Davis v Gosford City Council [2012] NSWLEC 1368 | Case summary

The Eastern Pygmy-possum The statutory framework 24The Eastern Pygmy-possum is listed in Schedule 2 of the Threatened Species Conservation Act 1995 as Vulnerable. Section 10(4) states: (4) A species is eligible to be listed as a "vulnerable species" if, in the opinion of the Scientific Committee: (a) it is facing a high risk of extinction in New South Wales in the medium-term future, as determined in accordance with criteria prescribed by the regulations, and (b) it is not eligible to be listed as an endangered or critically endangered species. 25The NSW Scientific Committee - Final Determination for the Eastern Pygmy-possum states: 1. The Eastern Pygmy-possum Cercartetus nanus (Desmarest, 1818) is a small arboreal marsupial that is distributed in the south-eastern corner of mainland Australia and in Tasmania. In New South Wales the species is found in coastal areas and at higher elevation in the south, but north of Newcastle at higher elevation only. Pygmy-Possums are agile climbers that feed mostly on the pollen and nectar from banksias, eucalypts and understorey plants and will also eat insects, seeds and fruit. 2. Although the Eastern Pygmy-possum is broadly distributed, recent studies have shown that within this range the species appears to be patchily distributed and its overall abundance is low. 3. Despite a large number of intensive trapping programs undertaken in the eastern forests and woodlands of New South Wales in recent years, only a small number of captures (154) have resulted from a total trapping effort of 315,000 Elliott trap-nights and 57,000 pitfall trap-nights (Bowen and Goldingay 2000). 4. Other detection techniques such as spotlighting, predator scat analysis, hair tubes and trapping in trees have produced similar low rates of detection. Capture rates are highest for installed nest-boxes and traps set in flowering banksias. This may reflect a habitat preference or a more successful trapping method. 5. From these and more recent studies (A. Tulloch, pers. comm.) there were only six, localities where more than 10 observations of Pygmy-Possums have been made. These were the Pilliga area, New England Tablelands, Barren Grounds Nature Reserve-Budderoo National Park, Royal and Heathcote National Parks, Kioloa State Forest and the Eden area. 6. The factors threatening the survival of the Eastern Pygmy-possum include isolated sub-populations with little opportunity for dispersal which increases the risk of local extinction, clearing that results in habitat loss and fragmentation, inappropriate fire regimes that remove nectar-producing understorey plants, the loss of nest sites due to past intensive forestry and firewood collection, and predation by foxes and cats. 7. In view of 2, 3, 4, 5 and 6 above, the Scientific Committee is of the opinion that the Eastern Pygmy-possum Cercartetus nanus is likely to become endangered unless the circumstances and factors threatening its survival or evolutionary development cease to operate, and is therefore eligible for listing as a vulnerable species. The evidence 26Much of the discussion between the ecological experts, Mr Fanning for the applicant and Ms Ashby for the council, focused on the impact of the proposal on the local population of the Eastern Pygmy-possum and the efficacy of the relocation/ habitat enhancement measures proposed by Mr Fanning. The ecologists agree that the Eastern Pygmy-possum has been recorded in the southern parts of the proposed development site, and in bushland nearby, with the greatest numbers to date (9) being recently recorded in the area proposed to be cleared for the proposed development in the developable land. Another three individuals were found in one shelter tube in an area closely adjoining the developable land. They also agree that nearby areas support plant species that may provide the range of foraging resources required by the Eastern Pygmy-possum, however, the quality of those resources was in dispute. 27While Mr Fanning states that there will be an adverse impact on the local population of the Eastern Pygmy-possum and that the loss of habitat in that area will be irreversible, he considers that the proposed development will not place the local population at risk of extinction. In his 2011 'Flora and Fauna Assessment Report' (Appendix 3 to the EIS that accompanied the development application), Mr Fanning states that while the proposal "would involve the removal of the best quality habitat currently present on the subject site for the Eastern Pygmy Possum, as well as other potential habitat for this species, there will be a substantial area of potential habitat for the Eastern Pygmy Possum retained both on the subject site and in the vicinity following development as proposed." The area of Banksia to be removed is described elsewhere in that report as being 'prime habitat for the Eastern Pygmy Possum'. Elsewhere in his report Mr Fanning notes that 'Eastern Pygmy Possum populations are sedentary, and radio tracking studies indicate that movements are generally small". 28Mr Fanning's position is that considerable suitable habitat will remain in areas contiguous with the development site and that the loss of habitat for the Eastern Pygmy -possum from the developable area will not significantly affect the survival of the Eastern Pygmy-possum population in the general location. 29The amelioration and mitigation measures proposed by Mr Fanning include a trapping program, supplementary planting of Banksia ericifolia on the eastern part of the site, carrying out clearing works outside of the winter season when foraging resources are more constrained, and possible supplementation of food resources during the winter period. While Mr Fanning accepts that a trapping program would be unlikely to capture all individuals, it is preferable to no trapping at all. 30Ms Ashby states that the area consistently shown by surveys to support the Eastern Pygmy-possum is located in or near the mature Banksia thicket in the developable area of the site, despite there being other areas nearby with a similar suite of plants. In her view, apart from being a winter food source, the dense structure of the Banksia thicket provides protection from predators as well as horizontal connectivity within the canopy. That part of the site also provides a variety of habitat, high numbers of nectar producing plants, and a high incidence of insects to supplement their diet in harder times. She considers that while the surrounding area contains some or all of these features, it is younger (probably as a result of the 2005 fire) and may be less suitable for foraging or shelter. 31Ms Ashby considers that given the number of findings of the species, over time and in the same general area, this is a resident breeding population and the largest recorded population on the Central Coast. In her opinion, the removal of almost the entire Banksia thicket will make extinction of the local population of Eastern Pygmy-possum highly likely. 32In response to Mr Fanning's proposed amelioration measures, Ms Ashby states (with support, in part, by references to the scientific literature) that to her knowledge, trapping and relocation has not been attempted. Given the lack of understanding on the species as well as the lack of knowledge of the demographics of the population in question and any adjoining populations of Eastern Pygmy-possum, relocation could have unacceptable consequences such as skewing the population by capturing some individuals and not others (eg. juveniles or females with young in the pouch), placing stress upon the animals as they become familiar with a new site (as well as exposing them to more risk of predation), possible territorial behaviour, and potential competition for food resources thus stressing many individuals. 33In response to replanting and food supplements, Ms Ashby argues that replacement planting could take 15 years to provide similar features for foraging and shelter, the adjoining bushland is in good condition and does not need enhancing, and that the only study she is aware of in regards to supplementary feeding was limited and found no overall effect on the abundance of the Eastern Pygmy-possum. The submissions 34Mr Pickles submits that unlike Mr Fanning, Ms Ashby did not undertake a formal assessment of significance pursuant to s 5A of the EPA Act and therefore her opinion on the risks to the local population should be given less weight. He further submits that strict adherence to the identified developable area in the POM would see the loss of the entire core Eastern Pygmy-possum habitat and that the proposal protects all of the Riparian - Habitat Protection Management zone, a zone designated in the POM to provide habitat and connectivity for a range of species including the Eastern Pygmy-possum. 35Mr Pickles considers that if the Court finds that there is likely to be an unacceptable impact on the Eastern Pygmy-possum (given the 'ground-truthing' by trapping conducted by Ms Ashby) then similar ground-truthing of the distribution of Hibbertia procumbens would suggest a balanced outcome could be achieved by the shifting of the development site further into the Hibbertia procumbens management zone in order to retain as much of the Banksia thicket (and consequent Eastern Pygmy-possum habitat) as possible. He submits that this, in addition with other mitigation measures proposed by Mr Fanning, would significantly reduce any impact on the Eastern Pygmy-possum. 36Mr Fraser accepts that had the applicant applied for a development in the area not affected by any management zones, then approval could have been granted. Similarly, given the new findings on the extent of the Eastern Pygmy-possum on the site, the council accepts that there is direct conflict between the POM and the Eastern Pygmy-possum. 37He submits that even though Ms Ashby did not undertake a s 5A assessment of significant impact, the evidence suggests that when considering s 79C(1)(b) there will likely be an unacceptable impact on the Eastern Pygmy-possum and on this basis, the appeal should be dismissed. Findings - Eastern pygmy-possum 38We were taken to the south-western corner of the site and the location of the proposed resource recovery activity. This area contains a dense stand or thicket of mature Banksia ericifolia assumed by the ecologists to have escaped the 2005 fire. We were shown a number of tubes designed to provide shelter for the Eastern Pygmy-possum. Ms Ashby's tubes were of cardboard construction and Mr Fanning's were made from PVC pipes. It was in this general area that Ms Ashby found up to 12 individual Pygmy-possums sheltering in the tubes. 39We accept that with the benefit of the site inspection, the expert evidence and considering s 79C(1)(b) of the EPA Act as to "the likely impacts of that development, including environmental impacts on..the natural..environment(s)....in the locality" ,we are satisfied that the impact of the proposal on the Eastern Pygmy-possum is unacceptable for a number of reasons. 40First, and while we acknowledge that the habitat area for the Eastern Pygmy-possum is within an area of the site that is not affected by a management zone in the SIP, this does not in any way preclude the consideration required by s 79C(1)(b) of the EPA Act. 41Second, the basis on which the management zones, including the background studies, were created needs to be fully understood. After reading the 2003 Connell Wagner Flora and Fauna Report, it is unsurprising that the area on the site set aside for development was determined. Neither the Australian Museum Business Services' survey in 1997 nor the 2003 surveys conducted by Connell Wagner found any Eastern Pygmy-possums. Based on potential habitat, Figure 8.2(e) the 2003 Connell Wagner Flora and Fauna Report maps the Eastern Pygmy-possum habitat within the site but to the eastern portion of the applicant's lot (rather than the south-western part of the site where the prime Banksia thicket habitat is located). We note that the south-western part of the site is where the majority of the Eastern Pygmy-possums were subsequently found. 42We accept that, for the reasons stated in the 2003 Connell Wagner Flora and Fauna Report, including the difficulty of trapping the animals, the nature of the traps (Elliot traps), the relatively limited extent of the surveys, and the fact that the surveys were conducted before the 2005 fire, the management zones in the POM were determined on the best information available at the time but ultimately were not particularly accurate. 43Third, the most recent surveys support Ms Ashby's evidence there is a resident breeding population, most likely located in or near the prime Banksia thicket in the area of the proposed development. Appendix D of the 2005 Andrews Neal Species Impact Statement includes the s 5A assessment of the Eastern Pygmy-possum. This states that four individuals were found on the applicant's land. Two individuals were captured and another found in a nest box in the Banksia thicket on the southern part of the development site. The remains of another individual were found some distance away in a fox scat. In addition two individuals of this species were also caught by Andrews Neil ecologists on an adjacent property immediately to the south of the subject site in 2004. 44These survey results needs to be compared to the recent survey work undertaken by Ms Ashby where she installed 100 specially designed passive tube traps throughout the southern section of the proposed development site and the full extent of the Habitat link zone to the north and throughout the Riparian/Habitat zone and Aboriginal heritage zones on the eastern portion of the site. She states that the density of the traps was the same for all areas. 45What cannot be disputed is that Ms Ashby found up to nine individuals within the proposed development site with another three found sharing a single tube within about 20m to the east of the proposed development site. She relevantly states that "the disproportionately high numbers in the development area reflect a deliberate choice for the development area by the animals rather than a reflection of sampling bias." 46The evidence from the parties' ecologists confirms the Scientific Committee's finding #4 in that the Eastern Pygmy-possum is difficult to detect. However, the evidence from Ms Ashby's 'tubes' is that up to nine individuals have been found in the area proposed to be cleared for the development, with another three found close by. While it is not known if these were separate individuals, this appears to be a significant new finding given the Scientific Committee's finding #5. 47Fourth, we are not satisfied that the question in s 5A(1) of the EPA Act as to "whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats" has been satisfactorily addressed. The earlier comments on the Eastern Pygmy-possum in the 1997 Australian Museum Business Services' survey and the 2003 Connell Wagner Flora and Fauna Report, the 2005 Andrews Neal Species Impact Statement have been overtaken by the most recent survey results from Ms Ashby. While we accept that Lloyd J in Davis v Gosford City Council [2012] NSWLEC 62 found, on the evidence before him, that an SIS was not required, this conclusion also pre-dates Ms Ashby's survey results. 48Mr Fanning reviewed these and other ecological studies in the preparation of the 2011 Flora and Fauna Assessment report that accompanied the EIS. He also established 20 nest boxes specifically designed to be attractive to the Eastern Pygmy-possum, however, no individuals were found. Based on this information and the existence of suitable habitat elsewhere, we understand how Mr Fanning arrived at his conclusion that the proposed development would not have a significant impact on the local population of Eastern Pygmy-possum. 49While we accept that Ms Ashby was not required undertake an assessment in accordance with s 5A of the Act, we are satisfied that her oral evidence and the substance of her report legitimately raise the question of whether there is likely to be a significant effect on a threatened species, population, ecological community or their habitats. 50Fifth, in regards to Mr Fanning's proposed amelioration measures, we prefer Ms Ashby's evidence as it appears to be supported by the relatively limited scientific literature on the species. In essence, there is a high degree of uncertainty regarding the habits of the species in general, and the demographics of the local population, in particular. We accept that while trapping and relocation appears attractive, it may have unintended and detrimental consequences. We also agree that the opportunities for enhancement of the nearby vegetation are limited. 51Sixth, we do not accept the suggestion that we should take a flexible approach to the application of the POM in regards to the Hibbertia management zone to compensate for the retention of at least part of the Banksia thicket on the southern part of the site that has been set aside for development. While we accept that the designation of management/ development zones in the POM was based on the best information available at the time, we also accept that the underlying reason for the preparation of the POM was to try and achieve a balance between areas where development can proceed (cl 1.3.1 of the POM) and areas of biodiversity value that should be protected (cl 1.3.2 of the POM). The proper balance, in our view, needs greater consideration that can be given as part of the assessment of a single development application. Clearly, a more considered strategic approach is required if any adjustment of the existing management zones is to be contemplated. 52For these reasons, we find that the proposal, pursuant to s 79C(1)(b) of the EPA Act, will likely unacceptably impact on the Eastern Pygmy-possum in the locality. We also find that the proposal is inconsistent with cl 24(b) in that the proposal does not "protect ecologically significant land" 53In our view, the likely impact on the Eastern Pygmy-possum warrants the refusal of the application. Hibbertia procumbens The statutory framework 54Hibbertia procumbens is listed in Schedule 1 of the TSC Act as Endangered. Section 10(3) states: (3) A species is eligible to be listed as an "endangered species" if, in the opinion of the Scientific Committee: (a) it is facing a very high risk of extinction in New South Wales in the near future, as determined in accordance with criteria prescribed by the regulations, and (b) it is not eligible to be listed as a critically endangered species. 55The council modified its position on the incursion into the Hibbertia procumbens Habitat Management Zone by accepting that the proposed incursion would be acceptable if the applicant provided a suitable offset area. The applicant advised that no offset was required and none was offered. We understood the council to maintain some objection to the encroachment into the Hibbertia procumbens Habitat Management Zone as this zone is likely to be used as corridor for fauna. The evidence 56The site and the proposed development area were inspected and Mr Fanning and Ms Ashby identified Individual specimens of Hibbertia procumbens. The area of incursion into the Hibbertia procumbens Habitat Management Zone was identified and this area was observed to have less vegetation cover than nearby areas and showed signs of disturbance. Possible reasons were advanced for the disturbance, that included the effects of a fire in late 2005, an unknown disease or some other unknown disturbance. 57The topics discussed by the ecologists focused largely on the applicability of biodiversity certification methodology used by Ms Ashby given the concession by the council that the encroachment into the Hibbertia procumbens Habitat Management Zone was acceptable if an appropriate offset was provided. On the matter of Ms Ashby's biodiversity certification methodology, some time was spent discussing the appropriateness of the methodology. In the joint report Ms Ashby relevantly states at [6.1 a.5]: When the SIP PoM was developed, there was no quantitative assessment procedure to measure the efficacy of the environmental outcome. The relatively new Biodiversity Certification procedure now provides a qualitative tool and I applied it in this matter in order to understand whether the PoM can withstand further losses to its inherent conservation framework. 58Ms Ashby also maintained that the management zones were created as 'offsets' (although the term was not in use at the time) to protect biodiversity and other significant features. In her opinion, if biocertification methodology had been used, the area set aside for biodiversity protection across the whole of the SIP would be inadequate. She considers that if the current biobanking requirements were applied, the loss of natural vegetation from the development site, including the incursion into the Hibbertia procumbens Habitat Management Zone would require a significant area of land to be provided as an offset. 59Ms Ashby's survey was largely confined to the part of the Hibbertia management zone proposed for the development. She considers the numbers to be significantly less than suggested by Mr Fanning. In her opinion, the distribution of plants across the site is patchy creating several separate populations. If the proposed development is approved, this will result in the loss of approximately half of one of those populations as well as the loss of potential habitat. Along with edge effects and the threat of fire, Ms Ashby considers the proposal could place the local population at risk of extinction. 60Ms Ashby considers that the current relative scarcity of the Hibbertia procumbens in the Hibbertia procumbens Habitat Management Zone may be partly due to a fire in late 2005 or to other factors such as an unknown disease or some other disturbance. In her view, when Connell Wagner undertook their survey work that led to the mapping of the management zones, there were probably more plants on the site. 61In Mr Fanning's opinion, biodiversity certification has no relevance to the development application as this is something applied for by a planning authority (s 126J Threatened Species Conservation Act 1995 (TSC Act)). Nor has there been an application for a Biobanking Statement pursuant to s 7A of the TSC Act. In Mr Fanning's opinion, based on the number of surveys he conducted both inside and beyond the Hibbertia procumbens Habitat Management Zone, there are thousands of plants comprising the 'local population', with most being outside the Hibbertia procumbens Habitat Management Zone. In his view the proposed incursion into this management zone will have an insignificant impact on the local population. Submissions 62Mr Fraser submits that given the extent of the Hibbertia procumbens across the site, the proposed incursion into the Hibbertia procumbens Habitat Management Zone would not be a reason for refusal of the development as long as the applicant provided a suitable offset. Apart from the loss of Hibbertia procumbens, Mr Fraser argues that the Hibbertia procumbens Habitat Management Zone is also important because of its use by other species and therefore an offset would have wider benefits. He contends that this is supported by maps in the Connell Wagner report that show the area would be used by other threatened species such as the Adams Emerald Dragonfly, Heath Monitor, Eastern Pygmy-possum as well as forest birds, amphibians and flying mammals. 63Mr Pickles submits that as the land is zoned for industrial use, it should be assumed that an industrial use should be permitted. He submits that aims (a) and (b) in cl 24 GLEP 22 are conflicting in their purpose - that is maximising opportunities for industrial development while protecting ecologically and culturally significant land. While regard must be had to the POM, he argues that compliance with the management objectives contained within it is not mandatory. He submits that given the evidence that Hibbertia procumbens was more prolific outside the Hibbertia procumbens Habitat Management Zone, the impact of the proposed development on it would be moderate at most. 64In regards to the council's requirement for an offset, Mr Pickles submits that there is no requirement in GLEP 22 or the POM that mandates this and no more should be expected of the applicant as 65% of the site has already been set aside for conservation purposes. Findings 65As we understand it, biocertification and the concept of biobanking post-date the ecological studies carried out for the preparation of the POM. In our view, the POM is essentially self sufficient in that the POM attempts to strike a balance by setting aside areas for protection and at the same time allowing other areas to be developed. While we understand the rationale behind Ms Ashby's use of the biocertification methodology, we agree with the applicant that it is not a matter that is necessarily relevant to these proceedings. If an offset was offered by the applicant for the encroachment into the Hibbertia procumbens Habitat Management Zone then that is a matter that could be considered. There is no requirement in the POM or GLEP 22 for the provision of an offset for the encroachment into any management zone. With no offer of an offset, the relevant question to be answered is whether the encroachment into the Hibbertia procumbens Habitat Management Zone is likely to have an unacceptable impact on the Hibbertia procumbens in the locality, pursuant to s 79C(1)(b) of the EPA Act. 66In response to this question, the experts agree that the plant is not confined to the Hibbertia procumbens Habitat Management Zone. With the benefit of the site view and the guidance from the experts, we observed the distribution of Hibbertia procumbens across the site - both inside and outside the area proposed to be developed. We agree that the proposed incursion into the Hibbertia procumbens Habitat Management Zone would have a moderate impact on the distribution of Hibbertia procumbens and in itself, would not be a reason for refusal of the development given the degraded nature of the area sought for the encroachment into the Hibbertia procumbens Habitat Management Zone and the strong likelihood that other plants are located outside the Hibbertia procumbens Habitat Management Zone in other management zones on the site and surrounding properties (see Figure 1: Hibbertia procumbens Habitat, Supplement Report, Somersby Industrial Flora/Fauna Report). 67On the question of whether the Hibbertia procumbens Habitat Management Zone should be retained in full, to provide a corridor for fauna, we are satisfied that the principal purpose of the zone is to protect the Hibbertia procumbens and while the area may provide secondary functions, such as a fauna corridor, the test of whether it may be removed rests largely on the impact on its principal function of protecting the Hibbertia procumbens. We note that areas that serve as a wildlife corridor are specifically designated for this purpose. For example, the most northern part of the site is specifically designated Management Zone No 2 - Habitat Links.

Davis v Gosford City Council

At a glance

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Decision date

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Judgment (10 paragraphs)

Parties

Cases Cited (3)

Cited By (1)