Gerroa Environment Protection Society Inc v Minister for Planning and Cleary... [2008] NSWLEC 173 | Case summary

Gerroa Environment Protection Society Inc v Minister for Planning and Cleary... [2008] NSWLEC 173 | Case summary | Zoe

1 HIS HONOUR: For over half a century, sand has been extracted from a remnant sand dune, about three kilometres southwest of Gerroa, on the south coast of New South Wales. Sand extraction continues today pursuant to a development consent granted by the Minister for Planning in 2003. However, extraction is nearing the geographical limits set by that consent. 2 The owner and operator of the sand quarry, Cleary Bros (Bombo) Pty Ltd (Cleary Bros), wishes to extend the quarry so as to be able to continue to extract sand. To this end, it lodged an application for approval under Part 3A of the Environmental Planning and Assessment Act 1979. The project is classified as a major project under Part 3A. The Minister for Planning is the approval authority for the project. 3 Gerroa Environment Protection Society Inc (GEPS) made a submission by way of objection to Cleary Bros' application. The essence of GEPS' objection was that the extension of the quarry would have unacceptable impacts on endangered ecological communities located on and adjacent to the area of the quarry extension and on biological diversity in the area. 4 The Minister for Planning determined that that approval should be granted, subject to numerous conditions. 5 GEPS appealed against the Minister's decision, under s 75L of the Environmental Planning and Assessment Act 1979. The appeal involves a hearing de novo. The Court has, in addition to any other functions or discretions of the Court, all of the functions and discretions which the Minister, whose decision is the subject of the appeal, had in respect of the matter: s 39(2) of the Land and Environment Court Act 1979. In essence, the Court determines whether, on the evidence before it, approval should be granted to Cleary Bros' application for extension of the existing sand quarry. 6 In hearing and determining this appeal, I have been considerably assisted by Commissioner Brown. The debate in a nutshell 7 The sand resource on the site is a regionally significant and valuable resource, in demand by the construction industry. While other sources of sand are available in the area at Dunmore Lakes, the proposed area of extraction is recognised in Illawarra Region Environmental Plan No1 as a regionally significant extractive resource. The Illawarra Regional Strategy, which provides for the future growth of the Illawarra region over the next 25 years, also identifies the Gerroa sand resource as an important extractive resource. A consideration of the value of the resource is consistent with the principles of ecologically sustainable development in that it requires the effective integration of economic, social and environmental considerations in the decision-making process. Further extraction of the resource, beyond the geographical limits set by the current development consent, is economically beneficial. 8 However, there are constraints on further extraction of the sand resource. The most significant constraint is that the remnant sand dune, which provides the sand resource, is habitat for ecological communities that have been listed as endangered under the Threatened Species Conservation Act 1995. Extraction of the sand necessitates removal of vegetation comprising these communities, with consequential effects on biological diversity. The effects can be both direct and indirect. 9 The direct effects involve the removal of native vegetation to extract the sand resource beneath. Cleary Bros, in the design of the proposal to extend the existing sand quarry, has endeavoured to minimise the direct effects by, first, siting the quarry extension in an area, to the north of the existing quarry, that largely has been cleared in the past, although parts of the cleared area are regenerating, either naturally or by planting, and, secondly, avoiding areas of less disturbed native vegetation. These areas of less disturbed native vegetation include a large area of Swamp Sclerophyll Forest, a type of endangered ecological community, located to the west of the existing dredge pond as well as and the proposed extended dredge pond as well as a small area of Littoral Rainforest, another type of endangered ecological community, to the east of the proposed extension of the dredge pond, adjacent to Crooked River Road. 10 However, it is not possible to avoid entirely all areas of less disturbed native vegetation and endangered ecological communities. The manner of sand extraction involves dredging and there is a need for continuity in the dredge pond. This means that the existing dredge pond needs to be extended, incrementally, in a northwards direction, until the limit of extraction is reached. Any native vegetation in the path of the dredge pond extension needs to be removed. Unfortunately, there is a band of less disturbed native vegetation running east-west, immediately to the north of the existing dredge pond. This vegetation is described as being a Blackbutt-Banksia Forest. It is not an endangered ecological community. To the north and east of this band of vegetation lies a small area of Littoral Rainforest and, further north again, a moderately sized but fragmented area of Bangalow Sand Forest. Both Littoral Rainforest and Bangalow Sand Forest are endangered ecological communities. These areas of vegetation lie in the path of the northward extension of the dredge pond. They would need to be removed in order to extract the sand resource lying beneath. 11 The proposed extension of the dredge pond also has the potential to have indirect effects. The dredge pond has the potential to impact on groundwater, changes to which might in turn affect vegetation communities that are dependant on groundwater, such as the Swamp Sclerophyll Forest to the west of the existing and extended dredge ponds. There could potentially be edge effects on other vegetation located adjacent to the open dredge pond. The dredge pond might also restrict or prevent movement of flora and fauna across it. 12 To offset these direct and indirect effects, Cleary Bros proposes a package of offset measures. In basic terms, Cleary Bros proposes, first, to set aside areas of existing native vegetation, largely comprising endangered ecological communities, in perpetuity for conservation purposes through a Voluntary Planning Agreement (VPA). These conservation areas far exceed in size the areas of native vegetation to be removed for the quarry extension. Secondly, Clearly Bros proposes to plant other areas as compensatory habitat. These areas will serve the functions of creating or enhancing connectivity between other areas of native vegetation, revegetation of land with native species characteristic of the endangered ecological communities to be removed by the quarry extension, thereby recreating habitat, and providing a buffer to riparian areas and other areas of vegetation. 13 The fundamental question that arises in this case is whether Cleary Bros' proposal for a quarry extension, taking into account its siting, extent and features and the mitigation measures, represents an appropriate balance between the orderly and economic use of the land (involving the extraction of the valuable sand resource it contains) and the protection and conservation of the area's vegetation and biodiversity values. Cleary Bros and the Minister for Planning say the answer is in the affirmative but GEPS says the answer is in the negative. 14 I have determined that approval should be granted to the proposed extension of the sand quarry, on conditions, which provide for greater conservation of the endangered ecological communities and the biological diversity of the area. These conditions go further than those that have been imposed by the Minister for Planning. With these safeguards, there is an appropriate balance between the orderly and economic use of the land and the protection and conservation of the area's biodiversity value.

Site and surrounding area 15 The land containing the extraction site comprises Lot A in DP 185785 and part of the land in Certificate of Title Vol 5841 Fo 139. It is located on Crooked River Road, approximately three kilometres southwest of Gerroa and adjacent to Seven Mile Beach National Park. Seven Mile Beach National Park occupies an area of bushland about 500 m wide on the opposite side of Crooked River Road to the coast. 16 That part of the land currently used as a sand quarry has an area of approximately 20 ha, including the existing dredge pond with an area of some 13.5 ha. The land forms part of a rural property extending from Crooked River Road westward to the Southern Railway. The majority of the property is cleared grazing land, primarily low-lying and flat, having been previously known as Foys Swamp. The land has been drained by a series of channels leading to Blue Angle Creek, which drains the property northwards into Crooked River. Blue Angle Creek has previously been enlarged to assist with the drainage of the property. A floodgate has been installed across Blue Angle Creek at the point of its exit from the property to control the saltwater backflow from Crooked River when the river is open to the sea. 17 Remnant native vegetation is located near Crooked River Road where the land rises into a broad sand dune that is the primary resource of the quarrying operation. Vegetation remains in a small section of the dune immediately north of the dredge pond with the remainder of the dune to the north having been cleared and used for grazing. The remainder of the land has scattered small clumps of remnant native vegetation. 18 The vegetation has been described and mapped, as shown in Attachment 1. Three of the vegetation types meet the description of endangered ecological communities listed under the Threatened Species Conservation Act 1995, namely vegetation type 1 (Simple Littoral Rainforest) is Littoral Rainforest; vegetation type 3 (Bangalay-Banksia Forest) is Bangalay Sand Forest; and vegetation type 4 (Swamp Sclerophyll Forest) is Swamp Sclerophyll Forest. Vegetation type 2 (Blackbutt-Banksia Forest) and vegetation type 4 (Phragmites Reedland), although largely comprising native vegetation, are not endangered ecological communities. Vegetation types 6 and 7 are artificial communities. Nearby are small patches of another endangered ecological community, Swamp Oak Floodplain Forest. These areas would not be impacted by the proposed development, however they are proposed to be conserved as part of the offset package. Existing extraction activities 19 Sand has been extracted from the land for over 50 years and currently operates under a Ministerial development consent granted in September 2003. Under this consent, Cleary Bros is permitted to extract up to 300,000 tonnes of sand at a maximum rate of 80,000 tonnes per year and process the sand on-site and transport it to local and regional markets by truck. 20 Sand is extracted initially by the removal of topsoil and organic rich sand to gain access to the sand resource. Sand above the water table is removed by excavator and loaded into trucks where suitable access is available. The remainder of the sand profile is removed by dredging. Material is extracted from the base of the pond using a floating suction dredge. The dredge deposits the dredged material in an area close to the shoreline where it is passed through various screens in a wet sorter. The wet sorter separates stones, sands and finer particles. Heavy materials may be further screened into saleable sizes. Fine particles are returned directly to the pond with the wash water. When the final shoreline profile is being formed, a bulldozer or hydraulic excavator works along the shoreline to shape material on the edge of the pond and create the desired batter and profile. 21 The extent of the existing extraction is shown on Attachment 2. Proposed development 22 The proposed development provides for the northerly extension of the existing quarry (see Attachment 2). The Statement of Environmental Effects identifies some 660,000 tonnes of sand is to be extracted over a period of 15 years. This estimate is based on removal of the clay band to access the underlying deep sand wherever the clay band is less that 1 m thick. If the clay were to be removed at other locations where it is between one and two m thick, it is estimated a further 16,000 cu m of sand can be obtained. However, some 22,000 cu m of clay would have to be removed to obtain this additional sand. 23 During the hearing further estimates were made of the amount of sand to be extracted and also the availability of material for bank restoration and relevant offsets to vegetation. The total resource, after the removal of non-sand material, was calculated at 921,000 tonnes (or 460,000 cu m at two tonnes per cu m). A further calculation, but including the non sand material and using a different method, resulted in a volume of 536,000 cu m, which represents, after accounting for the moisture content and stripping/ reject material, an estimated total resource of 957,800 tonnes. 24 The calculations also provide that the volume of material required for remediation of the excavation batters will be in the order of 148,700 to 178,400 cu m. This needs to be compared to the 162,000 cu m of non-sand material available from the site through the extraction process. 25 A resource assessment of the land identified for the proposed extension identifies that there are three distinct types of sand in the resource: (a) a fine grained, light coloured dune sand with no shells located generally at elevations above sea level varying in thickness from about 1 m to 7 m (Unit 1);

(f) offsets in the form of the protection and enhancement of habitat in other vegetated areas and establishment of compensatory habitat by appropriate vegetation planting. 30 An integral component of Cleary Bros' proposal is a Landscape and Rehabilitation Management Plan (the Management Plan). This document provides specific details on management issues such as species selection, appropriate plant stock, weed control, watering and fertilising. It also provides details on several distinct management zones that have been identified within the site and makes recommendations for replanting and ongoing maintenance and other matters relevant to each management zone. The areas to be set aside for conservation in perpetuity are identified in a VPA. Performance indicators and monitoring of habitat corridors are also contained within the Management Plan. Evidence 31 GEPS provided expert evidence from Mr Ian Grey, a hydrologist, Dr Renata Bali, a zoologist, and Ms Teresa James, a biologist. 32 GEPS also called evidence from Mr Aaron Henry and Ms Allison McRae who expressed concern over the lack of consultation, the impact the proposed development will have on the aboriginal archaeology of the site and the past association with the land by aboriginal people. Ms Fiona Stewart, a resident of Gerringong, supported their concerns. 33 Ms Michelle Muller, another resident of Gerringong, stated that the proposal will cause irreversible damage to the environment. Much damage has already occurred through the existing extraction and the use of compensatory planting is inappropriate in this location as 300-year-old trees cannot be replaced. 34 The Minister called expert evidence from Dr David Robertson, an ecologist. 35 Cleary Bros called expert evidence from Mr Grahame Wilson, a hydrologist, Dr Terry Perrens, an ecologist, Dr Kevin Mills, an ecologist, Dr Rhidian Harrington, an ecologist, Mr Matthew Richardson, a botanist; and Mr Don Reed, a geologist. 36 Bundles of documents containing the record of the application, consideration and approval, public and government submissions, amongst other documents, were tendered and have been considered.

Relevant planning controls 37 The site falls within two local government areas, Shoalhaven and Kiama (see Attachment 1). A small area in the south falls within the Shoalhaven local government area and includes the southern portion of the dredge pond, some rehabilitated land but not the proposed quarry extension. It is zoned part Environmental Protection (Special Scenic) 7(d2) and part Rural 1(a) under Shoalhaven Local Environmental Plan 1985 (SLEP 1985). The proposed development is prohibited within the 7(d2) zone but permissible with consent within the 1(a) zone. 38 The northern and larger part of the site falls within the Kiama local government area. It is zoned Rural 1(a) under Kiama Local Environmental Plan 1996 (KLEP 1996). Extractive industries are permissible with consent within this zone. Clause 37 of LEP 1996, however, applies to certain land identified as "Areas of High Conservation Value - Development". Clause 37(2) prohibits the use of these identified areas for extractive industries. As only parts of the site are identified, the proposed development is prohibited only on those areas. 39 The proposed development is classified as a major project under Part 3A of the Environmental Planning and Assessment Act 1979. The Minister has power to determine the matter by way of s 75J(1) of the Environmental Planning and Assessment Act 1979. The Court on appeal exercises the same power. 40 Clause 75J(3) provides: "(3) In deciding whether or not to approve the carrying out of a project , the Minister may (but is not required to) take into account the provisions of any environmental planning instrument that would not (because of section 75R) apply to the project if approved. However, the regulations may preclude approval for the carrying out of a class of project (other than a critical infrastructure project ) that such an instrument would otherwise prohibit." 41 The use of the discretion available in cl 75J(3) was in dispute between GEPS and the Minister and Cleary Bros. 42 GEPS submitted that the Court should attach weight to the provisions of SLEP 1985 and KLEP 1996 rather than using the discretion available in cl 75J(3) not to take these instruments into account. It submits that the ecological impacts of the proposal and its current status as a prohibited Part 3A project (but saved by the transitional provisions in cl 80O of the Environmental Planning and Assessment Regulation 2000, in this case) and as a prohibited Part 4 development warrant the refusal of the development application. 43 The Minister submitted that there are a number of reasons why the Court should decline to exercise its discretion to take into account the provisions of SLEP 1985 and KLEP 1996. These include the permissibility of the proposed development by KLEP 1996 in the areas not identified by cl 37(2), the regional significance of the resource and the conflict between the identification of the ecological communities with the mapping of the vegetation in the KLEP 1996 map. In the event that the Court decides to exercise of the available discretion, the Court would give the prohibition of the proposed use little weight for the reasons mentioned previously. 44 It is difficult to sensibly take into account the provisions of SLEP 1985 and KLEP 1996 which operate to prohibit the proposed quarry extension on parts of the land. Section 75R(3) has the effect of making SLEP 1985 and KLEP 1996 not apply to the project. Hence, the provisions of SLEP 1985 and KLEP 1996 that operate to prohibit the project do not apply. Whilst s 75J(3) gives a discretion to the Minister (and the Court on appeal) to take into account the provisions of an environmental planning instrument in deciding whether or not to approve a project, this cannot be achieved where the provision operates to prohibit the project and hence deny the power to approve it. 45 At most, all that can be sensibly done is to ascertain the underlying objective of provisions prohibiting the project and consider whether and, if so, the extent to which, the project addresses that objective. In this case, while the site is subject to SLEP 1985, the proposed extension of the quarry falls totally within the area controlled by KLEP 1996. As submitted by the Minister, the proposed quarry extension would be prohibited only in those parts of the site identified as "Areas of High Conservation Value" by cl 37(2) in KLEP 1996. The proposed quarry extension would be permissible with consent within the remaining areas of the site. While there appears to be some conflict between the mapping of the existing vegetation and that contained within the KLEP 1996 map, to a large extent the vegetation comprising the endangered ecological communities is included within the Areas of High Conservation Value. The evident objective of cl 37(2) is to conserve the Areas of High Conservation Value. This objective can be taken into account in deciding whether or not to approve the proposed quarry extension, which might impact on these areas. Indeed, this is the fundamental issue raised by GEPS in this case. The impacts associated with the loss of any vegetation are addressed in considerable detail by the range of experts. The issues 46 The issues in the proceedings evolved to be, in essence, the following:

(6) To what extent are the impacts on the endangered ecological communities and on connectivity and biodiversity offset by compensatory measures? Groundwater behaviour and impact on Swamp Sclerophyll Forest Background 47 There was agreement between Mr Grey, Mr Wilson and Dr Perrens that the groundwater regime provided a general east to west flow as well as a northerly component to the groundwater flow. A groundwater mound is likely to exist within the dunes located between Crooked River Road and the ocean, with ground water flowing from the mound in a westerly direction towards the site and Blue Angle Creek and eastwards towards the ocean. Blue Angle Creek acts as a groundwater drainage boundary and establishes a base level to which the groundwater will drain. It has a level of around 0.55 m AHD. 48 It was also agreed that the groundwater would flow towards the pond during times of very low rainfall (as the pond will act as a groundwater sink) and away from the pond in times of high rainfall (as the pond will act as a groundwater source). 49 Groundwater monitoring bores (WM1-WM6) are located around the existing pond with readings available for 1993 - 2007 although not for all bores. WM1 and WM2 are located at the southern end of the site adjoining the existing pond and WM3 is located on the north-eastern corner of the existing pond. WM4 and WM5 are located to the north of the existing pond in an area to be extracted. It was agreed that these sites are sufficiently remote from the existing pond for the existing monitoring data to represent the natural groundwater regime in the vicinity of the proposed pond extension. Pond levels are available for 1993-2000 and 2005-2006 and range from 1.1 m AHD (2006) to 2.175 m AHD (1998 and 1999). The level relied upon by the experts was 2.0 m AHD. The impact of the proposal on groundwater 50 Mr Grey, Mr Wilson and Dr Perrens agreed that the proposal will have an effect on the groundwater regime but there was disagreement on the nature or magnitude of that impact. The principal areas of disagreement are threefold. The groundwater behaviour in the area of the proposed pond extension 51 Mr Grey states that WM4 shows some difference in hydrological behaviour compared to WM1 and WM2. Also, he notes WM4 indicates that groundwater levels fall more slowly during periods of low rainfall (an extended recession) although Mr Grey is unable to indicate whether this is due to a difference in groundwater conditions in the vicinity of WM4 to those around WM1 and WM2 or to the influence of the pond on the latter. 52 To support his evidence Mr Grey provided a statistical analysis of the groundwater levels from the pond, WM1, WM2, WM4 and WM5. He notes that the standard deviation for WM4 and WM5 is substantially lower than those from the bores around at the existing pond (WM1 and WM2) confirming the greater degree of fluctuation of the water levels in the pond. 53 Dr Perrens states that any differences between WM2 and WM4 are minor and indicate that the groundwater system in the area of the proposed extension operates in a very similar manner to the groundwater adjacent to the existing pond. Mr Wilson considers that the range of groundwater level variation exhibited in WM4 and WM5 would be similar once the pond has been extended. 54 Dr Perrens also provided additional evidence to support his position. He graphed the relationship between the extent of the variation to the mean groundwater level and the percentage of time that the variation departs from the mean groundwater level. This analysis was undertaken for the pond, WM1, WM2, WM3, WM4, WM5 and WM6. In Dr Perrens's opinion, this confirms his evidence of the general consistency of water level variability of the pond and the groundwater monitoring undertaken near and at a greater distance from the pond. Whether modelling of the proposed pond extension should be undertaken 55 Mr Grey argued that there was insufficient data to quantify the possible effects of the extension of the pond and the resulting net loss of water from the groundwater system. He states that the lack of pre-mining data limits the usefulness of the historic groundwater data and any results are only an extrapolation of the effects from the pond. In his opinion, a groundwater model is required to quantify the effects of the proposed development on groundwater. 56 Dr Perrens comes to the opposite conclusion. He states that sufficient historical data is available to demonstrate that rainfall is the main factor that governs groundwater levels and that the existing pond has negligible effect on the range of groundwater levels in bore holes immediately adjacent the pond. The length of the historic record is sufficient to reliably demonstrate the interactions between the pond and the groundwater and the available data provides certainty that the extension of the pond will not lead to significant changes in the groundwater regime. Mr Wilson agrees with the conclusions of Dr Perrens, particularly as the measurements of water levels in monitoring bores and the pond were taken during the progressive expansion of the dredge pond and are representative of the interaction between the groundwater and pond.

The effect of backfill material on groundwater flow 57 Mr Grey was of the view that the placement of backfill in the pond to create the required batters would have a significant effect on groundwater. This would be caused by the extraction of sand to the weathered bedrock, the backfill material would be thicker with a lower permeability and the additional compaction of the backfill material. 58 Dr Perrens suggested that any concerns could be overcome by the placement of high hydraulic conductivity materials at intervals along the length of the pond extension. This was an approach accepted by Mr Grey and Mr Wilson although Mr Grey questioned how the required size and space could be assessed as well as the practicality of sourcing the required material. I consider that a precautionary approach should be adopted and implement the recommendation to place high hydraulic conductivity materials at intervals as required. Proposed condition 14(e) in schedule 3 should make this explicit. Findings on groundwater behaviour 59 I accept the evidence of Dr Perrens and Mr Wilson. In doing so, I have given weight to the evidence on groundwater gradient. There was no dispute that the groundwater flowed generally from the pond to Blue Angle Creek. Mr Wilson provided a cross-section that showed the groundwater gradients pre-development and post development. The cross-section shows an existing variation in the groundwater in the area of the Swamp Sclerophyll Forest of some 100 mm based on the recorded maximum level of WM4 (RL 2.0m) and the mean level of WM4 and of WM5 (RL 0.75m located near the cross-section line). The groundwater measurements are taken some 90 m from the Swamp Sclerophyll Forest and Blue Angle Creek. 60 If compared to the projected 90th percentile pond level (RL 1.7m), the projected mean pond level (RL 1.3m) and the projected 10th percentile pond level (RL 0.9m), the change in groundwater gradient is minimal even when measured from the batter for excavation some 60 m from the Swamp Sclerophyll Forest and Blue Angle Creek. At worst, the projected 90th percentile pond level increases the groundwater gradient by some 20 mm above that created by the maximum recorded level of WM4 at the general location of the Swamp Sclerophyll Forest. The projected mean pond level and the projected 10th percentile pond level fall within the existing maximum and mean levels of WM4 and WM5. 61 While Dr Perrens and Mr Grey provided different statistical analyses to support their respective positions, I am satisfied that the analysis carried out by Dr Perrens confirms a positive relationship between the water levels in the monitoring bores and the water levels of the pond. In my view, this supports the proposition that the existing data can be relied upon to consider the potential impacts of the pond extension. 62 I am also satisfied that the need for modelling to predict the impact on groundwater flows from the pond extension is unnecessary. Sufficient (although not complete) data has been collected since 1993 to adequately assess any potential impacts. The data is directly applicable to the issue of groundwater behaviour in terms of the type of measurements and their locations. I not satisfied that a greater understanding on groundwater behaviour could be achieved in the limited area of the site and the Swamp Sclerophyll Forest with computer modelling. To conduct modelling would require assumptions to be made to input into the modelling exercise. I agree with Dr Perrens that this will not necessarily add to the understanding of the pond extension beyond that available from the current data. 63 I have taken into account the preventative measures proposed by Cleary Bros through the imposition of proposal condition 14(e) in Schedule 3 that provides for the closing down of the sand extraction in the event that the ongoing monitoring of the groundwater reveals that certain criteria have not been achieved.

Impact of groundwater on Swamp Sclerophyll Forest 64 In these circumstances, I am satisfied that there is unlikely to be sufficient alteration of the groundwater behaviour to impact materially on the Swamp Sclerophyll Forest. Impact on endangered ecological communities Introduction 65 One of the principles of ecologically sustainable development is that the conservation of biological diversity and ecological integrity should be a fundamental consideration. Biological diversity refers to diversity at three levels: genetic, species and ecosystem diversity. 66 An endangered ecological community is an assemblage of species occupying a particular area, which is listed under the Threatened Species Conservation Act 1997 as endangered. The conservation of vegetation comprising endangered ecological communities needs to be a fundamental consideration in determining applications for development of land that might remove or modify such vegetation. However, this does not mean that decisions can never be made which would have the effect of removing or modifying vegetation comprising an endangered ecological community. Parliament has not legislated to prohibit the removal or modification of vegetation comprising endangered ecological communities. To the contrary, various authorisations can be obtained under legislation such as the Threatened Species Conservation Act 1997 and the Environmental Planning and Assessment Act 1979 to remove or modify vegetation comprising endangered ecological communities. 67 Further, the use of offsets (both other vegetated areas set aside for conservation and compensatory plantings) is an approach to address the loss of vegetation involving threatened species, populations or ecological communities through the development of vegetated land. It is an approach that saw Part 7A included in the Threatened Species Conservation Act 1995, and by reference in the Environmental Planning and Assessment Act 1979, to provide for the establishment of a biodiversity banking and offsets scheme. As I understand, the approach of offsets was not opposed by any of the experts, only that Dr Bali and Ms James did not see it as suitable in this case. Littoral rainforest

Findings 72 The area of Littoral Rainforest is small and relatively narrow and I accept Dr Mills's evidence that it is already impacted by edge effects. While the northern boundary of the Littoral Rainforest adjoins an area of Blackbutt-Banksia Forest (which is not an endangered ecological community), this vegetation offers little protection to the area of Littoral Rainforest to be removed. Depending on the location, the Blackbutt-Banksia Forest is limited in width to around 5 m or has a generally sparse tree cover. Adjoining the Blackbutt-Banksia Forest is open grassland previously used for grazing. 73 The area of Littoral Rainforest to be retained and directly adjoining the extension of the dredge pond is also relatively narrow but is currently protected to the west by a more significant area of Blackbutt-Banksia Forest. This vegetation, however, is still subject to edge effects created by an existing vehicle access track around 3 to 5 m wide that runs near its western boundary. The area adjoining the Littoral Rainforest to the east is a relatively narrow strip of Blackbutt-Banksia Forest some 20 m in width adjoining Crooked River Road. 74 I also accept the evidence of Dr Mills on the quality of the Littoral Rainforest. He states that the Littoral Rainforest is being largely composed of Cheese Trees (Glochidion ferdinandi) and a few other "rainforest species" and barely constituting rainforest, although he accepted that it still falls within the broad Final Determination of the NSW Scientific Committee for Littoral Rainforest. He describes the rainforest vegetation to be removed as species poor and not structurally well-developed. He states that better examples of Littoral Rainforest are found in the adjoining national park. 75 In terms of representation in the area, Dr Mills notes that all of the forest in the national park and on Crown land north of Beach Road to the Crooked River has a Littoral Rainforest understorey to either Bangalay or Blackbutt Forest; the area of this Littoral Rainforest component is at least 126 ha. I note that the vegetation, although comprising Littoral Rainforest, is not subject to State Environmental Planning Policy No 26 - Littoral Rainforests. 76 Even though the existing Littoral Rainforest is not a pristine example, this does not necessarily support its removal. However, when considered in conjunction with the package of proposed compensatory planting (which will include species of Littoral Rainforest), the protection of existing native vegetation and the requirements for ongoing maintenance proposed by Cleary Bros, I am satisfied that the loss of some 0.4 ha of Littoral Rainforest can be justified in this case. Nevertheless, particular attention should be given to the short and long term protection of the remaining area of Littoral Rainforest. This should be achieved by the conditions of approval, including in the Landscape and Rehabilitation Management Plan. Specific measures should be stated. Bangalay Sand Forest

Findings 82 The area of mapped Bangalay Sand Forest is a mix of relatively thin trees and grassland. The general consensus of the experts was the land had been grazed a number of years and had only recently been fenced. The grazing has resulted in the removal of much of the understorey, although there was no dispute that the area would still be described as a Bangalay Sand Forest community based on the Final Determination made by the NSW Scientific Committee. 83 I agree with Ms James that the vegetation community, even though disturbed and degraded, still has conservation value. I also agree with Ms James that regeneration of the vegetation community to some degree is possible through the likely existence of species in the soil seedbank in the grazed areas. The conservation value may, therefore, increase over time. 84 Nevertheless, the fact remains that this patch of Bangalay Sand Forest is, in relative terms, of lower value. The patch must also be viewed in a broader context. The evidence of Dr Mills is that the area of Bangalay Sand Forest in the Shoalhaven region is extensive, even if Bangalay Sand Forest might be rare in the Kiama local government area. 85 The loss of tree hollows is addressed in some detail by Dr Mills in surveys in the area of Bangalay Sand Forest community to be removed and also in the adjoining national park. His survey identifies that the removal of 63 trees will result in the loss of 41 tree hollows. When compared to the availability of tree hollows in the adjoining national park, Dr Mills finds that this area contains a six times lower density of tree hollows (23 hollows per hectare for the site compared to 170 hollows per hectare in the national park). From his survey, Dr Mills concludes that tree hollows are very abundant within the adjoining national park and there are also many tree hollows in the existing forests on the site that are to be retained. Notwithstanding his evidence on the abundance of tree hollows, I agree that it is an appropriate course of action that Cleary Bros should salvage as many tree hollows as possible for relocation into the retained vegetation areas. While not the optimal solution, I accept it is a reasonable approach given the competing interests for the land.

Findings 91 I am satisfied that the area of Swamp Sclerophyll Forest to the west of the proposed extraction area, with an area of 43 ha, is of sufficient size to provide a viable habitat in its own right. For reasons mentioned later in the judgement, I am also satisfied that the related issues of connectivity and the maintenance of biodiversity are satisfactorily addressed through the timing of the removal of the existing east-west link combined with proposed compensatory planting, the protection of existing native vegetation and the requirements for ongoing maintenance and monitoring proposed by Cleary Bros. The loss of connectivity and biodiversity The evidence of the experts 92 Dr Bali states that the severance of the existing east-west link would lead to an immediate loss of biodiversity through a net loss of vegetation within three native vegetation communities, hollow bearing trees and other fauna resources. The replacement of highly diverse and complex terrestrial communities with an open body of water and the creation of an absolute movement barrier (the dredge pond) will result in a longer term loss of re-colonisation opportunities, especially for smaller less mobile species by increasing the distance between the National Park and Swamp Sclerophyll Forest. 93 Ms James agrees with Dr Bali and further states that the changes are likely to have an adverse impact on the fragmented Swamp Sclerophyll Forest including reduced re-colonisation opportunities and gene flow. Under these circumstances the biodiversity potential and value of the Swamp Sclerophyll Forest will be limited despite ongoing, costly management. 94 Dr Harrington states that the east-west link is currently edge affected and generally has poor structural diversity (that is, no understorey). Although the northern corridor is currently edge affected, management and widening of this corridor will reduce the edge effects. For these reasons, connectivity will not be significantly worse than the current situation. Recolonisation opportunities are unlikely to be significantly different from the current situation and therefore unlikely to result in a loss of biodiversity. Also, management of the vegetation will improve the habitat quality of this vegetation to the benefit of biodiversity outcomes. 95 Dr Robertson notes that the project will involve additional plantings that are to be actively managed. These areas should be viewed in the correct historic and geographic context. Previously, the land holdings have been subjected to a range of negative impacts from land clearing, swamp drainage, weeds, feral animals and grazing by livestock. The approved project will see the land actively managed and controlled. These measures are likely to increase biodiversity in the long term. In the long term, trees will mature both within the vegetation proposed to be conserved in situ and within the new plantings. Such maturation will lead to increases in tree hollows within the vegetation and this will provide more opportunities for native fauna and an increasing biodiversity. 96 Accepting that some native vegetation will be cleared for the proposed development, Dr Mills states that there are no species or communities within the Swamp Sclerophyll Forest that do not occur abundantly nearby. The Swamp Sclerophyll Forest is already a remnant of a much larger area that was mostly cleared many decades ago. It is over 43 ha in size and is a viable habitat size in its own right. Dr Mills states that the forest fauna is determined by several factors and not just the presence of a treed link. These factors include the species involved and their ability to move through different habitats, the size of the forest, the distance of the patch of the forest from other forest areas (particularly large areas), the diversity of habitats within the forest, the quality of the habitats, the presence of barriers to fauna movement and the management and use of the forest. 97 In Dr Mills' opinion, the existing Swamp Sclerophyll Forest is very close to other extensive areas of forest and is linked by tree and ground vegetation to that forest. It is very unlikely to suffer any species loss as a result of the clearing of the vegetation on the quarry site and it is likely that the proposed management regime will improve the habitat, particularly the link to the north. Findings 98 I am satisfied that the fundamental approach adopted by Cleary Bros in not removing the existing east-west link until the alternate northern link is functioning to an appropriate level is sound. I accept the general proposition from Dr Mills, Dr Harrington and Dr Robertson that while the existing east-west link performs a corridor role, the uncontrolled edge effects and structure of the existing vegetation does not optimise its potential as a wildlife corridor. There is some merit in the argument that a properly vegetated and managed area is likely to improve the qualities of the link and make it accessible to a greater range of fauna with the consequence that it will improve biodiversity in the area in the long term. This, however, must be balanced against the less central location of the proposed northern link, however in my view, the new location is a not sufficient reason to refuse the development application for loss of biodiversity reasons. 99 There was agreement that the existing east-west link should not be removed until it is established that the new link at the northern end of the site is functioning as an alternate corridor. Dr Mills, Dr Harrington and Dr Robertson were satisfied that this could be adequately controlled through conditions, although this was not a position accepted by Dr Bali and Ms James. Specifically, proposed condition 20 in Schedule 3 provides requirements for not severing the east-west link until it can be demonstrated that the established communities represented in the compensatory planting areas comprise 60% of the native species. Proposed condition 21 in Schedule 3 provides requirements for identifying the biological purpose of the linkage and describing how its design, dimensions and management will achieve the identified purpose. Proposed condition 22 in Schedule 3 provides that the Landscape and Rehabilitation Management Plan must include various matters, including salvaging and reusing material from the site for habitat enhancement, particularly tree hollows. Proposed conditions 23 and 24 in Schedule 3 establish criteria to measure the successful establishment of the revegetated habitat and fauna habitat, respectively. Proposed condition 25 in Schedule 3 requires Cleary Bros, prior to the severance of the east-west link, to undertake a variety of animal surveys to determine species using the east-west link and northern corridor, whether these species are present in the conservation area and the northern corridor and the re-created link, and to conduct genetic analysis of a number of key species to determine genetic relatedness and the consequence for severance of the east-west link. I am satisfied that these conditions adequately address this issue of connectivity and biodiversity. Offsets and compensatory planting The offset and compensatory planting proposal 100 The extent of the offset and compensatory planting proposal evolved during the hearing and the final proposal of Cleary Bros is set out in the Landscape and Rehabilitation Management Plan prepared by Dr Mills. In addition to the compensatory planting, the Management Plan also addresses the management requirements for rehabilitating disturbed land after quarrying, and protecting and enhancing conservation values of existing vegetation and habitats on the land. Figure 2 of the Management Plan provides a number of management zones, identified as Zones 1 to 6. 101 Zone 1 is a Forest Enhancement Zone. It is an area of forest, most of which is Blackbutt-Banksia Forest and Swamp Sclerophyll Forest, about 44 hectares in area. It includes the area of the endangered ecological community of Swamp Sclerophyll Forest to the west of the existing and extended dredge pond. The objectives of the Forest Enhancement Zone are: "• to fence the vegetation to be included within the Forest Enhancement Zone to exclude all grazing stock, • to promote the regeneration of the forest through the management of threats; • to control weeds in recognition of the significant negative impact they have on natural vegetation and habitats; and • to regularly monitor the health of the forest and undertake remedial management actions as required. • to strengthen the tree cover to the south of the existing dredge pond to enhance the east-west forest link between the preserved forest and Seven Mile Beach National Park." 102 Zone 2 is the broad scale planting zone that identifies the proposed compensatory planting. Relevantly, the Management Plan states: "Zone 2: Broad Scale Planting Zone

• to re-establish appropriate forest types through a planting program; • to facilitate the establishment of stronger habitat corridors to the north and south of the existing forest; • to maximise the success of the planting program through appropriate planting methods and maintenance regime; • to monitor the plantings and take action where necessary to ensure successful forest regeneration; • to strengthen east-west forest links across the property between the preserved forest and Seven Mile Beach National Park." 103 Zone 3 is the Screen Planting Zone, along the western side of Seven Mile Beach Road, to screen the sand quarry from view. Native species of vegetation will be planted. 104 Zones 4 and 5 are remnant stands of forest north of Blue Angle Creek. Zone 4 is Bangalay Sand Forest and Zone 5 is Swamp Oak Forest, both being endangered ecological communities. The objectives for these remnant forest zones are: "• to fence the area to exclude grazing stock; • to promote the regeneration of the forest through the management of threats; • to establish a forested link to the nearby larger area of forest through plantings; • to regularly monitor the health of the forest and undertake remedial management actions as required". 105 Zone 6 is the Dredge Pond Foreshore. It includes the edge along the Littoral Rainforest that will be retained. The Management Plan describes the management and objectives of this zone as follows: " Zone 6: Dredge Pond Foreshore The foreshore of the dredge pond will be stabilised and revegetated with suitable local plant species. The zone includes the minimum five metre set back plus the batter slopes to the pond (reinstated following quarrying). The zone includes the existing dredge pond and the edges of the new pond to be created to the north. The objectives for the dredge pond foreshore are: • to stabilise the slope on the edge of the dredge pond; • to revegetate the slope as soon as practical after dredging is completed in the area; • to progressively revegetate the foreshore zone as quarrying progresses northwards; • to continue the rehabilitation work on the existing dredge pond; • create foreshore habitat. Establishment of the foreshore zone can mostly be planted well ahead of the excavation, in most cases several years in advance. The majority of the littoral rainforest edge can be planted some one to two years ahead of excavation, resulting in the establishment of a dense shrub/small tree buffer vegetation between the excavation and the rainforest. Within a short time after excavation, the batter will be established and further plantings can be undertaken to increase the total width of the buffer area. The initial setback width will be a minimum of five metres". 106 Part 6 of the Landscape and Rehabilitation Management Plan provides the basis for revegetation and habitat creation within each zone and sub zone. The evidence of the experts 107 GEPS' principal position was that the development application should be refused, however, in the event that an approval was considered appropriate, additional compensatory planting to that proposed by the Minister should be provided. The area proposed by GEPS is shown on the Appendix 3 attached to Exhibit A13. This area includes those areas identified by the Minister plus additional areas adjoining the site along its western boundary including the existing turf farm. 108 Dr Bali states that the proposed offset strategies include planting species typical of Littoral Rainforest, however, it has not been demonstrated that plantings can be used to recreate the endangered ecological communities. The conservation of an area comprising mostly Swamp Sclerophyll Forest will not compensate for the net loss of Littoral Rainforest. Further, broad scale planting areas are all long and narrow areas and will be subject to edge effects in perpetuity. 109 Ms James agrees that the offset packages do not adequately compensate for the loss of 0.4 ha of Littoral Rainforest. Most of the biodiversity present in the Littoral Rainforest community is to be removed and will be lost through clearing and will not be replaced in the proposed plantings. There will be an immediate loss of biodiversity and ecosystem function on clearing. The compensatory plantings, even over time, will be representative of only a very small component of the biodiversity that will be lost, comprising a relatively small number of higher plant species. The prognosis for long-term health and value of the areas to be retained and planted is poor. The full impacts on benefits have not been quantified and there will be clearly a loss of biodiversity. The outcome is not compatible with the management objectives of High Conservation Value vegetation. Clearing or development should only proceed when biodiversity values will be improved or maintained. 110 Dr Bali and Ms James rely on the article by P Gibbons and D B Lindenmayer, "Offsets for land clearing: No net loss or the tail wagging the dog?" (2007) 8(1) Ecological Management and Restoration 26, to support their conclusions that the proposed compensatory plantings are inadequate. While accepting that offsetting is a useful policy instrument, the article states that offsets will only contribute to no net loss if a number of parameters are satisfied. Land clearing with offsets outside these parameters would be inconsistent with a "no net loss" approach. The parameters are:

Restoration of the values lost from clearing is feasible or the vegetation proposed for clearing is unlikely to persist 117 The loss of native vegetation is not an optimal situation but, balancing the other relevant matters, the removal of the vegetation can be accepted. Although the proposed development results in clearing of areas of vegetation comprising endangered ecological communities, the offset package, comprising greater conservation status and better management of much larger areas of native vegetation (in Zones 1, 4 and 5), themselves mostly comprising endangered ecological communities, together with the establishment of compensatory habitats (primarily Zone 2 although Zones 3 and 6 would be of some habitat value), seeks to restore the functions provided by the vegetation to be cleared. In the longer term, I am satisfied that this can occur. 118 Dr Bali, Dr Harrington, Ms James, Dr Mills, Dr Robertson and Mr Richardson addressed the functions, objectives and treatment of the replanted vegetation in a joint report. With the exception of the most westerly linear corridors (Areas 2C.2, 2D and 2E), there was agreement amongst all experts. The agreement was based on an earlier version of the Management Plan and management zones, however, I did not understand their agreement would change following the later versions of the Management Plan that generally provided greater detail and additional areas for compensatory planting. There was also agreement between all experts that plantings, rehabilitation works, weed control and other management practices should be implemented using accepted best practice. 119 An important component of the offset planting is the corridor along the west side of Blue Angle Creek (Areas 2B.1 and 2C.1). Areas 2B.1 and 2C.1 are to provide a buffer to Blue Angle Creek and importantly provide connectivity from the north of the site to the south and also provide access to the replacement wildlife corridor to Seven Mile Beach National Park via a replanted area in the north of the site (Area 2A.1). The original width of this corridor was in the order of 15 to 30 m, however, with amendments to the Management Plan, the width was increased to 40 m. Dr Bali and Ms James considered it should be wider still, at least 50 m. 120 Part 6 of the Management Plan provides details on the primary purpose, key actions and a proposed planting schedule, including particular species for the upper canopy, middle canopy, shrub layer and ground cover for each area. 121 Area 2B.1 is an area of remnant trees, with mixed native and exotic species ground cover, lying to the north of Blue Angle Creek. It comprises Bangalay Sand Forest. It is currently isolated. The replanting of Area 2B.1 is designed to provide a canopy so that the native regeneration in the understorey is promoted. Swamp species are proposed for the edge of the creek and Bangalay Forest species for the higher land. The purpose is to provide connectivity between remnant Bangalay Sand Forest in the north and Swamp Schlerophyll Forest in the south, as well as provide a buffer to the edge of Blue Angle Creek. 122 Area 2C.1 lies west of Blue Angle Creek. It currently is grassland or bare ground. Local native species are to be planted together with the spreading of seeds collected locally across the site. The purpose is to provide connectivity with existing forests to the east and south, a buffer to Blue Angle Creek and revegetation with Bangalay Sand Forest and Littoral Rainforest species. 123 Mr Richardson states that the proposed planting program will need to provide vegetation that is well structured and include canopy, mid-storey and ground cover units. These will provide suitable structure for connectivity purposes and ground cover vegetation that is dense and able to satisfy the function of a buffer in order to assist with water quality in Blue Angle Creek. Mr Richardson further states that best practice is likely to utilise the Management Plan prepared by Dr Mills as a basis and then engage a qualified restoration ecologist/bush regeneration/providence nursery group who would develop a program including: · soil testing, · on site collection of seed and other propagation material, · an assessment of the need to develop plants on the site, · a program of successional plantings and management that will achieve the agreed purposes of the planting, · targets for short term, medium term and long term planting and management, · monitoring requirements, · reporting frequency and methodology, · consultation with the relevant government agencies · water quality monitoring, and · quantitative vegetation monitoring. 124 Accepting that Areas 2B.1 and 2C.1 can be provided with appropriate planting, the remaining question is whether the width of this corridor should be 40 m or 50 m. Because Areas 2B.1 and 2C.1 are to perform the important function of a fauna corridor (in addition to other functions) I am satisfied that it is more appropriate to adopt a cautious approach and require the corridor to be 50 m in width. I have come to this conclusion because of the potential edge effects along the northern boundary of this corridor and also the uncertainty over the future use of the land adjoining the corridor. Clearly, the protection of the fauna corridor should be given a high priority as it is a fundamental part of the application and should be given considerable weight in the assessment of the development application. If for no other reason, the additional 10 m will provide a buffer from edge effects and give greater protection to the corridor and consequently its long-term integrity. 125 To further improve long term connectivity, I consider that the areas proposed by Cleary Bros for replanting in the Landscape and Rehabilitation Management Plan should be supplemented with an area to the south of the site near Beach Road. This area has been extracted and rehabilitated and, while it is unlikely to provide the same quality of corridor proposed to the north, it nonetheless will add to the overall capacity of fauna to travel in an east-west direction when combined with Area 2A.3. It will also provide a more convenient access for at least some fauna at the southern end of the site. 126 Dr Bali and Ms James were of the view that the most westerly linear corridors (Areas 2C.2, 2D and 2E) would serve little or no conservation purpose and would not achieve a connectivity function. Dr Harrington, Dr Robertson and Mr Richardson accept that the function of these corridors would be limited but, in their opinion, the corridors will still be of benefit even if only as a sub optimal corridor. Dr Mills was of the view that some connectivity can be achieved when considered in a wider context of eventually creating a link to the west of the railway line to the existing forest in that area. 127 While Areas 2C.2, 2D and 2E are unlikely to perform the same higher order corridor functions as Areas 2B.1 and 2C.1, I am satisfied that they should remain. Without knowledge of the proposed use of the adjoining area, the benefits are more difficult to quantify, however, if for no other reasons, the areas will provide some protection for the extension of Blue Angle Creek and link the existing 1.6 ha stand of Swamp Oak Forest located to the west of the proposed extraction. It is possible that, in the longer term, these corridors will perform some wildlife corridor function. 128 Overall, I am satisfied that an adequate area and suitable species can be provided for an acceptable offset and compensatory planting package subject to those matters of detail raised by Mr Richardson (see paragraph 123). The offset and compensatory planting package evolved in a positive way during the hearing and ultimately provided a more logical and functional proposal than originally proposed, particularly through the increased width of Areas 2A.2 (near Beach Road), 2B.1 and 2C.1 and the inclusion of area 2B.2 (a partly cleared area surrounded by the Swamp Sclerophyll Forest in Zone 1). The proposed conditions of approval also evolved and are greatly improved. Conditions 17-25 in Schedule 3 might now implement best practice, however, they ought to be reviewed to verify this. 129 The magnitude of the compensatory area was not in dispute between the parties. The loss of vegetation is in the order of 4 ha, of which Littoral Rainforest (0.4 ha) and Bangalay Sand Forest (1.6 ha) make up half the area. The remainder consists of miscellaneous planted forest and Blackbutt-Banksia Forest which is not endangered. This area of loss needs to be compared with 44 ha of forest to be enhanced, comprising the endangered ecological community of Swamp Sclerophyll Forest (Area 1); 23.99 ha of land to be replanted with appropriate native species (excluding the additional areas I have stated are required to the south of the site and the additional 10 m width of Areas 2B.1 and 2C.1); and a further 5.25 ha of remnant native vegetation to be conserved and better managed, comprising 3.65 ha of Bangalay Sand Forest (Area 4) and 1.6 ha of Swamp Oak Forest (Area 5), both being endangered ecological communities. The total area of offsets, 73.24 ha to which would be added the recommended further areas, will be in the order of 20 times the area of vegetation to be lost. 130 I am satisfied that there will be gains of sufficient magnitude on the proposed offset sites to compensate for the loss of vegetation from clearing.

Gerroa Environment Protection Society Inc v Minister for Planning and Cleary Bros

At a glance

Court

Decision date

Before

Source

Judgment (75 paragraphs)

Parties

Cited By (9)