Davis v Gosford City Council

Judgment 1The applicants are the owners of land known as 168 Somersby Falls Road, Somersby, which is within an area known as Somersby Industrial Park. On 26 July 2011 they lodged a development application with Gosford City Council for "an integrated resource recovery facility" on the land. The proposed development is Designated Development and was accompanied by an environmental impact statement which included a Flora and Fauna Assessment Report. That report concluded that the development was on land that is not, nor is it part of, critical habitat, nor was it likely to significantly affect threatened species, populations or ecological communities, or their habitats. 2Nevertheless, on 28 July 2011 the Council rejected the development application as being invalid on the ground that a species impact statement was required: s 78A (8)(b) Environmental Planning & Assessment Act 1979; cl 51(2)(b) Environmental Planning and Assessment Regulation 2000. 3The applicants' subsequent request for a review of the Council's decision was again rejected and the decision was confirmed. 4The applicants now come to the Court seeking a declaration that their development application was not required to be accompanied by a species impact statement, that a development application was made on 26 July 2011 and that the decisions of the Council to the contrary should be set aside. 5The Council says that the development application is required to be accompanied by a species impact statement because of s 78A(8)(b) of the Act. That subsection relevantly states that a development application must be accompanied by: if the application is in respect of development on land that is, or is a part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats-a species impact statement prepared in accordance with Division 2 of Part 6 of the Threatened Species Conservation Act 1995. 6The question of whether a species impact statement is required in any particular case is a jurisdictional fact: Timbarra Protection Coalition Inc v Ross Mining NL (1999) 102 LGERA 52. Accordingly, the Court must now decide for itself whether, as a fact, the application is in respect of land which is, or is part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats. 7To this end the Court has as evidence the Flora and Fauna Assessment Report which was annexed to the environmental impact statement, prepared by an ecological consultant, Mr FD Fanning, together with the additional written and oral evidence of Mr Fanning, and the written and oral evidence of the Council's expert witness, Mr GJ Chestnut. 8The inquiry engages s 5A of the Act, which lists seven factors to be taken into account in determining the question that the Court now has to answer (also known as "the seven-part test"). That section relevantly states: (1) For the purposes of this Act and, in particular, in the administration of sections 78A, 79B, 79C, 111 and 112, the following 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) each of the factors listed in subsection (2), (b) any assessment guidelines. (2) The following factors must be taken into account in making a determination under this section: (a) in the case of a threatened species, whether the action proposed is likely to have an adverse effect on the life cycle of the species 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 action proposed is likely to have an adverse effect on the life cycle of the species that constitutes the endangered population such that a viable local population of the species is likely to be placed at risk of extinction, (c) in the case of an endangered ecological community or critically endangered ecological community, whether the action proposed: (i) is likely to have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction, or (ii) is likely to substantially and adversely modify the composition of the ecological community such that its local occurrence is likely to be placed at risk of extinction, (d) in relation to the habitat of a threatened species, population or ecological community: (i) the extent to which habitat is likely to be removed or modified as a result of the action proposed, and (ii) whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed action, and (iii) the importance of the habitat to be removed, modified, fragmented or isolated to the long-term survival of the species, population or ecological community in the locality, (e) whether the action proposed is likely to have an adverse effect on critical habitat (either directly or indirectly), (f) whether the action proposed is consistent with the objectives or actions of a recovery plan or threat abatement plan, (g) whether the action proposed constitutes or is part of a key threatening process or is likely to result in the operation of, or increase the impact of, a key threatening process. 9The evidence has focussed on two threatened species that are said to be affected: Hibbertia procumbens - commonly known as Spreading Guinea Flower - and the Eastern Pygmy possum. The two species are threatened species - not a population or an ecological community. The parties' respective expert witnesses agree that, of the seven factors in s 5A(2) of the Act, those listed in s 5A(2)(b), (c), (e) and (f) are not relevant in the circumstances of the present case. 10The Department of Planning has issued assessment guidelines, as referred to in S 5A(1)(b). A relevant principle in the guidelines states: Proposed measures that mitigate, improve or compensate for the action, development or activity should not be considered in determining the degree of the effect on threatened species, populations or ecological communities, unless the measure has been used successfully for that species in a similar situation. 11Mr Fanning prepared the Flora and Fauna Assessment Report under s 5A of the Act following extensive surveys. The report forms an appendix to the environmental impact statement, in which he concludes that the development is not likely to have a significant effect on the threatened species or their habitats and a species impact statement is not required. Mr Fanning further developed his opinions in his affidavit and his oral evidence. Mr Chestnut did not conduct an assessment under s 5A himself and his evidence is largely a critique of Mr Fanning's work so as to come to the opposite conclusion. 12After examining Mr Fanning's report, together with his additional written and oral evidence, and Mr Chestnut's written and oral evidence, I have come to the view that the proposed development is not likely to significantly affect either of the two threatened species or their habitats. It follows that a species impact statement was not required to accompany the development application. The council's rejection of that application was in error and is void. The application was duly made and remains to be considered and determined on its merits. I have come to this view for the following reasons. 13Mr Chestnut does not dispute Mr Fanning's statements that the proposed development is not on land that has been identified as critical habitat for any threatened species, population or ecological communities, it is not on land that includes any threatened populations and it is not on land that contains any threatened ecological communities. 14It is convenient to consider the effect of the proposed development on each of the threatened species separately.