Gales Holdings Pty Limited v Tweed Shire Council

Gales Holdings Pty Limited v Tweed Shire Council - [2006] NSWLEC 85 - NSWLEC 2006 case summary — Zoe

[14]

5 The land the subject of the development application comprises two parcels which front Turnock and Quigan Streets, Kingscliff. 6 The site comprises 13.4 hectares situated on the end of the Chinderah flood plain. Ground levels average 1m AHD. There is an old farm drain (or "cane drain") running across the site. The drain collects all drainage from the subject land as well as from the developed parts of Kingscliff to the south and east. The land rises in the south. It is necessary to relocate the drain further to the south in order to accommodate the supermarket. Urban runoff into the site has increased significantly over recent years as a consequence of the closing off of the main flow path to the north and west. The flow capacity of the drain within its banks is quite limited through lack of regular maintenance. According to Dr Webb, the applicant's hydraulic consultant, the relocation of the drain is unlikely to alter groundwater or surface water levels and will not disturb the area where the bulk of MRS have been detected. 7 There is a disagreement between the experts in respect of the extent and location of the most important habitat for the MRS and the relationship of that habitat to the proposed drainage works. In order to provide a relatively drier environment for the MRS some limited filling is proposed to allow connection of the main existing habitat with other remnant areas. Moreover, two drains are proposed to catch stormwater outfall from the south so that it is diverted directly to the relocated drain. These drains will be covered in part to allow migration of the MRS. The relocated drain will be routed along the southern edge of the preserved and enhanced snail habitat. The legislative framework 8 Section 78A(8) of the Environmental Planning and Assessment Act 1979 ("the EPA Act") relevantly provides:- (8)A development application must be accompanied by: (a) … (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 .

[48]

51 Mr Webster SC, on behalf of the council, submits that the definition of habitat does not give rise to a limitation or qualification and that the definition specifically includes area which may not be preferred habitat by reference to "periodically or occasionally occupied." Mr Webster further submits that the evidence of Dr Stanisic, particularly in respect of the eight part test, is not helpful primarily because he conceded that he did not know the definition of habitat under the TSC Act. 52 The council contends that Dr Stanisic erroneously concentrates on prime main mass habitat and the long term survival of the snail rather than areas where the snail has been found. Dr Stanisic does not dispute that the MRS has been found in areas that he regards as being outside of the MRS habitat but says that the MRS would simply not survive in those areas. This is consistent with Dr Smith's description of the site as a "sink" where animals might disperse but ultimately perish. 53 Dr Stanisic says that the rehabilitation works provide the only means of survival for the MRS. However, Dr Stanisic also says that there is also very little known about work done in respect of rehabilitated areas. He also agreed in cross examination that the viability of the snail on the site is conjectural. Mr Webster submits that these factors combined with the removal of habitat from the site lead to the conclusion that there is likely to be a significant effect on the MRS. 54 The Recovery Plan states that any bush remnant containing lowland subtropical rainforest but also other lowland moist forest communities are to be considered as potentially harbouring MRS no matter how small or degraded it might appear. Mr Webster contends that areas to be removed contain these characteristics. The Recovery Plan also states that if the proposed activity causes destruction of all the available habitat present on the site then the local population will be lost as there is little potential to recolonise. 55 The high degree of uncertainty surrounding the life cycle of the MRS combined with the highly fragmented population of MRS on the site together in my view raise sufficient concern that the proposed development will have a significant effect on the population of MRS known to exist on the site. I am not persuaded that only a small area of relevant habitat will be disturbed or removed. The nature of the MRS activity is that it encroaches beyond the areas identified as its preferred habitat.

[50]

57 Ecologically sustainable development in the TSC Act and EPA Act has the same meaning as s 6(2) of the Protection of the Environment Administration Act 1991. Section 6(2) provides that ecologically sustainable development can be achieved by the adoption of the following programs and principles:- (a) the precautionary principle - namely, that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. In the application of the precautionary principle, public and private decisions should be guided by: (i) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and (ii) an assessment of the risk-weighted consequences of various options, (b) inter-generational equity - namely, that the present generation should ensure that the health, diversity and productivity of the environment are maintained or enhanced for the benefit of future generations, (c) conservation of biological diversity and ecological integrity - namely, that conservation of biological diversity and ecological integrity should be a fundamental consideration, (d) improved valuation, pricing and incentive mechanisms - namely, that environmental factors should be included in the valuation of assets and services, such as: (i) polluter pays - that is, those who generate pollution and waste should bear the cost of containment, avoidance or abatement, (ii) the users of goods and services should pay prices based on the full life cycle of costs of providing goods and services, including the use of natural resources and assets and the ultimate disposal of any waste, (iii) environmental goals, having been established, should be pursued in the most cost effective way, by establishing incentive structures, including market mechanisms, that enable those best placed to maximise benefits or minimise costs to develop their own solutions and responses to environmental problems.

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