• Soils: The soils are podzols or humus podzols on the sand sheet and humic gleys and peats in very low depressions. The dominant soil materials of the podzols are dark sandy loam (topsoil - A1 horizon), bleached sand (deep topsoil - A2 horizon), and black cemented pan or "coffee rock" (deep subsoil - Bh, Bhs horizon).
71 Dr Hazelton identifies the soils excavated at soil pits 1, 9 and 10 as being podzols developed in situ. They are of the same soil type as described in the Kingscliff soil landscape. Dr Hazelton identifies the soils excavated at soil pits 2, 3, 4, 6 and 7 as being humus podzols with some surface lenses of peaty loams. These soils have formed in situ in depressions and dune swales as described in the Pottsville soil landscape.
72 The soils of the site, and of the Kingscliff and included Pottsville soil landscapes, do not correspond with the soils with which the Scientific Committee specifies Freshwater Wetlands are associated, namely "silts, muds or humic loams". Dr Hazelton notes that silt is substantially absent from the soils of the site. The soils of the site are not mud. The soils of the site are not loams. The soils of the Kingscliff and Pottsville soil landscapes are podzols, and have not been deposited by fluvial processes referred to in the Scientific Committee's description of the floodplains.
73 Dr Stock, a geomorphologist called by the Council, did not dispute the general proposition that the soils on the site correspond with the Kingscliff and Pottsville soil landscapes or that the soils on the site are podzols. However, Dr Stock identified in the soil profiles for the soil test pits, certain "sub-samples" which might answer other descriptions such as being loam, clay loam or sandy loams. I do not consider this to be a proper way either of interpreting the results of the soil test pits or of the Scientific Committee's description of the edaphic criteria for the endangered ecological communities in question in this case. The endangered ecological communities in question in this case cannot exist if there be only isolated and disparate lenses, at various depths, of soil that might meet the edaphic criteria in the Scientific Committee's description of the endangered ecological community. The soils over the land in question, said to support the endangered ecological community, must be looked at fairly and as a whole. Overwhelmingly on this site, the soils do not meet the edaphic criteria of the Scientific Committee in its final determination to Freshwater Wetlands as an endangered ecological community.
74 The Council also submitted that certain components of the soils on the site could be described as silts or could form muds, as those terms are ordinarily understood having regard to dictionary definitions. The Council referred to the Macquarie Dictionary definitions of silt and mud. The Macquarie Dictionary defines "silt" as "earthy matter, fine sand, or the like, carried by moving or running water and deposited as a sediment" and "mud" as "wet, soft earth or earthy matter, as on the ground after rain, at the bottom of a pond, or among the discharges from a volcano; mire". The Council submits that certain components of the soils on the site could answer these dictionary definitions.
75 I reject the submission of the Council. The fact that these soils are podzols is evidence that they have not been carried by moving or running water and deposited on the site. They therefore would not be silts according to the Macquarie Dictionary definition of silt. Unlike the dictionary definition of silt, the dictionary definition of mud does not require the carrying by moving or running water and deposition on the land. It is much wider. Such a definition does not accord with the way in which the term "muds" is used by the Scientific Committee in its description of the Freshwater Wetlands endangered ecological community. As noted above, the specified soils, of which one is muds, are specified to be in certain topographical features which are associated with coastal floodplains. The specified soils are formed by the fluvial processes described in the definition of flood plains and which also form the topographical features in which the soils occur.
76 The Council's submission also relies upon isolated lenses of soil material, which may form silts or muds, rather than considering the soils on the site as a whole. The soils on the site as a whole cannot properly be described as silts or muds.
77 Secondly, the Scientific Committee in the description in its final determination to list Freshwater Wetlands as an endangered ecological community, expressly excludes Freshwater Wetlands in coastal sandplains: see paragraph 9 of the final determination for Freshwater Wetlands. As the soil landscape mapping shows, the site is part of the coastal sandplain. The underlying geology of the site, being part of the Kingscliff and Pottsville soil landscapes, is aeolian and marine quartz sand sheets and dunes of the Pleistocene inner barrier system.
78 Thirdly, the Scientific Committee in the description in its final determination to list Freshwater Wetlands as an endangered ecological community refers to the work of "Keith and Scott 2005", namely D A Keith and J Scott, "Native Vegetation of Coastal Floodplains - a diagnosis of the major plant communities in New South Wales", Pacific Conservation Biology, 2005, Vol 11:81-104. Figure 3 of Keith and Scott maps the historical records of occurrence of major coastal floodplain plant communities on the Tweed River Floodplain. The subject site is not within the mapped area. The mapped occurrences of major floodplain coastal plant communities correlate with alluvial and estuarine soil landscapes. The close correlation is shown graphically in Dr Smith's Statement of Evidence in Reply, p 12 where he juxtapositions Morand's soil landscape map with Keith and Scott's map of occurrence of major floodplain plant communities.
79 Fourthly, the subject site is not one which is subject to the fluvial processes referred to in the Scientific Committee's definition of floodplains, namely active erosion and aggradation by channelled and overbank stream flow with an average recurrence interval of 100 years or less. It is true that the land is low lying and is subject to flooding with an average recurrence interval of 100 years or less.
80 However, the evidence of Dr Webb, a hydrologist called by Gales, establishes that there is no channelled and overbank stream flow which could cause active erosion or aggradation. Dr Webb prepared a detailed flood model, derived from the Council's flood model. That model shows that, for flood events less than about the 20 year average recurrence interval, flood waters sourced from the Tweed River are incapable of entering the area to the west and south of the Pacific Highway, and therefore reaching the subject site. For such flood events, there may be localised ponding on the subject site, but with very low velocity.
81 For flood events of a greater than 20 year average recurrence interval, floods are likely to be similar in dynamics and sequence to, although involving smaller heights and velocity than, the 100 year flood event. There is localised ponding on the subject site with very low velocities (less than 0.1m per second). This ponding continues and expands and covers a substantial area with water flowing and rising very slowly west and north.
82 In the 100 year average recurrence interval flood event, the pond water reaches a depth of about 1 m on the subject site and is virtually still (velocity is less than 0.1m per second). Eventually when the Tweed River flood waters exceed the height of the land several kilometres to the west (around 35 hours in the 100 year event), the Tweed River waters prevent the escape of the water which has ponded over the subject site and the larger area to the west and south push the ponded water back towards the subject site also at very low velocity. When the flood eventually subsides the water escapes to the west and north. At all times on the subject site, localised ponding is dominant and the velocities are so low as to be incapable of generating any significant erosion processes.
83 During a 100 year flood event, there will not be deposition of any significant amounts of sediment. First, the water is predominantly derived from the local environment which is likely to be naturally sediment poor. Secondly, the velocities are so low that the water is incapable of entraining anything other than clay fines which will be present in very small quantities. Even then, because of the fineness of the particles, the majority are likely to stay in suspension for so long that they will be carried away with the waters when they drain away at the end of the flood. Dr Webb states that "to the extent that any particles settle, this effect is likely to be miniscule".
84 Accordingly, although the subject site is subject to inundation in flood events with an average recurrence interval of 100 years or less, there is no "active erosion" or "aggradation" by flow during these events.
85 Dr Webb's explanation of the hydrologic regime of the site is consistent with and confirmed by the observations of the soils made by Dr Hazelton and the description of the soils in the soil landscape mapping. The soils have not been formed by the fluvial processes of erosion and aggradation by channelled and overbank stream flow.
86 Finally, the particular soils on the subject site are not "associated with" coastal floodplains. As noted above, there is no association between the fluvial processes referred to in the Scientific Committee's definition of floodplains and the soils or topographical features on the subject site. The soils and topographical features for the subject site have not been formed by such fluvial processes. The vegetation on the site is a product of the soils and topographical features of the site. The vegetation also is not a product of such fluvial processes. There is no evidence of any influence of the vegetation of the subject site from vegetation communities on alluvial soil landscapes to the west of Tweed Coast Road.
Floristic and structural criteria
87 Dr Clements, a botanist and ecologist, engaged by Gales, undertook a comparison of vegetation data collected on the subject site with the characteristic species listed in the final determinations of the Scientific Committee to list Freshwater Wetlands, Swamp Sclerophyll Forest and Swamp Oak Floodplain Forest as endangered ecological communities.
88 For Freshwater Wetlands, Dr Clements recorded from all of the 32 plots over the whole site, 18% (12 species) of the 66 characteristic species listed in paragraph 1 of the Scientific Committee's final determination for Freshwater Wetlands. However, for the four plots in the vegetation community 12, the community which the Council contends is a Freshwater Wetlands endangered ecological community, namely plots 24, 28, 31 and 34, only five characteristic species were recorded, namely, Persicaria strigosa (a type of low growing herb), Baumea rubiginosa (a type of reed), Hemarthria uncinata and Leersia hexandra (both types of grasses), and Phragmites australis (another type of reed). This represents 7.5% of the characteristic species for Freshwater Wetlands. (In fact in any of the four plots there were no more than 4 of the characteristic species.) Dr Clements concluded "from the number of characteristic species recorded and the described plant communities, the data from Plot 22 and probably data from plots with a "sedgelands and reedlands and herbfields, and woody species are generally scarce" structure (Plots 24, 28, 31 and 34) should be compared with the other listed criteria in the Final Determination for this community".
89 I understand this conclusion of Dr Clements to be that a comparison between the species recorded in the plots in vegetation community 12 and the characteristic species for Freshwater Wetlands is not, by itself, sufficient to preclude the vegetation community being Freshwater Wetlands.
90 Mr Elks, a botanist called by Gales, similarly was not prepared on the basis only of the small number of characteristic species recorded in vegetation community 12 "to rule it [vegetation community 12] out totally" as being Freshwater Wetlands. He considered, however, other factors indicated that vegetation community 12 is not Freshwater Wetlands, including the absence of floating water plants.
91 Dr Kingston, the biodiversity program leader with the Council, considered that the low number of characteristic species recorded in vegetation community 12 might indicate it is a "possible transitional community". Dr Kingston also was of the view that Freshwater Wetlands are often dominated by one or two species, such as Phragmites, and therefore he "wouldn't rule it out on that basis alone".
92 Dr Smith, an ecologist called by Gales, however, considered that vegetation community 12 is "clearly depauperate in a biodiversity floristics sense". Dr Smith considered that the changes to the hydrologic regime of the site had favoured "plant species that favour wetter ground to disperse rapidly in that area". Dr Smith concluded that vegetation community 12 is "nothing like a Freshwater Wetland EEC, it doesn't have the structure, the floristics, the function, the diversity. It falls short in almost all regards".
93 On this evidence, I am not able to find that the low number of characteristic species recorded in vegetation community 12 is, by itself, sufficient reason to exclude the vegetation community from being the Freshwater Wetlands endangered ecological community.
94 However, there are other aspects of the Scientific Committee's criteria relating to floristic species and structure of the community which do indicate that vegetation community 12 is not the Freshwater Wetlands endangered ecological community.
95 The Scientific Committee's final determination for Freshwater Wetlands refers to the absence of woody species of plants; the presence of amphibious, emergent, floating or submerged aquatic forbs, grasses or sedges; and the consequential structure of the community not involving woody species of plants and instead being sedgelands, reedlands or herbfields.
96 Paragraph 1 of the final determination states that "[t]he structure of the community may vary from sedgelands to reedlands to herbfields, and woody species of plants are generally scarce". Paragraph 4 states that Freshwater Wetlands are "dominated by herbaceous plants and have very few woody species". Paragraph 6 states: "The combination of features that distinguish Freshwater Wetlands on Coastal Floodplains from other endangered ecological communities on the coastal floodplains include its scarcity or complete absence of woody plant species and the presence of amphibious, emergent, floating or submerged aquatic forbs, grasses or sedges".
97 The five characteristic species recorded in the plots in vegetation community 12 are not woody species of plants and the current structure of vegetation community 12 is of a grassland/sedgeland. However, the present species composition and the structure of the vegetation community are products of the site's past disturbance regime. The aerial photographs taken over time reveal considerable clearance of the site over many decades. Furthermore, the evidence is that the subject site, including where vegetation community 12 occurs, is regularly slashed and grazed. Hence, the present species composition and the vegetation structure are artificial constructs and are not true indicators of the natural vegetation community.
98 The soil landscapes that occur on the site, namely Kingscliff and Pottsville, are characterised by having vegetation that is inconsistent with the floristic species and structure described by the Scientific Committee in its final determination to list Freshwater Wetlands. The Kingscliff soil landscape is characterised by having vegetation of "open-heathland forest" with wetter locations supporting "open-woodlands of broad-leaved paperbark". The Pottsville soil landscape is also characterised by having "wet heathland in the lowest areas and tall closed paperbark forest in more elevated areas". The vegetation of both soil landscapes, therefore, is dominated by woody species of plants and the vegetation community has a corresponding structure of heathland, woodland or forest. The vegetation and the vegetation structure of the applicable soil landscapes are not consistent with those described by the Scientific Committee for Freshwater Wetlands.
99 Dr Smith's evidence is that the current structure of vegetation community 12 as grassland/sedgeland only exists because of the intervention of humans. Dr Smith states:
"…community 12 was originally (pre-European) a dry forest and heath grading into a wet heath at lower elevations to the south west. This community has since been cleared and inundated by stormwater runoff and impeded drainage giving rise to a derived grassland/sedgeland. In the absence of ongoing grazing and slashing, this community would most likely revert to a mixture of communities 7 & 8 of Elks and Smith 2007 (Paperbark/sedgeland and Paperbark Exotic Grassland) under current management. I say this based on my examination of series of aerial photographs of the site (see Smith 2007b) which show that Paperbark trees have steadily regenerated and expanded on level sand plains subject to periodic inundation in similar situations elsewhere on Gales Holdings. The cleared areas of grassland/sedgeland north of Turnock St. currently support scattered large Paperbark trees. In my opinion, these trees would expand to cover the whole of the area north and south of Turnock St. if allowed to regenerate in the absence of ongoing slashing and grazing" (p 7 of Dr Smith's Statement of Evidence in Reply).
100 Furthermore, the evidence establishes that the vegetation in vegetation community 12 does not contain any "amphibious, emergent, floating or submerged forbs, grasses or sedges" which is stated by the Scientific Committee to be a distinguishing feature of wetlands (paragraph 6 of the final determination).
101 On this evidence, I find that the vegetation in vegetation community 12 does not meet the floristic and structural criteria in the Scientific Committee's final determination concerning the scarcity or complete absence of woody plant species; or the presence of amphibious, emergent, floating or submerged aquatic forbs, grasses or sedges; or the corresponding structure of the vegetation community as being a sedgeland or reedland or herbfield.
102 Gales also sought to exclude vegetation community 12 as being Freshwater Wetlands by reason of the specific exclusion, in paragraph 4 of the Scientific Committee's final determination, of artificial wetlands created on previously dry land. I do not find that this exception is applicable to the subject site. Although undoubtedly the construction of Turnock Street and various other drainage measures have altered the hydrologic regime so as to make the land wetter in parts than it would otherwise have been, I am not satisfied that the subject site can be described as artificial wetlands created on previously dry land. The Council tendered extracts from early deposited plans and parish maps on the subject site which show swampy ground to occur on the subject site from early times. Furthermore, the soil landscapes of the subject site, both Kingscliff and any included Pottsville soil landscapes, are consistent with the site being periodically inundated and containing wetter areas.
Conclusion on Freshwater Wetlands
103 For the reasons I have given above, I do not find that vegetation community 12 can be classified as the Freshwater Wetlands endangered ecological community.
Swamp Sclerophyll Forest
104 I am not satisfied that vegetation contained in community 6 is the ecological community described in the Scientific Committee's final determination to list Swamp Sclerophyll Forest as an endangered ecological community. My reasons relate to the failure of vegetation community 6 to satisfy certain edaphic, topographical and locational criteria as well as certain floristic and structural criteria in the Scientific Committee's final determination for Swamp Sclerophyll Forest.
Edaphic, topographical and locational criteria
105 The Scientific Committee describes Swamp Sclerophyll Forest to be the ecological community "associated with humic clay loams and sandy loams, on waterlogged or periodically inundated alluvial flats and drainage lines associated with coastal floodplains". Again, the Scientific Committee defines floodplains as "level landform patterns on which there may be active erosion and aggradation by channelled and overbank stream flow with an average recurrence interval of 100 years or less" (paragraph 1).
106 As with the Scientific Committee's description of Freshwater Wetlands, the description of Swamp Sclerophyll Forest has three components: an edaphic component ("humic clay loams and sandy loams"), a topographical component ("waterlogged or periodically inundated alluvial flats and drainage lines") and a locational component ("associated with coastal floodplains").
107 The soils on the subject site do not satisfy the edaphic criteria. My discussion and reasons concerning the soils of the site given above in relation to Freshwater Wetlands are equally applicable to Swamp Sclerophyll Forest. Dr Hazelton's analysis of the soils of the site, and the soils described in the applicable soil landscapes of Kingscliff and Pottsville, establish that the soils are not humic clay loams or sandy loams, nor are they associated with such soils. It is not appropriate, for reasons I have stated earlier, to find disparate lenses of soil, at various depths, in soil pits that might answer the description of a loam or clay loam or sandy loam. Viewed as a whole, the soils on the subject site are not humic clay loams or sandy loams.
108 The subject site also does not satisfy the topographical criteria of being on alluvial flats and drainage lines. The subject site might by low lying and periodically inundated and might also be able to be described as a flat, but it is not an "alluvial" flat. The soils are not of alluvial origin. The flat land on the site has not formed by alluvial deposition by fluvial processes referred to in the Scientific Committee's definition of floodplains. Rather, the soils comprise sand sheets of reworked Pleistocene material. Again, my discussion and reasons on this issue given above in relation to Freshwater Wetlands are applicable to Swamp Sclerophyll Forest.
109 There is also no drainage line on the subject site. Although Dr Stock in his written evidence in chief, filed before the hearing, suggested that an aerial photograph in August 1962 may have revealed a drainage line on the subject site north of Turnock Street, later investigation and consideration disproved this suggestion. Mr Elks, Dr Smith, Dr Hazelton and Mr Webb were all of the opinion that no drainage line is on the site.
110 Mr Elks, who is trained in aerial photographic analysis, undertook closer and better examination of the aerial photograph in question, another aerial photograph taken 2 ½ hours later on the same day in August 1962 and other aerial photographs at other dates, but found no such drainage line.
111 Dr Hazelton carried out a transect of soil test pits across the location of the putative drainage line and found no evidence in the soil of its existence. If a drainage channel existed and had deposited soil across the site, distinct layering in the soil/sand profile would have been observed and podzols would not have been present and well developed. However, such layers are entirely absent from the site and podzols are well developed, indicating the absence of fluvial processes for several thousand years.
112 Dr Webb undertook a survey of the site. The survey demonstrated that there is no low point at, or evidence of slopes surrounding, the location of the putative drainage line, either of which would have suggested the existence of the drainage line.
113 Dr Stock himself conceded in oral evidence he had been mistaken in seeing a drainage line. He now accepted that today there is no evidence of a drainage line on the subject site. At best, any stream might have commenced in the Pleistocene landscape (the Pleistocene ended about 10,000 years ago). However, Dr Stock thought any such Pleistocene stream may have been buried by sand in the Holocene era, some 7,000 years ago. He accepted that podzolisation takes in the order of 5,000 years to get the separation of layers that is characteristic of podzolisation.
114 Even if there were to have been such a Pleistocene stream, it would not be relevant. The Scientific Committee's description of Swamp Sclerophyll Forest is of an ecological community that exists today "on…drainage lines" that must still be in existence today, with the concomitant alluvial soils, and influencing that ecological community.
115 Vegetation community 6 is not "associated with coastal floodplains" for the same reasons I have given above in relation to Freshwater Wetlands.
Floristic and structural criteria
116 Dr Clements' comparison of vegetation data from all plots on the subject site with the characteristic species of Swamp Sclerophyll Forest listed in paragraph 1 of the Scientific Committee's final determination showed that there was a total of 58% (34 species) of the 59 characteristic species. However, of the two plots in vegetation community 6, namely plots 3 and 4, only seven characteristic species were recorded, namely Blechnum sp and Hypolepis muelleri (both ferns), Parsonsia straminea (a type of vine), Elaeocarpus reticulatus (a small tree), Omalanthus populifolius (a small shrub or tree), Gahnia sp (a sedge) and Phragmites australis (a type of reed). This represents 12% of the characteristic species for Swamp Sclerophyll Forest. Plots 3 and 4 had seven and three characteristic species respectively. Dr Clements did not identify plots 3 and 4 as being plots which have a sufficient number of characteristic species to warrant comparison with the other listed criteria in the final determination of Swamp Sclerophyll Forest (although other plots were so identified).
117 Both Mr Elks and Dr Smith did not consider that there were sufficient species in vegetation community 6 to correspond with Swamp Sclerophyll Forest. Dr Kingston, however, did not consider that the low number of characteristic species was sufficient to exclude vegetation community 6 from being Swamp Sclerophyll Forest. He considered "the key thing for me was the Blechnums and the Gahnia at very high density and very high cover abundances and the ferns".
118 Again, I do not consider the limited number of characteristic species, by itself, to be sufficient to exclude vegetation community 6 from being Swamp Sclerophyll Forest. However, apart from the limited number of characteristic species, there are other floristic and structural criteria which vegetation community 6 does not satisfy.
119 First, there is an absence of the key canopy trees in vegetation community 6. Paragraph 4 of the Scientific Committee's final determination for Swamp Sclerophyll Forest states that it "has an open to dense tree layer of eucalypts and paperbarks…The most widespread and abundant dominant trees include Eucalyptus robusta (swamp mahogany), Melaleuca quinquenervia (paperbark)…Other trees may be scattered throughout at low abundance or may be locally common at few sites, including Callistemon salignus (sweet willow bottlebrush), Casuarina glauca (swamp oak) and Eucalyptus resinifera subsp hemilampra (red mahogany), Livistona australis (cabbage palm) and Lophostemon suaveolens (swamp turpentine).
120 Paragraph 6 states: "The combination of features that distinguish Swamp Sclerophyll Forest on Coastal Floodplains from other endangered ecological communities on the coastal floodplains include: its relatively dense tree canopy dominated by Eucalyptus robusta, Melaleuca quinquenervia or E. botryoides, the relatively infrequent occurrence of other eucalypts, Casuarina glauca or Lophostemon suaveolens; the occasional presence of rainforest elements as scattered trees or understorey plants; and the prominence of large sedges and ferns in the groundcover."
121 None of the tree species recorded in the plots in vegetation community 6 corresponds with the eucalypts, paperbarks or other trees noted as being characteristic trees of Swamp Sclerophyll Forest. Mr Elks considered this to be of importance and "the major problem with having community 6 listed as Swamp Sclerophyll Forest". Dr Smith agreed. Dr Smith also pointed out that the trees that were in fact growing in community 6 are Doughwood (Melicope elleryana), Umbrella Cheese tree (Glochidion sumatranum), Umbrella tree (Schefflera actinophylla) and the weed lantana. The Blackwood Wattles (Acacia melanoxylon) that previously had grown on this part of the site, have died by reason of the increased inundation of the site caused by the construction of Turnock Street and other drainage works. The trees that do occur on the site are responsive to changes in hydrological conditions and result in what Dr Smith describes as a "man made community".
122 Dr Kingston's response was to refer to the Scientific Committee's caveat in paragraph 2 of the final determination for Swamp Sclerophyll Forest that many species in the list of characteristic species in paragraph 1 may be present in only one or two sites or in low abundance. Hence, Dr Kingston considered it was not critical that the key tree species were absent from vegetation community 6. Dr Kingston also said that "Swamp Sclerophyll Forest can include patches and areas where the Paperbarks and so on don't exist at all".
123 In my opinion, the evidence of Mr Elks and Dr Smith is to be preferred to that of Dr Kingston. In the circumstances of this particular vegetation community 6, the absence of any of the key trees identified by the Scientific Committee as distinguishing Swamp Sclerophyll Forest from other communities on coastal floodplains and, conversely, the presence of a number of different tree species not associated with Swamp Sclerophyll Forest, are strong indicators that vegetation community 6 is not the Swamp Sclerophyll Forest endangered ecological community.
Conclusion on Swamp Sclerophyll Forest
124 For these reasons, I am not satisfied that vegetation community 6 can be properly characterised as comprising Swamp Sclerophyll Forest endangered ecological community.
Swamp Oak Floodplain Forest
125 I am not satisfied that vegetation community 4 is the ecological community described by the Scientific Committee in its final determination listing Swamp Oak Floodplain Forest as an endangered ecological community. Vegetation community 4 does not satisfy the edaphic, hydrologic or locational criteria specified by the Scientific Committee in its Final Determination for Swamp Oak Floodplain Forest.
126 The Scientific Committee in its final determination states that Swamp Oak Floodplain Forest is the ecological community "associated with grey-black clay-loams and sandy loams, where the groundwater is saline or sub-saline, on waterlogged or periodically inundated flats, drainage lines, lake margins and estuarine fringes associated with coastal floodplains". Floodplains are again defined by the Scientific Committee to be "level landform patterns on which there may be active erosion and aggradation by channelled and overbank stream flow with an average recurrence interval of 100 years or less" (paragraph 1).
127 This description of the endangered ecological community has four components: an edaphic component ("gray-black clay-loams and sandy loams"), a hydrologic component ("the groundwater is saline or sub-saline"), a topographical component ("waterlogged or periodically inundated flats, drainage lines, lake margins and estuarine fringes") and a locational component ("associated with coastal floodplains").
128 The soils on the subject site do not satisfy the edaphic criteria. They cannot be characterised as grey-black clay-loams and sandy loams. My reasons are the same as given above in relation to the soils of Freshwater Wetlands.
129 The evidence also does not establish that the groundwater of the subject site is "saline or sub-saline". Dr Smith, in his statement of evidence in reply, summarises the evidence on salinity as follows:
"Soil and soil water salinity on the site has been measured by Morand 1996 (Appendix 7.2.7) and is described as very low above 100 cm depth and low at 100-150 cm depth. These results are consistent with more recent measurements of groundwater conductivity on the site (129-448 mS/cm, see Attachment 2) which are within the range for freshwater rivers (0-800 mS/cm, SA.waterwatch.org.au/sw_salinity.htm)" (p 8).
130 The hydrologic criteria is, therefore, not satisfied.
131 The subject site could be said to be on waterlogged or periodically inundated flats and, in this respect, might be thought to satisfy the topographical criteria. However, neither the soils of the site nor the topographic feature of being a water logged or periodically inundated flat are "associated with coastal floodplains" for the reasons given above in relation to Freshwater Wetlands.
132 For these reasons, I am not satisfied that vegetation community 4 is part of the Swamp Oak Floodplain Forest endangered ecological community.
Conclusion on endangered ecological communities
133 The result is that none of the vegetation communities that will be affected by filling of the site and that are claimed by the Council to be endangered ecological communities, can properly be so characterised.
Whether a species impact statement required?
134 The above conclusion that none of the vegetation communities on the site that will be affected by the proposed development are endangered ecological communities means that there is no warrant to evaluate whether the proposed development is likely to significantly affect any endangered ecological community and, hence, whether a species impact statement is required.
Offsets
135 Gales proposes to conserve four areas of the subject site: