Friends of Tumblebee Incorporated v ATB Morton Pty Limited

Tumblebee Objects to a Town Planning Report 1The background to this evidential ruling is contained in Friends of Tumblebee Incorporated v ATB Morton Pty Limited [2014] NSWLEC 127 (at [5]-[8]): 5 ...this case concerns a challenge to the council's determination of a development application, lodged by ATB, on 23 October 2013. The development consent is for the construction of a steel fabrication workshop and distribution facility and associated infrastructure in Weston, New South Wales. The proposal includes the clearing of approximately 3.2ha of habitat for the Regent Honeyeater, which is listed as a critically endangered species under Sch 1A of the Threatened Species Conservation Act 1995. 6 The development application was not accompanied by a species impact statement which Tumblebee claims is required pursuant to s 78A(8)(b) of the EPAA. That provision provides as follows: (8) A development application (other than an application in respect of State significant development) must be accompanied by: ... (b) 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. 7 It is Tumblebee's case that the development is likely to significantly affect the Regent Honeyeater and its habitat, and therefore, the development application ought to have been accompanied by a species impact statement. Because at the time the council purported to determine the development application there was no species impact statement, the determination is invalid. 8 There does not appear to be any serious dispute between the parties that encompassed within the asserted likely effect that the development would have on the Regent Honeyeater, is a significant impact on both the species and its habitat, insofar as any changes to the habitat of the Regent Honeyeater would also be likely to have a significant effect on the Regent Honeyeater itself. This assertion has been met in the ecological evidence relied upon by the parties (Dr Stephen Debus, on behalf of Tumblebee, and Mr Craig Anderson, on behalf of ATB). 2In this application, the applicant, Friends of Tumblebee Incorporated ("Tumblebee"), objects to parts of the affidavit of Mr Craig Anderson affirmed 15 July 2014 that rely on Attachment H to that affidavit, and the entirety of a supplementary affidavit affirmed by him on 14 August 2014. 3At the time the objection was made, I gave truncated reasons for upholding the objection and rejecting the part of the affidavit relying on Attachment H together with Attachment H itself and the entirety of Mr Anderson's supplementary affidavit. The reason for the overly succinct nature of my reasons was to ensure that the hearing concluded in the time allocated to it. At the time I stated that I would deliver more fulsome reasons at a later date. This is that judgment. 4Mr Anderson is, by his own description, an "ecologist". His expertise is relied upon by the respondent, ATB Morton Pty Limited ("ATB"), in these proceedings. 5Attachment H to Mr Anderson's affidavit is a report authored by Mr Robert Dwyer, the Planning Manager at RPS ("the Dwyer Report"). The Dwyer Report purports to express opinions concerning town planning matters of relevance to the proceedings. 6Mr Anderson's supplementary affidavit refers to paragraphs 37 to 39 of the Dwyer Report and states that he undertook an independent review of matters referred to in those paragraphs, and consequently, he is "independently satisfied that the findings of RPS set out in Table 1 on pages 77 and 78 of my First Affidavit as to the status of each development application is correct." 7Table 1 of the Dwyer Report is responsive to a summary document relied upon by Tumblebee entitled Summary of Development Approvals Involving the Clearing of Native Vegetation Within the Hunter Economic Zone Granted Up to April 2014 ("the Summary"). 8The Summary listed the number of hectares permitted to be cleared in various concept plan and development approvals in close proximity to the land the subject of the development application approved by Cessnock City Council ("the council"), and challenged in these proceedings ("the consent"). It was prepared because it is a central feature of Tumblebee's claim that in assessing the impact of the proposed development regard cannot be had merely to the 3.2ha of land permitted to be cleared under the impugned consent, rather, regard must be had to the total clearing of land permitted in the Hunter Economic Zone ("the HEZ") in order to properly assess the cumulative significance of the loss of an additional 3.2ha of Regent Honeyeater habitat. 9It is not necessary to reproduce Table 1 for the purposes of this judgment. Suffice it to say that Table 1 updates the Summary to "include a 'Status (RPS June 2014)' column and a column indicating the amount of clearing actually undertaken up until 30th June 2014." The reference to a "'Status'...column" is a reference to whether, in Mr Dwyer's opinion, the approval has lapsed or has been partially or wholly completed. 10In his affidavit Mr Anderson was asked to opine on the following question: Question 5 - Cumulative Impacts In your opinion, is there likely to be any cumulative impact arising from existing developments in the HEZ LEP area. In forming your opinion, please consider the cumulative impact arising from existing and proposed developments as referred to in the Applicant's development approvals table. 11He relevantly expressed his opinion thus: Response: 35. If maximised development of the HEZ LEP area occurred in accordance with the gazetted zonings, associated land use controls, relevant approvals and guiding environmental management strategies, then a loss of the majority of vegetation from within the industrial zoned lands (excluding "Deferred Areas" as nominated within the Assumed Concurrence - see Attachment F) may occur. This statement is made on the assumption that approval for such development would be able to be obtained under the Environmental Planning & Assessment Act 1979 (i.e. the state approvals process), bearing in mind that a Commonwealth EPBC approval is in place (see Attachment G) which also contains controls on vegetation clearing and retention. 36. Under the above scenario, as development and associated vegetation clearing progressed within the HEZ LEP area, then the impact of such clearing would be likely to have a cumulative and incremental impact on the amount of vegetation, and hence habitat present for species such as the Regent Honeyeater. 37. An assessment has been undertaken of the two Tables prepared by the NSW EDO (noting that only the first of these has been the subject of a qualified direction by the Land and Environment Court under s50 of the Evidence Act 1995), namely: · Summary of Development Approvals Involving Clearing of Native Vegetation within Hunter Economic Zone granted up to April 2014; and · Summary of Permissible Development within Hunter Economic Zone The assessment was prepared by RPS (July 2014), and is included herewith as Attachment H. 38. The key points of outcome of the RPS (2014) assessment as relates to existing development approvals include: · Of the 157.6ha indicated by NSW EDO as being approved for clearing, only approximately 27.5ha (17.4%) has been cleared in accordance with the respective approvals · Aside from a 0.86ha development approval for a proposed Concrete Batching Plant which is still current (but not cleared), all other previously approved developments that have not been cleared have now lapsed. 39. The key points of outcome of the RPS (2014) assessment as relates to permissible development includes: · The possibility of a large number of the nominated permissible without consent and permissible with consent uses in the E1 National Parks and Nature Reserves Zone and the E2 Environmental Conservation Zone actually occurring in the future would be low having regard for the NSW DEC Assumed Concurrence (see Attachment F) and the Commonwealth EPBC Approval (see Attachment G) as relates to the HEZ site, and the land management commitments contained therein. · Any development proposal within IN1 Industrial zoned lands will be subject to standard development controls under the relevant section of the EPA Act, and be determined on an individual merits based assessment process. 12Paragraphs 37 to 39 above, together with Attachment H, and the supplementary affidavit of Mr Anderson, were objected to by Tumblebee on the following bases: (a)first, Mr Anderson is an ecologist, not a town planner, and therefore, his evidence was opinion evidence contrary to s 76(1) of the Evidence Act 1995; (b)second, the reasoning of neither Mr Anderson nor Mr Dwyer was sufficiently disclosed in their reports; (c)third, in expressing his opinions, Mr Dwyer did not comply with the Expert Witness Code of Conduct in Sch 7 of the Uniform Civil Procedure Rules 2005 and there was no statement by him that his Report complied with the Code; and (d)fourth, Mr Anderson's evidence was not probative because evidence is not required to interpret the planning controls Mr Dwyer refers to in his Report, and in any event, the approvals summarised in Table 1 of that Report speak for themselves.