impact on waterbirds using Spring Creek Reservoir including the Blue-billed duck….there is a risk that the Blue-billed ducks may abandon the reservoir although…."
But the corroboration is founded upon the total absence of assertion by the Service that is concurrence pursuant to the EP&A Act, s 79B(3) was required to any grant of development consent to the School's development application. This silence on the part of the Service is significant in view of the analysis of the concurrence role of the Service contained in the judgment of the Chief Justice in Timbarra Protection Inc which held the statutory concurrence function conferred by the EP&A Act, s 79B(3) upon the Director-General of the Service was enlivened, not by the Director-General's relevant opinion, but by the objective fact that the proposed development "was likely to significantly affect threatened species…" etc. That being the case, it was open to the Service upon reference to it by the Council of the School's development application and supporting materials (including the SKM Study) to conclude that objectively considered, the proposal was likely to significantly affect threatened species, especially in the light of its expressed concerns about the impacts of the proposal. But the Service, in its reply, did not assert the applicability to the case of the Director-General's concurrence role. It is in this sense that the response of the Service corroborates the SKM Study conclusion that the proposed development was unlikely to significantly affect either of the two identified threatened species of ducks provided that 'all identified protective, enhancement, monitoring, reporting and compliance strategies are adopted to ensure that significant impacts do not result from the proposal".
For all of the foregoing reasons, I hold that the Applicant has not established that the Council's decisions (under attack by the Applicant) were unsupported by any probative evidence.
Although, as I have earlier noted, the Applicant's argument has been founded upon the "no evidence" rule rather than upon the Wednesbury ground of "manifestly unreasonable", my determination in respect of the "no evidence" case also applies to reject any residual claim that the Council's decisions were vitiated by manifest unreasonableness.
For all the foregoing reasons, I hold that this ground of alleged invalidity has not been made out. (ii.) Ground - failure to take into account relevant matters
Here, again it is to be noted that at the hearing, the Applicant advanced this ground of its "judicial review" case differently from the way it had been particularised in its Amended Points of Claim. Again, I shall determine the case as it was ultimately presented at the hearing.
Here, the Applicant submits that the Council failed to have regard to the following relevant considerations -
(i) the impact of the development upon fauna generally;
(ii) the impact of the development upon threatened species;
(iii) the impact of the actual development sought as opposed to that modified by the conditions imposed;
(iv) the Plan of Management adopted for the Reservoir;
(v) the ameliorative measures insofar as their ability to have the stated effect; and
In my judgment, the Applicant has not substantiated its claims. The documentary materials that I have earlier referred to, leading up to the lodgement of the School's development application and the technical materials supporting that application, and the Report of the Council's Manager - Development approvals which includes Mr Fanning's independent assessment of the SKM Study and advice to the Council in respect of the EP&A Act, s 79C(1)(b) clearly address each of the considerations, the subject of the Applicant's claims. Based upon the contents of those documentary materials, I infer that those considerations which were relevant to the evaluation of "the likely impacts of the proposed development on the natural environment" required by the EP&A Act, s 79C(1)(b) to be undertaken by the Council were "properly, genuinely and realistically considered on the merits": per Mason P in Weal v Bathurst City Council (2000) 111 LGERA 181 at 185.
Accordingly, I hold that the Applicant has not substantiated this alleged basis of invalidity of the development consent. (iii.) Taking into account irrelevant considerations
Here, the Applicant alleges that in granting the development consent the Council took into account the following considerations which were irrelevant -
(i) the availability to other schools within the Orange City of the proposed development; (ii) the SKM Study; and (iii) the letter from Mr Fanning.
In my judgment, the Applicant has not demonstrated that these matters were not relevant considerations in the Council's evaluation of the proposed development.
The first mentioned matter was referred to in the Report of the Council's Manager - Development Approvals in respect of the School's development application under the heading "Public Submissions" in the following passages: Some submissions and letters to the Central Western Daily question the motive of Kinross Wolaroi School to seek exclusive use of Spring Creek Reservoir to conduct the rowing activity. Terra Consulting at page 1 of their report advise that the facility will be available for use by other Orange schools This is supported by a letter from Kinross Wolaroi School offering that facility for use by other schools included as annexure B in that report. It is therefore open to other schools in Orange to share the use of this facility. This will obviously need to be done in conjunction with the Kinross Wolaroi School program. T must be made clear, however, that any shared use of the facility should not be carried out in addition to the Kinross Wolaroi school program such that the total maximum number of sculls and length and times of training sessions cannot be different to that specified in this application. A condition to this effect is included in the attached Notice of Approval.
The relevant condition of the development consent is Condition 3 which provides as follows: This approval is granted on the basis that the subject facility will be available for use by other schools within the City. Any rowing training program shall operate strictly as outlined in the report prepared by Terra Consulting in terms of hours of activity, period of activity, number of boats at any one time and maximum number of students involved in the program.
In my judgment, consideration of this matter was required by the EP&A Act, s 79C(1)(d) and (e) which provide as follows: (d) any submissions made in accordance with this Act or the regulations, (e) the public interest
The other two considerations alleged by the Applicant to be irrelevant were obviously relevant considerations in terms of the EP&A Act, s 79(1)(b).
The only basis advanced by the Applicant in support of its submission concerns the alleged flaws in the SKM Study said to deprive it of any probative value. Since I have earlier entirely rejected the Applicant's submission that the SKM Study provided no probative evidence as to whether the proposed development was likely to have a significant effect on threatened species, this present submission likewise must be rejected.
Accordingly, I hold that this ground of invalidity has not been established. (iv.) Ground - Development Consent is void for uncertainty
Here, the Applicant submits that there is an inconsistency created by the conditions of the development consent which renders the development consent void for uncertainty. The inconsistency asserted concerns the stipulation of the maximum number of rowing craft to be on the Reservoir at any one time.
Condition 1 is the relevant condition of the development consent which requires the development to be carried out in accordance with "the approved development plan/s (numbered 201218 DA/1-6), written reports submitted with the application, specifications and the Spring Creek Reservoir Plan of Management as amended in accordance with any conditions of this consent…..".
The Applicant's submission draws attention to the following provisions contained in some of the materials referenced in Condition 1, which are said to create the relevant uncertainty: (i) the number of rowing beats using the course at any one time will be capped at ten (10) : The " Terra " Report 19; (ii) It is the number of crafts on the water not the size of the craft that would be the determining factor in the degree of disturbance. No more then twenty (20) boats would use the rowing area per visit, including sculls and motor boats: SKM Study p 36 (iii) This Plan specifically provides for: There shall be no more than 10 boats allowed to use the Reservoir within the reservoir at any one time : Plan of Management p 10.
Thus, it appears from the relevant materials referred in Condition 1 of the development consent that according to the "Terra" Report and the Plan of Management, the maximum number of craft at any one time using the Reservoir is stipulated to be 10 whereas according to the SKM Study, the maximum number is stipulated at 20.
However, this inconsistency is readily resolved. Indeed, the "Terra" Report itself recognises the inconsistency created by the SKM Study referring to "20 Craft" and itself resolves that inconsistency in the following passage at page 22: 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 any one time is forty (40) rowers plus coaching staff. The number of rowing boats using the course at any one time will be capped at ten (10). It should be noted that the SKM Report actually allows a maximum of 20 rowing boats on the course at any one time but this proposal will limit the number to 10 in accordance with the PoM.
It follows, in my judgment, that there is no unresolvable inconsistency created by the operation of Condition 1 of the development consent. Moreover, the referenced materials themselves resolve the inconsistency by asserting that the maximum number of craft using the Reservoir at any one time is 10. That is, the maximum number of craft using the Reservoir at any one time is 10 as stipulated in the "Terra" Report, which describes the proposed development, and in the Plan of Management for the Reservoir which controls the management and use of the Reservoir as "community land": vide the Local Government Act 1993, s 35.
The foregoing analysis proceeds upon the uncontested assumption that the SKM Study, when stipulating a maximum of 20 craft, was intending to specify the maximum number of craft on and using the Reservoir at any one time. However, properly construed, it is doubtful that that assumption correctly construes the relevant statement in the SKM Study which in terms refers to "use of the rowing area per visit". Clearly, the reference to "visit" is a reference to the School visiting the Reservoir for the purpose of rowing training.
However, even if the SKM Study statement is to be interpreted in the fashion suggested by the Applicant as creating an inconsistency in the operation as Condition 1, for the reasons I have given, the inconsistency is itself satisfactorily resolved and the relevant stipulation is a maximum of 10 craft using the Reservoir at any one time.
For all the foregoing reasons, the Applicant's claims that the development consent is void for uncertainty has not been established.
It follows from all the foregoing reasons that the Applicant's challenges to the validity of the development consent based upon administrative law grounds wholly fail. D. THE APPLICANT'S CASE BASED UPON JURSIDICTIONAL FACT
The Applicant claim is that the proposed development (including the protective measures and strategies outlines in section 6.3.3 of the SKM Study) is likely to significantly affect threatened species, namely the blue-billed duck and the habitat of threatened species, namely the freckled duck. According to the Applicant, since the School's development application was not accompanied by a SIS, as required by the EP&A Act, s 78A(8)(b), it was not a valid development application and hence, the development consent granted b the Council in respect of that development application was not a valid consent.
As indicated at the outset of these reasons, all parties accept that the likelihood of a significant effect of threatened species or the habitat of threatened species is a jurisdictional fact requiring determination by the Court on the basis of the evidence adduced at the hearing: see Timbarra Protection Inc and Plumb.
In the context of the present proceedings where the Applicant has challenged the validity of the development consent, the Applicant bears the onus of establishing that the proposed development (including the protective measures and strategies formulated in section 6.3.3 of the SKM Study) is likely to significantly affect the threatened species, the blue-billed duck, or the habitat of a threatened species, the freckled duck.
As I have earlier noted, the relevant evidence tendered on this disputed question of fact is confined to the expert testimony of Professor Goldney for the Applicant and Mr Fanning for the Council, together with the documentary evidence that I have earlier noted and utilised in determining the Applicant's administrative law challenges to the validity of the development consent.
The question has arisen as to the admissibility as expert evidence relevant to the jurisdictional fact case advanced by the Applicant of the SKM Study.
Although the Applicant's objection to its admissibility had not been challenged by the Respondents, the School in its final address submitted that it was admissible as containing expert opinions relevant to the factual issue required to be determined, even though the author, Mr Bell, was not cross-examined. (The School had filed an affidavit by him only deposing to his expert credentials.) However, since it is clear that the SKM Study is hearsay, and the School's belated reliance upon it was not supported by an detailed analysis of any available basis for its admissibility (eg as a "business record" in terms of the Evidence Act 1995, s 69), I proceed on the basis that the various opinions expressed in the SKM Study are not admissible evidence on the jurisdictional fact issue.
It is common ground that two threatened species, the blue-billed duck and the freckled duck utilise the Reservoir.
In his evidence, Professor Goldney expressed the following opinions -
(i) there is a viable local population of the species, blue-billed duck at the Reservoir;
(ii) there is not a viable local population of freckled duck at the Reservoir;
(iii) the Reservoir may be regarded as very significant habitat for the freckled duck, particularly in drought conditions;
(iv) the ameliorative measures proposed in the SKM Study are unlikely to be successful in substantially ameliorating the impacts of the proposed development on threatened species;
(v) the viable local population of blue-billed duck is likely to be significantly affected by the proposed development in that the local extinction of that species would be a very likely outcome of the development; and (vi) the freckled duck is unlikely to continue to use the Reservoir once the development has commenced with the result that a significant area of known habitat of the regional distribution of the freckled duck's habitat will be removed.
Mr Fanning's competing opinions are as follows -
(i) there is not a viable local population of blue-billed duck at the Reservoir;
(ii) the Reservoir does not constitute significant habitat for the freckled duck; (iii) in application of the eight part test enumerated in the EP&A Act, s 5A the proposal is not likely to impose a significant effect upon either the blue-billed duck or the freckled duck.
Both Professor Goldney and Mr Fanning relied upon the records of regular monthly bird watching observations of the Reservoir made by Dr Jill Campbell since October 1994. Dr Campbell is a retired research horticulturist formerly employed by the Department of Agriculture at Orange where she has resided since 1974. Dr Campbell is an amateur ornithologist whose systematic monthly recording of birds at the Reservoir has been used as data for the Murray Darling Basin Waterbird Project Wetlands Survey (published in 1996) and since that survey was undertaken, Dr Campbell has continued her regular observations of birds on the Reservoir for the New Atlas "Birds Australia".
Dr Campbell annexed to her October 2002 affidavit the following summary of her records at the Reservoir of observations of the freckled duck and the blue-billed duck - Freckled Duck
Blue-billed Duck Up to 102 birds
1998 January - June, December 2-29 birds with young in March
2000 January, February, April, May 2-8 birds with young in February
Her summary account includes the following explanatory note: On 8 April 2000 when visiting Spring Creek Reservoir to observe the water birds, I noticed that the water level in the Reservoir was very low. I discovered that the water had been pumped down 3 metres due to a leak in the dam wall. To the best of my knowledge the dam wall has not yet been repaired. Due to heavy rain, it was quite full between September and December 2000 and from August to September 2001. Despite the generally low water levels in Spring Creek Reservoir, there are usually good bird counts, but breeding may be restricted as vegetation is some distance from the water, this year in particular.
In her December 2002 affidavit in reply to Mr Fanning's affidavit, Dr Campbell notes (par 7) that she had observed between 3 and 14 freckled ducks at the Reservoir in each week of November 2002.
Professor Goldney and Mr Fanning and Dr Campbell participated in a Expert Conference according to directions given by the Court prior to the hearing.
That Conference was held at Orange on 17 December 2002 (ie after their affidavits in chief and in reply had been served and filed) and the Joint Report of the Conference was tendered as Exhibit 2.
The Joint Report confines the issues raised by the EP&A Act, s 5A arising from the conflicting expert opinions to the following -
(i) whether the blue-billed duck at the Reservoir is a viable local population of the species; and (ii) if so, whether it is likely to be placed at risk of extinction; and
(i) whether the Reservoir is an area of known habitat of the freckled duck in relation to the regional distribution of the habitat of that species; and
(ii) if so, whether, a significant area of that habitat is to be modified or removed.
In respect of all other factors comprising the eight part test enunciated by the EP&A Act, s 5A, the competing experts agree that they are not relevant to the fact finding task required by the Applicant's jurisdictional case.
The EP&A Act, s 5A provides as follows: 5A. Significant effect on threatened species, populations or ecological communities, or their habitats For the purposes of this Act and, in particular, in the administration of sections 78A, 79C (1) and 112, the following factors must be taken into account in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats: (a) in the case of a threatened species, whether the life cycle of the species is likely to be disrupted such that a viable local population of the species is likely to be placed at risk of extinction, (b) in the case of an endangered population, whether the life cycle of the species that constitutes the endangered population is likely to be disrupted such that the viability of the population is likely to be significantly compromised, (c) in relation to the regional distribution of the habitat of a threatened species, population or ecological community, whether a significant area of known habitat is to be modified or removed, (d) whether an area of known habitat is likely to become isolated from currently interconnecting or proximate areas of habitat for a threatened species, population or ecological community, (e) whether critical habitat will be affected, (f) whether a threatened species, population or ecological community, or their habitats, are adequately represented in conservation reserves (or other similar protected areas) in the region, (g) whether the development or activity proposed is of a class of development or activity that is recognised as a threatening process, (h) whether any threatened species, population or ecological community is at the limit of its known distribution.
In Plumb, the Chief Judge at pars, 36 and 37 made the following observations in respect of s 5A: 36 As I explained in par 10, s 5A of the EP&A Act requires specified factors to be taken into account in deciding whether there is likely to be a significant affect on threatened species. It is important, in my opinion, to recognise that the eight part test simply lists factors which must be "taken into account". Positive answers to one or more of the eight factors does not mandate an affirmative answer to the question of whether there is likely to be a significant affect on threatened species (see Masterbuilt Pty Ltd v Hornsby Shire Council [2002] NSWLEC 170) nor is a negative answer to the question required if only one of the eight factors carries an affirmative answer (see Carstens v Pittwater Council (1999) 111 LGERA 1 at par 61). 37 Furthermore, the critical question is whether there is likely to be a significant affect on threatened species, as s 78A(8)(b) requires. The application of the eight part test mandated by s 5A is but part of the inquiry which that question poses. It is not the only inquiry - there may be facts and circumstances relevant to that inquiry which are not specifically contained in any of the factors in the eight part test. Hence, in dealing with the application of the eight part test, I have not confined my consideration solely to each test, but have taken into account other facts and circumstances which are relevant in this case.
In her final address in reply, Counsel for the Applicant made the extravagant submission that Mr Fanning's opinions were "misguided" and "worthless" because under cross-examination he had failed to appreciate the fundamental essence of the statutory test propounded by s 5A concerning the "likelihood" of "significant effect" on threatened species.
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.
Whereas it is apparent that the cross-examination just recited was premised upon, but without making explicit reference to, a number of judicial decisions as to the true meaning of the EP&A Act, s 5A, I am quite unable to accept the submission from Counsel for the Applicant that Mr Fanning's whole evidence was "worthless" because it had misconceived the true meaning of s 5A.
A more moderate submission was advanced by the Applicant's Counsel in her written submissions to the effect that the Court would conclude, in the light of all of the expert evidence that there remained the possibility that the proposed development, including its protective measures and strategies would have a significant effect upon the threatened species, the blue-billed duck and upon the habitat of the threatened species the freckled duck, and this finding was itself sufficient to enliven the requirement for the School's development application to have been accompanied by a SIS, as required by the EP&A Act, s 78A(8)(b).
This submission was founded upon a number of propositions which Counsel for the Applicant in her written submissions had formulated as follows: In order for the Court to determine whether an SIS was required it is required to make a finding of objective facts as to whether: The application is in respect of development on land that is…likely to significantly affect threatened species, populations or ecological communities, or their habitat… (s. 78A(8)(6) EP & Act) In these proceedings the Court is therefore obliged to decide for itself, based on the evidence before it, whether the proposed use is likely to have a significant affect on either the freckled duck or the blue billed duck, or both. It appears to be common ground that the proposal has the potential to impact upon the threatened species (or else there would have been no need to prepare the 8 part test which accompanied the development application). The question is, therefore, whether that impact is likely to be significant. Neither the term likely nor the term significant is defined in the EP&A Act (or the TSCA). The terms have been judicially defined as meaning: a) likely: a real chance or possibility. It does not mean more probable than not. b) significant: important, notable, weight or more than ordinary. The EP&A Act requires a consideration of the matters contained in s. 5A in determining whether there will be a relevant impact. In that consideration it does not follow that a positive answer to one or more of the matters set out in s.5A requires a finding that there is likely to be a significant affect. This is so because the 8-part test is part only o the relevant enquiry required by the EP&A Act. However, matters other than the impact upon the threatened species (such as the merits of the development generally) are irrelevant.
These propositions appear to accurately summarise the relevant existing law which was cited in the submissions. However, it was when the Applicant's Counsel amplified the propositions in making the following additional submission that subtle error manifested itself when the meaning of "likely" was expressly changed from "a real chance or possibility" to a "mere possibility". The degree of satisfaction as to whether there is likely to be a significant impact is governed by the object and purpose of the enquiry, which can be derived from the legislative context. That context suggests a low threshold for satisfaction having regard to: · the purpose of the enquiry is to trigger a further enquiry - not to directly affect development; · The further enquiry is to ensure quality in decision making (Timbarra @69 [76]) · The object of the EP & A Act is protective (s. 5(a)(vi) EP & A Act) · The language of s. 78a(8) - likelihood. All that the language requires is a mere possibility. The possibility is not required to exist to the exclusion of all other possibilities. · The prospective (speculative) context of the enquiry. It is submitted that the legislative context does not permit of a requirement for certainty, or direct evidence of harm.
In my judgment, it would be plainly erroneous to interpret and apply the statutory formula "whether there is likely to be a significant effect on threatened species….etc" on the basis that the formula was satisfied by establishing the mere possibility of a significant effect on threatened species etc.
The Applicant's submission that a "mere possibility" is sufficient to establish a significant effect of threatened species etc is not supported by existing authority. Nor is it supported by relevant considerations of language or the statutory object or purpose of the EP&A Act or the Threatened Species Conservation Act 1995.
In Boughey v The Queen (1986) 161 CLR 10, the High Court considered the expression "likely to cause death" in a provision of the Tasmanian Criminal Code.
Gibbs CJ at 14 stated: It is true to say that the meaning of a word will be influenced by the context in which it appears. In my opinion, the word likely in ss 156 and 157 of the Criminal Code Act means probable and not possible . That is its natural meaning.
In their joint judgment, Mason, Wilson and Deane JJ, said at 21: In our view, the word likely is used in both ss 156(2)(a) and 157(1) with what we apprehend to be its ordinary meaning, namely to convey the notion of a substantial - a real and not remote - chance regardless of whether it is less or more than 50 per cent: Sheen v Golds Pty Ltd (1984) 58 ALJR 93 at 95 and Waugh v Kippon (1986) 160 CLR 156 at 166/167.
In Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) (2001) 50 NSWLR 665, the Chief Justice, after citing the statement from the joint judgment in Boughey went on to hold at 674 that the word likely in the expression likely to be needed for an essential public purpose appearing in the Aboriginal Land Rights Act 1983 "is not used in the sense of more probable than not but is used in the sense, as the appellant contends, of a real or not remote chance".
For the foregoing reasons, I would reject the Applicant's submission that the "mere possibility" of a significant effect on threatened species satisfies the relevant statutory formula in the EP&A Act, ss 5A and 78A(5)(b).
Having clarified the statutory framework within which the required factual findings are to be made, I am now in the position to evaluate the competing expert evidence.
As earlier mentioned, it is common ground, flowing from the contents of the Experts' Joint Report (Exhibit 2) that there are three issues in dispute between Professor Goldney and Mr Fanning.
(i) whether there is a viable local population of blue-billed ducks at the Reservoir;
(ii) whether the Reservoir contributes a significant area of known habitat for the freckled duck; (iii) whether the ameliorative measures outlined in the SKM Study would be effective to render it unlikely that the proposal would significantly affect threatened species etc.
I should note in relation to issue (ii) that Mr Fanning's oral testimony, relying upon drought records he had obtained from the Department of Agriculture after he had participated in the Experts' Conference in December 2002, significantly shifted from the opinion he had expressed in the Experts' Joint Report. In that Report where no agreement between the experts was recorded in respect of the question whether the Reservoir constituted a drought refuge for the freckled duck, Mr Fanning had expressed the following opinion: The Spring Creek Reservoir may constitute a drought refuge under some circumstances, but there is no data to demonstrate that it does in fact so function.
In his oral testimony, Mr Fanning expressed the opinion that the Reservoir did not so function because there was simply no correlation between drought records provided by the Department of Agriculture (Exhibit H/1) and Dr Campbell's recordings of observations of freckled ducks at the Reservoir.
The Council obtained my leave for Mr Fanning to give that testimony which involved a departure from Mr Fanning's stated opinion in the Experts' Joint Report (Exhibit 2).
In my opinion, it has not been established that the Reservoir functions as a drought refuge for the freckled duck. I accept Mr Fanning's evidence that there is no correlation between the Department of Agriculture's drought data and Dr Campbell's observations of the freckled duck at the Reservoir. I also accept Mr Fanning's interpretation of the results of Dr Campbell's observations of freckled ducks at the Reservoir during November 2002.
Although the Murray Darling Basin Commission's Newsletter "Basin Bird Observer" (No 8 September 1996) includes the Reservoir as operating as a drought refuge, it is so classified because it satisfies more than one criterion, namely that it is "an important drought refuge" and "supports one or more species listed as nationally threatened". No recording of a nationally threatened species has been recorded at the Reservoir.
It follows that the evidence does not establish that the Reservoir functions as a significant area of known habitat for the freckled duck in relation to the regional distribution of the habitat of that threatened species within the meaning of the EP&A Act, par (c) of s 5A.
The question whether there is a viable local population of blue-billed ducks at the Reservoir that is likely to be placed at risk of extinction (par (a) of s 5A) is more difficult to determine.
In Information Circular No 2 ("The 8 Part Test of Significance") issued by the National Parks and Wildlife Service in November 1996 there is provided an explanation of the various factors contained in the EP&A Act, s 5A.
It includes in respect of factor (a) the following advice, which was relied upon by Professor Goldney in coming to his opinions on that factor - If the proposal is likely to affect any part of the lifecycle of a threatened species, the decision maker must then evaluate the significance of this effect by deciding whether the effect of the proposal is such that a viable local population of the species is likely to be placed at risk of extinction. A local population should be considered as the population that occurs within the study area, unless the existence of contiguous or proximal occupied habitat and the movement of individuals or exchange of genetic material across the boundary of the study area can be demonstrated. The local population should be considered to be viable (ie. A population that has the capacity to live, develop and reproduce under normal conditions) unless the contrary can be conclusively demonstrated through analysis of records and references.
The same Information Circular contains the following definition of "Risk of extinction": Risk of extinction - a species is at risk of extinction if its numbers are reduced to such a critical level, or its habitats have been so drastically reduced, that it is in danger of becoming extinct.
The Information Circular cannot of course affect the true meaning of the EP&A Act, s 5A, but it obviously provides assistance in the administration of that provision. It is to be noted that the expressions "local population" or "viable local population" or "risk of extinction" are not defined by the EP&A Act.
Ultimately, I have concluded that the evidence has not established that there exists at the Reservoir a local population of the threatened species, the blue-billed duck. As Dr Campbell's observations have revealed, since early 2000 the water levels at the Reservoir have been very low, principally because water has been pumped out of the Reservoir by the Council because the dam wall is leaking and needs repair. The consequence of this fact has been a marked reduction in sightings of the blue-billed duck since 2000 and the absence of appropriate breeding habitat by virtue of the water level now being well removed from reed vegetation which is normally located at the water's edge.
Notwithstanding Dr Campbell's observation in February 2000 of a few blue-billed ducks, including a duckling, the evidence of observations made at the Reservoir since the water level was artificially reduced, and the condition of the Reservoir since then, leads me to conclude that there is no viable local population of blue-billed ducks at the Reservoir.
If, contrary to my factual finding, I had found that there was relevantly a viable local population of blue-billed ducks at the Reservoir, I would not have been satisfied that the disruption to the life cycle of that species "was likely to be placed at the risk of extinction" by virtue of the proposed development.
This is because of my acceptance of Mr Fanning's opinion that there would be no extinction of the local population either because of its demonstrated capacity to fly elsewhere or because of the opportunity to utilise the exclusion zones designated by the Plan of Management for the Reservoir.
In so concluding, I do not accept Professor Goldney's opinion that "extinction" where appearing in par (a) of s 5A means "no longer present in the locality previously populated".
Nor, in so concluding do I accept Professor Goldney's reasoned prognostications of the ineffectiveness of the proposed ameliorative measures.
I recognise, of course, the scientific and professional integrity of Professor Goldney's opinions in this respect, but I think that he has, in pursuit of such commendable ideals, raised to too high a level of scientific certainty and reliability, the standard or criterion for evaluating the proposed ameliorative measures.
This does not mean that the required evaluation would sanction mere pious hopes or obviously unattainable goals. But it means that it should be appreciated that the requisite decision is to be made principally by consent authorities exercising their statutory functions under the EP&A Act, no doubt assisted by expert advice rather than by scientists or ecologists directly. As the decided cases have revealed (see especially Plumb), there is not likely to be a dearth of competing expert opinion on the statutory question raised by the EP&A Act, s 5A.
There are some comments made by Professor Goldney in his principal affidavit in his consideration of the proposed ameliorative measures with which I must respectfully disagree.
In his consideration of the proposal for "a compliance and monitoring program" Professor Goldney recognises that since the program has not been developed, it is impossible to assess how effective it is likely to be. He next expresses concern at the absence of any reference in the SKM Study of the possible cessation of rowing training either on a temporary or permanent basis "if impacts on threatened species prove significant". Finally, he criticises the absence of expressed criteria against which the impacts of the development can be measured as part of the compliance monitoring program.
Whereas I readily accept Professor Goldney's analysis in respect of what is not yet known about the content of the monitoring and compliance program, I think that he has failed to appreciate the intent and intended content of all of the matters discussed in Section 6.3 of the SKM Study ("Summary of Methods to Minimise Threats") which I have earlier referred to. When the content of this section of the SKM Study is considered in conjunction with the relevant provisions of the Council's adopted Plan of Management for the Reservoir (which also governs the use of the Reservoir by the School's rowing activities) there is, in my judgment, abundant opportunity for the monitoring program to contain all of the ingredients and mechanisms considered by Professor Goldney to be appropriate to ensure the effective implementation of the twin objectives of the Plan of Management, namely the conservation and recreational values of the Reservoir.
Another aspect of the ameliorative measures criticised by Professor Goldney and conspicuously derided by Counsel for the Applicant is the operational requirement that rowing craft approach "sensitively" any raft of water birds occupying waters on the rowing course I do not accept the criticism that this is a contentless or meaningless stipulation. Common sense is not to be abandoned.
Finally, Professor Goldney, although acknowledging that the designated "exclusion zones" on the Reservoir "would provide some benefits for waterbirds", expressed the opinion that the existence of the exclusion zones was "unlikely to ameliorate the major impacts of the rowing training" and appear to be based on "unproven assumptions" (the latter comment deriving from Professor Goldney's opinions that there is not sufficient information in the scientific literature about "species - specific exclusion zones" and that the "Terra" Consulting single scull rowing trial at the Reservoir "lacked rigour" in determining flight responses by waterbirds affected by the trial).
This is an example, in my opinion, of Professor Goldney's insistence on scientifically demonstrated trials or tests credentialing the stipulation of ameliorative measures and the evaluation of the effectiveness of such measures. In this respect, it must not be forgotten that the creation of "Exclusion Zones" was recommended to the Council by Professor Goldney in his Joint Assessment undertaken in 2000 with Dr Beard, wherein the Assessment stated inter alia: Given that rowing will be taking place for 3-4 days per week, morning and afternoon, for 6 months, the impacts on waterbirds remains probably the most important impact and the most difficult to mitigate. While wildlife can habituate to some human impacts, the threshold in this particular case where populations may either cease to breed or move away from the reservoir permanently, or both, is not known. Flight response behaviour needs to be better quantified, both for birds in roosts and on the water. The impact on waterbirds can be minimised but not eliminated by creating no go areas for rowing and support craft. Fig. 3 identifies one such scenario. We would recommend that rowing craft once on the rowing course, keep at least 50 m from the shoreline to minimise any impacts on water birds utilising water edge habitat.
As I have earlier noted, it was this Assessment that ultimately gave rise to the draft Plan of Management for the Reservoir and the adopted Plan of Management which were obvious precursors to the School's development application. It comes as no surprise that the SKM Study relied upon those antecedents, including the creation of the exclusion zones as a principal ameliorative measure.
In referring to the history of the Council's consideration of some limited recreational uses being permitted on the Reservoir, I am not suggesting that the relevant history has unfolded in the manner anticipated by Professor Goldney's Assessment in 2000. Clearly, it has not, but the principal point of departure from the very scientifically guarded recommendations in Professor Goldney's 2000 Assessment has been the relaxation of those scientific provisos. In this sense, Professor Goldney could legitimately retort, in retrospect, that what has ultimately emerged in the Council's assessment of the School's proposal is not what he had recommended or anticipated. However, legitimate such a retort be from a scientist, it does not compel the resolution of the statutory question raised by the present case.
Having so concluded my findings on the only two factors of s 5A that were in dispute between Professor Goldney and Mr Fanning, it remains for me to decide whether having regard to s 5A the proposed development is likely to significantly affect threatened species.
In my judgment, and for the reasons I have given, the proposed development with its ameliorative measures and strategies is not likely to significantly affect threatened species or the habitat of threatened species.
Accordingly, the Applicant's jurisdictional fact case must be held to fail. E. CONCLUSIONS AND ORDERS
For all the foregoing reasons, each of the several grounds for the Applicant's attack on the validity of the development consent has failed.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Central West Environment Council Inc.
Orange City Council And Anor
CITATION : Central West Environment Council Inc. v Orange City Council And Anor [2003] NSWLEC 131 APPLICANT: PARTIES : Central West Environment Council Inc. RESPONDENT: Orange City Council And Anor FILE NUMBER(S) : 40445 of 2002 CORAM: Bignold J KEY ISSUES: Development Consent :- validity challenged on alternative bases that development application not accompanied by SIS (jurisdictional fact) and Consent authority in granting consent erred on "Wednesbury" grounds and that development consent was uncertain. LEGISLATION CITED: Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Boughey v The Queen (1986) 161 CLR 10; Bruce v Cole (1998) 45 NSWLR 163; Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135; CASES CITED: Mahon v Air New Zealand (1984) AC 808; Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) (2001) 50 NSWLR 665; NSW Land and Housing Corporation v Campbelltown City Council (2002) NSWLEC 18; Plumb v Penrith City Council (2002) NSWLEC 223; Reg v Hillingdon London Borough Council: Ex parte Puhlhofer (1986) AC 484; Timbarra Protection Inc v Ross Mining NL (1999) 102 LGERA 52; Weal v Bathurst City Council (2000) 111 LGERA 181 DATES OF HEARING: 12-14/02/2003 DATE OF JUDGMENT: 05/27/2003
(1990) 170 CLR 321
(1986) 161 CLR 10
(1998) 45 NSWLR 163
(1999) 199 CLR 135
(2001) 50 NSWLR 665
(1999) 102 LGERA 52
(2000) 111 LGERA 181
(1999) 111 LGERA 1
(1984) 58 ALJR 93
(1986) 160 CLR 156