Dalimen P/L v Director General Department of Infrastructure Planning and Natural Resources

Dalimen P/L v Director General Department of Infrastructure Planning and Natural Resources - [2005] NSWLEC 204 - NSWLEC 2005 case summary — Zoe

[21]

Part 1 .Preliminary 1 Savings and transitional regulations (1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act. (2) Any such provision may, if the regulations so provide, take effect from the date of assent to this Act or a later date. (3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate: (a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or (b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication . Part 2 Provisions consequent on the enactment of this Act 2 Definition In this Part: SEPP 46 means State Environmental Planning Policy No 46-Protection and Management of Native Vegetation as in force immediately before its repeal by this Act. 3 Existing development consents and exemptions under SEPP 46 (1) The repeal of SEPP 46 by this Act does not affect any development consent for clearing native vegetation as required by SEPP 46 and in force immediately before that repeal, except to the extent that: (a) the development consent is taken to be development consent as required by Part 2 of this Act, and ~'" (b) the clearing is to be subject to this Act. (2) Subject to the regulations, the clearing of native vegetation for a purpose or extent described in Schedule 3 to SEPP 46 continues, after the repeal of SEPP 46 by this Act, to be clearing that is exempt from any requirement under Part 2 of this Act for development consent. (3) Subclause (2), and any regulation made for the purposes of that subclause, ceases to have effect in relation to the clearing concerned if the land to which the clearing relates becomes land to which a regional vegetation management plan applies.

[49]

42 Mr Godfrey also provided a detailed statement but I consider it of limited value in estimating the age of the vegetation. Even though he inspected the property prior to purchase and made enquiries of the vendor Mr R. Munro, he apparently made no detailed measurements of the vegetation in the subject area and in any case has no expertise in this area of the estimating the age of vegetation. 43 In summary then, I have considered the various evidence regarding observations and estimates of the age of the cleared vegetation and I am satisfied that the respective experts Dr Smith and Mr Dyason have expertise, which can be relied upon to provide guidance in this matter, in preference to the recollections of the lay witnesses, of the tree and shrub diameters/heights of vegetation within dense bushland. 44 In support of this position, I note Mr Santin's statement that ; "I agree with Michael Wood when he states there was easily in the order of 500,000 stems in the windrows. I would estimate this would be the minimum number of stems in the windrows. This would be an estimate at the lower end…. The characteristics of this vegetation leads me to believe that it was less than 10 years old. As Mr Woods subsequently acknowledged his mathematical error of magnitude 10, i.e. resulting in the number of stems being closer to 50,000, it appears that Mr Santins acceptance of the original figure to confirm his conclusion, puts serious doubts on his ability to assess vegetation density or age. 45 Accordingly, I find the evidence of Dr Smith more reliable because of the general consistency between his field measurements of the cleared vegetation diameters and correlation with the Setcan model, to establish that the age of this cleared vegetation was more likely to be older than 10 years. Furthermore, this accords with his interpretation of the associated aerial photographs, that the subject area did not show evidence of clearing in 1993/94 as claimed. 46 Insofar as Mr Dyason referred to the application of the Setcan model, apparently its use is of "limited license" and Mr Dyaon is not an accredited user. Therefore, his criticisms of this model are of a speculative nature and given reduced weight. Instead, I accept Dr Smith's evidence that application this model, in the current circumstances, represents "current best practice", and accordingly provides the most scientific indicator of vegetation age. 47 I further discount the reliability of Mr Dyasons evidence because of his initial acceptance (without qualification) of the incorrect tree density calculations, from which he drew his initial conclusions. I also accept Dr Smith's criticism of Mr Dayson's " apical dominance" approach that "the presence or absence of apical dominance is not a recognised or accurate method of determining tree or shrub age. There is no available model, which shows a correlation between age and apical dominance. Individual plants may lose apical dominance when young if they are suppressed (overshadowed), or retain apical dominance when older if emergent." 48 In summary, my conclusion on the question of "ageing" the vegetation is that Dr Smith's approach is preferred because it is based on current scientific methods and is correlated to the actual vegetation on the site. Finally, I note Mr Dyason's concession from the joint expert conference that: he does not have a developed model or procedure for ageing vegetation and in the absence of historical information from land holders he would need to seek expert advice on methods of vegetation ageing… 49 The other significant aspect of the land-based investigation concerns any effects of the clearing on the environment. These investigations are contained within the evidence of Dr Smith and Mr Dyason.

[51]

51 Insofar as no comprehensive fauna surveys have been made on the subject property, Dr Smith opines that: vegetation in the cleared area is likely to have supported individuals of more than 12 species of threatened fauna and is likely to have been particularly important of the following threatened species: Koala, Grey Crowned Babbler, Squirrel Glider, Grey-headed Flying Fox, Swift parrot, Large footed mouse-eared bat, Little bent-wing bat. 27. The dominant tree species in the Cleared Area, Red Gum, is known to be a preferred food tree species of the Koala. During my inspection of the site I found scats (faecal pellets) of the Koala around the base of one retained red gum and one Grey Gum on the boundary of the cleared area. I concluded from this evidence that population of the koala was using the site before it was cleared. The Koala is listed as a threatened species under the Threatened Species Conservation Act 1995 (TSCA) because its preferred habitat occurs predominantly on private land where it is threatened by cumulative clearing for agricultural development. 28. The dense Melaleuca understorey shrub habitat on the Cleared Area provides ideal foraging habitat for the Grey Crowned Babbler. The Grey Crowned Babbler foraging for insects in the leaf litter and under the bark of trees and shrubs. It is reluctant to cross areas of cleared land and is threatened by clearing and fragmentation of its habitat for agriculture. A population of Grey Crowned Babblers was observed on the edge of the Cleared Area by Mr Wood during his investigation of the site. I concluded from this observation that population of Grey Crowned Babblers whatever occupied vegetation on the site before it was cleared. 29. Vegetation in the cleared area is likely to have been of particular significance for nectar feeding birds, mammals and bats because it was dominated by tree species that flower in winter including a species of Red Gum ( Eucalyptus tereticornis) and Ironbark (Eucalyptus siderophloia). Winter flowering eucalypts are a key food resource for a group of threatened wildlife, including the Squirrel Glider, Grey- headed Flying Fox and Swift Parrot that rely on winter flowering trees for survival. In my opinion it is likely that populations of the Squirrel Glider would have used habitat in the cleared area on a regular basis, and populations of the Grey Headed Flying Fox and Swift Parrot would have used the habitat on a seasonal basis or during migration. 30. Vegetation in the cleared area is also likely to have been of importance as habitat for range of threatened and protected insectivorous bats due to which proximity to wetlands and water bodies. Insectivorous bats are particularly abundant in native forest and woodland vegetation adjacent to water holes such as the one present on the northern boundary of the Cleared Area because of their need to drink at regular intervals. 52 Dr Smith concludes that the clearing off 11.8 ha of native vegetation has called environmental harm by: * removing an area of Lowland Red Gum, a rare community which is of a type not adequately represented in the conservation reserve systems, and which has a high priority for protection on privately owned land; * removing an area of a Lowland Grey Box, a vulnerable community which is of a type not adequately represented in the conservation reserve systems, and which has a high priority for protection on privately owned land; * removing an area of a Paperbark, a vulnerable community which is of a type not adequately represented in the conservation reserve systems, and which has a high priority for protection on privately owned land; * removing an area vegetation which provides habitat for the koala, a species which is threatened by gradual (cumulative) clearing of remnant vegetation on alluvial flats; * removing an area vegetation which provides habitat for the Grey Crowned Babbler which is known to be threatened by clearing and fragmentation; * removing an area vegetation which has importance as a winter foraging habitat for a nectar feeding birds, mammals and bats including migratory and nomadic species and threatened species; * removing an area of habitat adjacent to wetlands which provide shelter and perching sites for wetland birds, a buffer against wetland degradation operation, siltation and weed invasion, and roosting and feeding habitat for threatened and protected insectivorous bats; * removing an area of native vegetation which was in good condition, is likely to have had high diversity of native fauna, and which is important for conservation in a regional and state context; * increasing the risk of dieback in isolated scattered Red Gum trees retained in the Cleared Area and elsewhere on the property.

At a glance

Court

Decision date

Before

Source

Judgment (88 paragraphs)

Parties

Cases Cited (3)