Coffs Harbour City Council v Arrawarra Beach Pty Limited

Coffs Harbour City Council v Arrawarra Beach Pty Limited - [2006] NSWLEC 365 - NSWLEC 1987 case summary — Zoe

[14]

5 The Council claims that the purported grant of consent is unenforceable for the following reasons:-

The development application was not notified or advertised as an application for specified development in accordance with s 79A(2) of the EPA Act in that it was not notified or advertised in accordance with the provisions of the Council's Development Control Plan - Notification.
In the alternative, the development application was advertised in a manner that was misleading or likely to mislead.
Further in the alternative, the Council failed to comply with the obligations to afford natural justice or procedural fairness in advertising.
The development was likely to significantly affect threatened species, populations or ecological communities and the factors required to be taken into account in accordance with s 5A were not considered.
The development application was not accompanied by a Species Impact Statement ("SIS") in breach of s 78A(8)(b) of the EPA Act and cl 50 Item 2(1)(f) of Part 1 Schedule 1 of the EPA Regulations.
The Council failed to consider the objectives of the Marine Parks Act 1997 as required by s 79C of the EPA Act and cl 22(4) of the Coffs Harbour Local Environmental Plan 2000 ("the LEP").
The Council failed to consult with the Solitary Islands Marine Park Authority in accordance with cl 22 of the LEP. Whether SIS required 6 In order to determine whether the development the subject of the application for development consent is likely to significantly affect a threatened species, population or ecological community or their habitat, s 5A of the Environmental Planning and Assessment Act 1979 ("the EPA Act") requires the consent authority to consider an eight part test. There is a convenient outline of the approach to be taken in applying the eight part test in the recent judgment of this Court in Gales Holdings Pty Limited v Tweed Shire Council [2006] NSWLEC 85 so that it is not necessary to repeat the summary of points made at [15] - [19] in that decision. 7 Broadly stated it is the applicant's case that the Court would find as a matter of fact that there is a significant effect on a threatened species, population or ecological community or their habitat as a consequence of carrying out the development. The following issues arise:-

[17]

10 Court Appointed Expert Brian Wilson has provided evidence in the form of a report, conferred with the respective individual experts relied upon by the parties and gave oral evidence concurrently with the latter experts. Notwithstanding the diminished state of SSF remaining on the site he nevertheless regards the proposed clearing of the native vegetation and removal of dead wood from the site as a threatening process constituting "destruction of a sufficient proportion of one stratum such that it will result in the long term modification of structure, composition and ecological function of the stand." Moreover although the destruction of such a small area of degraded vegetation would not normally be likely to have a significant effect on the community itself the "habitat features of this sample of the ecological community elevate its value" particularly in regard to its use by the Hoary Wattled Bat. 11 SSF is a known foraging habitat for the Hoary Wattled Bat and according to Mr Wilson there is a potential for the lifecycle of any population of the species to be disrupted by the removal of the trees. Although there is no direct evidence that Squirrel Gliders use the site, a local population could be placed at risk and it would be reasonable to carry out a comprehensive field investigation in order to ascertain whether the destruction of the trees will significantly affect a local population of Squirrel Gliders. 12 Travis Peake, an ecology manager called as an expert on behalf of the respondent expressed doubt that SSF is present in the study area and that in any event the site contains lower quality habitat for Hoary Wattled Bats. There is an element of disagreement between the experts in respect of a requirement for foraging habitat beyond the extent of the study area for the survival of the Hoary Wattled Bat. There appears to be more consensus that there is a likely to be extensive foraging habitat for the Squirrel Glider in the local area and that there is no substantial barrier to the movement of the Squirrel Glider between the study area and adjoining habitat. 13 The respondent places significant weight on what it describes as ameliorative measures to be taken prior to the removal of the trees. These measures include inspection and opportunity for the animals to vacate any habitat occupied by them on the site prior to the destruction of the trees. There is also a proposal that compensatory planting will take place. In relation to the latter it is obvious that the utility of the compensatory planting will not be immediate, particularly in terms of the generation of hollows and the like which can take many decades to develop. The proposed checking and removal or disbursement of animals actually using the site does no more than minimise the risk of injury to individual members of the species. It plays no ameliorative role in respect of the long term impact by the total destruction of part of a relevant habitat.

[18]

14 I have not paid any significant regard to the evidence of Gary Leonard, a specialist in botanical ecology employed by the Council. I found his evidence superficial and artificial and he made a curious distinction between his opinion as an individual and as a public servant. Nevertheless I was impressed by the evidence of Mr Wilson and I am satisfied that he has raised a sufficient doubt about the more confident approach taken by Mr Peake (who to some extent relied upon previous investigation and assessment by others) to enable me to find that on the balance of probabilities, applying the eight part test and the precautionary principle, there is likely to be a significant effect on at least the Hoary Wattled Bat and possibly the Squirrel Glider and that part of their habitat within the site. Although the impact on the SSF species may not be as critical, nevertheless the extent of removal of the somewhat degraded but not insignificant stand of trees will be a significant effect. Although there might be some doubt that the SSF on the site is a viable population there is no doubt that its lifecycle is likely to be disrupted by the destruction of individual trees. I am not able to finally determine whether the SSF is a critical habitat but as it is recognised as being at least to some extent a habitat for either of the identified species it will be significantly affected by the clearly recognised threatening process of chopping the trees down. 15 For the above reasons I have therefore formed the view that there is likely to be a significant effect on the identified threatened species by the carrying out of the proposed development and accordingly it was imperative for the development application to be accompanied by a species impact statement prepared in accordance with Division 2 of Part 6 of the Threatened Species Conservation Act 1995. In the absence of the species impact statement a jurisdictional precondition or fact has not been satisfied and accordingly the development consent granted by the Council is invalid. 16 It is not appropriate that the omission to provide a species impact statement be the subject of an order pursuant to s 25B of the Land and Environment Court Act 1979 as the effect of the failure to the prepare and lodge an SIS is that a fundamental requirement is outstanding and that until it is complied with there are crucial issues that cannot be resolved by simply providing the requisite documentation following a proper assessment and investigation of the site.

At a glance

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Before

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Judgment (52 paragraphs)

Parties

Cases Cited (12)

Cited By (9)