Gales Holdings Pty Limited v Tweed Shire Council

Gales Holdings Pty Limited v Tweed Shire Council - [2006] NSWLEC 212 - NSWLEC 2006 case summary — Zoe

[18]

· Wallum Froglets occur both north and south of Turnock Street on both sites. · Wallum Froglet habitat occurs north and south of Turnock Street. · If Turnock Street and Elrond Drive is a barrier, the proposal to fill north of Turnock Street will have a significant impact on the Wallum Froglet population north of Turnock Street. If the road is not a barrier, the proposal to fill north of Turnock Street will have not have a significant impact on the population of the Wallum Froglet. · There is a viable population of Wallum Froglets to the north and south of Turnock Street. · The filling proposed will result in the loss of all Wallum Froglet habitat north of Turnock Street. · The supermarket infrastructure proposal will result in the loss of some Wallum Froglet habitat south of Turnock Street. · If the Wallum Froglets north of Turnock Street are not a separate population to those south of Turnock Street, an SIS is not required for the proposal. · The shopping centre proposal when considered on its own will not have a significant impact on the Wallum Froglet. 17 My understanding of the agreed positions, at least in so far as the council's experts are concerned, is that although there are viable populations of the Froglet either side of the road there is not likely to be a significant effect on the total population if there has been an ongoing capacity for genetic interchange between Froglets north and south of the road notwithstanding the barrier provided by the road structure. 18 The experts disagree as to whether the Turnock Road and Elrond Drive embankment/road is a barrier to movement of the Wallum Froglets. Accordingly, Dr Meyer has been appointed as a CAE to "ascertain whether the Wallum Froglet or its tadpoles are able to use or are likely to use in the context of genetic interchange any of the drains under any of the roads on the land or cross any of the roads surrounding land for the purposes of movement between those portions of land on the northern side of Turnock Street, the southern side of Turnock Street and the western side of Elrond Drive." The parties have made a number of concessions.

[28]

Findings 34 A factor in determining whether an SIS is required is the assessment of whether the population of the Froglet species north and south of Turnock Street and west of Elrond Drive is the same or is likely to be regarded as genetically different. The parties have concentrated on the element of movement between populations to ensure genetic interchange. The opinion of Dr Meyer is that it is unlikely there would be a great deal of difference in terms of genetic structure occurring in the time the road has been in place, irrespective of the effect of the road as a barrier. I am not convinced that proof of genetic interchange is a determining factor for the acceptance of the fact that there is only one population. 35 Accordingly it may be said that the consequence is effectively the same irrespective of whether the evidence establishes a real possibility or chance of movement across, through or under the roadway. Consistency of the genetic population at this stage is not, according to Dr Meyer, the product of or dependent upon the contemplated genetic exchange. Subject to what I have said at [17] the experts agree that the populations north and south of Turnock Street are viable. 36 The question that the Court is required to determine is whether there is likely to be a significant effect on the Wallum Froglet or its habitat (in the context of the species, populations and ecological communities specified in Schedules 1, 1A and 2 of the TSC Act.) The Wallum Froglet appears in the list of vulnerable species in Schedule 2. No population of Wallum Froglets is listed in the TSC Act. For the purposes of s 5A(a) of the EPA Act, in determining whether there is likely to be a significant effect, I need to be satisfied that the frogs are part of a viable local population that is likely to be placed at risk of extinction. Mr Robertson submits that no scientific reason has been advanced according any particular significance to the loss of the Froglets north of Turnock Street, save for their loss as part of the population in the immediate locality.

[29]

37 The prospect of a change in the genetic structure of the populations north or south of the road is not a relevant factor if the total population is acknowledged to be a single community with no genetic differences. The circumstances have to be considered in the context of the total destruction of the habitat of the Froglet in the area north of Turnock Street and east of Elrond Drive and partly south of Turnock Street. The National Parks and Wildlife Service (NPWS) describe a local population as one "that occurs within the study area, unless the existence of contiguous or proximal occupied habitat and the movement of individuals or exchange of genetic material across the boundary of the study area can be demonstrated." The council's witness, Mr Parker, relies on this definition of a "local population" to support the broader argument that a separate population on land north of Turnock Street will become extinct and hence likely to be significantly affected. It is self evident that the particular elevated roadway forming Turnock Street and Elrond Drive effectively divides the occupied habitats either side of the roads to a degree inconsistent with a description of contiguous or proximal habitat. The extent of any movement between the population north of the road and populations elsewhere is likely to be minimal. Accordingly one study area would be those parts of the sites where fill development is proposed. 38 Dr Mahony contends that genetic tests on the Froglet indicate the species shares genes across significant geographic barriers and there is genetic evidence of uniformity among populations over a large north to south cross section of its natural distribution. This supports the proposition that the animals are able to disperse despite major barriers, for example provided by major rivers. Dr Smith essentially concurs with Dr Meyer that irrespective of the dispersal ability of the Wallum Froglet it would be inappropriate to consider the population north of Turnock Street to be a separate local population on the basis there has been insufficient time for the two populations to develop.

[33]

43 According to Mr Robertson the Court should accord little or no weight to any purported cumulative impact in this case because the prospects for the grant of consent in relation to the shopping centre site are at this stage speculative. It is difficult to adopt this submission in the light of the approach taken in Dames and Moore and BT Goldsmith. 44 Ultimately the issue of cumulative impact is not a decisive one. I propose to regard the population of Wallum Froglet north of Turnock Street as a viable local population of the species within the meaning of s 5A(a) of the EPA Act. The study area is divided into two distinct local populations both of which are to be regarded as viable for the reasons explained above. Taking account of the threatened extinction of all the Froglets north of Turnock Street I am of the opinion that the development on that land is likely to significantly affect a viable local population of the vulnerable threatened species the Wallum Froglet. 45 A positive finding in respect of one or more of the factors in s 5A does not necessarily lead to the conclusion that an SIS must accompany the development application in accordance with s 78A(8)(b) of the EPA Act. However the total extinction of the local population as contemplated in this case is considered to be sufficiently dramatic and potentially serious to demand that a full and proper study be undertaken so that the process of the consideration of the development application is fully and adequately informed in respect of that issue. 46 Erring on the side of caution and applying the precautionary principle by having regard to the extent of uncertainty raised by the conflicting evidence of the experts and opposing submissions made on behalf of the parties, I find that it is appropriate for these matters to be more fully investigated by the means of an SIS. 47 I determine in accordance with s 78A(8)(b) of the EPA Act that an SIS is required to examine the impact on the Wallum Froglet arising from the proposed fill and haul road development.

At a glance

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Before

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Judgment (34 paragraphs)

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Cases Cited (5)

Cited By (3)