Gunlake Quarries Pty Limited v The Minister for Planning

Solicitors: Corrs Chambers Westgarth (Applicant) Department of Planning and Environment (Respondent) File Number(s): 2019/79356

table of contents Background The Applicant proposes to modify the 2017 Consent Reducing the offset requirements after the 2017 judgment The drone video The Applicant's grounds for seeking to modify the 2017 Consent The ecological community on the subject site What is known about the vegetation in 2006 in what is now the working area of the quarry and the north-western Biodiversity Offset Area? Was the extent of Box Gum Woodland on the subject site overestimated? The identification of the vegetation changes over night The determination of required offset area Submissions regarding the modification application Submission from Goulburn Mulwaree Council Jurisdictional issues GMLEP - cl 7.2 Terrestrial biodiversity Mining SEPP Section 4.55 of the EPA Act - is it the same development? Given my findings, what should be the outcome? Final orders

Background

1. On the Southern Tablelands, in the Goulburn Mulwaree Shire Local Government Area, near Marulan, is a number of hard rock quarries, one of which is the Gunlake Quarry situated about 7 km northwest of Marulan. The quarry comprises Lot 13 in Deposited Plan 1123374 and Lot 271 in Deposited Plan 750053, with the street identification of 715 Brayton Road, Marulan. The quarry site is on the western side of Brayton Road. The quarry pit is situated wholly within Lot 13.
2. The quarry extracts tuffaceous rhyodacite, an igneous rock that is part of the Early Devonian Bindook Volcanic Complex. The rock is processed into a number of products including concrete and sealing aggregates, rail ballast, road base and manufactured sands - products required in the construction of many infrastructure projects.
3. The first consent for a quarry on the site was awarded in 2008 under the then Pt 3A of the Environmental Planning and Assessment Act 1979 (EPA Act) - the 2008 project approval MP 07_0074 (2008 Consent). The quarry has operated on the site since the 2008 Consent came into effect. The quarry is a complex operation, with a number of different components. The 2008 Consent and its associated conditions covered all aspects of the quarry's construction and operations.
4. The 2008 Consent included, amongst its conditions, Condition 27 in Schedule 3, which required a total vegetation offset area of 76.54 ha. This offset area comprised what was subsequently referred to as Biodiversity Areas 1 and 2. It is the Biodiversity Areas which are at the heart of these present proceedings. (Confusingly in the present matter, the numbering of the two Biodiversity Areas has been reversed from the numbering in earlier documentation.)
5. The 2008 Consent was modified in 2013, 2014 and 2015. The 2013 and 2015 modifications were, for present purposes, minor, affecting transport routes and numbers of truck movements. The 2013 and 2015 modifications did not involve any changes to Condition 27, so the specification of the vegetation offset area was not affected. Modification 2 in 2014 was of greater significance to the current proceedings. It included expansion of the size of the quarry pit, an increase in truck movements commensurate with an increase in saleable product to 750,000 tonnes per annum and changes to the approved hours of operation. A new Condition 27 of Schedule 3 was imposed, increasing the Biodiversity Offset Areas to 78.82 ha.
6. Further changes occurred in 2017. On 30 July 2017 the Court in Gunlake Quarries Pty Limited v The Minister for Planning [2017] NSWLEC 1342 (the 2017 judgment) granted consent to the Gunlake Quarry Extension Project (State significant development application no. 7090 (SSD 7090)) (the 2017 Consent). The proceedings in 2017 were brought before the Court following the rejection of the proposal by the Planning Commission. SSD 7090 (Gunlake Quarry Extension Project), as approved, allowed for the Applicant to: 1. extend the quarry footprint of the Applicant's existing quarry at 715 Brayton Road, Marulan; 2. transport no more than 2 million tonnes of quarry products from the site per year; 3. allow additional overburden emplacement to accommodate the increase in production; 4. allow 24 hour per day primary crushing; and 5. allow blasting up to twice weekly, subject to the conditions set out in Annexure "A" to the judgment, including Appendices 1 to 6.
7. This judgment gave effect to the outcome of a s34 agreement (Land and Environment Court Act 1979 (LEC Act)). A s34 agreement is the outcome of confidential, without prejudice, discussions between the parties. The 2017 judgment was given before the Court of Appeal's consideration in Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 365 ALR 86; (2018) 233 LGERA 170; [2018] NSWCA 245 (Al Maha). The judgment for the 2017 Consent was in what was then the standard format for s34 agreements - indicating that an agreement had been reached, and documenting the agreed conditions of consent in an annexure. The Court of Appeal determined that Commissioners in the Land and Environment Court when endorsing a s34 agreement were required to give reasons, and that the previous standard practice was inadequate, as explained by Preston CJ of the LEC in Al Maha at [199]-[202]: "199 The duty to give reasons is 'an incident of the judicial process' (Housing Commissioner (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 270), 'subject to the qualification that it is a normal but not universal incident' (Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 667; [1986] HCA 7). The giving of reasons is a necessary incident of the judicial process because it enables the basis of the decision to be seen and understood: Soulemezis v Dudley (Holdings) Pty Ltd at 279. 'As an incident of the judicial office, the judge is expected by the community to demonstrate the lawfulness of what he or she has done': see North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 at 442. 200 The particular check on the jurisdiction of the Court to make a decision under s 34(3) disposing of the proceedings in accordance with the parties' decision is an express part of the function being exercised by the Commissioner under s 34 of the Court Act. The Commissioner is allocated by the Chief Judge under s 30(1)(b) of the Court Act to exercise the function of the Court under s 34 of the Court Act. Any decision made by the Commissioner under s 34 is taken to be a decision of the Court (s 34(8) of the Court Act). The decision of the Court is final and conclusive (s 56 of the Court Act). Any decision of a Commissioner under s 34 is thus made within the institutional structure of the Court: see Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council (2009) 170 LGERA 162; [2009] NSWCA 300 at [36]. 201 These factors support the existence of a specific obligation on a Commissioner to give reasons with respect to the check on the jurisdiction of the Court, which is required by s 34(3) of the Court Act, to make a decision disposing of the proceedings in accordance with the parties' decision. 202 The content and detail of the reasons that will need to be given depends on the particular decision in respect of which there is an obligation to give reasons. For the particular obligation to give reasons that the decision is one that the Court could make in the proper exercise of its functions under s 34(3) of the Court Act, the content of the reasons will be limited by reference to that particular check on jurisdiction and will not extend to the overall decision to dispose of the proceedings in accordance with the parties' decision. The detail of the reasons can be brief, identifying any jurisdictional prerequisite to the exercise of the function and indicating why the prerequisite is satisfied and the decision is one that the Court could have made in the proper exercise of its functions."
8. The 2017 judgment had what was then the standard content for s34 (LEC Act) judgments, with the consequence that if there was a subsequent modification application to alter the decision, including conditions, the consent authority considering the modification application suffers under the disadvantage described by Preston CJ: "…The Commissioner unsurprisingly found little assistance in the Court's formulaic and perfunctory judgment granting consent in accordance with the parties' agreement." Arrage v Inner West Council [2019] NSWLEC 85 at [21]
9. The discussions between the parties during a s34 conference are held on a confidential, and without prejudice, basis and there is no record of the matters discussed. If the parties reach an agreement, then, if that agreement is one which the Court in the proper exercise of its functions could make (s 34(3) of the LEC Act): (3) If, either at or after a conciliation conference, agreement is reached between the parties or their representatives as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions), the Commissioner - (a) must dispose of the proceedings in accordance with the decision, and (b) must set out in writing the terms of the decision. the Court must dispose of the proceedings in accordance with the decision (s 34(3)(a)).
10. Prior to Al Maha, the practice in s34 judgments had been to acknowledge that an agreement between the parties had been reached, and this acknowledgement had been presumed to satisfy the requirement of s 34(3)(b).
11. Since Al Maha, if an agreement is reached between the parties, the Court is provided by the parties with a jurisdictional statement, documenting any jurisdictional prerequisites to the making of a decision. The judgment includes a summary of the jurisdictional prerequisites and an explanation of why the Court is satisfied that the prerequisites have been met. As well as being satisfied that particular provisions of planning instruments which establish prerequisites have been met, the Court would need to be satisfied that there is owner's consent for making the application, and that the requirements for notification have been met, and that any submissions, whether in writing or given in person by objectors prior to the without prejudice and confidential phase of the s34 process have been considered.
12. I have no reason to doubt that the Commissioner in ratifying the agreement in 2017 was properly satisfied of all relevant matters, but there is no record of the details in the judgment nor any information about whether there were objector submissions.
13. If a s34 agreement is reached between the parties the Court does not make any merits assessment of the issues and their resolution by the parties; nevertheless, in reaching an agreement, the parties will have reached satisfaction that, from their perspective, the merits issues have been resolved.
14. The agreement between the parties was entered into voluntarily and both parties therefore agreed to the judgment granting consent to the Applicant, and to all the conditions which were annexed to the 2017 judgment and define how the judgment is to be put into effect.
15. In the conditions of consent for the 2017 approval, Schedule 2 in Annexure A to the 2017 judgment comprise the administrative conditions. Conditions 11 and 12 are as follows: "Surrender of Existing Development Consents 11. Within six months of commencing development under this consent, or as otherwise agreed by the Secretary, the Applicant must surrender the project approval MP 07_0074 for the Gunlake Quarry granted on 24 September 2008, in accordance with the EP&A Regulation. Note: This requirement does not extend to the surrender of construction and occupation certificates for existing and proposed building works under Part 4A of the EP&A Act. The surrender of the project approval should not be understood as implying that works legally constructed can no longer be legally maintained or used. 12. Following the commencement of development under this consent, the conditions of this consent shall prevail to the extent of any inconsistency with the conditions of project approval MP 07_0074."
16. The surrender of project approval MP 07_0074 has occurred.
17. The orders in the 2017 judgment refer to the application to extend the quarry footprint. However, the requirement in the conditions to surrender the 2008 Consent means that the 2017 Consent approved the whole footprint and quarry activities, not just the extension. The conditions which apply to the whole of the quarry are those to the 2017 Consent. The modification application before the Court applies to the 2017 Consent and not to the original 2008 Consent and its modifications. However, the conditions applying the 2017 Consent have their origin in the 2008 Consent and thus necessitate consideration of the 2008 conditions.
18. The two separate Biodiversity Areas, collectively forming the required biodiversity offset is shown in Appendix 5 to the 2017 Consent: Figure 1 Location of Biodiversity Areas
19. The two areas, one to the north and west and the other to the north and east of the working area of the quarry are in close proximity to each other but they are not contiguous.
20. The image shows areas of denser woodland vegetation to the south and east of the quarry and areas of grassland with scattered trees, with some small areas of denser woodland within the offset areas. Landscapes with similar distribution of vegetation features are widespread on the Tablelands and Western Slopes.
21. Annexure A to the 2017 judgment includes at pages 3 and 4 definitions which apply to the Consent. These relevantly include: Biodiversity offset strategy The conservation and enhancement strategy described in the EIS EIS Environmental Impact Statement titled Gunlake Quarry Extension Project, dated April 2016 and prepared by EMM, and the Response to Submissions report titled Gunlake Quarry Extension Project Response to Submissions, dated September 2016 and prepared by EMM [The EIS prepared by EMM is Ex C Tab 1] Mitigation Activities associated with reducing the impacts of the development

1. Schedule 2 of the 2017 Consent includes: "Obligation to Minimise Harm to the Environment 1. In addition to meeting the specific performance measures and criteria established under this consent, the Applicant must implement all reasonable and feasible measures to prevent and/or minimise any material harm to the environment that may result from the construction, operation, or rehabilitation of the development. Terms of Consent 2. The Applicant must carry out the development: (a) generally in accordance with the EIS; and (b) in accordance with the conditions of this consent, the Development Layout Plan and the Statement of Commitments. Notes: The Development Layout Plan is included in Appendix 1 The Statement of Commitments is included in Appendix 2"
2. The Statement of Commitments relevantly includes: Commitment Rehabilitation and Biodiversity Offsets Management Plan [previously the Landscape Management Plan] • The Rehabilitation and Biodiversity Offsets Management Plan (RBOMP) will be updated to include details on biodiversity management and rehabilitation for the extension project. The plan will be completed and implemented within 12 months of commencing development under the consent. • The RBOMP will include procedures to be applied for the management of the offset properties, the arrangements for conservation in perpetuity and regeneration works to be undertaken. This will include the procedures for: Aspect - assisting the revegetation and regeneration in the offset areas, including establishment of canopy, understorey and groundcover in areas of native pasture where required; Biodiversity - controlling weeds and feral pests; - fencing and access arrangements; - erosion control; and - bushfire management. • An offset monitoring program will also be included within the RBOMP to monitor any changes to the condition of the offset areas. Offsets • Biodiversity Areas of 78.82 ha will be provided to compensate for the biodiversity impacts of the original approval, as modified. • An offset package with 1,380 ha of biodiversity credits will be provided under a BioBanking agreement to compensate for the additional biodiversity impacts of the extension project. • The offset areas will be managed in accordance with the RBOMP.

and for rehabilitation: Soils and rehabilitation Rehabilitation scheduling • Rehabilitation will be progressively staged as soon as possible after final completion of works is determined. Staging of rehabilitation activities will require identification of timelines for decommissioning of pits, buildings and other supporting infrastructure. A more detailed schedule of works will be developed 12 to 24 months prior to the confirmed closure. Erosion and sediment control • Erosion and sediment control measures will be defined in an Erosion and Sediment Control Plan to be implemented throughout the life of the project. Weeds • Gunlake will take the necessary precautions to prevent excessive development of weeds within rehabilitated areas. Rehabilitation monitoring • Gunlake will undertake an ongoing monitoring program throughout and beyond the operation of the project. Areas being rehabilitated will regularly be inspected and assessed against the short and long-term rehabilitation objectives outlined in EIS Section 6.4.1. • It is envisaged that rehabilitation monitoring will be undertaken for at least 2 years following the completion of all rehabilitation. The exact period would reflect seasonal conditions during that period. In any event, maintenance will continue until such time as the objectives have been achieved. The monitoring criteria will be reviewed and finalised with Goulburn Mulwaree Council at the time of submitting a final rehabilitation plan.

1. Schedule 3 of the 2017 Consent includes: Biodiversity And Rehabilitation Biodiversity Offset Strategy 31. The Applicant must implement the Biodiversity Offset Strategy, including: (a) protecting, enhancing and maintaining the Biodiversity Areas identified in condition 32 of Schedule 3; and (b) retiring the biodiversity credits identified in condition 34 of Schedule 3, in accordance with the Framework for Biodiversity Assessment - NSW Biodiversity Offsets Policy for Major Projects; to the satisfaction of the Secretary and OEH. Biodiversity Areas 32. The Applicant must protect, enhance and maintain the Biodiversity Areas described in Table 7 and shown conceptually on the plan in Appendix 5, to achieve the objectives in Table 7 to the satisfaction of the Secretary and OEH Table 7: Biodiversity Areas Biodiversity Area Objective Minimum Size (ha) White Box-Yellow Box Blakely's Red Gum Woodland Endangered Ecological Community (Box Gum Woodland EEC) Protect, maintain and enhance, including through assisted regeneration, Box Gum Woodland EEC on the site 32.66 Cleared land Regenerate and/or replant cleared land on site with native vegetation representative of Box Gum Woodland EEC 46.16 Total 78.82

Security of Biodiversity Areas 33. Prior to commencing quarrying operations under this consent, unless otherwise agreed with the Secretary, the Applicant must make suitable arrangements to provide long-term security and funding for the Biodiversity Areas identified in condition 32 of Schedule 3, to the satisfaction of the Secretary and OEH. Note: Mechanisms to provide appropriate long-term security to the Biodiversity Area include a BioBanking Agreement, under the Threatened Species Conservation Act 1995, a Voluntary Conservation Agreement or an alternative mechanism that provides for a similar conservation outcome. Any mechanism must remain in force in perpetuity. Biodiversity Offsets 34. The Applicant must retire the biodiversity credits set out in Table 8, in accordance with the Framework for Biodiversity Assessment - NSW Biodiversity Offsets Policy for Major Projects to the satisfaction of the Secretary and OEH. The credits identified in Table 8 include credits arising from the carrying out of the primary transport route upgrade works referred to in condition 26. If the vegetation to be removed is less than anticipated at the date of this consent the credits arising from these upgrade works may be reduced if approved by the Secretary provided the number of credits does not fall below the minimum number identified in column 2 of the table. Table 8: Biodiversity credits to be retired Credit type Number of Credits Additional Credits resulting from Primary Transport Route Upgrade Works Ecosystem Credits Yellow Box ‐ Blakely's Red Gum Grassy 373 13 Woodland (PCT1330) Yellow Box ‐ Blakely's Red Gum Grassy 185 Woodland Derived Native Grassland (PCT1330) Broad‐leaved Peppermint ‐ Red 160 23 Stringybark grassy open forest (PCT734) Broad‐leaved Peppermint ‐ Red 662 Stringybark grassy open forest Derived Native Grassland (PCT734) Total 1,380 36

Security of Offsets 35. Within eighteen months of commencing development under this consent, unless otherwise agreed with the Secretary, the Applicant must make suitable arrangements to provide long-term security and funding for the Biodiversity Offset Areas used to retire the credits identified in condition 34 of Schedule 3, through a Biobanking Agreement under the Threatened Species Conservation Act 1995, to the satisfaction of OEH. Rehabilitation Objectives 36. The Applicant must rehabilitate the site to the satisfaction of the Secretary. This rehabilitation must be generally consistent with the rehabilitation strategy in the EIS and must comply with the objectives in Table 9. Table 9: Rehabilitation Objectives Feature Objective • Safe, stable and non-polluting Site (as a whole) • Final landform integrated with surrounding natural landforms as far as is reasonable and feasible • Final landform has minimal visual impact when viewed from surrounding land Surface Infrastructure • Decommissioned and removed, unless otherwise agreed by the Secretary • Conserved and enhanced with native, endemic vegetation consistent with Land identified as the Biodiversity Area the objectives shown in Table 7

Riparian corridors along Chapman Creek and its tributaries • Stabilised and vegetated Quarry benches • Landscaped and vegetated using native tree and understorey species Final Void • Minimise the size, depth and slope of the batters of the final void • Minimise the drainage catchment of the final void

Progressive Rehabilitation 37. The Applicant must rehabilitate the site progressively, that is, as soon as reasonably practicable following disturbance. All reasonable and feasible measures must be taken to minimise the total area exposed for dust generation at any time. Interim stabilisation measures must be implemented where reasonable and feasible to control dust emissions in disturbed areas that are not active and which are not ready for final rehabilitation. Note: It is accepted that parts of the site that are progressively rehabilitated may be subject to further disturbance in future. Biodiversity and Rehabilitation Management Plan 38. The Applicant must prepare a Biodiversity and Rehabilitation Management Plan for the development to the satisfaction of the Secretary. This plan must: (a) be prepared in consultation with OEH, DPI Fisheries and Council; (b) be submitted to the Secretary within twelve months of commencing development under this consent and prior to commencing quarrying operations under this consent unless the Secretary agrees otherwise; (c) provide details of the conceptual final landform and associated land uses for the site; (d) describe how the implementation of condition 31 of Schedule 3 would be integrated with the overall rehabilitation of the site; (e) include detailed performance and completion criteria for evaluating performance under condition 31 of Schedule 3 and rehabilitation of the site, including triggers for any necessary remedial action; (f) describe the short, medium and long term measures that would be implemented to: • manage remnant vegetation and habitat, including within the Biodiversity Areas and any areas that would be used to offset the biodiversity credits identified in condition 34 of Schedule 3; and • ensure compliance with the rehabilitation objectives and progressive rehabilitation obligations in this consent; (g) include a detailed description of the measures that would be implemented over the next 3 years (to be updated for each 3 year period following initial approval of the plan) including the procedures to be implemented for: • maximising the salvage of environmental resources within the approved disturbance area, including tree hollows, vegetative and soil resources, for beneficial reuse in the enhancement of the offset area or site rehabilitation; • restoring and enhancing the quality of native vegetation and fauna habitat in the biodiversity offset and rehabilitation areas through assisted natural regeneration, targeted vegetation establishment and the introduction of fauna habitat features; • protecting vegetation and fauna habitat outside the approved disturbance area on-site; • protecting the Chapmans Creek riparian buffer area shown on the figure in Appendix 6 in accordance with the Policy and Guidelines for Fish Habitat Conservation and Management; • minimising the impacts on native fauna, including undertaking pre-clearance surveys; • establishing vegetation screening to minimise the visual impacts of the site on surrounding receivers; • ensuring minimal environmental consequences for threatened species, populations and habitats; • collecting and propagating seed; • controlling weeds and feral pests; • controlling erosion; and • managing bushfire risk; (h) include a program to monitor and report on the effectiveness of these measures, and progress against the performance and completion criteria; (i) identify the potential risks to the successful implementation of condition 31 of Schedule 3, and include a description of the contingency measures that would be implemented to mitigate these risks; and (j) include details of who would be responsible for monitoring, reviewing, and implementing the plan. The Applicant must implement the Biodiversity and Rehabilitation Management Plan as approved by the Secretary. Biodiversity and Rehabilitation Bond 39. Within 6 months of the approval of the Biodiversity and Rehabilitation Management Plan, the Applicant must lodge a Biodiversity and Rehabilitation Bond with the Department to ensure that the Biodiversity Offset Strategy and rehabilitation of the site are implemented in accordance with the performance and completion criteria set out in the plan and the relevant conditions of this consent. The sum of the bond must be determined by: (a) calculating the cost of implementing the Biodiversity Offset Strategy over the next 3 years for the Biodiversity Areas identified in condition 32 of Schedule 3; (b) calculating the cost of rehabilitating all disturbed areas of the site, taking into account the likely surface disturbance over the next 3 years of quarrying operations; and (c) employing a suitably qualified quantity surveyor or other expert to verify the calculated costs, or by using the Rehabilitation Cost Estimate spreadsheet tool (RCE) issued by DRG. to the satisfaction of the Secretary. Notes: • Alternative funding arrangements for long term management of the Biodiversity Offset Strategy, such as provision of capital and management funding as agreed by OEH as part of a BioBanking Agreement, or transfer to conservation reserve estate can be used to reduce the liability of the Biodiversity and Rehabilitation Bond. • If capital and other expenditure required by the Biodiversity and Rehabilitation Management Plan is largely complete, the Secretary may waive the requirement for lodgement of a bond in respect of the remaining expenditure. • If the Biodiversity Offset Strategy and/or rehabilitation of the site area are completed (or partially completed) to the satisfaction of the Secretary, then the Secretary will release the bond (or relevant part of the bond). If the Biodiversity Offset Strategy and rehabilitation of the site are not completed to the satisfaction of the Secretary, then the Secretary will call in all or part of the bond, and arrange for the completion of the relevant works. 40. Within 3 months of each Independent Environmental Audit (see condition 11 of Schedule 5), the Applicant must review, and if necessary revise, the sum of the Biodiversity and Rehabilitation Bond to the satisfaction of the Secretary. This review must consider the: (a) effects of inflation; (b) likely cost of implementing the Biodiversity Offset Strategy and rehabilitating all disturbed areas of the site (taking into account the likely surface disturbance over the next 3 years of the development); and (c) performance of the implementation of the Biodiversity Offset Strategy and rehabilitation of the site to date.

1. A Biobanking Agreement (2017 Consent Schedule 3 par 35) between the parties was admitted as Ex G, and provides for the retirement of the credits specified in Condition 34, but at the time of the hearing had not been signed, and therefore the credits had not been retired.

The Applicant proposes to modify the 2017 Consent

1. Subsequent to the granting of the 2017 Consent, the Applicant submitted an application to modify a development consent on 12 March 2018 (Ex B, Tab 2), that sought, in Section 5 'Describe the modification you propose to make' of the Application Form, "to change the content of Table 7 under Schedule 3, Condition 32, so the minimum size of Biodiversity Area changes from 78.82 ha to 39.55ha."
2. This section of the Application Form also asked "Will the modified development be substantially the same as the development that was originally approved?" to which the Applicant had responded: "The modification only relates to the area of Biodiversity Areas specified in Condition 32. It is not proposed to modify the quarry layout and /or operational activities. The development would therefore remain substantially the same as the originally approved by LEC 2017/108663."
3. Within Section 5 of the Application Form there was the opportunity for the Applicant to indicate that the application was for "A modification that will have minimal environmental impact". This box on the Application Form was left blank.
4. Modification of existing consents is provided for by s 4.55 of the EPA Act: 4.55 Modification of consents - generally (cf previous s 96) (1) Modifications involving minor error, misdescription or miscalculation A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify a development consent granted by it to correct a minor error, misdescription or miscalculation. Subsections (1A), (2), (3), (5) and (6) and Part 8 do not apply to such a modification. Note - Section 380AA of the Mining Act 1992 provides that an application for modification of development consent to mine for coal can only be made by or with the consent of the holder of an authority under that Act in respect of coal and the land concerned. (1A) Modifications involving minimal environmental impact A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if - (a) it is satisfied that the proposed modification is of minimal environmental impact, and (b) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and (c) it has notified the application in accordance with - (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be. Subsections (1), (2) and (5) do not apply to such a modification. (2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if - (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and (b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and (c) it has notified the application in accordance with - (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be. Subsections (1) and (1A) do not apply to such a modification. (3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified. (4) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified. (5) (Repealed) (6) Deemed refusals The regulations may make provision for or with respect to the following - (a) the period after which a consent authority, that has not determined an application under this section, is taken to have determined the application by refusing consent, (b) the effect of any such deemed determination on the power of a consent authority to determine any such application, (c) the effect of a subsequent determination on the power of a consent authority on any appeal sought under this Act. (6A), (7) (Repealed) (8) Modifications by the Court The provisions of this section extend, subject to the regulations, to enable the Court to modify a consent granted by it but, in the extension of those provisions, the functions imposed on a consent authority under subsection (1A)(c) or subsection (2)(b) and (c) are to be exercised by the relevant consent authority and not the Court.
5. Modification applications may be made, as in this case, by the person to whom the consent was granted, or given that the grant of approval is in rem, by whoever is the owner of the land at the time the modification application is made.
6. The approval which the Applicant seeks to modify is the 2017 approval - that being the only approval applicable to the subject site as the 2017 approval required the surrender of earlier approvals.
7. The modification application was made pursuant to s 4.55(8) of the EPA Act - a provision enabling an applicant to apply to the Court seeking that the Court modify a consent granted by the Court. The 2017 Consent was granted by the Court as the outcome of a s34 conciliation conference. Section 4.55(8) provides that the functions in subss 1A(c), (2)(b) and (c), are exercised by the relevant consent authority but the other provisions in s 4.55 are exercised by the Court.
8. The Applicant suggested that "arguably this is actually an application under 4.55 (1A) because it's an application involving minimal environmental impact" (Tcpt, 24 February 2021 pp 16(44)-17(3)). The basis for this is that: "the application doesn't actually propose any environmental impact. It proposes to recalculate the biodiversity offset area, which would be protected under the consent, but it doesn't actually propose any physical change or any outcome that would be any different."
9. Despite this, no formal application was made to change the modification application, so the only application before the Court is that originally filed.
10. When considering an application for modification of a consent, s 4.55(3) of the EPA Act requires the consent authority to 'take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified'.
11. The consent which is sought to be modified was granted by the Court after agreement had been reached between the parties pursuant to s 34(3) of the LEC Act. The 2017 judgment, as discussed above at [7]-[12], was formulaic and does not disclose the reasons for the decision. Even post-Al Maha, when more information is included within judgments for s34 matters, the s34 conciliation process precludes the Court from considering the merits of a proposal. The reasons provided to the Court by the consent authority in the s34 agreement and jurisdictional statement fall far short of those that would be given in the Court's reasons for a decision in a matter that went to a hearing, where the Court in its judgment will provide detailed reasons including on merits issues.
12. The Applicant was a willing party to the s34 agreement including the conditions.
13. Section 4.55(2)(a) of the EPA Act sets a jurisdictional prerequisite that the Court be satisfied that the development for which consent is sought would, if the application were upheld, be 'substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all)'.
14. If I am not so satisfied, I would not have jurisdiction to grant consent. Where there are prerequisites to be satisfied before I have jurisdiction to consider the matter further, these would normally be addressed first in the judgment, because if they are not satisfied the appeal would have to be dismissed. However, in order to decide whether the development, if approved, would be substantially the same requires consideration of what the changes proposed are, and the arguments as to why they would result in an outcome which is substantially the same.
15. If the application was upheld, then changes would be made to the 2017 conditions. However, if that were not to be the outcome, the 2017 Consent would stand, and the quarry would continue to operate under the conditions annexed to the Consent.
16. Section 4.55(3) of the EPA Act requires that I must take into consideration the relevant matters referred to in s 4.15(1): 4.15 Evaluation (cf previous s 79C) (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application - (a) the provisions of - (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) (Repealed) that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest.
17. Section 4.15(1)(a)(i) requires that the consent authority consider the provisions of any environmental planning instrument which includes the applicable Local Environmental Plan (LEP) and any relevant State Environmental Planning Policies (SEPPs).

Reducing the offset requirements after the 2017 judgment

1. The Applicant now seeks to reduce the area of offset required for a number of reasons, one of which is that the quantum of offset required was miscalculated, because the Applicant considered that there was no robust methodology for calculating the areas of offset to be provided, at least, there was by 2017. "…that because the way in which this was done at the time, there was no robust methodology for calculating the areas of offset to be provided in 2008, at least, there was by 2017. What was agreed between the applicant and the Minister was an area of 18 times the area of EEC vegetation to be cleared, and the conclusion then was as a consequence of that, "The department was satisfied the flora and fauna impacts can be adequately compensated." Well, it was more than adequate, one would have thought. And then on p 237, in the third paragraph of the conclusion, "An offset strategy has been proposed." And again, this represents an offset of over 18 times the area of EEC vegetation that would be cleared by the proposal So, there are two aspects to it. First is the quality of the vegetation that was removed, which everybody seems to agree was pretty poor. And secondly, the quantum of offset required to replace it, which, as set by the 2008 original approval, was 18 times that which was removed, regardless of its quality. And the proposition the applicant puts is that come 2017, although it didn't pursue this as part of the appeal that was determined by the Court in 2017, it has decided to pursue it now through a modification application. The 2017 consent perpetuated the same vice that the 2008 approval had perpetuated, and that was an error in the way in which the communities were categorised, but also a calculation of offsets, which was completely devoid of any rational basis…" (Tcpt, 24 February 2021, pp 21(35)-22(9) (Mr Pickles, Senior Counsel for the Applicant))
2. In the EIS prepared by EMM for the State significant development application (Ex C Tab 1): "In its EIS, Gunlake put forward a position that this 78.82‑hectare requirement was excessive and suggested there was an excess of 46.9 hectares that could be used to make the offset requirements for the current project. However, following consideration of OEH's views, particularly with regard to the offsetting principle that offsets must be additional to other legal requirements, Gunlake advised in its RTS [Response to Submissions] that it accepted the full 78.82 hectares..." (Tcpt, 24 February 2021, p 23(20-25) (Mr Pickles))
3. The Applicant had therefore agreed to accept a requirement for an offset area of 78.82 ha, even though it considered the area was excessive and was the result of a miscalculation. Mr Pickles said that was because the Applicant had adopted this position in order to secure agreement on other components of the application. "…However, that was a matter which, for the sake of peace, the applicant accepted in order to prosecute its appeal, for the purposes of getting the consent that it wanted in relation to the additional quarrying quantity…" (Tcpt, 24 February 2021, p 23(38-40) (Mr Pickles))
4. The Applicant therefore agreed to provide 78.82 ha of offset, which he considered was 46.9 ha larger than what he considered the appropriate area should have been, in order to secure approval for the increase in output from the quarry. This was a tactical decision by the Applicant, carrying the risk that he might be 'hoist with his own petard' (Prince Hamlet in Hamlet Act 2, Scene 4).
5. The difference between the parties in relation to the area of offset required was made clear in the following exchange between Mr Pickles and Ms Treweek. "PICKLES: Ms Treweek, in para 23 of the joint report, you contend that the offset imposed in 2008 is not excessive for the time, as it was standard to use lower quality vegetation but larger areas, therefore resulting in a net gain to the environment. Does it follow as a consequence of that, that if one does undertake a more robust methodology, that one might now accept the proposition that at this time one might not seek to achieve larger areas of lower quality vegetation, but rather achieve a net gain through better quality areas of vegetation according to a robust methodology. WITNESS TREWEEK: Yes, I think so. Essentially, the area that was put aside was a large area to cater for it, because it was lower quality habitat. However, you would need an extra area on top of the area that's already been notified to say that you would get that gain. PICKLES: But it must follow, mustn't it, that if now one is capable of making an assessment through the more robust methodology, that one could identify an area of potentially better-quality vegetation that might be more connected to other vegetation, that will achieve a better overall outcome than relying upon two separate areas that had acknowledged poor quality vegetation within them. WITNESS TREWEEK: Potentially, yes. PICKLES: You seemingly then agree, as I understand it from para 27, that are you in effect saying accepting the proposition that it would at this juncture be not unreasonable to identify revised offset areas that are based upon the FPA or BBAM, rather than simply leaving them as they are? WITNESS TREWEEK: Revised offset areas above the area that was put forward in the modification. PICKLES: Yes. WITNESS TREWEEK: That's correct. PICKLES: So, it really then comes down to a question, so far as you're concerned, of whether or not one accepts the proposition that that which was removed was Box-Gum Woodland or Broad‑leaved Peppermint, in which case that affects the outcome of the calculation that you finally undertake. WITNESS TREWEEK: Correct. PICKLES: That's really the nub of the dispute between you and Mr Garvey. WITNESS TREWEEK: Correct." (Tcpt, 24 February 2021, pp 45(26)-46(20))
6. When the Threatened Species Conservation Act 1995 (TSC Act) first came into effect there was little guidance, either within Australia or internationally, on how to consider how residual impacts of proposed developments on threatened ecological communities were to be offset, after appropriate steps had been taken to avoid, minimise or restore impacts on a site (see B.A. McKenney & J.M. Kieseker, 'Policy Development for Biodiversity Offsets: A Review of Offset Frameworks' (2010) 45 Environmental Management 165-176). Offset policies had been developed in many jurisdictions around the world, including by both the Commonwealth and individual states in Australia. The oldest formal legislated program for offsetting was established in the USA specifically for wetlands under the Clean Water Act (33 U.S.C. s1344 (1972)).
7. Despite the large number of sites in the USA where offsets had been required as part of the approval process for developments, the success of offsets has been variable (R.F. Ambrose, 'Wetland mitigation in the United States: assessing the success of mitigation policies' (2000) 19 Wetlands (Australia) 1-17).
8. As the use of biodiversity offsets has spread globally, a substantial literature has been produced both by supporters of the concept and by those, who if not actually opposed to offsets query whether or not there are adequate data to assess whether or not offsets have delivered the promised benefits. One aspect of our ability to determine success is that the timeframe needed for determining success may be longer than any requirement in conditions for the period of monitoring. (See for example Wilkins et al. who studied restoration of Cumberland Plain Woodland - another Critically Endangered Ecological Community (CEEC) - S. Wilkins, D.A. Keith & P. Adam, 'Measuring Success: Evaluating the Restoration of a Grassy Eucalypt Woodland on the Cumberland Plain, Sydney, Australia' (2003) 11 Restoration Ecology 489-503). There are examples of some communities where success has been demonstrated, or at least the trajectory of change is as predicted, but there are many examples where at least as yet demonstration of success has been elusive.
9. However, the Biodiversity Conservation Act 2016 (BC Act) establishes an offset policy and the circumstances in which it is required to be applied, so concerns about whether or not the offset proposed will be successful are not an issue for the Court - however, questions about the location of the offset, the calculations determining the size of the offset and any conditions required for the long-term management and monitoring of the offset can appropriately be asked.
10. It will be necessary to consider the basis for the 2008 decision and the argument advanced in the modification application to support the reduction in the biodiversity offset area. The hearing was not, as would normally have been the practice, preceded by an onsite inspection in the presence of the parties and their experts. COVID-19 restrictions precluded this occurring. However, the value of field inspection would have been limited because it is no longer possible to view the original condition of the area which since 2008 has become the quarry pit and associated facilities. It was the assessment of the impacts of what was proposed in 2008 on what was said to be the vegetation affected that determined the area then proposed as the necessary offset. As the pre-2008 state of the area impacted by the opening of the quarry pit, the building of facilities and roads from 2008 onwards can no longer be directly observed, recourse to records and data from before 2008 is necessary and it is the availability and accuracy of that data from that period that formed the disagreement between the parties. Neither of the biodiversity experts who gave evidence, Mr Garvey for the Applicant and Ms Treweek for the Respondent had observed the site before 2008. Ms Treweek (curriculum vitae in Ex 3) has had long experience in the assessment of threatened species and ecological communities (under the provisions of the TSC Act and the BC Act) for the relevant agency (under a series of name changes) within the region but she had not visited the subject site until after the appeal had been instituted. Mr Garvey, the Applicant's ecologist has had a career as an environmental consultant on a variety of projects as shown by his curriculum vitae in Ex D but his direct involvement with the subject site has only been since 2018. He had not been involved in the preparation of the EIS which had been submitted with the 2016 application.
11. The experts had conferred, including on site, and had prepared a Joint Report (Ex 4). Subsequent to the preparation of the Joint Report, the Applicant had prepared a video of the site taken from a drone. Ms Reid, counsel for the Respondent, objected to the presentation of the video on two grounds - that an inspection of the whole of the site was necessary to understand the vegetation rather than viewing imagery obtained from a drone of only parts of the site, and secondly that the video had not been taken until after the experts had conferred. Ms Reid considered that the video should have been available and discussed at the joint conferencing rather than appearing at the start of the hearing (Tcpt, 24 February 2021, p 1(39-49)). It was agreed that the experts could view the video outside the Court prior to a decision being made as to whether it could be shown. Whether or not the video assists the Court in determining what vegetation types may have been present in 2008 is a different question to whether or not the video should be shown.

The drone video

1. The experts viewed the video outside of the Court. Ms Reid agreed to it be shown (Tcpt, 24 February 2021, p 32(4-5)). The USB containing the video became Ex K.
2. The video does not permit identification of species, either of plants within the ground layer or of the canopy trees. Both Ms Treweek and Ms Reid were critical of the coverage of the video, which only encompassed part of the subject site. However, the imagery enhanced the information shown in the earlier aerial image included in the 2017 Consent and reproduced at [18] above. The drone vision provided a closer view of the area and allowed the relative extent of DNG with canopy absent and areas with some canopy trees at varying densities across the landscape to be shown. Given the pattern of denser areas of canopy (although still an open canopy) and larger areas with sparse canopy, within places the trees being very widely separated, the impression given of the whole area of vegetation from records of sample plots would be dependent on the number, size and location of the samples, but we do not know the sampling strategy employed in the Ecotone/Biosis studies, although impressions gained during the fieldwork, along with consideration of the data collected, will have informed Mr Rose's conclusions as to the occurrence of Box Gum Woodland on the subject site.
3. While the original consent was granted in 2008, the investigation of the vegetation and ecology of the site had taken place earlier in January 2006. The fieldwork for the original study by Ecotone was conducted over two days, January 15 and 16, 2006. This was within a period of drought. The drought would have been unlikely to have affected the abundance of tree species within the canopy layer, or the ease of identification to species. However, it may have affected the presence, abundance and identification of ground layer species.
4. The Applicant's supporting documentation for the 2008 Consent included a Statement of Environmental Effects prepared by Olsen Environmental Consulting Pty Ltd, with the biodiversity and ecology component being prepared by Ecotone, for which the relevant staff ecologist was Mr Stefan Rose. The modification applications were prepared by the same team, except that Ecotone had merged into Biosis for whom Mr Rose continued in employment.

The Applicant's grounds for seeking to modify the 2017 Consent

1. Ms Reid summarised the position of the Applicant as: "In a nutshell the applicant seeks to in effect delete condition 32 and replace it with a fresh condition, which recalculates the biodiversity offsets in a form that I'm just not sure about at the moment. So, I won't make any particular comment on that except to say that the application is to make them in accordance with contemporary calculators rather than recognising the history of where those offsets ultimately came from and formed part of the development consent. Then the application is also put on a second basis, and that is to reconsider the mapping of the Box-Gum Woodland across the site. And that comes with some real problems for the applicant. And that is that the area in which the applicant asks you to reconsider the mapping is the area that has been cleared for the quarry. So, the only evidence of the mapping of that area is in those historical documents that I took you to in the Ecotone Report. What the department says - or The Minister for Planning - says in relation to the application, is that firstly, it disturbs the basis upon which the approval was sought and given. And that had been after an assessment of the application and as a threshold question, the Court needs to first consider whether this application will be substantially the same development as that that was originally approved in 2017. And on the respondents case, the answer to that is no. And you need not go any further. If you do go further, then there is a separate legal question, which is … contention 1A in the statement of facts and contentions, and that is that effectively, you cannot sever condition 32 and replace it with a new condition 32 because it changes the nature of the consent. So, it's a slightly different way of approaching what is now contention 1B. And then thirdly, if you did reconsider the application, then you wouldn't disturb the finding that there had been Box-Gum Woodland in the cleared area, because the only evidence, the only real evidence that you have on the ground is the evidence in the Ecotone Report. And you wouldn't go assuming matters to reclassify that community at this point in time. And then as an ultimate position in the joint report, ultimately, if you find against the respondent, then there is an agreement as to how you might calculate those credits. But it appears that the experts have a little bit more work to do with respect to the ultimate number and what that condition looks like. (Tcpt, 24 February 2021, pp 15(40)-16(26))
2. The Applicant advanced three grounds which it said supported the case for modification of the 2017 Consent: 1. that the vegetation cleared under the 2008 Consent was not the Box Gum Woodland EEC but was a different type of vegetation, namely Broad-leaved Peppermint-Red Stringybark (Tcpt, 24 February 2021, p 20(15-20)); 2. that there had been a change in the methodology for the calculation of Biodiversity Offset Areas. "…But also, we have to focus upon the consent as it was granted in 2017, not the consent as it was granted in 2008. And as at 2017, there were methodologies available whereby the biodiversity offset areas would be calculated in accordance with a recognised and robust system of calculation. That being, the documents which the Minister has included in their bundle - the framework for biodiversity assessment and the biobanking assessment methodology. That didn't happen in this case for no other reason than a matter of historical fact. That the Minister at the time, or the department at the time was not prepared to entertain a reconsideration of those matters. But that doesn't preclude the applicant now seeking the applicant, seeking to have that matter reagitated, because as a matter of fact as of 2017, there was a methodology available and if that methodology had been applied, the applicant says quite a different outcome would have been seen in the consent…" (Tcpt, 24 February 2021, p 17(36-50)) The Framework for Biodiversity Assessment (FBA) underpinned the Biodiversity Offsets Policy for Major Projects. [1] The BioBanking Assessment Methodology (BAM) is the required methodology for the purposes of assessment under the BC Act (Pt 6 Div 2) and Biodiversity Conservation Regulation 2017 (Pt 6 Div 6.1); 1. that the definition of Box Gum Woodland had changed since 2008 and that the new definition should apply in the assessment.
3. Broad-leaved Peppermint-Red Stringybark is the name given to a recognised vegetation type, but not one included on the schedules of Threatened Ecological Communities. Although not a Threatened Ecological Community, loss of an area of Broad-leaved Peppermint-Red Stringybark would still incur a credit requirement, albeit fewer than would be the case for the same area of Box Gum Woodland.
4. The first and third grounds (at [59(1)] and [59(3)]) relate to the definition and recognition of Box Gum Woodland. Before considering the evidence relating to the site, the definitions and description of the Box Gum Woodland will be discussed.
5. The Scientific Committee established by the TSC Act made two Final Determinations for the Box Gum Woodland - in 2002 [2] and 2011 [3] . The 2020 Final Determination was made under the BC Act. [4]
6. The 2011 Final Determination was for a minor amendment to make changes to the references to the Interim Biogeographic Regionalization of Australia (IBRA) There were no changes to the description and recognition of the community.
7. What is important to consider is whether or not there were changes between the original 2002 Final Determination and the 2020 Final Determination such as to affect the description of the ecological community.
8. In the 2002 Final Determination for the White Box Yellow Box Blakely's Red Gum Woodland - Endangered Ecological Community, the Scientific Committee found that: "1 White Box Yellow Box Blakely's Red Gum Woodland is the name given to the ecological community characterised by the assemblage of species listed in paragraph 3. White Box Yellow Box Blakely's Red Gum Woodland is found on relatively fertile soils on the tablelands and western slopes of NSW and generally occurs between the 400 and 800 mm isohyets extending from the western slopes, at an altitude of c. 170m to c. 1200 m, on the northern tablelands (Beadle 1981). The community occurs within the NSW North Coast, New England Tableland, Nandewar, Brigalow Belt South, Sydney Basin, South Eastern Highlands and NSW South Western Slopes Bioregions."
9. There is no doubt that the subject site falls within the geographic area specified by the Scientific Committee. The ecological community has a wider distribution beyond NSW, occurring from southern Queensland into Victoria, and also within the ACT.
10. The 2002 Final Determination described the community as: "2. White Box Yellow Box Blakely's Red Gum Woodland includes those woodlands where the characteristic tree species include one or more of the following species in varying proportions and combinations - Eucalyptus albens (White Box), Eucalyptus melliodora (Yellow Box) or Eucalyptus blakelyi (Blakely's Red Gum). Grass and herbaceous species generally characterise the ground layer. In some locations, the tree overstorey may be absent as a result of past clearing or thinning and at these locations only an understorey may be present. Shrubs are generally sparse or absent, though they may be locally common."
11. Paragraph 3 provided a list of characteristic plant species by which the community could be recognised. As is the case with all ecological community determinations, the Scientific Committee included a caveat: "The total flora and fauna species list for the community is considerably larger than that given above, with many species present in only some sites or in very small quantity. In any particular site not all of the assemblage listed above may be present. At any one time, seeds of some species may only be present in the soil seed bank with no above-ground individuals present. The species composition of the site will be influenced by the size of the site, recent rainfall or drought conditions, its disturbance history and geographic and topographic location. The community is an important habitat for a diverse fauna (vertebrates and invertebrates), but detailed records are not available from most stands and the invertebrate fauna is poorly known."
12. This caveat recognises that although the species list provided in par 3 is of vascular plants, an ecological community is more than simply a plant community type but necessarily also includes a large, if very poorly known, fauna. Interactions between flora and fauna are essential for the continuing existence and functioning of the ecological community.
13. There is no minimum number of the listed characteristic species required to be present for a particular area to be regarded as supporting a threatened ecological community (see Commonwealth of Australia v Randwick City Council [2001] NSWLEC 79 at [104] in which the Court rejected the applicant's submissions that all species listed in the Final Determination (in that instance the species list for Eastern Suburbs Banksia Scrub) had to be present. The Court of Appeal in VAW (Kurri Kurri) Pty Ltd v The Scientific Committee (Established under s127 of the Threatened Species Conservation Act 1995) (2003) 55 NSWLR 631, 128 LGERA 419; [2003] NSWCA 297 recognised the inherent variability in species composition within a threatened ecological community meant that some vagueness in the description of ecological communities was inevitable, but this did not affect the validity of final determinations.
14. The Final Determination in 2002 recognised there could be variation in the number of plant species recordable within Box Gum Woodland in both space and time but pointed out the propagules may be present below ground. The Final Determination also acknowledged that an EEC included fauna, and, in par 13, listed fauna species of conservation significance, a relatively short list restricted to vertebrates, which might occur in some stands of Box- Gum Woodland, acknowledging that the list was not comprehensive.
15. The 2020 Final Determination was made under the BC Act. Items listed on the schedules of the TSC Act were transferred to the BC Act, and a Scientific Committee, similarly constituted to the Scientific Committee under the TSC Act maintains the schedules under the BC Act. The 2020 Final Determination was to list White Box Yellow Box Blakely's Red Gum Grassy Woodland and Derived Native Grassland as a Critically Endangered Ecological Community.
16. The change of name to include Derived Native Grassland (DNG) might suggest that there had been a change in the description of the community. However, inclusion of DNG brings the name of the community in NSW into line with the name of the community listed, also as Critically Endangered, under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) but DNG had always been included, at least implicitly, in the concept of the community in the 2002 Final Determination.
17. In the 2002 Final Determination, pars 8-11 discuss the extent of disturbance and alteration within Box Gum Woodland. Stands may have been reduced to a few trees scattered within cropping land or to stands with a reasonably intact ground layer but with no trees. The Scientific Committee had acknowledged from the first listing in 2002 that disturbed remnants could be of conservation value and specifically stated in par 11 that these disturbed remnants (which would have included what is now referred to as DNG) are still to be regarded as the EEC, so that the inclusion of DNG in the name of the listed community since 2020 does not reflect any change to what was included within the scope of the community in the 2002 listing. "11. Disturbed remnants are still considered to form part of the community including remnants where the vegetation, either understorey, overstorey or both, would, under appropriate management, respond to assisted natural regeneration, such as where the natural soil and associated seed bank are still at least partially intact."
18. The 2020 Final Determination characterised the community by a listed assemblage of species in par 1.1. This list differs in some ways from that in par 3 of the 2002 Final Determination. Some of these changes reflect taxonomic or nomenclatural changes and still refer to same entities as were included in the 2002 list. There are also some deletions, and some additions, reflecting greater knowledge accumulated over two decades.
19. However, given that any one stand is unlikely, at any one time, to support more than a small proportion of the total number of characteristic species listed in the Final Determination, no stand assigned to the EEC on the basis of the 2002 Final Determination would fail to be assigned to the CEEC on the basis of par 1.1 in the 2020 Final Determination.
20. The Scientific Committee emphasised in par 2.2 of the 2020 Final Determination that: "2.2 It is the intent of the NSW Threatened Species Scientific Committee that occurrences of the ecological community (both recorded and as yet unrecorded, and independent of their condition) that occur within these bioregions be covered by this Determination."
21. Under the EPBC Act listing of Box Gum Woodland for DNG to be recognised as part of the Box Gum Woodland a patch must be more than 0.1 ha and contain more than 12 native ground layer species including at least one important species. [5] Under the 2020 Final Determination neither a minimum number of species required for eligibility nor a patch size limit are specified. The Conservation Assessment by Tozer and Simpson (dated 22 June 2020) which accompanies the Final Determination states on p 5: "These criteria do not apply under the NSW Biodiversity Conservation (BC) Act (2016). As such, the area of the community remaining which meets the definition of the community under the EPBC Act maybe higher than is the case under the EPBC Act". [6]
22. Ms Reid cross-examined Mr Garvey on his reasons for not accepting the assignment by both Ecotone and Biosis of woodland vegetation and DNG present on the subject site in 2006 to the Box Gum Woodland EEC. It is necessary to quote extensively from the transcript in order to understand the basis of the Applicant's position. "REID: Mr Garvey, you weren't involved in the original Part 3 application assessment. WITNESS GARVEY: No, I wasn't. REID: And you weren't involved in the modification 2 application to the Part 3A approval. WITNESS GARVEY: No, I wasn't. REID: You weren't involved in the 2017 application assessment. WITNESS GARVEY: No, I wasn't. REID: The first time you visited the site was in 2018. WITNESS GARVEY: That's correct. REID: And on your first site inspection, the footprint of the quarry had been cleared. WITNESS GARVEY: That's correct. REID: That's the area which you now say likely did not sustain the Box-Gum Woodland community. WITNESS GARVEY: That's correct. REID: Can I take you to tab B of the class 1 application. WITNESS GARVEY: Is that volume 1 or 2? REID: Volume 1, exhibit B tab V. WITNESS GARVEY: Yes. REID: You're aware that the 2017 application relied upon the findings in the Ecotone report dated February 2008. WITNESS GARVEY: Yes. REID: Can I take you to p 24. Be aware from that first paragraph on p 24 that the author of the report had undertaken a flora field study which included the now cleared area. WITNESS GARVEY: That's correct. REID: And you would agree with me that the report notes that within the Box-Gum Woodland areas identified in the report, at least two 400 square metre quadrats were examined, and species recorded. WITNESS GARVEY: I would. There's no indication in the report where those quadrats were undertaken though. REID: And not having seen that area in person, you would have to accept the advice in the Ecotone report at table 7, that the description of the Box-Gum Woodland was that set out as community 2 on page 29 of the report? WITNESS GARVEY: I think that's a description of community 2, yes. REID: Can I take you to your joint report and exhibit 4 in the proceedings, para 34 which is on p 5. WITNESS GARVEY: Yes. REID: In that paragraph, you speak in the third person, but they are your words. WITNESS GARVEY: Which paragraph? REID: Para 31. WITNESS GARVEY: That's correct. REID: And you say that you argue that the areas of community 2 mapped by Ecotone should not have been classified as Box-Gum Woodland. WITNESS GARVEY: I argue that the areas that extend across the site should not have been and that - yes, means the mapping by Ecotone is incorrect. REID: And when you say "argue", you're arguing that because you're advocating a position on behalf of your client. WITNESS GARVEY: I'm advocating a personal position and view based on my expertise. REID: I take you to para 34 of your joint report. WITNESS GARVEY: Yes. REID: You place some emphasis on the final determination of 2002 indicating that the characteristic tree species of Box-Gum Woodland should include white box, yellow box or Blakely's red gum. WITNESS GARVEY: Yes. REID: And you agree that the Ecotone report in table 7 recorded occurrences of Blakely's red gum in community 2. WITNESS GARVEY: Yes, and yellow box. REID: And that's the eucalyptus melliodora. WITNESS GARVEY: Correct. REID: And they were the dominant species recorded in the community. WITNESS GARVEY: I think their species, the occurrences they use the words in their report "present" on p 29 and discuss that they're modified versions of the EEC on p 36. REID: Can I take you to p 29 of the Ecotone report, to table 7. WITNESS GARVEY: Yes. REID: Sorry, back to the class 1 application exhibit B tab B p 29. In fact, in the fourth column, the dominant species in the tree layer include eucalyptus melliodora and the Blakely's red gum. Would you agree with that? WITNESS GARVEY: I don't see those words. REID: You are looking at p 29. WITNESS GARVEY: Yes. REID: The table is headed, Community 2 Woodland - Open Woodland. WITNESS GARVEY: Sorry, table 4 Dominant Species eucalyptus melliodora, eucalyptus blakelyi, eucalyptus macrocarpa, eucalyptus eugenioides and eucalyptus cinerea. REID: Yes. WITNESS GARVEY: Yes. REID: So, you would agree that the table records, at least two of the species in the EEC as being dominant in the tree layer. WITNESS GARVEY: It says they are the dominant species that occur within the patch. It doesn't mean that they may up overall more than 50 per cent of the tree species, which is the commonly accepted definition of dominant under the 2020 determination. It also doesn't say what the distribution or the counts of species are. And there's no data from within those areas to indicate what it would have been. What I have used in my expert report to rely on is the extent areas of community 2 that still occur across the site, in which there are occasional occurrences of those characteristic species, particularly eucalyptus melliodora. But it's certainly not dominant. I wouldn't call it common, and I certainly wouldn't call it typical of the communities that are extent across the site. REID: Okay, let's just focus on the question that I'm asking, and that is in relation to the material that we do have in the cleared area, which is the assessment in table 7 for community 2. And you agree that the dominant species recorded is eucalyptus melliodora - includes eucalyptus melliodora and Blakely's red gum. WITNESS GARVEY: I think the five species that are listed there are the dominant species, but I don't agree that melliodora and blakelyi, the characteristic species of Box-Gum Woodland were dominant within that patch. REID: And you say that because of vegetation that you have observed on different parts of the land in 2018. WITNESS GARVEY: No. That assessment that I just made is based on this report here. It talks about five species being dominant. But it doesn't talk about the dominance of any individual species. REID: And where in the 2020 determination or any final determination, does it require 50 per cent coverage of a particular species? WITNESS GARVEY: Can I refer to some documents? REID: Yes. I'm asking you a very specific question, and I want you to answer my specific question, and that is in the final determination. WITNESS GARVEY: Yes. So, if I can take the Court and the Commissioner to para 4.3 of the 2020 determination. That paragraph reads in the first sentence, "White box, yellow box, Blakely's red gum, grassy woodland and derived native grassland is characteristically dominated by one or more of the following species: eucalyptus albens, white box, eucalyptus melliodora, yellow box and eucalyptus blakelyi - Blakely's red gum." REID: And from that, you say that there needs to be more than 50% coverage by one of those species, do you? WITNESS GARVEY: That's correct. That's the commonly interpreted outcome of that determination. ACTING COMMISSIONER: So, you're defining - I am assuming dominance refers to canopy cover and not number of individuals. WITNESS GARVEY: It can be either. We would take - normally in an assessment, we would take a conservative approach and look at either. You can use counts, or you can use - where it's difficult to determine canopy cover, humans are notoriously bad at estimating canopy cover, but where you can do that, either one would be - you would apply a conservative approach and assume that either is dominance. ACTING COMMISSIONER: Do we know what they did in the original plot data that they recorded. WITNESS GARVEY: No, Commissioner. No plot data has been able to be sourced or found. All we've used is plot data from extent areas of community 2 that were mapped by Ecotone as community 2, that is still extent across the site. We've relied on that information to argue that community 2 is not Box-Gum Woodland. There is a statement from the Biosis 2015 response to submissions that states that the offset areas are similar in both floristics and condition to the impact area current and proposed. When mapping vegetation communities across the site, we're generally mapping things and grouping them based on common characteristics or attributes such as floristics, landscape position, soils, geology or other features. So, I think it's reasonable to assume, based on the attributes that we use and the statements by Biosis, who were the original authors of the 2008 report, that those areas are in the same - similar in both floristics and condition to the impact areas current and proposed. But the extent areas of community 2 are reasonably representative of community 2 that was removed. ACTING COMMISSIONER: You said, "condition" there. Whereas the scientific committee at least in 2020 have very specific discussion to say the condition is not part of the consideration..(not transcribable).. WITNESS GARVEY: So, I am relying on that statement around floristics, rather than condition. I'm saying that the areas of community 2 that occur in the offset areas that are still extent across the site are similar floristically to those areas that were removed - the areas in the impact area, current and proposed. ACTING COMMISSIONER: And in terms of the environmental features which you mentioned, which are also discussed in the determination, before it was cleared for the quarry, do we know whether it was the right soil and so on? WITNESS GARVEY: There's very little information around the soils. There is maps showing the communities in relation to landscape position. There's old topographic maps that overlay the mapping by Ecotone in their original assessment and in response to submissions that show that the areas of community 2 were on mid to upper slopes - which are generally areas where we don't see Box-Gum Woodland and we certainly don't see Box-Gum Woodland on the Gunlake Quarry site. It's noted in the EMM report that the majority of Box-Gum Woodland mapped across the site is - get the words correct - "on lower lying parts of the study area, along drainage lines and depressions." And this is the EMM 2016 report on pp 32 and 34. So, I would argue that the landscape position is also incorrect. REID: And that 2016 report was prepared after that land was cleared and the soils were disturbed. WITNESS GARVEY: It was. That's correct, yes. REID: You can't tell the Court from the Ecotone or the Biosis assessments whether there were seeds of other species in the soil seedbank in that area. WITNESS GARVEY: No, I can't. Those areas had been removed. REID: And indeed, if you were making an assessment of a critically endangered ecological community and it might be borderline as to whether it forms part of the community, that might be further investigation that you would undertake at the time. WITNESS GARVEY: It's certainly one of the factors that's mentioned in the final determinations, yes. REID: And if Ecotone formed the view that it was at that time the endangered ecological community, it didn't need to then go to the extent of investigating the soil seed bank, did it? WITNESS GARVEY: No, they didn't. To the best of my knowledge there is no mention in either of the Ecotone or Biosis reports of investigation of the seedbank, no. REID: That's an opportunity that is not and cannot be available as part of this assessment. WITNESS GARVEY: No, those areas have now been cleared. REID: You place some emphasis on the final determination of 2002, indicating that the characteristic tree species of Box-Gum Woodland should include white box, yellow box or Blakely's red gum - I withdraw that. I take you to the 2020 final determination. WITNESS GARVEY: Yes. REID: Sorry, Commissioner, that's exhibit F in the proceedings para 1.2. You would expect from para 1.2 that characteristic species may be abundant or rare - in the last paragraph. WITNESS GARVEY: I would argue that the list of species that are outlined under 1.1, may be abundant or rare depending on a variety of conditions. But I would also refer to that paragraph that I previously mentioned at 4.3 which states that those characteristic tree species are dominant - characteristically dominant, or dominates it by one or more of the species. So, to be clear, I would say that the complete list of characteristic species at 1.1 can be abundant or rare and compromise only a subset of the complete list of species, but that those characteristic tree species need to be dominant. REID: If I can ask you then to turn over to the next page, still under 1.2, the third paragraph gives some indication of the meaning of abundance in the context of the final determination, doesn't it? That dominance is an abundance, rather than a physical dominance. WITNESS GARVEY: I'm sorry, I don't understand the difference. To me, abundance is almost - we are almost back to the count. REID: Yes. WITNESS GARVEY: So, you need to have an abundance or a dominance of a particular species. So, a greater count. REID: So, in terms of table 7, if we look at the dominant tree layer species, Ecotone recorded those as being dominant or of abundance in the tree layer. WITNESS GARVEY: But the words under para 1.2 are "relative abundance". So, I think the bit that's missing from table 7 in the Ecotone 2008 report is, the relative abundance of those five dominant species, compared to each other. REID: And you're trying to tell the Court that on the basis of this table, in that location there is sufficient information to assume that there was not an abundance of eucalyptus melliodora or Blakely's red gum. WITNESS GARVEY: No, definitely not, Commissioner. I'm not trying to say that in that location, I am relying on extant areas of community 2 that still occur across the site. And in those areas that remain, certainly those characteristic species are not relatively abundant. They are occasional occurrences. REID: And it's true that you just can't say what the abundance was with any clarity in the cleared area. WITNESS GARVEY: No, not at all." (Tcpt, 25 February 2021, pp 59(3)-65(31)) (Noting that the transcriber was not familiar with the conventions for distinguishing between generic names and species epithets)
23. Central to Mr Garvey's argument was his understanding of how 'dominant' in the 2020 Final Determination should be interpreted (see in quotation above Tcpt, 25 February 2021 pp 61(2)-62(50)).
24. He did not state by whom this definition is commonly accepted or provide a reference which included the definition of 'dominance' which he favoured.
25. Ms Reid subsequently asked Mr Garvey about the 2020 Final Determination, asking whether he would expect from par 1.2 of the Final Determination that characteristic species may be abundant or rare (Tcpt, 25 February 2021).
26. Mr Garvey drew attention to par 4.3 of the 2020 Final Determination (Tcpt, 25 February 2021 p 64(40-47)): "White Box - Yellow Box - Blakely's Red Gum Grassy Woodland and Derived Native Grassland is characteristically dominated by one or more of the species Eucalyptus albens (White Box), E. melliodora (Yellow Box) and E. blakelyi (Blakely's Red Gum). Eucalyptus moluccana may be co-dominant in the Nandewar Bioregion (TSSC 2006) and in the north- western corner of the Sydney Basin Bioregion in the upper Hunter valley. Hybrids or intergrades between these and other species of Eucalyptus listed in Part 1 are considered to be part of the characteristic assemblage of species. A number of understorey species are typically found throughout almost the entire range of the community, with the exception of the extreme north of its distribution and areas where they have been excluded by grazing. These include: 'the dominant tussock grasses Themeda triandra and Poa sieberiana and a range of other forbs and grasses such as Chrysocephalum apiculatum, Hypericum gramineum, Geranium solanderi, Glycine clandestina, Dianella revoluta [sic], D. longifolia, Asperula conferta, Leptorhynchos squamatus, Goodenia pinnatifida, Pimelea curviflora, Stackhousia monogyna, Cheilanthes sieberi, Austrostipa scabra, Bulbine bulbosa, Lomandra filiformis and Oxalis perennans occupying the inter-tussock spaces' (Prober 1996)."
27. Mr Garvey was not able to give a clear definition of what was meant by dominance in the canopy, and I might have misled him by referring to canopy cover. Mr Garvey did not refer to par 4.2 of the 2020 Final Determination, which reads: "4.2 White Box - Yellow Box - Blakely's Red Gum Grassy Woodland and Derived Native Grassland is characterised by widely-spaced trees with canopies not touching and projected foliage cover generally less than 30% (Prober et al. 2017). Tree height ranges from approximately 15 - 30 m and declines with increasing aridity from east to west (Keith 2004, Prober et al. 2017). Canopy cover may be higher in remnants exhibiting Eucalyptus regrowth following fire, logging, clearing, dieback or tree death due to natural causes. In such cases, canopy cover may exceed 30% and may be continuous, while tree heights may tend toward the lower end of the range. Conversely, the canopy may be completely absent in areas of derived native grassland where tree removal has occurred, and in such areas higher abundance of groundcover species may be present. Understorey shrubs are typically sparse or absent (Prober et al. 2017). The groundcover is dominated by perennial tussock grasses interspersed with a diverse range of forb species with the families Asteraceae and Fabaceae, and the orders Liliales and Asparagales well represented (Prober et al. 2017)."
28. This paragraph refers to both projected foliage cover and canopy cover. Canopy cover is the area of ground included within the downwards projection of the outer extent of the canopy of canopy trees - as the trees within a sample plot may be of differing height the canopies of smaller trees may overlap, but not necessarily be contiguous with, those of taller trees. Projected foliage cover is the projected cover of the leaves (or other photosynthetic structures) in the canopy, in the orientation in which the occur. For many overseas forests and woodlands, including those where much of the canopy comprises deciduous tree species during the season when they possess leaves, projected foliage cover and canopy cover will be close to identical, but in Australian sclerophyll forests and woodlands, with eucalypt canopies having pendant leaves, projected foliage cover will be much less than canopy cover.
29. Projected foliage cover is a key defining element in the Specht scheme, a national structural classification of vegetation which was widely used before the adoption of floristically driven classifications. The scheme went through a number of iterations but in its final form was presented in R. L. Specht, 'Foliage projective cover and standing biomass' in A.N. Gillison and D.J. Anderson (eds), Vegetation Classification in Australia (CSIRO/ANU Press, Canberra, 1981) pp 10-21.
30. Specht advocated that projected foliage cover be measured using the equivalent of a point quadrat by observing the canopy through a periscope-like device and recording intersections between leaves and cross hairs within the optical instrument, at a sample of points beneath the canopy. This is time consuming but does provide a precise estimate. It is unlikely to be routinely used as a method by consultants carrying out site assessments. I would agree with Mr Garvey that estimates of canopy cover by eyeballing are 'notoriously bad' and estimates of projected foliage cover are probably even worse. However, if the practitioner has carried out calibration exercises to become familiar with projected foliage cover, estimation reliability may be much improved. Unfortunately, there was no information provided about how Mr Garvey estimated projected foliage cover, nor how, if it had been estimated in the earlier studies, what technique had been used.
31. However, the use of the word 'characteristic' in the Final Determinations permits exceptions. By way of analogy, a statement that people with blonde hair characteristically have blue eyes does not mean that all people with blonde hair have blue eyes or vice versa - there are exceptions to a generalisation, but there is a high correlation between hair and eye colour (B.D. Lin et al, 'The Genetic Overlap between Hair and Eye Color' (2016) 19 Twin Research and Human Genetics 595-599, in which a positive correlation of 0.87 between blonde hair and blue hair was reported for the sample population studied.). Unless a correlation is 1.0 exceptions occur, but with a low probability of occurrence.
32. That there can be deviation from a narrow interpretation of final determinations was discussed in Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Ltd (2010) 210 LGERA 126; [2010] NSWLEC 48 (NHVSS). An important issue in that case was the extent of Box Gum Woodland on the site. The second respondent (the original applicant for development consent) argued that although the EEC occurred on the site, a substantial part of the vegetation within the subject site did not fall into the listed community due to having strong representation of Eucalyptus nortonii and Brachychiton populneus in the canopy; or had too much of a shrub canopy in some areas of the site. The Court decided that the vegetation on the site fell within the range of variation within the canopy of Box Gum Woodland and that all of the three plant communities recognised by the expert ecologist's within the woodland fell within the Box Gum Woodland EEC (at [54]-[60] and [75]-[78]). "54 Paragraph 2 of the Final Determination states "shrubs are generally sparse or absent, though they may be locally common". 55 Mr Elks drew attention to the presence of the number of shrubs recorded from Community 2, and in particular to the presence of a dense patch of the shrub Santalum lanceolatum (Sandalwood) in the southeast of the proposed extraction zone. He argues that, in consequence, Community 2 did not satisfy para 2 of the Final Determination. 56 Twenty seven of the ninety five species listed in para 3 of the Final Determination are shrubs, so that the mere presence of a number of species of shrubs in Community 2 does not disqualify the community from being part of the White Box EEC. What then is the intent of the qualifier "locally common"? The various references in the Final Determination to spatial variation within the White Box EEC, permit the occurrence of patches of shrubs within the community while conforming with the description. 57 If floristic composition was being assessed by use of quadrats then, depending on the size of the quadrat, the location of the quadrats and the size of the patch of shrubs, at the individual quadrat level, the data could suggest shrub dominance. However, the single quadrat would be unrepresentative of the vegetation of the stand, although illustrative of part of the range of variation in structure and composition of the stand. 58 As is indicated in the Final Determination, in some parts of the total range of the White Box EEC there has been extensive clearing such that only small, isolated stands remain. In that circumstance an individual stand may be so small, and be essentially homogeneous, so that determining whether its structure and composition was originally part of the wider variation in a larger stand of the White Box EEC could be difficult and there could be unresolvable uncertainty about assignation to the White Box EEC; but this is not the situation in this instance. 59 The Project Site is set within the much larger Lot 31, and that in turn is set within a larger vegetated area, so that "locally" can be assessed within the landscape context. 60 Even within the context of the proposed extraction area, the patches dominated by shrubs occupy a limited extent, and this is still the case if the whole area mapped as Community 2 is considered. At the wider scale of the Project Site, the patches of shrub dominance fall within a description of being "locally common". … 75 As discussed above, the various matters raised against the inclusion of Community 2 within the White Box EEC are, on analysis, compatible with categorization as part of the White Box EEC. The occurrence, albeit in small quantity of Eucalyptus albens, and the presence of E. nortonii and Brachychiton populneus and a large number of other species in the list of characteristic species in para 3 of the Final Determination speaks positively in favour of Community 2 being a component of the White Box EEC. 76 Community 2 is a component of the White Box EEC, albeit a local variant with abundant E. nortonii. While ecological communities are not to be regarded as 'super organisms' (P Adam (2009) 13 Australasian Journal of Natural Resource Law and Policy 7 at 19-21), so that variants of ecological communities are not analogous with genotypes of species, conservation of biodiversity encompasses the conservation of the diversity of life at all levels of organisation, which includes variation within ecological communities. 77 The White Box Yellow Box Blakely's Red Gum Grassy Woodland and Derived Native Grassland is included on the Schedules of the Environment Protection and Biodiversity Conservation Act (Cth) 1999 as a Critically Endangered Ecological Community. The description of this Community is largely consistent with that of the White Box EEC as listed under the TSC Act. The consequences of any Commonwealth listing for the proposal are not matters for determination by this Court. 78 By reason of the conclusion that Community 2 is part of the White Box EEC, and the parties' agreement that Communities 1 and 3 are part of the White Box EEC, all of the vegetation on the Project Site comprises the White Box EEC."
33. The warning against applying a procrustean approach to the allocation of stands of vegetation to existing classifications without considering the context, which was raised in NHVSS: "67 Mr Elks suggested that Community 2 was not part of the EEC but should instead be regarded as falling within the Roughbarked Apple-Silvertop Stringybark-Grassy Open Forest community. This community is included within the BioMetric tool, developed for use in the context of preparation of Property Vegetation Plans under the Native Vegetation Act 2003. The community list recognized in BioMetric is not fully comprehensive, but is a work in progress. Mr Elks has adopted a procrustean approach, forcing Community 2 into the closest entity within BioMetric despite considerable differences in structure and canopy composition. Community 2 is, within the context of the Project Site, a distinctive community, but nevertheless is one which as discussed above, falls within the variation of the White Box EEC." remains relevant. Mr Elks' Community 2 comprised those parts of the woodland on the subject site with representation of Eucalyptus nortonii in the canopy.
34. The 2020 Final Determination is accompanied by a Conservation Assessment of the White Box Yellow Box Blakely's Red Gum Grassy Woodland and Derived Native Grassland, prepared by Mark Tozer and Christopher Simpson, using the Uniform Assessment Procedure applied by both the Commonwealth and NSW Scientific Committees. My reading of the 2002 and 2020 Final Determinations, in conjunction with the Conservation Assessment, does not suggest that the 2020 Final Determination changed substantially, or even at all, the concept to which the community name applies.
35. Some threatened ecological communities have very restricted distributions, such that the final determinations for them specify the few localities of known occurrence. For geographically very widespread ecological communities, such as the Box Gum Woodland, listing of occurrences in the final determinations is not practical, and would rarely be possible. Development proposals for sites within the overall distribution of the Box Gum Woodland require investigation and application of the Final Determination to locate and identified stands of the CEEC.
36. Box Gum Woodland has been listed, first as an EEC and now as a CEEC for 20 years. Following the 2020 Final Determination I am not aware of any Circular advising that some previous identification of sites for the community might no longer apply because the 2020 Final Determination changed the definition characterising the community so that some stands previously identified as being Box Gum Woodland no longer conform to the definition in the most recent Final Determination. The Applicant did not identify or refer to any such document but relied upon Mr Garvey's interpretation of the 2020 Final Determination. Misidentification could occur in some instances because of incorrect interpretation of the Final Determination, but not because of changes arising in the Final Determination.
37. Mr Pickles in the Applicant's submissions in reply wrote that: "14. The respondent's reliance on Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited [2010] NSWLEC 48 at [37] similarly ought to be disregarded in circumstances where its reliance on it is limited to the Court's finding of the characteristics of Box Gum Woodland which predates the current Final Determination (2020)."
38. As I have discussed above, at [82]-[91], I am of the view that the 2020 Final Determination, while it might have refined the characterisation of the CEEC, did not change the characterisation in a way which would mean that the vegetation accepted as Box Gum Woodland as discussed in NHVSS would no longer be recognised as being representative of the CEEC as described in the 2020 Final Determination.
39. The discussion about the number of Eucalypt species in the canopy is only relevant when a canopy is present. The definition of Box Gum Woodland in the 2002 and 2020 Final Determinations recognises the disturbed and fragmented nature of many of the surviving areas of Box Gum Woodland and that DNG can still qualify for inclusion within what is now the CEEC. Thus, there is no requirement for there to be any canopy all, provided that the grassland is properly characterised as a DNG, being derived from an original woodland state. The statements in pars 4.2 and 4.3 of the 2020 Final Determination only apply to the composition of the canopy if there is a canopy.
40. Parts of the area of vegetation cleared as a result of the 2008 Consent had some form of canopy, but there are inadequate data available to determine the composition of the previously present canopy.
41. The Applicant suggests that there is vegetation outside the quarry area which had been assigned to Box Gum Woodland in the Ecotone/Biosis surveys but which Mr Garvey's more recent investigations of the northeast part of the site (the area of woodland which has not been cleared by the works for the quarry) show is not Box Gum Woodland: "PICKLES: …Now, part of this is as a consequence of changes in the in the determination. But part of it is a complete difference of opinion between consultants engaged in 2008 and more contemporary reviews of this vegetation to determine what its community comprises. Now, in broad terms, as I understand it, the Minister doesn't disagree in the broadest terms with the classifications of the community shown in the EMM mapping, the more recent mapping. The inference, however, that the applicant draws from this is that if we go back to figure 1 in the mapping undertaken by Ecotone and we look at the area of the quarry footprint further towards the centre of the site, we have areas which are marked in black hatching as areas to be cleared that are marked as community 2 Box-Gum Woodland. Now, if Ecotone were wrong about Box-Gum Woodland in the north‑eastern part of the site, we say there's a high probability that they were wrong about the areas of Box-Gum Woodland to be cleared. The consequence being that there has been an overestimate of the amount of Box-Gum Woodland cleared by the quarry footprint and thereby an overestimate of that which was required to be compensated for. (Tcpt, 24 February 2021, p 20(28-45))

The ecological community on the subject site

1. Regardless of whether Box Gum Woodland was correctly identified the vegetation on the site forms part of an ecological community (or more than one community). Ecological communities include many more species than just plants. The whole ecological community composition has not been studied (this is not a criticism, total documentation of the species composition of an area would not be possible anywhere, but the fact that the data available is always only a partial record needs to be borne in mind), although the original Ecotone/ Biosis surveys document the vertebrate fauna including mammals (including bats), birds and herpetofauna using what would be recognized as being the appropriate standard techniques.
2. The only fauna species identified as being of potential concern, although not one actually recorded on the subject site, was the Speckled Warbler.
3. Mr Garvey was questioned by Ms Reid: "REID: So it's the whole of those requirements, not just biodiversity area offsets. It's everything that's in that biodiversity offset strategy to protect the biodiversity values on the site. WITNESS GARVEY: That's correct. REID: If I can take you down to the environmental impact statement. It's in volume 2, which is exhibit C tab I and if I can ask you to go to p 128. Do you agree that biodiversity offset strategy is what is set out in part 9.4.2 of the EIS, together with what's in the statement of commitments and the response to submission's? WITNESS GARVEY: Can you ask the question again, I'm sorry I missed that. REID: Sorry. Do you agree that the biodiversity offset strategy that's referred to in condition 31 of the 2017 consent, is that set out in part 9.4.2 of the EIS when read together with the statement of commitments and their response to submissions? WITNESS GARVEY: That would appear to be correct, yes." (Tcpt, 24 February 2021, p 38(26-45)) "REID: And it was ultimately accepted as part of the response to submissions that the biodiversity offset area would remain as the Part 3A footprint, together with the expansion area offset. WITNESS GARVEY: It was included in the revised conditions. Yes. REID: So, you would agree with me on that basis that the 2017 consent intended to keep the existing offset areas that were otherwise approved as the Part 3A footprint and incorporate those into the 2017 consent? WITNESS GARVEY: Yes, that's correct. Yes. REID: And then on top of that, there was the additional offset for the expansion area. WITNESS GARVEY: Yes. And they are set out in conditions 32 and 34 of the updated consent. Yes, that's correct. REID: In the EIS, so again, tab I, exhibit C, p 131 - have you got that? WITNESS GARVEY: I do, yes. REID: You'd agree that the existing vegetation to be enhanced and maintained was not only for the purpose of the protection of Box-Gum Woodland but was also habitat for other species. WITNESS GARVEY: I don't see that statement in this report and having not REID: Can I take you to table 9.2.12 on p 131. WITNESS GARVEY: Yes. REID: The first entry in that table, Biodiversity Offset Area, "Existing vegetation to be enhanced and maintained, as well as assisted regeneration of Box-Gum Woodland EEC and Speckled Warbler habitat." WITNESS GARVEY: Yes, that's correct. REID: Including a minimum of 30.3A. So, you would agree with me that the offset area wasn't just for the protection of the Box-Gum Woodland, but also as habitat for the Speckled Warbler. WITNESS GARVEY: That's correct. REID: Can I take you to the Ecotone report back to volume 1, exhibit B tab C. You understand the Ecotone 2008 B Report, which is Appendix C to the application, was a report that was prepared in support of the original Part 3 application. WITNESS GARVEY: Can I just double check the reference - is it, volume 1 tab C, did you say? REID: Volume 1, tab C. A letter report in response to comments by deck, prepared by Ecotone 2018." (Tcpt, 24 February 2021, pp 39(20)-40(24)) "REID: No, this condition is very new to me. So, we just have to bring it up. So, in your draft of the conditions, you would rely upon the secretary in the OEH to tell you what management actions need to be undertaken to be able to achieve the credits that you've input? WITNESS GARVEY: That's one way of dealing with it, yes. REID: And in terms of those passive management actions, is it just weed management, natural regeneration and fencing that you've assumed as part of the passive management? WITNESS GARVEY: No, the basic requirements of the biobanking assessment methodology are broader. They include things like feral species management, management of fire, management of human disturbance, management of grazing - they're quite broad requirements under the biobanking assessment methodology, including some additional items - a standard. REID: On the face of this condition, if the Court were to impose it, it wouldn't know what actions are proposed to be undertaken. WITNESS GARVEY: I think it's a fairly generic condition that goes across New South Wales, that that's the case of the majority of consents or projects we're involved with, is they will normally state something like an agreement needs to be developed to the satisfaction of, and then the outcomes of that are that those additional management actions are included within those agreements, conservation agreements or stewardship agreements or biobanking agreements. It's very rare and I'm not aware of any projects I've been involved with where the management actions are stipulated within the consent. REID: If the Court was to have certainty that you could achieve the credits that you require, they are on the best case scenario of a - let me just use the words that you used in the report - "Minor active management actions." WITNESS GARVEY: That's correct." (Tcpt, 24 February 2021, p 43(13-47))
4. The Speckled Warbler is a small ground dwelling bird which is heavily camouflaged. [7] It has a patchy distribution in the hills and tablelands of the Great Dividing Range in eucalypt dominated grassy woodland. There has been a decline in population density throughout the range, with decline greatest in areas where surviving vegetated remnants are less than 100 ha.
5. There are no records of occurrence from within the subject site, but it has been recorded nearby. In a general sense, habitat favoured by Speckled Warbler occurs on the subject site, albeit that it has been modified with much of the assumed original woodland now present as DNG. However, given that Speckled Warbler has been identified previously as a species of concern the absence of formal assessment by Mr Garvey is surprising.
6. Mr Rose wrote to Olsen Environmental Consulting Pty Limited on 11 March 2008 as part of the Response to Submissions on the Major Project Application 07-0074 and provided information on what was then known about the Speckled Warbler in the vicinity of the subject site and of the potential future for the population of the species (Ex 2 Tab 2 folio 167).
7. The Speckled Warbler had only been recorded at the Joarimin Road old tip site, where two individuals have been recorded foraging in introduced shrubs. Aerial photography of the region indicated that the vegetation remnant that included the old tip site covered at least 170 ha (excluding vegetation south of Brayton Road). As discussed above [102], local extinction of Speckled Warbler may occur in vegetation remnants less than 100 ha in extent. The remnant in which Speckled Warblers had been observed was, at least in 2008, larger in extent than 100 ha, greater than the 100-ha threshold.
8. Literature cited by Mr Rose suggested a breeding pair or trio of the species has a home range of 6-12 ha so that the remnant could be expected to contain between 14-28 breeding pairs or trios, or between about 30-65 individuals. 'Even following the construction of the proposed road, the area of remnant vegetation would remain well above the 100-hectare threshold level…'. Mr Rose concluded that given the extent of habitat that would remain it is considered highly unlikely that the local population of the Speckled Warbler would be significantly affected as a result of the proposal and 'in addition, the proposed offset and rehabilitation areas within the main project site would increase the extent of habitat available to the speckled warbler within the general area, potentially allowing for an increase in numbers of the species'.
9. Despite Mr Rose's optimism, Speckled Warblers have apparently not been recorded on the site more recently, which makes the absence of targeted survey by Mr Garvey the more surprising.

What is known about the vegetation in 2006 in what is now the working area of the quarry and the north-western Biodiversity Offset Area?

1. The difficulty for the parties and the Court is that none of us has access to a time machine - it is not possible to return to 2006 and resample the vegetation on the site. However, we do know that Ecotone undertook sampling in 2006. The data collected in 2006 formed the basis of Ecotone's subsequent report. Given the questions which have now arisen about the reliability of the identification of the ecological community present in 2006, the original data should assist in resolving the issue. However, it has apparently not been possible to locate the data.
2. In Ms Reid's cross-examination of Mr Garvey, the following exchange occurred: "WITNESS GARVEY: We don't have any information about the original plots undertaken by Ecotone in 2008. We requested that data, but they weren't able to locate that information. We do have extensive plot data from across the Gunlake site which has been done randomly for a variety of purposes since 2014 roughly. And that includes quite extensive - a number of plots that were from extant areas of community 2, and they are certainly randomised, yes. And they indicate that the characteristic species occur as very occasional, if at all within those areas that were mapped by Ecotone as community 2. In fact, there's only, to my best recollection, I believe there is only one plot that actually has any of the characteristic species in it. REID: And when you say we made a request to Ecotone for the plot data, who's we? WITNESS GARVEY: Me. I did. I sent an email to Biosis requesting any information they had regarding this. REID: They are all the questions I have in respect of the mapping. ACTING COMMISSIONER: Just in relation to - would Ecotone have had a scientific license to work in an endangered ecological community and if so, did the conditions require reporting the data to OEH. WITNESS GARVEY: Yes, they did. The Ecotone report, I believe refers to a scientific license - work being undertaken by their scientific license. I'm not sure whether that data's been provided through to OEH, DECC I believe at the time." (Tcpt, 25 February 2021, pp 65(40)-66(16))
3. In Ms Reid's final oral submissions, she said: "What we've got here is an application which was approved on the basis of just under 80 hectares of land being reserved for protection and enhancement and maintenance, not only to offset the impact of clearance of EEC, but also for fauna habitat. And once you start removing that obligation, you undermine the consent, and it becomes fundamentally something different.… In terms of the mapping, there's no great secret to the respondent's position on this, but there is some real difficulty in the applicant's argument that it cleared the land some time shortly after the Part 3A approval was granted in 2008. It has no plot sheets for that area. It has no photographic evidence of the vegetation that existed at that time. In the evidence of Mr Garvey, he indicated that he made an inquiry directly to the author of the Ecotone report and that report is at exhibit B tab B, and he was not provided with the plot data for the cleared area. Mr Garvey further confirmed in evidence that Ecotone held a scientific license to enter and assess endangered ecological communities. And were required to provide any data to the then OEH. The applicant hasn't put on any evidence from Ecotone, so they haven't sought to rely on Mr Rose to come here and say, "mea culpa, I made a mistake. I was operating under a misapprehension at the time." They haven't put on any affidavit evidence to properly explain the absence of the plot data at that particular time, and the lack of evidence surrounding the missing plot data should be viewed with caution. In contrast the documents that we do have are the Part 3 application was supported by a report prepared for the applicant from a suitably qualified ecologist who undertook a flora field study of the vegetation in 20 metre by 20 metre and 40 metre by 10 metre transects in areas that we cannot confirm, but they were in the study area of the identified communities on 15 and 16 January 2006. And that evidence is set out in exhibit B tab B p 24. That expert who inspected the land concluded that the cleared area supported Box-Gum Woodland. Page 29 of the Ecotone report sets out a list of the species which were recorded in that area. And if the Court were to compare those to the final determination, you'll find that 12 of the 20 species, which might comprise the endangered ecological community as part 1 assemblage of species, were present in that area on the evidence of the Ecotone. Now, we don't know precisely where it was, except that they map Box-Gum Woodland as being in that quarry area. So, that's the only evidence you have. ACTING COMMISSIONER: And that's comparing it to the list in the 2020 final examination. REID: It is…" (Tcpt, 25 February 2021, pp 117(14-18), 118(4-42)) and "REID: And the point that I tried to make in my submission is that the applicant bears the onus of proving its case or waiving that consent ought to be granted in a merit appeal. What we don't have in this case and I cross examined Mr Garvey on it, is any evidence by a subpoena or even the correspondent to these other parties as to where the data sheets got to or if they remain in existence. All you have is Mr Garvey's evidence is he knows the guy at the ecologist office and he gave him a ring. That was the oral evidence. And that is quite frankly not enough." (Tcpt, 26 March 2021 p 10(12-20))
4. These submissions do not properly describe Mr Garvey's actions. In his first response, he said that he had sent an e-mail to Biosis requesting any information they had. This is not the same as 'he knows the guy at the ecologists' office and he gave him a ring'.
5. Mr Garvey's CV discloses that he had worked for Biosis before his current employment, but not on any project involving Gunlake. It would be a reasonable assumption that he knew the ecologists at Biosis whose employment overlapped with his, and that would have included Mr Rose but there is no evidence to say that Mr Garvey rang Mr Rose or any other particular individual at Biosis.
6. Be that as it may, there is no evidence that the Applicant had sought discovery of the original 2006 field records or issued subpoenas to possible holders of the data if they still exist. Mr Pickles assured the Court that the Applicant itself did not have the data.
7. The list of possible places to look is considerable including, most obviously, by direct approach to Mr Rose. Other possible locations might include (but not be limited to):

• Olsen Environmental Consulting. This company was the coordinator of the process leading to the application which resulted in the 2008 Consent, at least as far as environmental/ecological issues were concerned. Although they are no longer engaged by the Applicant, they are a potential repository of at least a copy of the original data or of reports and notes relating to the data.
• Scientific licence reports. Mr Garvey understood that Ecotone would have held a scientific licence, and the conditions of the licence would have required reporting in some form. The reports on scientific licences would not necessarily include all the information that it would be desirable to have available, but they might contain useful information. The scientific licence reports would have been submitted to the relevant agency. It is not the role of the Respondent to assist the Applicant to prepare their case, but it might have been helpful if the Respondent could have indicated whether or not there were scientific licence reports relevant to the 2006 sampling held by the agency.
• The Commonwealth. The Box Gum Woodland is listed as a CEEC under the EPBC Act, and the matter had been referred to the Commonwealth. Referral to the Commonwealth is normally by the Applicant directly, or by consultants acting for the Applicant. Does the Applicant, or its consultants, have a record of the information provided to the Commonwealth? No information was provided that indicated whether any approach had been made to the Commonwealth agency to ascertain whether there are records of the information provided by or on behalf of the Applicant, and of its evaluation. The Commonwealth in its response to proposals for the Gunlake quarry site appear to have accepted the original (2006) investigations as providing a basis for recognizing the extent of Box Gum Woodland, but no approach had apparently been made by the Applicant to the Commonwealth find out what information had been referred to the Commonwealth, and how they had reached the conclusion that Box Gum Woodland was present on the site.
• Flora records. There is a number of databases which include records of species recorded in areas - sometimes with fairly generalised georeferencing, but for more recent records GPS coordinates may be available. The majority of species of plant in the Box Gum Woodland occur in the ground layer and their presence and abundance may vary at the local scale in response to variations in topography, soil and grazing pressure. Additionally, they may be affected by weather conditions, so that interpretation of apparent changes overtime would require consideration of the weather in the seasons before collection. Collection of specimens of the ground layer species, except as part of a specific project, may be rare. Although a large number of ground layer species are listed as characteristic of Box Gum Woodland, many may also occur in the ground layer of other woodland PCTs, so the records of ground layer species may not provide a strong indication of whether Box Gum Woodland occurred at the sites for which there are records of ground layer species, even though it could be assumed that there had previously been woodland of some sort present at the site.

1. In the absence of written records directly relating to applications, there may be a great deal of information on past vegetation held by members of the public in the form of historic family records and photographs. Old photographs may show the presence of trees and, exceptionally, maybe of sufficient quality has to permit identification of species. There is an element of serendipity in locating such records but again there is no indication that the Applicant, or anyone else, has sought to engage with the local community in an effort to locate historic information.
2. In the 2002 Final Determination and in the 2020 Final Determination, the Scientific Committee provided both the scientific (Latin) binomial names and the vernacular (English) names for the characteristic canopy tree species. To most urban Australians today, trees in the genera Eucalyptus, Corymbia, and Angophora would all be called gum trees, but in rural areas local residents while still recognizing the umbrella category of gum trees would also recognise a series of groups of eucalypts distinguished by a number of attributes relating to bark. These groupings have long been recognised.
3. The box bark type is a matted sub fibrous bark. The gums are characterised by smooth bark (David G. Stead, The Tree Book. (Shakespeare Head, Sydney, 1933) - Gums in Chapter 5 pp 26-35 and Box in Chapter 8 pp 44-47).
4. Yellow Box is a major source of nectar for honeybees and is greatly valued for this. The yellowish timber is extremely hard and heavy (J.W. Audus, 1934 Native Trees of Australia (Whitcombe and Tombs Limited, Melbourne, 1934) p 36). The very hard nature of the timber is likely to mean that development of tree hollows, which provide important habitat for fauna species, will be limited. On the other hand, the very hard and durable nature of Yellow Box timber might mean that it was selectively cleared to provide construction timber for particular projects- if this had been the case, family knowledge might provide verification.
5. Although both of the references to trees cited above are old, they are detailed and are works that many rural residents would have been familiar with, before the availability of more recent treatments in modern floras (technical manuals for the description and identification of plant species).
6. It is likely that some landholders in the area would have been familiar with the local trees, and, although not professional botanists, would have been able to identify the species on their properties. There is no indication that any of the consultants who worked on the area had contacted landholders to inquire about their recollections of vegetation. For most consultancies this would not be a task that would normally be undertaken. However, in the circumstances when pre quarrying data are, for whatever reason, not available, local residents may have been able to fill the information gap. The relevant cohort will now be elderly, so the opportunities which might have existed for consultation during the early investigations may now be reduced.

Was the extent of Box Gum Woodland on the subject site overestimated?

1. The principal basis for the Applicant's justification of the proposed reduction in offset area was that not all of what had been identified in 2006 as Box Gum Woodland by Ecotone had been correctly assigned to the Box Gum Woodland ecological community, and that the 'true' extent of Box Gum Woodland for which offsetting which required was considerably less.
2. From the outset, it needs to be emphasised that the relevant vegetation had, by the time Mr Garvey made his claim that it had been 'misidentified', long been cleared. Mr Garvey had not seen the original vegetation and did not have the benefit of access to the original records of the Ecotone survey.
3. It is accepted that: "... an applicant for development consent always bears a persuasive burden of proof: the applicant must persuade the consent authority, whether it be the council at first instance or the Court on appeal, that development consent ought to be granted" (Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641 at [2] per Preston CJ).
4. It is for the Applicant to make good the claim that Ecotone had misidentified as Box Gum Woodland some areas which were not, in 2006, Box Gum Woodland.
5. The evidence regarding the 'correct' identification of the ecological communities was largely given on the second day of the hearing (25 February 2021) and was intermingled with discussion on the application of the Final Determination for Box Gum Woodland which has been discussed at [59]-[98] above.
6. Ms Reid questioned Mr Garvey: "REID: The first time you visited the site was in 2018. WITNESS GARVEY: That's correct. REID: And on your first site inspection, the footprint of the quarry had been cleared. WITNESS GARVEY: That's correct. REID: That's the area which you now say likely did not sustain the Box-Gum Woodland community. WITNESS GARVEY: That's correct. REID: Can I take you to tab B of the class 1 application. WITNESS GARVEY: Is that volume 1 or 2? REID: Volume 1, exhibit B tab V. WITNESS GARVEY: Yes. REID: You're aware that the 2017 application relied upon the findings in the Ecotone report dated February 2008. WITNESS GARVEY: Yes. REID: Can I take you to p 24. Be aware from that first paragraph on p 24 that the author of the report had undertaken a flora field study which included the now cleared area. WITNESS GARVEY: That's correct. REID: And you would agree with me that the report notes that within the Box-Gum Woodland areas identified in the report, at least two 400 square metre quadrats were examined, and species recorded. WITNESS GARVEY: I would. There's no indication in the report where those quadrats were undertaken though. REID: And not having seen that area in person, you would have to accept the advice in the Ecotone report at table 7, that the description of the Box-Gum Woodland was that set out as community 2 on page 29 of the report? WITNESS GARVEY: I think that's a description of community 2, yes. REID: Can I take you to your joint report and exhibit 4 in the proceedings, para 34 which is on p 5. WITNESS GARVEY: Yes. REID: In that paragraph, you speak in the third person, but they are your words. WITNESS GARVEY: Which paragraph? REID: Para 31. WITNESS GARVEY: That's correct. REID: And you say that you argue that the areas of community 2 mapped by Ecotone should not have been classified as Box-Gum Woodland. WITNESS GARVEY: I argue that the areas that extend across the site should not have been and that - yes, means the mapping by Ecotone is incorrect. REID: And when you say "argue", you're arguing that because you're advocating a position on behalf of your client." (Tcpt, 25 February 2021, pp 59(17)-60(34))
7. The Applicant argued that the mapping by Ecotone had taken a very conservative approach to the assignation of the grassland component of the vegetation on the site: "…they say, 'Hence to account for the residual uncertainty regarding how much of the grassland areas would constitute EEC, a highly conservative approach was adopted for the current assessment, as explained below, in which the entire impact area was assumed to consist of EEC. This approach was in line with correspondence received from DECC during the original 2008 assessment in which Ecotone was advised that parts of cleared open grassland could nevertheless fall within the definition of EEC and should be included as part of the vegetation impacts for the purposes of offsetting. Accordingly, a worst‑case scenario, in terms of the impact of EEC was assumed.' That seems to be a reference back to a similar approach being taken in 2008. Did you derive anything from that paragraph in relation to what Ecotone had originally said about the impact area? WITNESS GARVEY: I did, and I interpreted that as them taking quite a conservative approach to the assessment of Box-Gum Woodland in the original 2008 assessment. And they refer to that at a number of locations." (Tcpt, 25 February 2021, p 67(2-19))
8. Mr Pickles put to Ms Treweek: "PICKLES: Well, the proposition I'm trying to put is that the -having seen the extant areas and not disagreeing that some of those are dominated by Broad‑‑leaved Peppermint stringybark, I would have to - and that those same areas were mapped by Ecotone as being Box-Gum Woodland, the proposition I am putting is that it calls into question whether indeed that ecologists did correctly map it. That's the proposition I am putting. WITNESS TREWEEK: I can go on the information that's in front of me. And the information indicates that he mapped it as an EEC. I don't have any reason to understand why he would map it as an EEC which is of a higher conservation value on that site, unless he saw that it met that definition. PICKLES: Well, again, partly can I suggest to you that may have been because of the approach that was taken at the time, as recommended to him by DECC during the original assessment. He made that assumption rather than - he made the conservative assumption, rather than basing it upon a strict analysis, according to the determination at the time." (Tcpt, 25 February 2021, p 70(17-33))
9. The Applicant stressed the similarity in terms of location of patches of vegetation, and their shape, between the earlier mapping by Ecotone and the most recent mapping, and that the maps showed the continuity of the same patches of vegetation and the only change was the name of the vegetation attached to the patches. Ms Treweek did not support this view. "PICKLES: The proposition I'm putting is that the mapping of the extent of the vegetation, if you've got perhaps to hand Appendix C - tab C of exhibit B, which is the Ecotone mapping. WITNESS TREWEEK: On which page? PICKLES: It's figure 1 so it's the first coloured map that follows - it's the report in response to comments by DECC. It doesn't have a page number - it's just called figure 1. It's the second‑last page, the colour plan with the blue and yellow markings. WITNESS TREWEEK: Yep. PICKLES: The vegetation from the different communities shown in both blue and yellow on that plan is extraordinarily coincident, is it not, with the extant areas that remain in that north‑eastern area of the site? The Areas of vegetation are virtually the same. WITNESS TREWEEK: Are you referring to the outline around the patches? PICKLES: Yes. WITNESS TREWEEK: So, from that broad scale, they look relatively similar, PICKLES: But they are - the mapping that you and Mr Garvey has done, and you don't disagree in broad compass with on p 8, is the polar opposite in terms of the community identified for those patches. WITNESS TREWEEK: It's not the polar opposite, I don't think. PICKLES: Well, the patch in the far north eastern corner is identified as Box Gum and it's identified for the purposes of the map on p 8 as being‑‑ WITNESS TREWEEK: So, the map on p 8 basically has a large patch of yellow box that goes on either side of the haul road. The mapping on the joint report is very similar to that but it's a slightly different area. As is the area up here. PICKLES: I think the point is - I know the mapping of the vegetation is very similar, but the point is the identification of those communities is completely different. WITNESS TREWEEK: So, what you're indicating - I don't understand the question. PICKLES: Well, if the conclusions about the communities to which that vegetation belongs is completely different today, but yet the patches are geographically almost the same. It suggests, doesn't it, that the canopy species are the same as they were in 2008. WITNESS TREWEEK: That may well be the case for the stuff that still exists, but due to the fact that the site's been cleared, we don't actually know what was in the area that was cleared. PICKLES: Doesn't it call into question that if a person identified the patches in yellow on figure 1 as being Box-Gum Woodland in 2008, but today those very same patches with the very same trees are identified by you and Mr Garvey as being of stringybark, that there was something completely different about the thinking in 2008 that applied to the yellow patches that have been cleared. WITNESS TREWEEK: So, my understanding is that - having visited the site, that the site is highly variable. I based my opinion on the information that's on page 29, and one of the reasons I based it on that is that I don't understand why the consultant at the time would record eucalyptus melliodora or blakelyi within the area that he had mapped and was going to be cleared if it didn't exist. Because it wouldn't have been any benefit to them to have a known EEC on the site." (Tcpt, 25 February 2021, pp 72(22)-73(38))
10. Part of Ms Treweek's reasoning is that a consultant identifying Box Gum Woodland on the site would be disadvantageous to his client, given the EEC status of the community, and the requirement to offset. The fact that the consultant, Mr Rose, identified Box Gum Woodland meant, in her view, that the identification was likely to be correct.

The identification of the vegetation changes over night

1. The cross-examination of the ecologists extended from the first afternoon of the hearing to the morning of the second day. During the overnight period, the experts were under instruction not to communicate with their clients or each other about potential evidence.
2. On the second day, a new map was presented: "PICKLES: Perhaps I could ask Mr Garvey first, have you got a copy of the draft conditions with the map attached? WITNESS GARVEY: Yes, I do. PICKLES: And as I understand it, you prepared this map last night or yesterday. WITNESS GARVEY: I did. PICKLES: The map identifies - can you tell us what this identifies, different to that which was shown in the map that formed part of the modification application in terms of revised biodiversity areas. WITNESS GARVEY: There's the revised biodiversity area in the eastern portion of the site has been expanded and extended. PICKLES: So that's the purple portion. Is that right? WITNESS GARVEY: Yes. If I can just quickly refer back to‑‑ ACTING COMMISSIONER: That's the areas north of the haul road. WITNESS GARVEY: So, to start with, yes, there's two areas north of the haul road which have been added to the revised biodiversity area. REID: Which plan are we comparing it to? PICKLES: If we compare it with the plan in exhibit B behind tab 3, figure 3.1. WITNESS GARVEY: Which volume is this in? PICKLES: Volume 1 of 2. Figure 3.1, which immediately follows p 8, it is p 9 and 10 follows. WITNESS GARVEY: So, it includes the two additional areas to the north of the haul road immediately adjacent to the existing biobank site. It includes an additional portion of land to the east of the revised biodiversity offset area, between that area and Brayton Road. PICKLES: So, it's a triangular section that extends - where it does a dogleg, it extends out to the road. WITNESS GARVEY: Yes, that's right. PICKLES: But there's a piece excised from the middle of that. WITNESS GARVEY: There is an area that's been excised from that section. That's a fenced off area where there are some sheds and a demountable. PICKLES: I see. REID: Have you changed the classification of vegetation on that plan? WITNESS GARVEY: In the northern portion of the site, yes. Adjacent to some areas that have been mapped as Box-Gum Woodland adjacent to Brayton Road we've included some additional areas of derived native grassland, both in low, moderate, good condition. REID: So, previously, when you put you prepared figure 3.1, you said that was Broad‑leaved Peppermint, did you? WITNESS GARVEY: That's correct. REID: You have now changed your mind and all of a sudden, it's Box-Gum Woodland. WITNESS GARVEY: It was based on reviewing some data last night that's collected as part of the biobanking agreement. Because we collected data from over a broader area and that revised mapping, which is more recent mapping indicated that that area was more likely to be, based on landscape position - it slopes down towards the north portion of the site. So, it's a lower to mid‑slope location and it was more likely to be Box-Gum Woodland based on that landscape position. REID: That changing classification means that you need to provide less biodiversity area than if it was Broad‑leaved Peppermint. WITNESS GARVEY: No. Depending on the outcomes of the expert report about whether community 2 is classified as Box-Gum Woodland, or not. REID: That wasn't my question. The comparison between these two communities - so, 3.1 and figure 1, by reclassifying that vegetation‑‑ PICKLES: Which vegetation are we talking about? REID: All this changing. PICKLES: I'm not sure - it's slightly confusing because you seem to have swapped over the colours attributable. WITNESS GARVEY: Sorry. PICKLES: Yellow box was yellow and it's now purple. I think that's the part that is confusing me anyway. So, which bit are we talking has been remapped? WITNESS GARVEY: It's in the northern portion of the eastern site. So, the larger area. PICKLES: Which is marked in figure 3.1, there's an area in the northern finger that is mapped as Broad‑leaved Peppermint and you've mapped that now it's open grass essentially, but you have mapped it now as yellow box. WITNESS GARVEY: That's correct. PICKLES: That's the only change, is it? WITNESS GARVEY: That's the only change." (Tcpt, 25 February 2021, p 80(30)-82(38)
3. Both counsel commented upon the change in map colours: "REID: Commissioner, I am thoroughly confused by the plan, I'm trying to deal with it on the run. The changing colours is making it somewhat difficult‑‑ PICKLES: It certainly is. It confounded me - I don't know why we needed to change the colours around. REID: There seems to be differences and I am not sure I really should be spotting the difference at the bar table on the second day of the hearing. PICKLES: I think the only thing that's changed in the mapping is this finger here, because that's still purple which means it's yellow box instead of Broad‑leaved Peppermint." (Tcpt, 25 February 2021, pp 83(24-35))
4. The change in colours was one of a number of confusing features in the presentation of material, including the reversal of numbering of the areas and presentation of a number of documents, where the presenting party had the two pence coloured version whereas the other party and the Court had been given the penny plain black and white copies, and lack of familiarity by the witnesses of the site, shown in the passage of the transcript discussing the new mapping when various buildings obvious in the images were mentioned: "ACTING COMMISSIONER: But what purpose do those demountables serve? WITNESS GARVEY: I'm not sure, Commissioner. ACTING COMMISSIONER: I was just wondering with it is regularly used and regularly trafficked. WITNESS GARVEY: I've not seen anyone present at the - the number of times that I've been at the site, I have not seen someone there. But certainly, it looks as though it's occasionally in use, but I am not aware what the use of it is. … REID: So, the access to those demountable areas is through the yellow box, is it? WITNESS GARVEY: I believe it's through the immediately to the east that's mapped as stringybark. I believe the access track goes through that area. But I am certainly not positive about that. The access track out to the haul road definitely runs through the stringybark area, that I am certain of. It's just the track out east towards Brayton Road, I am not certain where that runs. But I believe it's the area of stringybark. You can just see beneath, particularly in figure 3.1, you can see the track a little bit clearer. It seems to run in an almost south easterly direction from those demountables out towards Brayton Road in an east south easterly direction. (Tcpt, 25 February 2021, p 83(12-22), (37-48))
5. Changing the identification of the vegetation would affect what was input to the calculator, and would have resulted in a change in the offset: "REID: And then in terms of the reclassification of some of the Broad‑leaved Peppermint stringybark to yellow box, the effect of that when you have access to the calculator is that ultimately you would require less additional area because you'd end up with more credits when you plug it into the calculator. WITNESS GARVEY: Less, you would be trading between stringybark and box gum. So, less box gum but potentially more stringybark. So, you generate fewer stringybark credits, but you generate more box gum credits, yes. REID: The net effect of that for a practical purpose would be that in terms of the revised biodiversity area, so the additional areas, the applicant would need to provide less of that because of the higher‑grade yellow box. WITNESS GARVEY: It depends on the assumptions that are made regarding community 2. Which I know is not directly answering your question, I am not trying to be deliberate. But under the two scenarios, if community 2 is accepted as Box-Gum Woodland, then yes, it reduces the area that's required. However, if community 2 is mapped, as we contend, that it should be stringybark, then a deficit is not in Box-Gum Woodland, it's actually in stringybark credits. And under the scheme, because Box-Gum Woodland is the same vegetation class but cleared to a higher extent, you can trade - you can offset impacts to stringybark with Box-Gum Woodland credits under the trading rules for the major projects offset policy and the FBA. REID: Ms Treweek, can you answer my question? WITNESS TREWEEK: Yes, it would potentially result in less on the ground area because the Box-Gum Woodland credits are of a higher value. My understanding is that it would result in less area. The credits are, as Nathan explained, able to be traded between each one, but it essentially would result in a less area because Box-Gum Woodland credits are of a higher value as a result of them being cleared." (Tcpt, 25 February 2021, p 84(5-36)) and "WITNESS GARVEY: So, the revised biodiversity offset area is 53.82 hectares and the extent of vegetation within that is 50.63 hectares. PICKLES: The difference between those two figures is accounted for by what? WITNESS GARVEY: It's accounted for by the additional areas to the east and west. PICKLES: I know, but what's the difference between 53.82 and 50.63? WITNESS GARVEY: It would be that excised area. PICKLES: Right. So, what you're really saying is actually it's 50.63 because that area in the middle of that patch with the buildings on it is excised. WITNESS GARVEY: That's correct. REID: Sorry, what's the total figure? PICKLES: 50.63 hectares. REID: 50.63 including the access road. PICKLES: Yes, including the access road but excluding the site of the patch." (Tcpt, 25 February 2021, p 85(15-38))
6. The potential change to the offset area adds further uncertainty to the application.
7. It also weakens the Applicant's challenge to the Ecotone mapping and the claim that 'they got it wrong'.
8. It is to Mr Garvey's credit that he reworked the data and identified a need to alter his earlier conclusions. However, given the lack of access to the original data from 2006 it is not possible to perform a similar exercise for the original vegetation. Mr Garvey's reassessment was apparently based on an overnight reconsideration. I would be concerned that a longer consideration might have resulted in further corrections.
9. Mr Rose is an experienced ecologist and he and his team were obviously familiar with the site for a longer period than just the two days in January 2006 when sampling of the vegetation took place. Mr Garvey now agrees that there is more Box Gum Woodland on the site than he had earlier thought.
10. Ecotone had taken a conservative approach to its assignation of the DNG on the site, but an approach that was not unreasonable in the circumstances, and one which was supported by the advice provided by the then DECC.
11. In my opinion, the Applicant has not met the 'persuasive burden of proof', and has not made good its claim. In the absence of more evidence, I am not prepared to overturn the original Ecotone conclusions, and so do not adopt the Applicant's position as articulated by Mr Garvey.
12. In reaching this conclusion I am not saying that there is no possibility of Ecotone having been in error, but that the available evidence does not permit Ecotone's conclusions to be disproved. It remains open to the Applicant to make further modification applications on this aspect of the existing consent, or on any other aspects, and if further applications are made these will be assessed on the basis of the evidence presented to support the case.

The determination of required offset area

1. The Applicant's argument that the offset ratio should be reduced does not rely solely on a change in the definition of the Box Gum Woodland ecological community. Raising the definition issue was a consequence of the interpretation of the 2020 Final Determination by Mr Garvey, an interpretation that I do not support. Although while under cross-examination, Ms Treweek seemed to agree that the vegetation did not meet the requirements for canopy composition, she was clear in accepting that the Final Determination acknowledged the canopy need not be present, and also that that there was evidence of past removal of trees (although the species concerned had not been identified), and overall, her responses did not support Mr Garvey's interpretation.
2. If a need to change the offset area because an asserted change in the characterisation of Box Gum Woodland has not been justified, the Applicant's case advanced two other grounds: that the offset ratio was excessive and that the area of Box Gum Woodland on the site had been overestimated because some of the area that had been previously identified as being the community prior to 2008 had not been Box Gum Woodland.
3. Ms Treweek was questioned by Mr Pickles about the basis for setting offset ratios before the availability of a calculator, with reference to what she had said in par 23 of the Joint Report (Ex 4): "PICKLES: Ms Treweek, in para 23 of the joint report, you contend that the offset imposed in 2008 is not excessive for the time, as it was standard to use lower quality vegetation but larger areas, therefore resulting in a net gain to the environment. Does it follow as a consequence of that, that if one does undertake a more robust methodology, that one might now accept the proposition that at this time one might not seek to achieve larger areas of lower quality vegetation, but rather achieve a net gain through better quality areas of vegetation according to a robust methodology. WITNESS TREWEEK: Yes, I think so. Essentially, the area that was put aside was a large area to cater for it, because it was lower quality habitat. However, you would need an extra area on top of the area that's already been notified to say that you would get that gain. PICKLES: But it must follow, mustn't it, that if now one is capable of making an assessment through the more robust methodology, that one could identify an area of potentially better-quality vegetation that might be more connected to other vegetation, that will achieve a better overall outcome than relying upon two separate areas that had acknowledged poor quality vegetation within them. WITNESS TREWEEK: Potentially, yes." (Tcpt, 24 February 2021, p 45(26-47))
4. I am not aware of there being any document that formally set out an offsets policy that provided for two options - larger areas of poor-quality vegetation or smaller areas of higher quality - and the parties did not make reference to any such document. I am aware that the Department did in the past support larger areas of poor quality being chosen as offsets because, if managed and rehabilitated, they could eventually result in large areas of higher quality ecological communities. Such an approach would depend on there being methods available to rehabilitate the required community successfully and that the methods could be consistently applied.
5. Exhibit 6 includes the FBA. Included within the document were detailed specifications for how offsets were to be determined. However, the document does not include any discussion of the circumstances under which larger areas of a low condition state ecological community might be preferred over small areas of high-quality condition vegetation.
6. As part of the BAM process, required under the BC Act, data are entered into a calculator, referred to as BAMC, which generates the number of credits required to be retired, and the conversion of credits to the area required as offset. There was a major problem both before and throughout the hearing in that the calculator was not available. The issue was first raised by the Applicant: "PICKLES: There is a set of proposed conditions filed by the applicant yesterday on 23 February - again in two parts - one, which is just the conditions which are to be amended and the other is the full set of conditions. Somewhat unhelpfully, though, I can indicate that we're unable to provide in the modified condition 32, the proposed offset areas in size, because apparently the calculator is down. And has been down for a few days, so we are a little bit unable to provide much assistance other than revised wording, but it doesn't - it identifies - I think it should therefore be, it might be much the same as what the Minister has provided. Yes, we're just not able to identify the number of credits that accounts for and indeed both the applicant and the Minister require us - based upon para 68 of the joint report to provide a revised appendix 5. But we can't do that until we get the calculator back out, but I don't know when that will be. Maybe the Minister knows, but it's a technical problem at the moment." (Tcpt, 24 February 2021, p 5(23-37))
7. The difficulties raised by the absence of the calculator were of concern to the Respondent: "REID: Commissioner, can I just raise a matter for consideration over the break. I am finding it very difficult to be able to respond to the application without knowing what the applicant's condition looks like. I've made inquiries with my client as to where the calculator is up to, and I understand it has had a catastrophic failure and it's not likely to come online at the moment. My expert says that you can make the calculation and draft the condition as the department has drafted it, but if the applicant contends for something else, I just put it on the table that you may need to adjourn to be able to do that, because I don't think I can proceed in this nebulous space without knowing what the application is and how I respond to it. PICKLES: Well, I can be clear about that I contend for the calculation in para 60. But I can't identify other than in very general terms, what that might look like on the map, that's the problem. REID: I appreciate the difficulty and I understand that the best endeavours have been made to look at the calculator. But until I can understand what that area is that the application is for, and how it's been arrived at, I would find it very difficult to interrogate or at least understand what it is. PICKLES: Well, I agree that there's a problem. And I don't know that I can solve it until the department gets its calculator up and running. We would like to do the calculation as well because we have a joint report, and ever since the joint report, we haven't been able to calculate what that outcome is because the calculator has been down for some weeks I'm told. ACTING COMMISSIONER: It's a problem of relying on black boxes, and if you knew what was in the black box, given that we are dealing with relatively small areas, it's probably possible to do it by hand if you knew what was in the black box. Whether or not we actually reveal that information, I don't know. REID: I think it's more the applicant saying what they're going to input into the black box and then what the black box spits out, and that's what I'm particularly interested in." (Tcpt, 24 February 2021, p 24(12-45))
8. The 'catastrophic failure' and the length of time which was required before the problems could be rectified would have been a concern not only to the parties in this matter but to consent authorities and applicants in possibly many other matters then in progress. It is not a problem that was created by either of the parties, but the exact nature of the problem and why it took so long to repair was not something that was explained either to the parties or to the Court. Given that so much depends upon access to a functioning calculator it is to be hoped that it is not an issue that recurs.
9. Ms Reid was concerned that depending on what transpired when the calculator became available the Applicant might seek to amend the application. "REID: Commissioner, I'm a little troubled by the applicant's draft conditions. The application was very clear and that was to have a new condition 32, and in the application, it sets out the minimum size hectares. So, that column is filled in in the applicant's application. And that's the basis upon which these proceedings are before you this morning. Para 68 doesn't provide a different calculation. It doesn't have any agreement as to a different area that is contended by the applicant and without knowing what the application is, the application that's before the Court is the one that should be prosecuted by the applicant. If they seek to amend the application today, then we ought to be on notice of what that is and the basis upon which the amendment is contended. But at the moment, the application is for a biodiversity offset area of the Box‑Gum Woodland in 14.24 hectares, Broad‑leaved Peppermint in 25.31 hectares, which is a total of 39.55 hectares. If that's different, we really ought to know because it should have been put in the joint report and an application to modify may - " (Tcpt, 24 February 2021, pp 5(39)-6(5))
10. Mr Pickles was of the view that there could be agreement on the number of credits required. He pointed out that in the Joint Report of the ecologists (Ex 4) there was agreement on the number of credits required under two scenarios. The larger number of credits was that required if the area of Box Gum Woodland identified in the Ecotone/Biosis reports was assumed to be correct and the second, a lower number of credits, if the Applicant's position which involved identification of a smaller area of Box Gum Woodland was adopted.
11. He was of the opinion: "…That's the problem. I'm not I'm not formally amending my application; I'm just proposing a set of conditions which will ultimately reflect the applicant's position from the joint report. That's essentially it. Which I can't do. REID: Which is an amendment to the application. So, the application before the court was set out so that we knew precisely what the biodiversity offset area was going to be. There's no mention of any area in the joint report, there's no changed position. There's a throwaway line in the last paragraph saying that you might be able to find other offset areas. I don't know the basis upon which this calculation is being made and is going to be tended to the Court. And there's no information to that effect in the joint report that would help me to answer the case that the applicant proposes. ACTING COMMISSIONER: Presumably when we have both the ecologists before us, we can question them as to what was behind that particular statement. REID: I would be somewhat troubled by that. I shouldn't be finding out for the first time in the witness box what the application is. It should be set out clearly in the joint report and clearly in the conditions. If that's not the application, then I'm ready to go on the basis upon which we're here today. But if there is an amendment to be made, it shouldn't be made in the witness box. PICKLES: The joint report sets out a set of calculations which are agreed between the experts as to the number of credits that would be required, depending upon which assumption is accepted as to whether or not the community 2 aligns with the Box‑Gum or whether it aligns with the Broad‑leaved Peppermint. And so those numbers have been generated and calculated between them. The question then arises, which we can't at the moment answer, is what area in hectares that results in. Because it requires the calculator. And the calculator's down, I'm not I'm not proposing to quibble with the position at which the experts have got to. If that theoretically requires an amendment of my application, so be it, but I can't put it in in the terms as it appeared on p 10 of the application itself, because it requires a calculation to be undertaken, which I can't do. That's all. We can get to a point of understanding how many credits are required. But how that manifests itself in the outcome of hectares is difficult to determine." (Tcpt, 24 February 2021, p 6(10-49))
12. However, there was no agreement between the ecologists on the area of offset which would be required under either scenario. This was because there was disagreement as to how the calculations should take into account the condition of the vegetation and what offset ratio was regarded as appropriate. The offset ratio is the ratio between the area of offset required to the area of community lost as a result of the development.
13. The ratio required has been a matter of debate in offset schemes globally. Mr Pickles rightly points out that in the early days of offset schemes there was no articulated basis for favouring one offset ratio over another. There was general agreement worldwide that the ratio needed to be greater than one, but there has been no agreement on how much more than one. The numbers chosen often seemed arbitrary. Mr Pickles suggested that with the advent of the calculator there was now an objective measure. The calculator will, if all the assumptions built into the input variables are accepted, provide the same area if the calculation is repeated. However, this does not mean that there may not be arbitrary assumptions made in determining the input variables.
14. The offset ratio applied in the conditions in the 2017 judgment and in the original 2008 decision is between 18 and 19 to 1, and this was argued by Mr Pickles to be too large a number. Mr Garvey made reference to the range of offset ratios which had been applied in his experience: "WITNESS GARVEY: "The additional offset requirement for the further conservation of 2.28 hectares results in an offset ratio of 2.28 hectares to 0.6 hectares, or 3.8:1. This offset ratio reflects contemporary offset requirements, which are, in my experience, in the magnitude of 3:1 to 6:1 for the majority of projects." So, I'm not saying - my intention that that sentence is and that paragraph is not to indicate that they were they were necessarily calculated using a more contemporary framework, but merely that they reflect a more contemporary offset ratio. REID: So, you haven't gone back and checked the calculation, but on your understanding of a contemporary calculator, it sounds about right. WITNESS GARVEY: Sounds about right. Yes." (Tcpt, 24 February 2021, pp 36(37)-38(3))
15. Mr Garvey read from a letter which he had written to Gunlake which was in Exhibit C at Tab N. Mr Garvey was not questioned on his experience - was his statement based on the ratios applied in cases he knew about from approvals recorded in publicly available documents, or on matters which had personally been involved with as a consultant? Was the cited range only for matters involving Box Gum Woodland or did it apply to all cases where offsets had been determined for a wide range of ecological communities? The range of offsets requirements was said to have been applied 'for the majority of projects', but the range for all projects was not given. The Applicant did not refer to any compilation of statistics on offset ratios
16. In the NHVSS matter, which involved Box Gum Woodland, an offset ratio of 10:1 was included in the conditions (Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council & Stoneco Pty Ltd (No 2) [2010] NSWLEC 104) (NHVSS (No 2)).
17. The offset area included Box Gum Woodland in good condition as well as areas of poorer condition. Importantly, however, the Court accepted an area offset proposed by the ecology expert for the proponent of the quarry (Stoneco); the ratio was not one determined and imposed by the Court. In the early years following the listing of Box Gum Woodland determination of what was an appropriate offset ratio involved application of intuition and experience, rather than through the workings of a model. This is not to say that the process did not involve collection and consideration of plot data. In NHVSS, although the parties differed in their assessment of the value of the vegetation, the experts of both parties were experienced botanists and their recording of vegetation data from sample plots reflected a high level of plant identification skills.
18. Although the parties referred to the first NHVSS judgment they did not refer to NHVSS (No 2) which discussed the lengthy conditions, including the offset requirement, and to which the final conditions were annexed.
19. In the present matter the offset ratio originated in the 2008 Consent, but with the subsequent expansion of the quarry and associated works a larger area of vegetation was directly impacted and the area of required offset was slightly increased. Based on the reconsideration of the original Ecotone/Biosis reports, EMM raised concerns about the original identification and considered that the area ascribed to Box Gum Woodland was an overestimate of what had likely been the vegetation present in 2006 (when the original surveys were undertaken). Given that most of the clearing of vegetation had occurred when the quarry was first established, and that the original survey data had not been located and so could not be validated, the position reached by EMM (which was accepted by the Applicant) was based on extrapolation from a reconsideration of extant vegetation following site inspection of areas in the north east offset area, and extrapolation to what had been the original cleared area, taking into account the original topography and what was considered to be the relationship of occurrence of Box Gum Woodland to different landscape settings. Notwithstanding that they raised the issue, ultimately the Applicant did not press the point but accepted the higher offset ratio.
20. Today, the required area of potential offset is generated through BAMC. The choice between the two options is not made by the calculator per se, but the choice of the variables to be input into the calculator can result in larger or smaller areas of offset.
21. The identity of the community prior to development, its condition and its areal extent would be included in the inputs to the calculator.
22. Box Gum Woodland occurs over a very large geographical area but there is agreement that because much of the area was affected by post-colonial expansion of agriculture the condition of most of the stands of the community is poor. Stands that would be assessed as being in good condition are rare, and are unlikely to be able to be part of offsets because they are reserves of some sort or subject to management agreements which already protect their values. Condition is not a factor which excludes particular stands from being part of the CEEC under the BC Act. Despite the poor condition of much Box Gum Woodland, stands may still have features of conservation value, such as the presence of old mature trees that may be important genetic resources and provide habitat for fauna, and stands where trees are now absent but where native ground layer species are present, may still be capable of rehabilitation.
23. Both experts were questioned on how decisions on management could affect the outcome from the calculator.
24. Ms Reid questioned Mr Garvey about passive and active management actions: "REID: You've prepared some calculations on the basis of passive management actions. WITNESS GARVEY: That's correct. REID: What are those passive management actions? WITNESS GARVEY: Passive basically is securing the site and then taking a minimal amount of management required under the biobanking assessment methodology. REID: How does one input that into the calculator? WITNESS GARVEY: You input the landscape values data, the plot data and you accept the gains that occur in biodiversity values or vegetation integrity site value score without any manipulation of that data. You don't assume there's any additional gains that are had. So, you're basically accepting the results - to use the Commissioner's words - you're accepting the results of the black box. REID: Would there be weed management? WITNESS GARVEY: Minimal. REID: And how does one understand - if the Court were to accept your calculation, and they accept that there is to be passive management, what would the Court be expecting the proponent to do on the site with an obligation for passive management? WITNESS GARVEY: It would be minor [weed] management, natural regeneration, rather than assisted. They're the two key aspects of the active management actions that we propose later in the joint report. REID: Would there be fencing to stop grazing? WITNESS GARVEY: There would be fencing, yes. REID: None of that is in your proposed condition, is it? WITNESS GARVEY: Sorry? REID: None of those measures are set out in the condition. WITNESS GARVEY: No, because they're fairly standard management actions which occur under either a stewardship agreement or a conservation agreement or even a wildlife refuge agreement. There is some level of fencing and some basic level of management is stock standard across of those. REID: If one was to give effectively a discount because of management actions taken on the land, you would expect there to be a condition of consent that requires those management actions to be undertaken. WITNESS GARVEY: I would. I think that would be reasonable. Yes. REID: And you haven't drafted any condition that sets out those passive management actions? WITNESS GARVEY: Only in the wording of the drafting, which I believe refers to the development of an agreement to the satisfaction of the secretary and the department or the office. REID: No, this condition is very new to me. So, we just have to bring it up. So, in your draft of the conditions, you would rely upon the secretary in the OEH to tell you what management actions need to be undertaken to be able to achieve the credits that you've input? WITNESS GARVEY: That's one way of dealing with it, yes. REID: And in terms of those passive management actions, is it just weed management, natural regeneration and fencing that you've assumed as part of the passive management? WITNESS GARVEY: No, the basic requirements of the biobanking assessment methodology are broader. They include things like feral species management, management of fire, management of human disturbance, management of grazing - they're quite broad requirements under the biobanking assessment methodology, including some additional items - a standard. REID: On the face of this condition, if the Court were to impose it, it wouldn't know what actions are proposed to be undertaken. WITNESS GARVEY: I think it's a fairly generic condition that goes across New South Wales, that that's the case of the majority of consents or projects we're involved with, is they will normally state something like an agreement needs to be developed to the satisfaction of, and then the outcomes of that are that those additional management actions are included within those agreements, conservation agreements or stewardship agreements or biobanking agreements. It's very rare and I'm not aware of any projects I've been involved with where the management actions are stipulated within the consent. REID: If the Court was to have certainty that you could achieve the credits that you require, they are on the best‑case scenario of a - let me just use the words that you used in the report - "Minor active management actions." WITNESS GARVEY: That's correct. REID: So, is there any definition of what a minor active management action is? WITNESS GARVEY: Not in the report, but I'll be happy to provide some commentary on that if it pleases the Commissioner. REID: So, you haven't put in the joint report what you would do to achieve the discount? WITNESS GARVEY: No, but the assumptions that underlie - the management actions that underlie the assumptions in the joint report are merely some additional [weed] management, given the issues, particularly around serrated tussock and blackberry that are occurring across the site and then some assisted regeneration, rather than natural regeneration - so, planting. These were actions that were included within the biobanking agreement for the Gunlake site. REID: And you understand the biobanking agreement is a separate. agreement to the condition of consent. WITNESS GARVEY: Yes, I do, yes. REID: And if the Court were to approve this modification, you're saying to the Court that it ought to give a fairly heavy discount on the credits that would otherwise be required, with no action. WITNESS GARVEY: Yes. REID: And the Court on the basis of the joint report and the condition as drafted, has no idea what those management actions are, just that there would be a later agreement when the OEH and the secretary tells the proponent what they need to do. WITNESS GARVEY: That's correct. It would be proposed as part of the agreement, yes." (Tcpt, 24 February 2021, pp 42(1)-44(33))
25. Mr Pickles questioned Ms Treweek: "PICKLES: Moving on from that then and looking at that calculation that that's been undertaken, and it doesn't matter whether you make the assumption of Box-Gum Woodland or Broad‑leaved Peppermint, but you then come up with a calculation that varies depending upon whether you have only passive management or active management. Now, it seems as though from par 61 that you have at least some understanding of what minor active management actions might involve. Is that correct? WITNESS TREWEEK: Well, I have a basic understanding of what minor management actions currently involve. Yes. PICKLES: Would they be something specified in the kind of security agreement anticipated by condition 33, or would something more than that be anticipated by condition 33? WITNESS TREWEEK: Essentially what would happen is that you would make sure that you understand the level of conditions and the management actions that are going to be put on that site. And normally you would put that in the biodiversity offset strategy, which is I think condition 33. The offset strategy would put in detailed management actions. Some of them may be passive, which is minor weeding, but you would actually require - most of the time in the offset strategy, it just says they're passive management actions, because they're the ones that don't normally cost a lot of money. PICKLES: That's fencing, for example, and preventing stock from walking through. WITNESS TREWEEK: Fencing to identify the site on the ground, keeping stock out, controlling the noxious weeds. PICKLES: When it comes to active management, isn't that also something that might be covered by the kind of thing anticipated by condition 33, that is making suitable arrangements for the long‑term security and funding for the area? WITNESS TREWEEK: It wouldn't be assumed. No. PICKLES: Would it? I see. WITNESS TREWEEK: Because then there's a separate process that needs to go in to ensure the long‑term protection in perpetuity to get that. So, you can have an offset strategy that doesn't necessarily involve in perpetuity protection. PICKLES: I see. Which would be a biobanking strategy you mean - a biobanking agreement, as opposed to a conservation agreement of some kind. Is that the proposition? WITNESS TREWEEK: Both of them have in perpetuity agreements, but you can have an offset strategy that doesn't - that may be written into a condition that doesn't necessarily require an in-perpetuity agreement. PICKLES: Right. But condition 33 in its terms, when granted, required, "Unless otherwise agreed with the secretary, the applicant must make suitable arrangements, provide to the long term‑security and funding for the biodiversity areas identified in table 7B of condition 32" - sorry, identified in condition 32, 7B is our addition. And then the note to the condition specifically says, "Mechanisms to provide the appropriate long‑term security included biobanking agreement, a voluntary conservation agreement or an alternative mechanism." It sort of anticipates, doesn't it, that the detail of what management measures will be taken to secure that for the longer term will be the subject of an agreement with the secretary? WITNESS TREWEEK: That's right. At the time when that condition was written for that particular - and that was because there was an option to undertake either a biobanking agreement or conservation agreement. PICKLES: So why then in the proposed draft conditions, do you think, does the Minister propose that condition 33 be deleted? What would be the benefit in doing that? I don't know whether you've got a copy of exhibit 5. WITNESS TREWEEK: I have probably got them electronically. PICKLES: This copy might do the trick. This is a slightly earlier version - this is the version that was filed in February, that the position is same. Relevantly to this question. So, the proposed conditions in respect of condition 32 would see the numbers adopted there would reflect what you and Mr Garvey have calculated in para 58. But then it says, "delete condition 33", and I'm just wondering, wouldn't that leave the land without the benefit of a condition requiring its long‑term protection? WITNESS TREWEEK: Well, according to the new condition 32 it says, "The retirement of credit must be carried out in consultation with BCS and in accordance with the biodiversity offset scheme of the BC Act. And that's where the - so that the moment the offset scheme requires, almost mandated biodiversity stewardship agreements and therefore the long‑term in perpetuity protection of that site would come in the form of a stewardship agreement. PICKLES: Right. And so, the stewardship agreement would contemplate detail about whether it be passive or minor active management on the one hand, or alternatively more active management on the other hand. WITNESS TREWEEK: Correct. And that would be part of the stewardship process. PICKLES: If that's a condition and that's reflected in - you say it's now reflected in condition 32, why wouldn't you assume for that purpose that for the purposes of calculating the number of credits or rather the revised biodiversity area credits generated, why wouldn't you assume active management? WITNESS TREWEEK: Well, I wouldn't assume active management because active management in most cases involves an extra cost to the developer, to the to the person that's undertaking the stewardship site. So, when you when you actually have those credits and you're managing the stewardship site, there is a requirement, if you've got that many credits to undertake that active management, which is an extra cost. That extra cost is not necessarily - not all people who have stewardship agreements want to undertake that extra cost. Which is why it's in there is an extra, it's not always assumed. The active management only comes into play when the credits are retired or sold, because of the cost that goes along with it. So therefore, the base case from a credit perspective, is to assume the standard response. And then what you would do is add - if the proponent‑‑ PICKLES: Opposed active management. WITNESS TREWEEK: ‑‑yep, had the contract to undertake it, then you would go through that process. PICKLES: But that would mean you'd have to modify the consent again, wouldn't you, to reduce the‑‑ WITNESS TREWEEK: Well, no, because if you‑‑ PICKLES: ‑‑number of credits required under the consent. WITNESS TREWEEK: No, because under normal - no, because what we're talking about is, we have an area of land that at the moment generates as a result of the vegetation and the quality, generates a certain amount of credits. Essentially, what I would assume is that that land will be fenced off and undertake those passive actions, and until there is a requirement for active management to be undertaken, that's when you would do the active management. But you can't enforce - so I would start with base case. And then if the proponent chooses to go into active management, then that would be another - it's a separate process. PICKLES: I'm just I'm just wondering if, for example - so your proposition is that we could discern - determine an area now for offset. WITNESS TREWEEK: Yep. PICKLES: And that area would be fixed and determined by reference to a base case scenario. But if, for example, Gunlake wanted to undertake active management, it could come back later and apply through some other means to re‑fence the area so that some of it is no longer within that biodiversity offset area? Is that your proposition? WITNESS TREWEEK: No, it's already - if it's in perpetuity, it's set there. PICKLES: I'm just I'm just trying to understand how that works, because it would mean, it would simply leave no opportunity for calculating an area based upon active management. WITNESS TREWEEK: Because it's not about the calculation of area. The FBA calculates a level of credits. And it's not area. it's based on credits and the improvement in that credit value. So, it's not about an area, but the amount of credits that you retire. PICKLES: But in order to identify - I mean, the current consent and indeed the consent anticipated by the Minister's draft conditions, anticipate the identification of an area which is to be the offset area, and that's to be marked on a map. And that's an area that reflects the number of credits calculated, doesn't it? WITNESS TREWEEK: Once you determine the credit requirement, then you need to go out and find the area that makes that credit requirement. PICKLES: Is your proposition then that there not be a map or an identified biodiversity area, but rather the condition leaves this question for a future date for the proponent to identify that area, by reference to either a biobanking agreement or some conservation agreement, which will at that time identify the level of management which will be attendant with it. WITNESS TREWEEK: That would normally be the case. PICKLES: All right. It just seems that that would leave potentially a dispute, wouldn't it, between the secretary and the applicant as to how much area is to be retained and how much of it is to be undertaken under active management or passive management. WITNESS TREWEEK: I don't see that there would be a dispute, it's more about the amount of credits that's created at the particular biodiversity site. So, you know, this is this is an interesting situation. Normally, you would have the ability for the proponent to purchase the credits in a separate process essentially. They can purchase them off the market, they can set up their own stewardship agreement or they can pay into the trust. That's the standard approach. And they would normally just pay the base amount. PICKLES: I see. But if the conditions of consent required - what if the conditions of consent were to require, as they effectively do now, the security of the biodiversity areas with an agreement with the secretary, and it was also to impose a requirement that that agreement in the future or that arrangement include active management. Is that a possibility? WITNESS TREWEEK: Yes, it is a possibility, but I can't predict the future. PICKLES: I can sort of understand one wouldn't want to commit - a proponent in circumstances where the proponent wasn't contemplating the provision of those offset areas on its own land because then you're someone offsite to those kinds of measures and therefore there's some uncertainty about that question. But in a context such as this one, where there has throughout the history of Gunlake's development, there's been confidence expressed by the department in the ability to meet those offsets within land owned by Gunlake. Why couldn't we devise, or divine at least, a requirement to enter into those arrangements pursuant to a condition of consent? With long‑term security and active management on the land identified, whatever that land be identified." (Tcpt, 24 February 2021, pp 46(36)-50(40)) and "Counter to that, in a circumstance where it might be contemplated that the biodiversity area is within land controlled by the proponent, why couldn't the conditions be more prescriptive by identifying not only the credits generated, but that there be a conservation agreement of some kind and that that will be subject to active management? WITNESS TREWEEK: You potentially could do that. I must say, I don't write the conditions and I'm not the consent authority. They're the consent authority to write them. I think what you're saying is, could you not write conditions that were prescriptive enough to say that? Yes, you possibly could. However, that normally require a significant level of detail. So, when that's written into the conditions, what we would request is a significant level of detail on - if you were going to do active management, for example - where the planting was going to be, how much planting was going to be there, what species you were going to plant, all those things would go into the offset strategy and the detail. A lot of the time they referred to as veg management plans. PICKLES: I suppose that brings me to the next question. The difference between you and Mr Garvey in respect of para 62 and 62 of the joint report, there seems to be an ability to calculate credits depending upon whether there's no active management or whether there is active management. So, if there is a calculation based on active management, what assumptions are you making to generate the results that comes in para 63? WITNESS TREWEEK: I didn't make any assumptions with the active management case. We didn't agree on that. I said my understanding was that the calculation should be based on the base case. PICKLES: I understand you say that. WITNESS TREWEEK: There is no assumption from my behalf. PICKLES: I know, I understand that. My question is, does the model not allow you to make some - does it not allow you to input certain factors based upon that? WITNESS TREWEEK: It does allow you to do that. And normally that would be a negotiated outcome. So essentially, the proponent, the person who is undertaking the stewardship agreement would talk to the department and seek advice on what active management can be portrayed on that site. It's a process. PICKLES: And that's why you say that comes out of the biobanking agreement or the conservation agreement. WITNESS TREWEEK: Correct. PICKLES: Because it would be done at that point in time. WITNESS TREWEEK: Correct. And then you would calculate your final credits at that point in time. PICKLES: I understand. Except that for the purposes of determining a consent, one has to arrive at a fixed number of credits in order to identify with precision what it is that one is requiring. Left in the way that you propose it, it could mean, can't it, that somebody has to come back and modify the consent because they've come to an agreement which is different to that which was foreshadowed by the consent. WITNESS TREWEEK: No, because the consent conditions, as they are currently written under - in other determinations, are written based on the area of the impact calculations and the amount of credits that determine from the area of impact. So, the area of impact is‑‑ PICKLES: So, you just need to be neutral in credits, and that's it. WITNESS TREWEEK: Yep, it's neutral in credits. It's based on credits and the credits that the plant community types that make up those credits. And that's how the conditions are written. That's pretty standard now. (Tcpt, 24 February 2021, pp 51(3)-52(21))
26. These exchanges indicate that the potential cost of management of offsets in order to maintain and improve their conservation value has been an important consideration to both applicants and consent authorities in determining offset ratios, particularly for Box Gum Woodland because of the poor condition of most stands. Applicants are likely to favour options involving smaller areas of stands at the higher end of the condition spectrum, where management requirements might be less (and hence be less costly), for offsets.
27. Mr Garvey was asked to indicate what variables he had entered into the calculator: "REID: … The real question should be what was input into a calculator for the assumption of the passive or active management of the site, not what you could do in the future. But how did you get to that number? What are those assumptions? WITNESS GARVEY: I agree, and I think that that's informed by the management actions that you undertake, because they then inform the way that you modify the data in the calculator. So, if it pleases the Court, I'd like to outline what those actions are and how they influence the outcomes of the calculator. REID: And these are the actions that you've been put into the calculator. WITNESS GARVEY: They are, yes that's correct. REID: So, when you say what they could be, you mean what you put in there, not what you think it might be in the future. WITNESS GARVEY: Yes, that's correct. What the actions propose to achieve the outcomes in the joint report. REID: And do you have any notes of what you input into WITNESS GARVEY: I don't, not in front of me. No, but they were relatively simple because they were restricted to two key management actions. They were undertaking some additional weed management, particularly of problematic or priority [weeds] across the site, including blackberry and serrated tussock. And that was resulting in some increased ground cover scores and so modified the ground cover attribute in the calculator and pushed it up one level. There's three levels in the calculator - or four sorry. Nought, one, two and three. And so I, depending on the score, took it from either a one to a two or a two to a three, for example. REID: And this is a calculation, you both did it together. WITNESS GARVEY: That's correct. WITNESS TREWEEK: We didn't do the calculation together, no. I looked at the calculations WITNESS GARVEY: No, sorry. Yes. WITNESS TREWEEK: We didn't do the calculations together and I asked Nathan what inputs he put into it, and I, at the time of the joint conference indicated to Nathan that I didn't agree with the pushing of the scores upwards, as I didn't think that it was right to assume that those active management actions would occur on the site, without a level of certainty about what they actually were. So, I didn't agree with the active management case scenario. WITNESS GARVEY: If I may finish the outline of the actions and how that influenced the final scores. The only other action that was assumed in those calculations was supplementary planting of over storey species in areas of dry grassland, and that resulted in increased over storey scores within the calculator. They were the only two active management actions that were assumed as part of those calculations, and they are actions that are outlined and were included - the same method was utilised in the biobanking agreement for the Gunlake site." (Tcpt, 24 February 2021, pp 52(34)-53(40)
28. I accept that the offset ratio of more than 18:1 is high but in the absence of data about the range of offset ratios which have been applied, both to other examples of Box Gum Woodland, and for other ecological communities, I am not able to conclude that it is a unique outlier. As Box Gum Woodland is listed as Critically Endangered, a high offset ratio is not manifestly unreasonable.
29. Obligations which might arise from conditions requiring the setting aside of offsets and their long-term management are not the only obligations which might apply to a landholder. In the present matter, it is agreed that the condition of the vegetation on the site is not high and one reason for this conclusion is the presence of a large number of introduced species. Particular mention was made of two weeds, serrated tussock (Nassella trichotoma) and blackberry (Rubus fruticosus agg.), both of which are Weeds of National Significance. Presence of both species without control measures further diminishes the condition of stands of vegetation as they can outcompete native plant species and reduce the value of the land both as habitat for native fauna and for grazing purposes. Both species produced large numbers of easily dispersed propagules and their presence on land is a threat to neighbouring properties so that landholders may be required to control and reduce both species to reduce the risk of spread to neighbours' properties. Under the NSW Biosecurity Act 2015 there is the ability for orders to be issued to landholders to control both species on their land. I asked Mr Pickles a number of times about the obligations on the landholder under the Biosecurity Act, and he agreed that they would apply to Gunlake, as they would to any other landholder.

Submissions regarding the modification application

1. Section 4.15(1)(d) of the EPA Act requires the consent authority to consider submissions 'made in accordance with this Act'.
2. The submissions received were included within Ex 2 at Tabs 26-36. Simultaneously with the display of the modification application under consideration in this matter, another modification application from Gunlake was under consideration involving the same site and the same 2017 Consent and this had created some overlap in submissions. Ms Reid advised that following contact with authors of two of the submissions by her instructing solicitors, a submission from Dr Humphreys (Tab 35) related entirely to the other matter and was withdrawn from the bundle, as was most of Tab 36, a submission from Mr Mitchell (Tcpt, 24 February 2021, p 3(13-25)). The earlier submissions from Dr Humphreys at Tab 26 and Mr Mitchell's submission behind Tab 30 remained in their entirety in Ex 2.
3. Behind Tab 27 was a submission from Mr Beattie. Mr & Mrs Beattie had subsequently provided additional documentation, which, by agreement, was added to Tab 27 (Tcpt, 24 February 2021, p 3(1-9)). This additional material was not given folio numbers, so when reference is made to this material I will use the internal pagination.
4. The ecology experts were not taken to the public submissions so that there was no discussion by the experts on a number of points made in the submissions.
5. With the additional material provided the submission by the Beatties (Ex 2 Tab 2) was the most extensive of the submissions received.
6. As with a number of other submissions, the Beatties were concerned by the impacts of dust, noise, transportation and traffic consequent on quarrying in the Marulan area (which would be more than just a result of the Gunlake Quarry, but Gunlake would be a major contributor.)
7. However, the modification application does not, if it were to be successful, change the operation of the Gunlake Quarry or alter the conditions of consent attached to the 2017 Consent regarding the operation of the quarry. There are therefore no contentions in this matter which relate to these particular concerns.
8. Mr Beattie (Tab 27 folio 874) discussed rehabilitation of Box Gum Woodland on their property - 'in our own personal experience, neither natural nor assisted rehabilitation of Box Gum Woodland has been successful on land severely disturbed by development'.
9. Mr Beattie recounts that in 2011 an easement approximately 600 m x 6 m had been acquired, running across part of his land, by the Highland Source Project. The easement was to accommodate pipelines for raw and treated water. The work on the easement had involved the clearing of some '300 mature trees and grassland on the outskirts of an area of virgin Box Gum Woodland which we had voluntarily protected since ownership'. Photographs 1 and 2 in the additional material added to the submission show Box Gum Woodland elsewhere on the Beattie's property and show a stand of the community in a very high condition state.
10. Rehabilitation of the easement by Goulburn Mulwaree Council commenced in April 2012 and involved planting of 600 tube stock trees (a 1:2 replacement ratio). The Beatties report that the strike rate for establishment was very low with most of the trees 'being destroyed primarily through disturbance by native animals (kangaroos), wind and rain erosion'. At the time the supplementary material was written the Beatties estimated that fewer than 1% of the trees survived and that the regeneration failure was not confined to their property but was more widespread. The Beatties concluded: 'It is not unreasonable to assume the regeneration on sites cleared of natural vegetation at Gunlake Quarry is as unsuccessful as in our experience given the similarity in conditions-ie poor and fragile top soil, rocky subsoil and the prolific numbers of native animals'.
11. 'Is as unsuccessful' should perhaps be read as 'would be as unsuccessful', as rehabilitation by Gunlake is apparently yet to occur.
12. The ecology experts were not asked questions about the macropod population on the subject site, and in particular whether it is such as to impair rehabilitation of native vegetation, either through natural regeneration or by planting, in the absence of measures to reduce the macropod population.
13. Box Gum Woodland has a very extensive geographical distribution and has been a focus of conservation concern since before it was listed as a Threatened Ecological Community. The Beatties have stressed the lack of success of rehabilitation during the Highlands Source Project, but did not provide any information about success, or lack of it, elsewhere. As the ecologists did not address rehabilitation, they did not refer to any studies elsewhere. There are other quarries in the Marulan area, but no information was adduced as to whether those operations involved clearing and offsetting of Box Gum Woodland. If the Beatties' concern that the likely success of rehabilitation of Box Gum Woodland in the local Marulan environment is corroborated, does this mean that rehabilitation is an inappropriate option, or that the conditions would require a carefully monitored adaptive management regime?
14. If the modification application is dismissed, then the existing conditions remain in effect, but rehabilitation might not provide the long-term successful outcomes required. If the application is upheld, the area of offset will be substantially reduced and the outcome in terms of rehabilitation might still be very low.
15. A substantial part of the additional material added to Tab 27 during the hearing is Chapter 10.2-Ecology prepared by the consultancy company GHD for the assessment report for the Highlands Source Project. This includes records of additional threatened species in the Marulan sector of that Project, of which the Beatties have sighted both Glossy Black and Gang Gang Cockatoos on their land.
16. The Beatties make reference to the 2019/20 bushfires which were followed by 'an amazing array of native flowers within the grasslands and understory of our Box Gum Woodland' (page 5 and photos 6 and 7). They consider 'this is a very small example of what we believe would also have appeared on the area of land proposed for clearance by Gunlake quarries'.
17. Although the Gunlake land is within 5 km of the Beatties' property there was no mention of there having been any recent fire on the Gunlake site. Given the difference in past land use and management of the Gunlake land and the Beatties' property, extrapolation of the effect of fire from what happened on the Beatties' land and what could potentially happen in the Gunlake land would need to be undertaken warily. However, the evidence of there being a propagule bank that responded to fire in the Box Gum Woodland on the Beatties' land is significant in suggesting that some sort of propagule bank may exist on the Gunlake site. The same species that regenerated on the Beatties' land may not germinate on the Gunlake land (and might not even have been present at any time) but after a disturbance by fire there could be germination, including of different species. Germination in itself does not guarantee long term establishment and survival.
18. Continuing impacts on residents from increased use of Brayton Road is not relevant for consideration of the modification application. However, the Beatties drew attention to clearing that occurred during widening of Brayton Road and expressed concern that it had diminished the value of vegetation along Brayton Road as a wildlife corridor (p 7 in additional material to Tab 27). Vegetation clearance was carried out by Goulburn Mulwaree Council (Appendix B, p 13 in the additional material behind Tab 27).
19. The Beatties were unsure whether prior assessment had considered the impact of clearing on wildlife, and whatever the assessment process was, it had occurred pre-2015. What is relevant for continuing consideration is that the impacts are permanent. The interconnectivity of habitat within the area has been potentially affected and this needs to be taken into account in predicting the outcome of rehabilitation proposed for Box Gum Woodland or any other vegetation.
20. Those who made submissions are not necessarily opposed to quarrying per se. Mr Mitchell at Tab 30 states that 'I am very supportive of any activity that brings employment opportunities to Marulan and works with the community.'
21. A general theme of the submissions is perceived deficiencies in the public consultation process and the poor provision of information (Mrs Cameron at Tab 26, Mr Smillie at Tab 29 , Mr Mitchell at Tab 30, Mr Wray at Tab 31 and Mr Isbester at Tab 32). There was no response from the Applicant to these statements of concern and I have no way of knowing whether the criticism has substance, but in any case, it is not relevant to my consideration.
22. Those making submissions were also concerned that it was not clear, if there was apparently no anticipation of any development in the area of offset which would no longer be provided, what was the purpose in reducing the offset area (in Tabs 26 (Dr Humphreys), 28, 29, 30, 31 and 32). Again, this is not a matter for my consideration except insofar as it goes to the question of whether or not the development will be substantially the same.

Submission from Goulburn Mulwaree Council

1. The Council's submission was in the form of a motion passed by Council. "A review of the Statement of Environmental Effects prepared by EMM Consulting has been undertaken in relation to the above proposal and a report was considered at the 21 May 2019 Council Meeting. At this meeting, Council resolved: A submission be made to the Department of Planning & Environment advising that Goulburn Mulwaree Council does not object to the proposed Gunlake Quarry Extension Project (Modification 1) application currently on public exhibition. This is subject to the supporting calculations being verified as being in accordance with legislative requirements, best practice guidelines and concurrence of the Office of Environment and Heritage."
2. Council did not oppose the modification application, but included a proviso the calculations in the proposal had been checked and approved by the Minister. The Respondent made clear that there remain differences in position between the Minister and the Applicant. True it is that the parties agreed to the credits required under two different scenarios, but the Minister supports one scenario - that the occurrence and extent of Box Gum Woodland was correctly assessed by Ecotone/Biosis, while the Applicant still holds the opinion that the Ecotone/Biosis study got it wrong. Further under either scenario my understanding is that the parties did not have full agreement on the data to be imported into the calculator to convert credits to area. In this circumstance the proviso in Council's motion is not met, so that the support for the modification application fades away.

Jurisdictional issues

1. Section 4.55(3) of the EPA Act requires that the 'consent authority must take into consideration such of the matters referred to in section 4.15(1) that are relevant to the development'. Section 4.15(a)(i) requires consideration of 'any environmental planning instrument'.
2. I asked whether the Goulburn Mulwaree Local Environmental Plan 2009 (GMLEP) contained any relevant provisions to be considered: "ACTING COMMISSIONER: Just before you go on, there is no place in the considerations for anything in the local environmental plan, is there? PICKLES: No. The LEP which is in the bundle in exhibit 2, and I assume the Minister has incorporated all the relevant provisions of that - there's no special provision, is there? There isn't. REID: There's no special provision, but s 4.15 subs (1) of the Environmental Planning and Assessment Act still applies and you do need to consider it under the LEP. And we have reproduced the relevant parts of it. So, you need to ACTING COMMISSIONER: That would be cl 7.2 of the LEP, I think. PICKLES: I will just find that provision, Commissioner. REID: I just need to check whether the site is on the terrestrial biodiversity map under the LEP. In which case it would be a required consideration. REID: Sorry, Commissioner, probably would have been smarter to ask the expert first. We'll make some inquiries with the GIS Department; it is a little bit difficult to work out if all or part of the site is mapped on it. From what I'm looking at, it appears that it might be a relevant consideration, so we will get a definitive answer for you. PICKLES: We think it does overlay the working part of the quarry, the southern - it doesn't overlay the areas to the north of the haul road, but it does overlay the areas to the south. REID: Which means the Commissioner will need to make PICKLES: He will need to satisfy himself that. 7.2 has been considered. REID: I think he needs to form for himself a positive opinion of satisfaction under 7.24. So, he needs to be satisfied that the development avoids potential adverse environmental impact. Thank you, Commissioner, and I apologise for that omission from the bundle. ACTING COMMISSIONER: So, it may be necessary for you both to make submissions in relation to that, subsequently. REID: And I must say, it doesn't materially change the submissions that I'll ultimately make, but you will need to form that opinion for yourself." (Tcpt, 25 February 2021, pp 102(31)-103(23))
3. There are three jurisdictional prerequisites to be addressed, being those in cl 7.2 of the GMLEP, State Environmental Planning Policy (Mining, Petroleum and Extractive Industries) 2007 (Mining SEPP) and the requirements in s 4.55(2)(a) of the EPA Act that I be satisfied that the development is substantially the same.

GMLEP - cl 7.2 Terrestrial biodiversity

1. Clause 7.2 of the GMLEP is: 7.2 Terrestrial biodiversity (1) The objectives of this clause are to protect, maintain or improve the diversity of the native vegetation, including - (a) protecting biological diversity of native flora and fauna, and (b) protecting the ecological processes necessary for their continued existence, and (c) encouraging the recovery of threatened species, communities or populations and their habitats. (2) This clause applies to development on land that is identified as "Biodiversity" on the Terrestrial Biodiversity Map. (3) Development consent must not be granted to development on land to which this clause applies unless the consent authority has considered a report that addresses the following matters - (a) identification of any potential adverse impact of the proposed development on any of the following - (i) a native vegetation community, (ii) the habitat of any threatened species, population or ecological community, (iii) a regionally significant species of plant, animal or habitat, (iv) a habitat corridor, (v) a wetland, (vi) the biodiversity values within a reserve, including a road reserve or a stock route, and (b) a description of any proposed measures to be undertaken to ameliorate any such potential adverse impact. (4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development is consistent with the objectives of this clause and - (a) the development is designed, sited and managed to avoid the potential adverse environmental impact, or (b) if a potential adverse impact cannot be avoided, the development - (i) is designed and sited so as to have minimum adverse impact, and (ii) incorporates effective measures so as to have minimal adverse impact, and (iii) mitigates any residual adverse impact through the restoration of any existing disturbed or modified area on the site. (Note that the Terrestrial Biodiversity Map was created by the Goulburn Mulwaree Council and is not to be confused with the Biodiversity Values Map created for the purposes of the BC Act.)
2. The Goulburn Mulwaree Council is not the consent authority for the modification application. Nevertheless s 4.15(1) requires the consent authority for the modification application to take into account the GMLEP.
3. The Goulburn Mulwaree Council had made a brief submission (Ex 2, Tab 34 - reproduced at [197]), but this contained no mention of the provisions of the GMLEP.
4. Subclause 7.2(3)(a) requires identification of potential impacts on: 1. 'a native vegetation community'. This is not a term uniquely defined in the Dictionary to the GMLEP, but from the Dictionary to the GMLEP 'native vegetation' takes the meaning in s 60B of the Local Land Services Act 2013: 60B Meaning of "native vegetation" (1) For the purposes of this Part, native vegetation means any of the following types of plants native to New South Wales - (a) trees (including any sapling or shrub or any scrub), (b) understorey plants, (c) groundcover (being any type of herbaceous vegetation), (d) plants occurring in a wetland. … (3) For the purposes of this Part, native vegetation extends to a plant that is dead or that is not native to New South Wales if - (a) the plant is situated on land that is shown on the native vegetation regulatory map as category 2-vulnerable regulated land, and (b) it would be native vegetation for the purposes of this Part if it were native to New South Wales. The wording is not 'threatened ecological community', but 'any native vegetation' (so not including the word 'community'), but as any stand of vegetation is an assemblage of species at a particular location, a stand of vegetation is part of a community even if, from a higher plant perspective, it is a monoculture, but would it extend to DNG? Introduced species are now so ubiquitous in the landscape that, while there may some rare examples of stands of vegetation lacking non-native species, the majority of examples of 'native, terrestrial, ecological communities' will contain, at some localities, a number of individuals of non-native species, and this does not prevent assignation as native vegetation; 1. the habitat of any threatened species, population or ecological community. This would include Box Gum Woodland and Speckled Warbler for which potential habitat might occur; and 2. 'a regional significant species of plant, animal or habitat'.
5. The schedules of the BC Act are statewide in their application. No information was provided as to whether the Goulburn Mulwaree Council has developed its own list of regionally significant species or habitats.
6. Subclause 7.2(3)(b) requires a description of any proposed measures to be undertaken to ameliorate any such potential impact.
7. Subclause 7.2(4) is a jurisdictional prerequisite in that the consent authority must be satisfied, in relation to the matters listed, that development is compatible with the objectives of the clause and with the specific matters included in the clause.
8. Much, but not all, of the subject site is identified as 'Biodiversity' on the Terrestrial Biodiversity Map referred to in cl 7.2(2).
9. Mr Pickles in his written submissions dated 23 March 2021 agreed that cl 7.2(3) is a jurisdictional precondition to the granting of development consent (in par 17).
10. Paragraph 18 of his submissions was: "The Court has since also had the benefit of both the joint expert ecology report (Exhibit 4), and the oral evidence of the ecology experts that although not directly addressing cl 7.2, nevertheless addresses the same subject matter."
11. However, the attention of Mr Garvey and Ms Treweek was not drawn to the GMLEP, and no report addressing the matters referred to in cl 7.2(3) nor the matters to be addressed to the satisfaction of the consent authority referred to in cl 7.2(4) was in evidence.
12. I am not aware of any proposal to restore vegetation of any existing disturbed or modified vegetation on the site (cl 7.2(4)(b)(iii)) - rehabilitation as provided for in the existing conditions is for areas discreetly affected by the approved development. A large part of the site is modified grassland, much of which is DNG forming a ground layer in areas lacking tree cover or having very sparse trees and is possibly derived from what originally was woodland including from Box Gum Woodland and possibly other PTCs.
13. Clause 7.2 has a wider scope than that specified for consideration under the BC Act. I consider that although the experts' consideration in the Joint Report and their evidence in Court is certainly relevant to cl 7.2, I cannot be satisfied, as I am required to be by cl 7.2(4), that all the matters in cl 7.2 have been properly considered.
14. Ms Reid in her supplementary outline submissions of 11 March 2021 addressed subcl 7.2(3) but not subcl 7.2(4): "7. The effect of approval of the application is that none of the Land in Biodiversity Area 1, being land within lot 13 in deposited plan 123374 (the lot to which quarrying is limited) will have the protection of condition 32 which required the protection, enhancement and maintenance of Biodiversity Areas to the satisfaction of the Secretary and (then) OEH. The condition required protection of vegetation and also regeneration and replating of cleared land with a total area of 78.82 ha. … 9. Biodiversity Area 1 includes 'Chapman Creek and tributary' and a riparian vegetation corridor which was required to be protected, maintained and enhanced. In Mr Garvey's statement of evidence (EXH D), he identifies the vegetation in the riparian corridor as being "Community 1 - Riparian Floodplain Woodland - Cabbage Gum/Yellow Box/ Argyle Apple". Whilst the applicant does not seek, as part of this application, to remove vegetation in that area, it seeks to remove any commitment or obligation to protect, enhance or maintain that vegetation." (Cabbage Gum = Eucalyptus amplifolia; Argyle Apple = Eucalyptus cinerea) 10. The development consent was granted after having regard to, and balancing, all of the ecological outcomes with the impacts of the quarry activities. The applicant does not address how the modification application will affect that balancing act…clause 7.2 goes to the broader assessment issues which the respondent says have not been addressed as part of this application. 11. The applicant has crudely considered the application to modify the consent in a vacuum by simply assessing whether the application meets the modern offset calculations. No assessment has been made of the impact of not protecting, maintaining or enhancing the Biodiversity Area 1. 12. The native vegetation community of Riparian Floodplain Woodland located within Biodiversity Area 1 will be adversely impacted as it will lose the protection of condition 32, and in addition, the biodiversity values of Biodiversity Area 1 will not be enhanced by the removal of the condition. The applicant has not proposed any measures to ameliorate that impact, rather it seeks to reduce the area of land to be protected, maintained and enhanced. The Court would not be satisfied, when regard is had to clause 7.2 of the LEP, that the application will not have an adverse impact on the biodiversity values of the Land."
15. Clause 7.2 goes to the broader assessment issues which the Respondent says have not been addressed as part of this application. The ecologists did not address impacts on biodiversity in the broad sense.
16. Mr Pickles in par 22 of his submissions thought that 'The respondent at RSS [12] appears to suggest a more onerous reading of cl 7.2(3) than is what is intended by the clause'. Mr Pickles did not mention subcl 7.2(4). This is maybe because he considered that there is 'no need to propose any ameliorative measures where there is no proposal for vegetation removal'.
17. The objectives of cl 7.2 are clear, but the Court has not had the benefit of any consideration of cl 7.2 by the ecology experts. The wording of the clause arguably goes beyond that in the BC Act, so that the consideration required was more than just of 'the same subject matter' (Mr Pickles' submission par 18) included in the reports prepared for this matter. The specific report specified in cl 7.2 had not been prepared.
18. It is unfortunate that cl 7.2 of the GMLEP was raised so late in the proceedings, but there is no doubt that it sets a jurisdictional hurdle and I am not convinced that the hurdle has been surmounted, so I cannot reach the satisfaction required.
19. I therefore conclude that I do have not have jurisdiction to consider the appeal, which must therefore be dismissed on this ground.

Mining SEPP

1. Unlike GMLEP, the Mining SEPP was included in the Respondent's bundle (Ex 2). The relevant clause of the Mining SEPP was cl 14, which at the time of the hearing read: 14 Natural resource management and environmental management (1) Before granting consent for development for the purposes of mining, petroleum production or extractive industry, the consent authority must consider whether or not the consent should be issued subject to conditions aimed at ensuring that the development is undertaken in an environmentally responsible manner, including conditions to ensure the following - (a) that impacts on significant water resources, including surface and groundwater resources, are avoided, or are minimised to the greatest extent practicable, (b) that impacts on threatened species and biodiversity, are avoided, or are minimised to the greatest extent practicable, (c) that greenhouse gas emissions are minimised to the greatest extent practicable. (2) Without limiting subclause (1), in determining a development application for development for the purposes of mining, petroleum production or extractive industry, the consent authority must consider an assessment of the greenhouse gas emissions (including downstream emissions) of the development, and must do so having regard to any applicable State or national policies, programs or guidelines concerning greenhouse gas emissions. (3) Without limiting subclause (1), in determining a development application for development for the purposes of mining, the consent authority must consider any certification by the Chief Executive of the Office of Environment and Heritage or the Director-General of the Department of Primary Industries that measures to mitigate or offset the biodiversity impact of the proposed development will be adequate.
2. The Mining SEPP has now been incorporated within State Environmental Planning Policy (Resources and Energy) 2021 (2021 SEPP); the relevant clause in the 2021 SEPP is s 2.20. 2.20 Natural resource management and environmental management (1) Before granting consent for development for the purposes of mining, petroleum production or extractive industry, the consent authority must consider whether or not the consent should be issued subject to conditions aimed at ensuring that the development is undertaken in an environmentally responsible manner, including conditions to ensure the following - (a) that impacts on significant water resources, including surface and groundwater resources, are avoided, or are minimised to the greatest extent practicable, (b) that impacts on threatened species and biodiversity, are avoided, or are minimised to the greatest extent practicable, (c) that greenhouse gas emissions are minimised to the greatest extent practicable. (2) Without limiting subsection (1), in determining a development application for development for the purposes of mining, petroleum production or extractive industry, the consent authority must consider an assessment of the greenhouse gas emissions (including downstream emissions) of the development, and must do so having regard to any applicable State or national policies, programs or guidelines concerning greenhouse gas emissions.
3. This differs from cl 14 of the Mining SEPP in the absence of what was cl 14(3).
4. The quarry falls into the category of 'extractive industries', and it is subs 2.20(1) which is applicable.
5. I am not aware of any discussion of the words 'threatened species and biodiversity' that appeared in the Mining SEPP and in the 2021 SEPP, which might explain what the term means. Threatened species obviously refers to species included in the schedules of the BC Act, but ever since the commencement of the TSC Act, the term has been used in an umbrella sense to include threatened species sensu stricto, threatened populations and threatened ecological communities. Biodiversity encompasses biological diversity at three levels of organisation, ranging from the genetic to ecological communities. Threatened species either in the strict or umbrella sense are a component of biodiversity.
6. I interpret 'threatened species' in s 2.20 as applying to scheduled entities in the BC Act at species level and above - which leaves uncertainty as to the meaning of 'biodiversity'. Possibly it has the same broad meaning as when used in the GMLEP, applying to biodiversity at three levels, and encompassing entities not listed in the BC Act schedules.
7. It is not necessary at this time to resolve the meaning of 'threatened species and biodiversity' because the keywords for consideration are 'avoided, or are minimised to the greatest extent practicable'.
8. Mr Pickles in his submissions of 23 March 2021 said: "24. Contrary to the submission at RSS [17], there is evidence that impacts on threatened species are avoided or minimised to the greatest extent practicable. 25. At [68] of the Joint Report, both experts agree that: (a) it is feasible to find additional areas to supplement the revised offset area; and (b) these areas could be located adjacent to an existing Biobank Site (as the applicant has done), providing a large, intact remnant of vegetation and a strong positive conservation outcome. 26. In combination with the evidence of Mr Garvey cited as [19] above, this demonstrates that impacts on threatened species are minimised, including the Speckled Warbler, addressed in AS at [45]-[46]."
9. The quarry pit has operated since 2008 and creation of any quarry involves impacts which could not be avoided - quarrying inevitably involves clearing of land and excavation and removal of material - the focus for assessment of any quarry will be on minimisation, unless there is a strong case based on the nature of the values of the environment which will experience the impact that avoidance, involving not going ahead, is the most appropriate option.

Section 4.55 of the EPA Act - is it the same development?

1. Section 4.55(2)(a) of the EPA Act requires that the consent authority is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all).
2. This is a jurisdictional prerequisite and if the consent authority is not satisfied, then there is no jurisdiction to consider the appeal.
3. In order to determine whether or not the modified development is substantially the same requires that the consent authority knows what the proposal is, and what it is to achieve. During much of the hearing this was not possible because of the inability to use the calculator. Between the end of the second day of hearing and its resumption, the calculator had been restored to functionality but there remained two options for the number of credits required depending on whether the Applicant's position that the area of Box Gum Woodland had been overestimated was accepted, or whether the Respondent's position that the original conclusions of Ecotone/Biosis on the identification of Box Gum Woodland and its distribution had not been shown to be wrong was adopted. Additionally, there were differences as to the variables and their value that should be imported into the calculator.
4. The modification proposal does not involve any change to the approved quarry footprint or construction of any new structures. Rather, it involves a substantial reduction in the area of offset required. The Respondent's position is that the substantial reduction in the offset will result in a 'vastly different ecological outcome' (Respondent's submissions at par 7).
5. The Applicant's response (at par 3) is that: "…First, the fact that Area 1 will not remain as an offset area is not of itself demonstration of a vastly different outcome, because that depends on the quality of that offset compared with the quality replacing that offset. Secondly, even the respondent's ecologist accepted that it was standard practice at the time of the original approval to use larger areas of lower quality vegetation (Ex 4 at [23]). The experts also agree that it is feasible to find additional alternative offset areas adjacent to the bio-banking site that could provide a strong positive conservation outcome."
6. The area which was, in the 2017 Consent, proposed as offset but which will not be an offset if the Applicant's modification proposal is approved, is not the subject of any current development proposal. "4. Further, whilst the obligation on the applicant to protect, maintain and enhance the biodiversity area will remove Area 1 to reflect the amount of offsets required, the applicant will nevertheless be required to maintain Area 1 unless and until (if ever) it obtains consent to carry out any form of development within that area. The effect of this is also that the physical outcomes remain unchanged from the original consent, and if the additional offset areas of higher quality and better connectivity are taken into account, an improved conservation outcome results. 5. Accordingly, the development remains substantially the same and the modification is of minor environmental impact." (Applicant's Submissions in Reply dated 23 March 2021)
7. The Applicant has suggested a Biobanking Agreement: "6. The effect of any necessary modification to condition 33, which seeks to ensure long term security for the biodiversity areas, is answered by the applicant's suggestion to have a Biobanking Agreement. Condition 33 in its original form did not propose, much less require, the applicant to enter into a Biodiversity Stewardship Agreement. 7. Rather, it required the applicant to make suitable arrangements to provide long term security and funding for the biodiversity areas. Accordingly, the applicant's proposal to enter into a Biobanking Agreement fulfils that purpose and goes further to include active management action the applicant would undertake within the Biobanking Agreement. The respondent's concern of a perceived 'erosion of security' is, in the circumstances, entirely diminished." (Applicant's Submissions in Reply dated 23 March 2021)
8. Mr Pickles' argument in par 8: "To the extent the respondent relies upon any agreement by the applicant at the time of the 2017 Consent to maintain its earlier commitments is not determinative. The 2017 Consent was granted by the Court following negotiations engaged in between the parties. As a consequence of those negotiations, the Court was not required to make any merit assessment. It cannot be contended that the original biodiversity areas adopted from the 2008 Consent were a fundamental element of the agreement reached." is in my opinion stretching the point.
9. The 2017 Consent was granted by the Court after a s34 agreement had been reached between the parties. The agreement was reached as the outcome of a confidential without prejudice discussion - the nature of which was not recorded, and even if it were known by the Commissioner could not be disclosed.
10. However, from what was revealed by Mr Pickles during the hearing, it would appear that the Minister wished to maintain the biodiversity offset areas which had been included in the 2008 Consent, with the addition of an extra area to offset the impact of the expansion of the quarry pit and associated works. The Applicant despite by 2015 having access to an offsets calculator and having doubts about the 2008 delineation of offsets (which had been founded on the basis of fieldwork that had been conducted in 2006 and which assumed that a correct identification of the 2006 extent of the Box Gum Woodland had been made) nevertheless agreed, 'for the sake of peace' to accept the 2008 offset areas. Since there is no other record, and I was not involved in the earlier decisions, I accept that Mr Pickles' account reflects the Applicant's position when the s34 agreement was reached.
11. However, it appears to me that acceptance of the 2008 offsets was a fundamental element of the agreement reached in order to obtain an agreement that retained other aspects of the proposal which were important to the Applicant.
12. Mr Pickles in his oral submissions argued that: "So, one really couldn't embark on a hypothetical assessment to determine to try to conclude somehow that and an aspect of the development was somehow fundamental or essential. We would fully embrace and accept the proposition that biodiversity offset areas in general and the requirement to provide them, along with all the other conditions were characteristics relevant to the to the grant of the consent, but that doesn't mean that any particular biodiversity offset area was fundamental or a fundamental or essential element of the development." (Tcpt, 25 February 2021, p 108(34-41))
13. Ms Reid did not agree with the proposition.
14. The meaning of 'any particular biodiversity offset area was fundamental' is ambiguous - area could mean the size (in hectares), or it could mean the location of the offset. The size was specified by the output from the calculator, but would depend on the variables that were input. The location depended on the identification of areas which would generate the required credits.
15. Mr Pickles suggested that I need to be persuaded that: "PICKLES: So, they in order to succeed on that proposition, the Minister would have to persuade you, Commissioner, that somehow biodiversity area 1 and 2 together, were essential elements which are incapable of modification. And a lot of the evidence we've heard, as I've already indicated from Ms Treweek, seems to suggest that's not the approach. That rather the modern approach would, in fact, be to simply identify a certain number of biodiversity credits generated by the development and then simply leave it up to future stewardship agreements or bio banking agreements to determine what that outcome would be. That would counter the proposition that somehow the original areas were fundamental and essential elements." (Tcpt, 25 February 2021, pp 108(45)-109(4))
16. The determination of credits underlies the original offset requirements in the 2017 conditions. There could have been other outcomes which would have generated the same credit requirements, so there may not be one unique outcome, but any other outcome would still have to meet the same credit requirements.
17. Mr Pickles' argument continued: "The first is that the application of the framework for biodiversity assessment mechanism under the Threatened Species Act, the FBA is selective and has been superseded and assumed that previous areas previously cleared did not contain white box or Box-Gum Woodland. The second is there's an absence of raw data sheets for the vegetation communities previously cleared. And the third is that the calculations assume the original condition of the vegetation that is now cleared and is unable to be verified. Dealing with the first proposition, the experts have agreed in para 27 of the joint report, that it is possible to calculate a revised offset, one that does not result in a detrimental impact on the environment, provided the FBA is used to determine the credits and the BBAM is used to calculate the offset areas. Now, the fact that it constitutes a retrospective application of the FBA and the BBAM is immaterial, one would have thought, given that those methodologies are agreed to be more robust than the original consent, and neither does the fact that the FBA has been superseded matter, given cl 32 of the regulation which permits the use of such data to continue. The second proposition is perhaps the nub of the dispute between the applicant and the respondent and that is whether or not one can determine whether or not the areas that were cleared were Box-Gum Woodland or whether they were something else. The proposition we put is that even as a 2014, there was strong evidence that the areas mapped by Ecotone, even if the areas mapped by Ecotone as Box-Gum Woodland would have been so regarded, there was growing doubt about the quality of that vegetation in accordance with the biodiversity offsets policy. The reference I put to that is exhibit 6 and Ms Treweek's letter to Phillipa Duncan, the senior planning officer at the major projects in November 2014. It identified that the impacts occurred in Box-Gum Woodland, albeit relatively low condition, and a recognition in response to that letter, the document that I added this morning to exhibit B behind tab G, being the Biosis response to the OEH comments, underscores the fact that on p 2 - it's behind tab G of exhibit B, and it's the Appendix A Biosis Response to OEH comments. And p 2 of that letter gives some indication of the approach to which Ecotone or Biosis as they became, took to the vegetation in 2008. They said: "Hence to account for the residual uncertainty regarding how much of the grassland areas would constitute EEC, a highly conservative approach was adopted for the current assessment, as explained below, in which the entire impact area was assumed to consist of EEC. This approach is in line with the correspondence received from DECC during the 2008 assessment, in which Ecotone was advised that parts of cleared open grassland could nevertheless fall within the definition of the EEC and should be included as part of the vegetation impacts for the purposes of offsetting. Accordingly, a worst case scenario in terms of the impact of the EEC was assumed." That evidence combined with Mr Garvey's assessment of the vegetation extant in Area 2, as shown on the map in the joint report in exhibit 4 on p 8, tends to indicate that all of the mapping that Ecotone did of the Box-Gum Woodland was based upon that highly conservative basis of assuming that that vegetation community existed, whether or not it truly exhibited the characteristics or the three characteristic trees that make up that community." (Tcpt, 25 February 2021, pp 109(12)-110(15))
18. As extensively discussed earlier, the number, and identity, of the tree species is not an absolute requirement for allocating stands of vegetation to Box Gum Woodland. The condition of many stands is 'poor' but the conservative approach adopted by Ecotone/Biosis. which followed recommendations from the Department of Environment and Climate Change (DECC) is an approach which has the potential, with management, to increase the area of vegetation granted long term protection.
19. The future security of management was addressed by Mr Pickles: "And then of course, the proposition comes down to this; the other dispute is, should one assume a management case or a non management case for the purposes of calculating the credits? Now, our proposition is quite simply that there is a way of guaranteeing that actions will be undertaken because the conditions, even as they stand, require the entry into some kind of management agreement for the offset areas, which would guarantee their perpetual protection and management. So, one has to assume, based upon the existing condition 33, never mind about the applicant's amended version, that there would be an agreement and there would be active management actions incorporated into it. It doesn't stand to reason that one would assume that credits would be calculated, and one would leave it to future negotiation of an agreement to determine what those outcomes would be when plainly the existing consent and the consent which the applicant contends for, would specify a particular area by map, which is to be retained. It's an area which is under the control of the proponent and the condition 33 would require some active management be taken." (Tcpt, 25 February 2021, p 111(24-40))
20. Ms Reid saw the outcome argued for by the Applicant differently: "…But ultimately, what the applicant is seeking is to modify the consent by firstly amending the definition in the consent of biodiversity offset strategy. So, we are fundamentally changing the strategy that the consent was based upon. And that is by incorporating the new documents in the Statement of Environmental Effects into the [consent]. So, you will recall that condition 2A requires the proponent to carry out the development in accordance with the EIS and the conditions of consent. And the EIS is now supported as amended by the statement of environmental effects as part of this application. Deletion of condition 32 is ultimately what is proposed, so the applicant frames it as a modification of condition 32. It is not that. What this application is, is deletion of condition 32 and the replacement with a brand new 32. The only thing that remains similar between those two conditions is that they are both numbered number 32. So, that is where contention 1A comes from, and that is that it is a deletion of the condition and insertion of the new condition. It is still a modification of the consent. Then thirdly, the applicant seeks to amend now condition 33. So, this application was originally put on the basis that condition 33 would not change. And now the applicant seeks to modify condition 33, which is the long term security for the land and there is on the respondent's position an erosion of the security of the biodiversity values for the land. And that erosion is now, by what appears to be - but we still haven't seen the final condition - a conservation agreement rather than a stewardship agreement for which would otherwise require upfront funding, so that we could be satisfied that there is going to be a long term maintenance of the biodiversity values of the land, and that's a really important change in the construction of this development consent." (Tcpt, 25 February 2021, p 112(1-28)) "…The applicant appears to put its application on two bases, and that is firstly that it seeks to recalculate the biodiversity offsets required by the impacts arising from the quarry to take advantage of a contemporary offset scheme, which would approximately halve the commitment previously provided by the consent. And then secondly, the applicant, despite having cleared the side of the subject quarry some time ago, seeks to reclassify the vegetation that was removed, as likely being Broad leaved Peppermint/red stringybark, rather than the Box-Gum Woodland, without any direct evidence and by inferring what might have been located in that area before it was cleared. And that really is a fundamental flaw in the applicant's application…" (Tcpt, 25 February 2021, p 113(8-19))
21. Ms Reid submitted: "The statement of environmental effects fundamentally misunderstands the test of substantially the same development, and it was put slightly differently by reference to para 10 of the Minister's statement of facts, that the application relates only to the biodiversity area specified in condition 32. It is not proposed to modify the quarry layout or activities described in chapters 2 and 3 of the extension project, which will be unchanged. The development would therefore remain substantially the same as that originally approved by the Court. Now that is not a test. Just because if you don't change the quarry operations, doesn't mean that on a qualitative and quantitative basis that you haven't fundamentally changed the application before the Court. And to be fair, it understates the requirement to conserve the environmental values of the site. On a quantitative assessment, the applicant seeks to remove the obligation and its earlier commitment, and you will recall that because this was part of an EIS, there are a statement of commitments and those statement of commitments from part of the EIS. And in a commitment to the respondent and to the Court when granting approval, this applicant agreed to protect, maintain and enhance an area of 78.8 hectares of land as biodiversity areas, and instead to reduce that obligation to an area of land comprising about half of that area. You've been taken to the visual of it, but there is a convenient summary of that in the statement of the facts, exhibit 1 in the proceedings. You can see Appendix 5, which is figure 1 on p 3 of that document, sets out the area of biodiversity offset - Area 1 and Area 2. On this application, you go from just under 80 hectares of land to about 50 hectares of land. So, you excise off Area 1 and then you add some small components to biodiversity area 2. And this is the area that miraculously found some Box-Gum Woodland overnight to make sure that the areas are going to be the slimmest that they can possibly be. This is not an area of manipulating the data. There was a considered and concerted effort and commitment to provide biodiversity areas to offset the impacts of the quarry on the initial application, and it did so by this vast area. Ms Treweek's evidence in relation to para 68 in the joint report, where she agrees that you might be able to have some better quality land, doesn't say that just excising off biodiversity area 1 is going to be enough. She says you would need to find better quality area. Now, this application doesn't find a better quality area. It keeps biodiversity area 2, and then it adds a little bit around the side, including an area that needs to have excised from it, development area with access roads through it. On a qualitative assessment of the application, the proposal seeks to modify the consent by effectively cherry picking between contemporary assessment methods for offset of clearing of land and those considered the time of the grant of consent. And it's clear that at the time of the grant of consent, the similar modern biodiversity calculators were in force. And this is a really important point. So, there wasn't an error at that time. The consent was granted, and the statement of commitments was made on the very clear understanding that the modern calculators were enforce and they may have given a lesser area, but nonetheless to offset the impacts of the development biodiversity area 1 and 2 were proposed to protect, maintain and enhanced the ecological values on the site. And that was one of the fundamental basis upon which the consent was granted, and you cannot assume that that area offset only the endangered ecological communities. So, all that this application does is focus on the endangered ecological communities and the mapping of them and plugs in those numbers to spit out a number. And this is where, and it's only one example, of why you are effectively upsetting the balance of assessments by not acknowledging or making any assessment of the other biodiversity values on the site. And that's where the applicant has failed to undertake any fauna assessment. You will recall in the witness box that an example of the wider ecological assessment was put to Mr Garvey, and that was the Speckled Warbler assessment. Mr Garvey agreed that prior to clearing the land, the Speckled Warbler had been recorded nearby - and I've provided you with the references in the application as to where those documents are - and that the biodiversity offset areas were provided under the consent to not only offset the EEC of Box-Gum Woodland, but to increase the habitat. So, it wasn't that there was an intention to keep habitat of the Speckled Warbler in Area 1, it was that there was a concerted effort and a basis of the consent documents, to increase the habitat of the Speckled Warbler on the site. What this does is reduce that area of land by about 30 hectares to take away habitat rather than increase the habitat. That is a fundamental change in the basis upon which the consent otherwise operated. The assessment of the fauna or the lack of assessment, further highlights the modification will be qualitatively and quantitatively, different than what was approved. But relevantly, the biodiversity offset area is intended to increase the habitat of the available to the Speckled Warbler, and you'll see that reference at 21A. When assessing the original biodiversity offset area under the 2008 consent, the consent authority accepted that the proposed offset rehabilitation areas would increase the extend of habitat available to the Speckled Warbler in the area. You don't read that assessment report as forming part of the application. What you do read is the commitment in the ecological reports to increase that habitat, because that forms part of the consent. The reference to the 2008 assessment doesn't confound or conflate the consents, rather the 2017 consent purposely took those matters into account on the basis of the quarry activities has commenced, the lands have been cleared, and it was appropriate to continue to secure the initial biodiversity offsets as part of the 2017 consent. And that's because it was in accordance with the policy to add rather than detract from it a development consent." (Tcpt, 25 February 2021, pp 114(45)-116(39)) and "What we've got here is an application which was approved on the basis of just under 80 hectares of land being reserved for protection and enhancement and maintenance, not only to offset the impact of clearance of EEC, but also for fauna habitat. And once you start removing that obligation, you undermine the consent, and it becomes fundamentally something different…" (Tcpt, 25 February 2021, p 117(14-18))
22. The future management was further discussed: "COMMISSIONER: Submissions in reply, yes, para 4. You say that the applicant will be required to maintain area 1 unless and until, if ever, it obtains consent. PICKLES: Yes. COMMISSIONER: The requirement for maintenance, there would be obligations that apply to any landholder that arise from the Biosecurity Act, particularly the necessity in this particular case of addressing Nassella but I was wondering if there is - whether there are other requirements that would apply to maintaining area 1? PICKLES: No, I mean that's the only point in the - the point I - we're really trying to make is it couldn't - the fact that's it's not protected by biodiversity - as a biodiversity offset, it doesn't mean it can be removed. And I don't mean maintenance in a positive sense. I mean maintenance in a neutral sense of keeping it there and not removing it. REID: And that's certainly not disputed in my submissions. But what does change and is a dramatic change on the Minister's submission is that there's no longer that active management protection and enhancement of that area. PICKLES: Not that there is at the moment anyway because there isn't actually a biodiversity banking agreement that attaches to it. But in theory, yes. COMMISSIONER: But none of that detracts from any requirement to control noxious weeds? PICKLES: No, that's right. REID: But you have no evidence as to whether that's currently being done but in terms of the statutory obligation it would remain. PICKLES: Yes." (Tcpt, 26 March 2021, pp 5(26)-6(9))

Given my findings, what should be the outcome?

1. The Applicant's position underwent a dramatic change during the hearing: "However, I have to say this: if, Commissioner, you disagree on the question of whether or not the land that was cleared was - if you disagree with the applicant as to whether or not that was Box-Gum Woodland, then the answer ought to be then simply that you dismiss the appeal, because the proposition which the Minister then puts that follows from that is that they would require the credits calculated in accordance with para 58. And it would require a much more fulsome revisitation of the areas required of the biodiversity offset areas, which would be required to meet the credits, which Ms Treweek identifies at para 58. So, the preference I'm instructed to put actually is that you would dismiss the appeal rather than modify it according to an uncertain outcome which would be generated by the Minister's condition, which would have a certain number of credits required, but not specify the biodiversity areas that would be derived from that. And so that's the applicant's submission. Principally, of course, we say that there is a basis upon which to revisit the original consent. It would not result in a development that is not substantially the same." (Tcpt, 25 February 2021, pp 110(48)-111(14))
2. But on 26 March 2021 the position was: "The only other thing the applicant - from the applicant's perspective we wish to stress was to stress that we withdrew the earlier - we withdraw the earlier submission that I made at the conclusion of the hearing last time that if you were minded to find contrary to the applicant's primary case that the factual case, let's say the vegetation removed from the quarry area was not box gum woodland, we have indicated then that our preferred outcome was that you simply dismiss the appeal. The position I'm instructed to put is different to that now and we say we would as an alternative accept that the factual finding but apply that factual finding to the alternative which Ms Treweek and Mr Garvey in the joint report nominate as at the alternative, the Minister's preferred credit calculation and then impose the conditions accordingly. It's a second best proposition." (Tcpt, 26 March 2021, p 7(12-23)) and in the Applicant's Submissions in Reply of 23 March 2021 at par 37: "To the extent the Court does not accept the applicant's submissions with respect to the factual basis underpinning the appeal, that is that the vegetation removed was not Box Gum Woodland, a submission was made, on instructions, that if the Court accepted the respondent's calculations for the credits required the Court should dismiss the appeal. That submission is expressly withdrawn and instead it is submitted that the applicant would accept as an alternative the conditions in Option 2, which reflects the credits proposed by the Respondent and includes the provision of a Biobanking Agreement with management actions required to be undertaken."
3. If I were to adopt the Applicant's final position, I would uphold the appeal and adopt the conditions provided by the Respondent for its Option 2, which involves recognising the area of Box Gum Woodland accepted as required to be offset when the 2017 Consent was granted.
4. This I decline to do. Firstly, because of my conclusions on the jurisdictional prerequisites, I do not have the power to do so. If I were to be wrong in relation to the jurisdictional issues, there is still uncertainty over the credits required and their conversion to offset areas and the uncertainty would need to be resolved prior to any approval being given.
5. The Respondent's agreement on the numbers of credits required under the two different scenarios, and the provision of particular draft conditions does not indicate that the Respondent supports Option 2. Rather it is the course the Respondent says I should follow if I were of a mind to uphold the appeal and grant consent and would give the best possible result in the circumstances in terms of protection of the vegetation.
6. The Applicant took a different view from that of the Respondent on the issue of whether the application if upheld would mean that the development would not remain substantially the same.
7. Mr Pickles in his Submissions in Reply argued: "2. The respondent submitted orally that just because the proposal does not involve amendment of the quarry operations does not mean it remains substantially the same development. The applicant does not put its case in that way. It is not submitted that the absence of change in the quarry is the only consideration. The Court must look at the whole of the development including the quarry activities, the road haulage of materials and the biodiversity offset areas. Conversely, it would be wrong to focus solely on the modification of the biodiversity offset areas. 3. … First, the fact that Area 1 will not remain as an offset bare [sic] is not of itself demonstration of a vastly different outcome, because that depends on the quality of that offset compared with the quality replacing that offset. Secondly, even the respondent's ecologist accepted that it was standard practice at the time of the original approval to use larger areas of lower quality vegetation (ex 4 at [23]). The experts also agree that it is feasible to find additional alternative offset areas adjacent to the bio-banking site that could provide a strong positive conservation outcome. 4. Further, whilst the obligation on the applicant to protect, maintain and enhance the biodiversity area will remove Area 1 to reflect the amount of offsets required, the applicant will nevertheless be required to maintain Area 1 unless and until (if ever) it obtains consent to carry out any form of development within that area. The effect of this is also that the physical outcomes remain unchanged from the original consent, and if the additional offset areas of higher quality and better connectivity are taken into account, an improved conservation outcome results. 5. Accordingly, the development remains substantially the same and the modification is of minor environmental impact."
8. The parties in their submissions both stress the need for a broad-based view of impacts, but differ in what should be included in the consideration.
9. Mr Pickles considered the whole of the development should be considered- 'including' three specific areas of activity but he did not indicate what else could have been considered.
10. The objectors raised concerns about impacts from quarry activities, but these concerns were not reflected in contentions. Mr Beattie was concerned about the works adjacent to Brayton Road which, in his opinion, affected biological connectivity at the landscape scale, suggesting there will be ongoing consequences for biodiversity arising from the existence of the working quarry. These were not matters raised in contentions or discussed in the joint conferencing between the ecologists. The need to take a broader view of biodiversity is particularly important given the obligation on the consent authority to consider any relevant environmental planning instruments, two of which are significant, the GMLEP and SEPP (2007, 2021). Under GMLEP, the subject site contains land in zone RU1 Primary Production and RU2 Rural Landscape. Extractive industries are permitted with consent in both zones. However, the consent authority must also consider other provisions in the GMLEP, of which cl 7.2 Terrestrial Biodiversity is, in the circumstances of this case, the most important. Much, but not all, of the subject site is included on the Biodiversity Map that is part of the GMLEP, so cl 7.2 applies to much of the subject site.
11. Ms Reid in her Supplementary Outline of Submissions discussed cl 7.2: "5. Clause 7.2(3) of the LEP is a jurisdictional precondition to the grant of development consent. The clause is relevant to the subject modification application as s 4.55(3) of the Environmental Planning and Assessment Act 1979 ('the Act') requires the consent authority to take into consideration such of the matters referred to in s 4.15(1) of the Act as are of relevance to the development the subject of the application. Section 4.15(1) requires consideration of the provisions of any environmental planning instrument. Consideration of the clause also lends support for the conclusion that the application is not substantially the same development as that originally approved."
12. Clause 7.2(3) requires the consent authority consider a report addressing a number of matters. There is no evidence of such a report having been produced or considered. One of the matters to be addressed in the required report is in cl 7.2(3)(iv) - habitat corridor. I was not made aware that there is any formally identified corridor on the land, or of whether, under the heading habitat corridor, there is opportunity to consider connectivity in a general sense. While cl 7.2(3)(a) requires identification of threatened species (sensu lato), other requirements refer to biodiversity more broadly.
13. Mr Pickles acknowledged that the Joint Report of the ecologists (Ex 4) and their oral evidence did not directly address cl 7.2 - but nevertheless addressed 'the same subject matter' (par 18 of Applicant's Submissions in Reply). I agree that the ecologists did address some of the requirements of cl 7.2 but this was incidental, and some aspects of cl 7.2 were not addressed at all.
14. Mr Pickles did not agree with par 12 of the Respondent's RSS, and suggests (Applicant's Submission in Reply at par 12) that proposed will 'provide better habitat corridor connection' - but this was not discussed in any details. It is a complex issue; corridor value is likely to vary between different places and at different scales (as discussed in Bottomline Group Pty Ltd v Snowy Monaro Regional Council [2020] NSWLEC 1155 at [191]-[196]).
15. The Mining SEPP required in cl 14, and still requires in s 2.20 of the 2021 SEPP, that: (1) Before granting consent for development for the purposes of mining, petroleum production or extractive industry, the consent authority must consider whether or not the consent should be issued subject to conditions aimed at ensuring that the development is undertaken in an environmentally responsible manner, including conditions to ensure the following - … (b) that impacts on threatened species and biodiversity, are avoided, or are minimised to the greatest extent practicable, …
16. I discussed how 'threatened species and biodiversity' is to be construed and consider that biodiversity should be given a broad meaning, beyond just the threatened components, important though they are.
17. Although the extensive documentation compiled over many years for the quarry development discusses many elements of biodiversity, there was no evidence that the ecology experts who gave evidence in this matter had given the attention what I consider cl 7.2 and the Mining SEPP required.
18. The appeal is in relation to the modification application seeking to modify the 2017 Consent. The appeal is governed by the law as it stands now, but in many respects much of the relevant legislation today is the same as that applied in 2017. The major change is that at the time of the 2017 judgment the provisions of the TSC Act applied whereas now those of the BC Act are in operation so that the procedures of the BC Act were followed. The GMLEP in 2017 was the GMLEP 2009, in which cl 7.2 was in the same form as it is now. The Mining SEPP was in force and cl 14 imposed a jurisdictional prerequisite on the consent authority. The Mining SEPP is now incorporated into the 2021 SEPP and the relevant provisions of cl 14 in the Mining SEPP are now in s 2.20 of the current SEPP.
19. The TSC Act included in its Objects in s 3 "to conserve biological diversity and promote ecologically sustainable development".
20. The TSC Act has been repealed and has been replaced by the BC Act; the purpose of the Act includes in s 1.3: The purpose of this Act is to maintain a healthy, productive and resilient environment for the greatest well-being of the community, now and into the future, consistent with the principles of ecologically sustainable development (described in section 6(2) of the Protection of the Environment Administration Act 1991), and in particular - (a) to conserve biodiversity at bioregional and State scales…
21. The scope of both Acts is thus broad and extends beyond the threatened items which are the focus of many of the specific actions in the operational aspects of the Acts.
22. The conditions to the 2017 Consent include extensive requirements in relation to biodiversity - which I have reproduced between [22] and [24]. These include both obligations and commitments, which, as the 2017 Consent arose from a s34 agreement, were agreed to by both parties. These included a requirement for two biodiversity offset areas, which, as a result of slight changes in development footprint, would be slightly increased if the modification application is approved. Even if what is now proposed were to be provided, an improved outcome, the reduction in offset area is so large as to make the development not to be substantially the same. However, the reduction of the area of offsets means that for these areas which are no longer offsets would face an uncertain future, with no guarantee of appropriate long-term management, and might in the future be the subject of other development proposals. As the modification application involves reduction in the area of offset management for long-term conservation management the outcome is not an improvement, but rather a significant change, so the development would not be substantially the same.
23. The current jurisdictional prerequisites in GMLEP and the Mining SEPP applied when the 2017 judgment was made. That judgement was the outcome of a s34 conciliation conference and was delivered pre-Al Maha - so does not contain any indication of the identification of jurisdictional prerequisites, and, if they had been identified, how the Court was satisfied that they had been met.
24. I have concluded that none of the jurisdictional prerequisites as they apply to the modification application have been met. The 2017 judgment did not involve a reduction in the offset areas but did, inter alia, increase the quarry footprint. Consequent upon the extra disturbance entailed, there was a slight increase in the area of offset required. The s34 agreement was freely entered into by both parties, so the required extent of the offset areas was agreed between the parties, and in the absence of any insights into the nature of the discussions between the parties I must presume that the agreed areas were considered appropriate in the light of the available information, and the parties' consideration of the jurisdictional prerequisites.

Final orders

1. The Court orders: 1. The appeal is dismissed. 2. The application made pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 to modify State significant development consent SSD 7090 (Gunlake Quarry Extension Project - Modification 1) is refused. 3. The exhibits are returned except for A, B, C, D, 1, 2, 3 and 4. …………………….. P Adam Acting Commissioner of the Court

Endnotes

1. NSW Office of Environment and Heritage, Framework for Biodiversity Assessment: NSW Biodiversity Offsets Policy for Major Projects (September 2014, ISBN 978-1-74359-754-5)
2. Scientific Committee, 'Final Determination: White Box Yellow Box Blakely's Red Gum Woodland - Endangered Ecological Community Listing' (15 March 2002)
3. Scientific Committee, 'Final Determination: White Box Yellow Box Blakely's Red Gum Woodland - Determination to make a minor amendment to Part 3 of Schedule 1 of the Threatened Species Conservation Act' (2 December 2011)
4. Scientific Committee, 'Final Determination: White Box - Yellow Box - Blakely's Red Gum Grassy Woodland and Derived Native Grassland in the NSW North Coast, New England Tableland, Nandewar, Brigalow Belt South, Sydney Basin, South Eastern Highlands, NSW South Western Slopes, South East Corner and Riverina Bioregions - Critically Endangered Ecological Community Listing' (17 July 2020)
5. See Minister for the Environment and Heritage (Cth), Inclusion of ecological communities in the list of communities under section 181 of the Environment Protection and Biodiversity Conservation Act 1999 (20 December 2005).
6. Mark Tozer and Christopher Simpson, 'Conservation Assessment of White Box - Yellow Box - Blakley's Red Gum Grassy Woodland and Derived Native Grassland' (NSW Threatened Species Scientific Committee, dated 22 June 2020)
7. NSW Environment, Energy and Science, 'Speckled Warbler - profile', https://www.environment.nsw.gov.au/threatenedspeciesapp/profile.aspx?id=10722 (Updated 1 December 2017) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 October 2022