Is there a likelihood of a significant impact on EEC as a result of the development?
- It is agreed between the parties that the EEC is listed in Part 3 Schedule 1 of the TSC Act. The Council contends that the application must be refused because the applicant has provided insufficient evidence to demonstrate that the works will not have a significant effect on the EEC RFEF. Council contends that a SIS is required pursuant to s78A(8)(b) of the Act.
- Councils principle arguments can be summarised as follows:
1. The proposed works will extend up to the riparian corridor containing the RFEF, and the RFEF will be subject to edge effects and indirect impacts. These impacts should be assessed, together with the subject site as part of a larger study area. As this work has not been completed Council argues that uncertainty exists as to the impacts of the development.
2. Given the reasonable doubt surrounding the likely indirect impacts of the development, a species impact statement should be prepared prior to determination.
3. The cumulative impacts of earlier site works with the subject land and on the adjoining lot (Lot 4/ DP 1045391 Fairfield Road), dam remediation, and general impacts from development upstream are not adequately described or assessed.
4. There is uncertainty regarding the resilience of the RFEF community to rehabilitation. The uncertainty centres on whether the indirect impacts from the works will result in the community becoming degraded to a point that is irreversible.
5. The corridor is known to support a varied fauna assemblage including threatened micro-bats and the Grey-headed Flying Fox as well as many species of regional significance. Council argues that given the highly urbanised context remnant vegetation is largely restricted to the corridor adjacent Prospect Creek, and no there is no other comparable corridor route.
- In the alternative, the applicant, based on assessments of significance completed by Dr Robertson, argues that no significant impact is likely upon the RFEF as a result of the proposal. No Species Impact Statement is warranted (Exhibit 4, Appendix E).
- The Court has held that whether or not an SIS is required is a jurisdictional fact, or condition precedent (Timbarra Protection Coalition Inc v Ross Mining NL &Ors [1999] NSWCA 8 at [94]). If it is determined that an SIS is required, and the consent authority does not have one, then consent cannot be granted.
- In Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited 2010 NSWLEC 48 at [81] Preston CJ outlines the following in relation the requirement for an SIS:
First, s 78A(8)(b) focuses on the development proposed in the development application; the inquiry is whether the "development" in respect of which application is made is likely to significantly affect threatened species, populations or ecological communities or their habitats. An application can, of course, be amended after it is initially lodged. The development proposed, therefore, may be amended. The relevant time for the inquiry is immediately prior to the determination of the application; it is the development as it then stands that is to be evaluated for its likely impact on threatened species, populations or ecological communities or their habitats: Corowa v Geographe Point Pty Ltd at [50], [51]. In this case, therefore, the inquiry must focus on the development as it finally stood at the conclusion of the hearing of the appeal.
83 Secondly, the description of the development the subject of the development application is not restricted to the nature, extent and other features of the development but can also include ameliorative measures to prevent, mitigate, remedy or offset impacts of the development. However, in order to be able to be considered in answering the inquiry of likely impact, the ameliorative measures must be proposed as part of the development application. Ameliorative measures not proposed as part of the development application, but which are imposed afterwards, as conditions of consent or restrictions in construction certificates, are not able to be considered in answering the inquiry as to likely impact. This is because the inquiry required by s 78A(8)(b) focuses on the development and its likely impact before the determination of the application and not afterwards: see Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186 at 192; Smyth v Nambucca Shire Council[1999] NSWLEC 226; (1999) 105 LGERA 65 at [11]-[13]; Corowa v Geographe Point Pty Ltd at [57].
84 Thirdly, the word "likely" means "a real chance or possibility" and "significantly" means "important", "notable", "weighty" or "more than ordinary": Oshlack v Richmond River Shire Council (1993) 82 LGERA 222 at 233 and cases therein cited; Plumb v Penrith City Council [2002] NSWLEC 223 at [22(1)]; Corowa v Geographe Point Pty Ltd at [52]; Nambucca Valley Conservation Association v Nambucca Shire Council at [82].
85 Fourthly, in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats, the consent authority and the Court on appeal must take the factors in s 5A of the EPA Act into account and in particular the factors in the now seven part test in s 5A(2). However, the consent authority is not limited to consideration of these factors; there may be facts and circumstances relevant to the inquiry which are not specifically contained in any of the factors in the seven part test: Plumb v Penrith City Council at [37]; BT Goldsmith Planning Services Pty Ltd v Blacktown City Council [2005] NSWLEC 210 at [12]; and Corowa v Geographe Point Pty Ltd at [52].
86 Fifthly, a positive answer to any one or more of the seven factors does not mandate an affirmative answer to the question of whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats but equally does not preclude a negative answer to the question: Carstens v Pittwater Council [1999] NSWLEC 249; (1999) 111 LGERA 1 at [61]; Masterbuilt Pty Ltd v Hornsby Shire Council [2002] NSWLEC 170 at [11]; Plumb v Penrith City Council at [36]; Nambucca Valley Conservation Association v Nambucca Shire Council at [83].
- The factors from the Guidelines relevant for these proceedings are (c), (d), (f) and (g) as follows:
(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) it is likely to substantially and adversely modify the composition of the ecological community such that its 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 be 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.
(f) whether the action 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.
- In order to decide whether or not a SIS is required a number of issues must be addressed (Commercial and Industrial Property Pty Ltd v Holroyd City Council [2013] NSWLEC 1000 at [22]):
1. Is the EEC present on the site?
2. If there is EEC, where does it occur?
3. If there is EEC on the site, is it likely to be significantly affected by the proposed development.
- In this matter, the parties are agreed on the presence, and location of the RFEF. The contentions are focused on the remaining question of the potential impact of the proposed works on the community.
- Both experts have prepared Assessments of Significance, utilising the Guidelines. The key distinctions between the ecology experts are:
1. The state of the RFEF, and whether its degradation affects its sensitivity to indirect impacts, or acts to diminish the effect of the impacts;
2. The role of the existing stand of trees adjacent to the RFEF and its relationship to the EEC;
3. Whether the indirect impacts from the development are significant, or are manageable; and
4. Ultimately, whether the potential impacts from the development are significant and trigger the requirement for an SIS.
- In order to address Council's contentions additional ecology fieldwork and analysis was completed by Cumberland Ecology, under direction from Dr Robertson. This fieldwork, mapping and reporting is appended to the joint report, and formed part of the joint conferencing. Relying on this material Dr Robertson concludes that the portion of the riparian corridor within the site that contains the RFEF is quite degraded and weed infested.
- In his oral evidence, Dr Robertson referred to Table 3 in Appendix C of the joint report to support his conclusion. This table provides a summary of the flora found in four quadrat locations within the location of the EEC. It is Dr Robertson's conclusions that in the four quadrats weeds occupy 97-100% of the ground cover, 50-100% of shrubs, 20-100% of small trees and 0-30% of trees. From this field work Dr Robertson makes the following comments in his Assessment of Significance:
Based upon the Cumberland Ecology Flora and Fauna Habitat Assessment data that is presented in Appendix C, and upon the current condition of the creek corridor, as demonstrated in the photographs in Appendix D, it is assumed that the RFEF is in a disturbed state. It comprises an overstorey of largely mature trees, with some smaller trees and shrubs, but has a limited number of native ground stratum and understorey plants. It is also heavily infested with vines such as Balloon Vine, which are major threats to its integrity in the long term.
The creek corridor along Prospect Creek is polluted and weed infested as a result of extensive development in its catchment, including industrial and urban development. RFEF extends along the creek corridor upstream and downstream of the subject land. The occurrence on the subject site is part pf a much more extensive corridor of the community (Exhibit 4).
- Dr Roberton's assessment of significance estimates a total area of RFEF within the Prospect Creek corridor of over 20ha. It is his conclusion that apart from a very minor area along the perimeter of the RFEF, the EEC will not be directly modified or altered as part of this proposal. The reasoning for his conclusion is as follows:
There is potential for causing indirect impacts via erosion, altered runoff, weed invasion (in runoff and in disturbed soil) and by influencing the microclimate of the vegetation within the corridor. However, the existing creek line vegetation is highly modified with extensive weed cover and limited understorey. The creek receives large flows of stormwater from upstream and these carry dissolved and suspended pollutants and nutrients, trash, seed propagules from weeds such as Ballon Vine. The proposal, even without substantial mitigation measures is unlikely to significantly, further degrade the ground stratum of the RFEF. However, the mitigation measures proposed are likely to reduce the input into the riparian corridor and the RFEF.
The proposed layout has been designed to reduce the impact of the potential run-off into the EEC in the western portion of the subject site.
Therefore the proposal will not substantially modify the composition of the EEC such that it would place the local occurrence (the RFEF on site and further upstream and downstream from the site) at risk of extinction (Exhibit 4).
- In oral evidence, Dr Robertson provided further elaboration of his reasoning. He concludes that the community is more tolerant to change due to its current weed infestation. He draws this conclusion on the basis that the stratum of the community most impacted by competition from weeds, the ground stratum, is not present. It is his conclusion that the potential indirect impacts from the development, of increased erosion and run off will be unlikely to impact the trees within the community. Therefore, given that 97% of shrubs and 99% of the ground stratum are lost it is Dr Robertson's conclusion that any impact is a temporary threat, and is able to be managed.
- Ms James' evidence was that the fieldwork undertaken by Dr Robertson provides a single snapshot. It is her view that it would not account for plants that may be present hidden below weeds or persist as root stock or seeds in the soil, thus potentially under representing the diversity present. In addition, her evidence is that, as the data is not integrated into a comprehensive ecological assessment it lacks context (Exhibit 4, pg. 6).
- Ms James' other area of principal divergence of opinion is in relation to the current state of the vegetation community, and how that is considered as part of the assessment of significance. In contrast to the views of Dr Robertson [refer par 38], Ms James argues that the RFEF is not more tolerant due to its level of weed infestation. It is her view that the RFEF is more sensitive because of the condition that it's in, which is the result of cumulative impacts from upstream and from adjoining the site over quite a long period of time, including clearing and run-off pollution into the creek line (transcript pg. 33). The other factors that contribute to her conclusion are: the size of the corridor; its extensive perimeter; and the uncertainty of the communities remaining resilience to rehabilitation. Her reasoning is detailed below:
The corridor has been pretty much that size for a long time, since about 1930s. So it's always been constrained by a fairly narrow width and, therefore, it's not as resilient as a really big remnant. It has extensive perimeter to area ration, which is where you're going to get a lot of edge effects. So because it has suffered a lot already it is actually - so ecologically we talk about change along a continuum. So you can have your pristine condition river-flat forest and, as disturbance increases and becomes more degraded, it comes to right at the other end, maybe it's not river-flat forest any more.
So where are we along this continuum at the moment and to just say, "Oh, well, it's weedy, so it's going to be tolerant", I don't believe that is ecologically sound. (transcript pg. 33).
- In her oral evidence, Ms James provided evidence that in her view the quadrats chosen could influence the conclusion of high weed infestation due to their locations. She argues that quadrat four is adjacent to a stormwater channel, which increases the likelihood of weed infestation, quadrat two is located at the edge of the RFEF and that quadrat one is not located within the RFEF itself. In addition it is her evidence that the determination of the Scientific Committee when listing the RFEF includes a statement that weediness is a characteristic of the community, as follows:
The composition and structure of the understorey is influenced by grazing and fire history, changes to hydrology and soil salinity and other disturbance, and may have a substantial component of exotic shrubs, grasses, vines and forbs.
…
Very few examples of River-flat Eucalypt Forest remain unaffected by weeds.
(Extract: River-Flat Eucalypt Forest on Coastal Floodplains of the NSW North Coast, Sydney Basin and South East Corner bioregions Determination)
- It is her view that the level of 'weediness' may obscure or camouflage the presence of other native species in the mid storey. In her oral evidence, Ms James concluded that the regeneration potential of the RFEF, and riparian habitat on the subject site, has not been investigated and is currently unknown. In the joint report, at Appendix H, Ms James included detail of a regeneration project at the rear of Fairfield High School (in proximity to the site) which she concludes indicates some recovery capacity may occur despite dense weed cover in parts. It is her uncontested evidence that the RFEF community at the rear of Fairfield High School is responding well to bush regeneration / weed control despite former dense weed infestation (Exhibit 4).
- A vegetation management plan (VMP) is not proposed by the applicant as part of the application, however is required as part of the agreed conditions of any consent.
- Dr Robertson maintains that irrespective of the absence a VMP, there would not be a significant impact as a result of the creation of the earthworks on the site. However he acknowledges that a VMP would assist in managing key threats, particularly those that pertain to weeds and weed invasion. It is his conclusion that a VMP would address a key threat to the community, but that threat doesn't come from the proposal. It comes from just the existing condition of the community (Transcript pg. 12).
- Ms James agrees with Dr Robertson that indirect impacts will occur along the new interface between development and the RFEF through edge effects, including altered run off, water infiltration, erosion, increased exposure to winds and dust, weed propagules, pathogens and noise, and weed invasion (Appendix G, Exhibit 4). The ecological assessment prepared by the applicant assumes edge effects on the RFEF over a distance of 10m. It is Ms James' opinion that, whilst this equates to 0.235 ha, it is an underestimation of the potential amount of the community affected by the development. It is the conclusion of her Assessment of Significance that current research and her field experience and knowledge support the extension of these affects beyond a 10m zone (Appendix G, Exhibit 4).
It is my opinion that 10m is a significant underestimate of the likely extent of edge effects based on current research & field knowledge/ experience. Although this area is highly modified through weed invasion, it is likely that some native species persist and may be hidden by the weeds or only represented as seed or storage organs in the soil.
Resilience or recovery capacity declines, however, with increasing levels of disturbance. Vegetation can become particularly vulnerable or sensitive to additional or new impacts and if a critical threshold is passed is likely to move into a more degraded state that is irreversible i.e removal of that disturbance may not result in the system returning to its previous state. Such a loss of recovery capacity is a serious concern. (Appendix G, Exhibit 4).
- In her oral evidence Ms James focussed on four main areas of indirect impact that, in her opinion, would result in changes to the RFEF as they would occur in proximity to it:
1. The removal of the mound and trees on the northern side of the former dam A (as noted on the plans). This stand of vegetation is nominated in purple in the extract of the site plan, refer par [9];
2. the altering of the surface flows of water run-off immediately adjoining the RFEF;
3. potential also for increased erosion due to the batters that have now been created immediately adjoining the RFEF; and
It was agreed between the experts by reference to the plans that the batter creates average two metre drop, over about five metres of length.
1. increase to the height of the land, and battering of the land down to and immediately adjoining the RFEF will alter surface flows.
- The experts agreed, by reference to the plans that the fill depths immediately adjoining the RFEF range between 1.2 and 1.5 metres.
- In her Assessment of Significance Ms James identifies that the proposal has the potential to affect the corridor and the local occurrence more generally through the alteration of hydrological regimes, and loss of ecological function. She identifies the four factors, at par. [51], as contributing to this alteration and loss. It is her evidence that these changes are in addition to the cumulative impacts that are already in existence from development. Her assessment states that the effect of these changes as follows:
The hydrological regime has been significantly altered. The most likely consequence of these impacts is the loss of water in the RFEF habitat due to less frequent smaller flooding events, reduced subsurface drainage and channel incision. The main canopy trees with deeper roots are surviving at present but low native species diversity in the mid-storey and ground cover could be at least partly due to this loss. Continued incision of the channel and erosion of banks will threaten mature canopy trees that are integral to the structure, composition and function of the community. The cumulative impacts and threshold limits are unknown. (Appendix G, Exhibit 4).
- It is the conclusion of Ms James that the proposal has the potential to adversely modify the environment, composition and function of the RFEF by the indirect impacts arising from edge effects, changes in hydrological regimes, loss of buffer protection and disruption of ecological processes. It is her conclusion that these adverse impacts lead to the conclusion that the proposed development is likely to have a significant impact on the RFEF, and an SIS is required.
- In relation to the disruption to ecological function Ms James argues not that the fauna themselves will be threatened by the proposed development, but rather that the development will remove their habitat, and may result in these species not undertaking their important role in the RFEF. Her evidence is that:
Fauna are responsible for important ecological processes within communities and along corridors including pollination (maintaining genetic diversity) and dispersal of seeds. There is evidence to indicate that the Upper Prospect Creek corridor provides habitat for and is used by a range of fauna including bats, and the Grey-headed Flying Fix. The corridor will be reduced to less than 20m wide on the Cumberland Council side as a result of the proposal for significant sections. The science generally agrees that wider riparian/ vegetated corridors provide for more foraging habitats, increases the likelihood of fauna migration and improved condition and sustainability of remnant vegetation (Exhibit 4).
- It is Dr Robertson's evidence that the ecological assessment does not assume edge effects will occur, but that there is the potential for edge effects of up to 10m. In relation to any impact on ecological processes, it is his evidence that the ecological processes will continue given that the corridor contains approximately 30 hectares of RFEF, and the fauna will equally forage in other proximate vegetation that's closely related. Dr Robertson concludes that he doesn't foresee that the corridor will lose its function. (Transcript pg. 18)
- In oral evidence Dr Robertson agreed that the proposal would alter of the surface flows of water run-off immediately adjoining the EEC, and that there a potential also for increased erosion due to the batters created immediately adjoining the RFEF. In cross-examination, Mr Seton who submits that there is at least a potential for those changes and works to have an impact on the river-flat eucalypt forest, which is on and adjoins the subject land, put the cumulative effect of four changes [par. 51] to Dr Robertson.
- In response, Dr Robertson maintains that whilst he could not say with any certainty that there won't an impact of sorts he put to the Court that he would be very surprised if there was a significant impact such that these earthworks caused a major detrimental impact to the trees in the corridor (Transcript pg. 18) . His reasoning is as follows:
…a lot of that river-flat eucalypt forest, if not all of it, in the subject site is essentially river-flat eucalypt forest trees. There are other species there and we've recorded them quite appropriate in the preceding list, but for all intents and purposes within the plots you've got, you know, the shrub covers 98% exotic shrubs. The ground stratum is 99% exotic herbaceous weeds. The tree cover, as I said before, is about 27% native tree cover, with 3 or 4% on average of exotic trees. So what that boils down is that you've got some native tree cover adjacent to the site.
So the ground stratum, which is most at risk from erosion and from changed run-off along the batters, the ground stratum is almost like the who's who of serious environmental weeds in the Sydney region so - and I'm not sort of being facetious, but quite literally if you look at page 45 of 81 of the joint statement, photograph 2, you will see the sort of embankment that we're talking about that is going to be immediately adjacent to the works proposed, that style of embankment.
So it's already sloping. The slopes are densely covered with like sort of a carpet of vines and weeds and they're relatively stable and the other thing that's quite relevant to that too is that, when you look at other buildings, such the development immediately to the west of the subject site, that is actually shown on photograph 6, immediately to the west of the site in question now, on page 48 of 81 you can see there's a container storage area built up in close proximity, hard up against the edge of the river-flat eucalypt forest which, as I've explained before, is essentially like an amalgam of weedy shrubs, weedy vines and it's got some native trees.
I'm not saying for one moment that's not an endangered community and I'm not saying for one moment that it's something we should be down-playing, but the composition of that vegetation is very relevant when you're looking at the potential for damage from something like a bit of erosion coming off a temporarily destabilised or recreated sort of batter area.
So in a worst case scenario, if that was unmitigated and the erosion ran straight into the slopes of the river-flat eucalypt forest, I believe that I wouldn't cause catastrophic damage, that it would eventually stabilise and probably stabilise quite quickly as a result of weed cover and regrowth of the ground stratum and that in a worst case such damage could be rectified by simply moving some of the eroded fill back off the site and replanting it.
So I don't advocate that there's no - I don't advocate a lack of erosion control and I'm not completely down-playing this as a potential risk, but I've assumed that it has in this situation a limited potential to damage the river-flat eucalypt forest and that that potential damage can be mitigated by erosion control measures and also addressed later on if the E2 lands are subject to a vegetation management plan. (Transcript pg. 10).
- Mr Robertson in his Assessment of Significance does not rely on the ameliorative measure of a vegetation management plan to conclude that the development will not have a significant impact. He does however agree that such an approach will reduce the key threats to the community. Importantly it is his evidence that the key threats identified are an existing condition, and do not come from the proposal. His reasoning is detailed below:
Same point down below, if a VMP is implemented on the E2 area, a number of these key threats mentioned above will be addressed. Now those key threats come particularly from things like invasion by exotic vines and scramblers, which are quite rampant on the site. That threat to the river-flat eucalypt forest continues regardless of whether or not there's a development on the subject site, whether or not there's any work done on the soils of the subject site, as proposed. So that's - it's a comment that it is - it's a relevant step to take. It would address a key threat to the community, but that threat doesn't come from the proposal. It comes from just the existing condition of the community. (Transcript pg. 12).
- Mr Staunton submits that the jurisdictional test is met, and that the Court has adequate evidence from Dr Robertson to conclude that there is not likely to be a significant impact on EEC from the development. He argues that the Court should rely on the very detailed assessment completed and the scientific data gathered from the field work. Mr Staunton argues that this scientific analysis should be given weight over the concerns raised by Ms James of the potential indirect impacts of the development.
- In the alternative, Mr Seton argues that fundamentally the experts have different opinions. Mr Seton urges the Court to take a precautionary approach and come to the view that there is a likely impact (and an SIS is required), or alternatively that there is insufficient information to suggest that it is unlikely for there to be a significant effect on the RFEF. He submits that the Court should form the view that the application is unable to be approved in the absence of an SIS.