Motorplex (Australia) Pty Limited v Port Stephens Council

Subtropical Coastal Floodplain Forest of the NSW North Coast bioregion. 7 The Scientific Committee established under the Threatened Species Conservation Act 1995 made Final Determinations to list each of the ecological communities as endangered ecological communities in Part 3 of Schedule 1 of the Act. 8 The Final Determinations are cognate, not only in terms of their temporal making but also in terms of the location of the endangered ecological communities to which they refer and their subject matter. 9 In temporal terms, the Final Determinations were made simultaneously and were also gazetted simultaneously on 17 December 2004. 10 In spatial terms, the endangered ecological communities are all located on or associated with the coastal floodplains of NSW. 11 In terms of subject matter, each of the Final Determinations expressly states that the endangered ecological community described "may adjoin or intergrade with several other endangered ecological communities", these endangered ecological communities "collectively cover all remaining native vegetation on the coastal floodplains of NSW" and the Final Determinations for these endangered ecological communities "collectively encompass the full range of intermediate assemblages in transitional habitats": see para 7 of the Scientific Committee's descriptions of the Swamp Sclerophyll Forest, River-Flat Eucalypt Forest and Subtropical Coastal Floodplain Forest communities. 12 Each of the Final Determinations describe the endangered ecological communities using a variety of descriptors but of particular relevance are the floristic descriptors of the assemblage of species constituting the ecological communities and the locational descriptors of each ecological community. This accords with the definition of an "ecological community" as "an assemblage of species occupying a particular area" (s 4(1) of the Act). Floristic descriptors of the communities 13 The floristic description for each endangered ecological community is necessarily generalised. I say necessarily for a number of reasons. 14 First, the location of occurrence of each community has a wide geographical and climatic distribution. 15 The location of each community is described in terms of bioregions. A bioregion is a relatively large land area characterised by broad, landscape-scale, natural features and environmental processes that influence the functions of entire ecosystems. They capture the large-scale geophysical patterns across Australia. These patterns in the landscape are linked to flora and fauna assemblages and processes at the ecosystem scale. 16 In New South Wales, the bioregions are described in accordance with the Australia-wide mapping exercise of the Interim Biogeographic Regionalisation for Australia ("IBRA"). Eighty five bioregions are recognised in Australia, of which 17 are found in New South Wales. 17 The Swamp Sclerophyll Forest and the River-Flat Eucalypt Forest communities are both recorded to occur in three contiguous bioregions along the entire length of the New South Wales coast: the NSW North Coast bioregion (starting just north of the Queensland-New South Wales border and extending to Nelsons Bay, just north of Newcastle), the Sydney Basin bioregion (starting from Nelsons Bay and extending to just north of Batemans Bay on the south coast of New South Wales) and the South East Corner bioregion (starting from just north of Batemans Bay and extending to beyond the Victorian border). 18 The Subtropical Coastal Floodplain Forest community is stated to occur only in the NSW North Coast bioregion. 19 The identified bioregions are very large areas. The North Coast bioregion in New South Wales is 5,692,351.6 ha, the Sydney Basin bioregion is 3,624,008 ha and the South East Corner bioregion in New South Wales is 1,302,141 ha. 20 The bioregions extend from sea level on the coast inland up into the Great Escarpment. They cover a variety of landforms. 21 The communities are each stated by the Scientific Committee in the descriptions in the Final Determinations to occur on or be associated with coastal floodplains within these bioregions. The language used to describe the locational relationship of the communities with the coastal floodplains is general. The precise ambit of the locational descriptors are a matter for debate between the parties and I will deal with this debate below. For now it is sufficient to note that each community is said to occur on a variety of landforms including "periodically inundated alluvial flats, drainage lines and river terraces associated with coastal floodplains" (para 1 of the descriptions of the Subtropical Coastal Floodplain Forest and River-Flat Eucalypt Forest communities) and "waterlogged or periodically inundated alluvial flats and drainage lines associated with costal floodplains" (para 1 of the description of the Swamp Sclerophyll Forest community). 22 These landforms are not stated to occur only on lower elevations near the coast, but also at high elevations inland from the coast. Thus, the Subtropical Coastal Floodplain Forest and River-Flat Eucalypt Forest communities are stated to generally occur below 50m elevation but may occur on localised riverflats up to 250m above sea level. The Swamp Sclerophyll Forest community is stated to generally occur below 20m although is sometimes found up to 50m elevation: see para 1 of the descriptions of each of these communities. 23 There are, therefore, large latitudinal, altitudinal and physiographical variations in the locations of each of the communities. These variations have climatic consequences. 24 In turn, these significant differences in the geographical and climatic distribution of the communities have consequences for the floristic composition and distribution of the communities. Self evidently, the floristic composition of the communities at their northern extent of their range will differ from that in the southern extent of their range and their floristic composition on the coast at sea level will differ from that inland from the coast at elevation in the escarpment. Any floristic description of a community with such a large geographical and climatic distribution needs to be generalised to incorporate these differences in floristic composition and distribution. 25 Secondly, there are localised physiographic and edaphic variations in the locations in which the communities occur. The Scientific Committee's descriptions in the Final Determinations note that floristic composition of the communities varies according to such factors as "the frequency and duration of waterlogging and the texture, nutrient and moisture content of the soil" (para 1 of the descriptions of the Subtropical Floodplain and River-Flat Eucalypt Forest communities) and the "salinity nutrient…content of the soil" (para 1 of the description of Swamp Sclerophyll Forest community). Again, any floristic description of the communities has to be general enough to incorporate these localised differences. 26 Thirdly, the Scientific Committee's descriptions in the Final Determinations of the structure and physiognomy of the communities reveals that there is significant variation. The Swamp Sclerophyll Forest community is stated to have a structure that is "typically open forest, although partial clearing may have reduced the canopy to scattered trees. In some areas the tree stratum is low and dense, so that the community takes on the structure of scrub. The community also includes some areas of fernland and tall reedland or sedgeland, where trees are very sparse or absent" (para 1 of the description of the Swamp Sclerophyll Forest community). The Scientific Community's description of the Subtropical Coastal Floodplain and River-Flat Eucalypt Forest communities identifies the structure of the community to "vary from tall open forests to woodlands, although partial clearing may have reduced the canopy to scattered trees" (para 1 of the descriptions of Sub-tropical Coastal Floodplain Forest and River-Flat Eucalypt Forest communities). The variation in the structure and physiognomy of the communities reflects changes in floristic composition. Obviously, the floristic species found in fernlands, reedlands and sedgelands will differ from those found in forests. Any floristic description of the communities as a whole, must take into account these differences in floristic composition for components of the communities. 27 Fourthly, any floristic description of an ecological community has to be broad enough to deal with the dynamism of an ecological community. As I have said elsewhere: "An ecological community is a dynamic, and not a static entity. It is a living entity, capable of growth, maturation, senescence and regeneration. The processes of succession mean that a community will alter over time in response to external and internal forces. External forces can be acute or chronic. Acute disturbances are events such as bushfire, storms or floods. Chronic disturbance can occur by reason of factors such as anthropogenic climate change. Either way, external forces cause disturbance to the flora and fauna that constitute the community at any point in time and any particular location. The dynamic nature of communities and their constituent species makes it impossible to define exhaustively all species that comprise the community at any instant in time and in any place": B J Preston and P Adam, "Describing and listing threatened ecological communities under the Threatened Species Conservation Act 1995 (NSW): Part 1 - the assemblage of species in a particular area" (2004) 21 EPLJ 250 at 257. 28 The Scientific Committee's descriptions of the communities in the Final Determinations note that each community, in common with probably all communities in New South Wales now, have been disturbed to some extent by humans. The anthropogenic disturbances include fire, grazing, flooding and land clearing. The species composition of a site is influenced by its disturbance history (para 2 of the descriptions of Swamp Sclerophyll Forest, Subtropical Coastal Floodplain Forest and River-Flat Eucalypt Forest communities). Any floristic description of the communities must take into account these effects. 29 The Scientific Committee's descriptions also note that the species composition of the communities will change over time in response to natural events such as flooding or significant rainfall (para 2 of the Swamp Sclerophyll Forest, Subtropical Coastal Floodplain Forest and River-Flat Eucalypt Forest communities). 30 Fifthly, the Scientific Committee states in the Final Determinations that a floristic description of the community must take into account the differing sizes of the sites on which the community occurs. Species composition is influenced by the size of the site. A floristic description of the community necessarily must aggregate species found across all sites, even though the full suite of species so described will not occur on each and every site (para 2 of the descriptions of Swamp Sclerophyll Forest, Subtropical Coastal Floodplain Forest and River-Flat Eucalypt Forest communities). 31 Sixthly, ecological communities will often intergrade with other ecological communities. In areas of transition between one community and another species which are part of each community may occur: VAW (Kurri Kurri) Pty Ltd v Scientific Committee (2003) 58 NSWLR 631 at 672 [233]. These three communities are a case in point. The Scientific Committee's descriptions in the Final Determinations note that the communities adjoin and intergrade with other communities, including the three endangered ecological communities in this case. The descriptions of the Swamp Sclerophyll Forest, Subtropical Coastal Floodplain Forest and River-Flat Eucalypt Forest communities note that these communities "form mosaics with other floodplain communities and treeless wetlands" (para 1 of each of the descriptions). The descriptions of each of the communities also note that each community "may adjoin or intergrade with several other endangered ecological communities, which collectively cover all remaining vegetation on the coastal floodplains of New South Wales" (para 7). The descriptions note that as physiographic and edaphic factors change, one community may intergrade with and be replaced by another community. The boundaries between the communities are dynamic and shift in response to changes in abiotic factors. The consequence is that there will be "intermediate assemblages in transitional habitats" (para 7 of each of the descriptions). 32 The floristic descriptions of each of these communities must account for this intergrading between communities. The result is, of course, a sharing of species in transitional habitats. 33 The Scientific Committee's approach has been to describe the communities, firstly, by reference to characteristic species or species of high fidelity to the community. These characteristic species are found in para 1 of each of the descriptions in the Final Determinations. The Scientific Committee notes, for each community, that the total species list of the community is considerably larger than the list of characteristic species, that many species on the list of characteristic species may be present at one or two sites or in low abundance, that species composition of sites will vary according to various physiographic, edaphic and anthropogenic influences, and that at any one time above ground individuals of some species may be absent but may be represented below ground in the soil seedbanks or as dormant structures. As a consequence, care must be taken in requiring too great a percentage presence of the species listed as characteristic species on any one site. 34 Next, the Scientific Committee has provided guidance in the descriptions by referring to dominant life forms of the community. Paragraph 4 of each of the Scientific Committee's descriptions of the communities identify the most widespread and abundant dominant trees as well as less abundant or dominant trees at some sites, small trees and shrubs that may be present in the understorey and groundcover species (see para 4 of each of the descriptions). 35 As with the list of characteristic species the Scientific Committee has been careful to qualify its description of the species present in the canopy, understorey and groundcover. The descriptions note that certain trees can be at low abundance or may be locally dominant at few sites. The understorey composition of the structure may be influenced by grazing and fire history, changes to hydrology and soil salinity disturbances (see para 4 of each of the descriptions). The number and relative abundance of species will change with time since fire, flooding or significant rainfall (para 2 of each of the descriptions). 36 Another means of floristic description by which the Scientific Committee has identified each of the communities is by reference to vegetation communities identified in various vegetation surveys and mapping studies. One of these vegetation survey and mapping studies was the Vegetation Survey, Classification and Mapping for the Lower Hunter and Central Coast Region, conducted by the NSW National Parks and Wildlife Service in 2000 as part of the Lower Hunter and Central Coast Regional Environment Management Strategy ("LHCCREMS"). Thus, for example, the Swamp Sclerophyll Forest community is identified by the Scientific Committee in the description in the Final Determination as including, in the lower Hunter district, "Swamp Mahogany-Paperbark Swamp Forest (Map Unit 37), Riparian Melaleuca Swamp Woodland (Map Unit 42) and Melaleuca Scrub (Map Unit 42a)" in LHCCREMS (para 8 of the description of the Swamp Sclerophyll Forest community). 37 The River-Flat Eucalypt Forest community is identified by the Scientific Committee in the description in the Final Determination to include, in the lower Hunter Valley, the "Redgum Roughbarked Apple Swamp Forest" (Map Unit 38) in LHCCREMS (para 8 of the description of the River-Flat Eucalypt Forest community). Locational descriptors of the communities 38 The other key means of describing the communities is by locational descriptors. As I have noted, the Scientific Committee in the Final Determinations describes the location of each community by reference to the bioregions in which they occur. Within each bioregion, the Scientific Committee identifies the local government areas in which the communities are known to occur (para 3 of each description). Of relevance in this case is the local government area of Port Stephens. Each of the Swamp Sclerophyll Forest, Subtropical Coastal Floodplain Forest and River-Flat Eucalypt Forest communities is known to occur in the local government area of Port Stephens (para 3 of each of the descriptions). 39 More specifically, the Scientific Committee identifies the locations on which each of the communities occurs by reference to edaphic and physiographic factors. 40 In relation to edaphic factors, the Scientific Committee identifies that the Swamp Sclerophyll Forest community is associated with "humic clay loams and sandy loams" (para 1 of the description), the Subtropical Coastal Floodplain Forest community is associated with "clay-loams and sandy loams" (para 1 of the description) and the River-Flat Eucalypt Forest community is associated with "silts, clay-loams and sandy loams" (para 1 of the description). 41 In relation to physiographic factors, the Scientific Committee identifies the landforms with which each of the communities is associated. The Swamp Sclerophyll Forest community is identified as being on "waterlogged or periodically inundated alluvial flats and drainage lines associated with coastal floodplains" (para 1 of the description). The Subtropical Coastal Floodplain Forest and the River-Flat Eucalypt Forest communities are each identified as being "on periodically inundated alluvial flats, drainage lines and river terraces associated with coastal floodplains" (para 1 of each of the description). 42 The Scientific Committee in each of the descriptions gives a generalised description of what it meant by the term "floodplains". The Scientific Committee states in each description that: "Floodplains are level landform patterns on which there may be active erosion and aggradation by channelled and overbank stream flow with an average recurrence interval of 100 years or less."(para 1 of each of the descriptions). 43 This description of floodplains is stated by the Scientific Committee to be adapted from "Speight 1990", a reference to a chapter by J G Speight in R C McDonald, R F Isbell, J G Speight, J Walker and M S Hopkins (eds), Australian Soil and Land Survey , 2nd ed, Inkata Press, Melbourne, 1990, pp 9-57. The reference was tendered in evidence. It shows that Speight defined floodplains in a different way, notably as being characterised by "frequently active" erosion and aggradation, rather than merely "active" erosion and aggradation as in the Scientific Committee's description, where "frequently active" refers to the channel or overbank stream flow that has an average recurrence interval of 50 years or less, rather than that of 100 years or less used by the Scientific Committee in its description. For this reason, the Speight reference cannot be used as the guide for determining whether a particular site is on or associated with a floodplain. 44 An important point to note about the Scientific Committee's description for each community is that it does not limit the location of the community to occurring "on coastal floodplains", but extends the location of the community to identified landforms such as alluvial flats, drainage lines and river terraces, that are "associated with coastal floodplains". The concept of "associated with" extends the location of the communities beyond the coastal floodplains. This is corroborated by the subsequent identification of the varying elevations at which the communities may occur. Thus, for Subtropical Coastal Floodplain Forest and River-Flat Eucalypt Forest communities, are identified as occurring on localised river-flats up to 250m above sea level. Clearly, this is far removed from the coastal floodplain. 45 As I have earlier noted, the Scientific Committee in the Final Determinations has identified the community therein described as including other vegetation communities that have been identified in vegetation surveys and mapping studies including the LHCCREMS. The consequence is that the Scientific Committee has, by this means of incorporation by reference, identified the locations on which the community occurs to include the locations on which the incorporated vegetation communities occur. The examples I have given earlier are, in the lower Hunter Valley, the vegetation community identified as Riparian Melaleuca Swamp Woodland (Map Unit 42) and the Redgum Roughbarked Apple Swamp Forest (Map Unit 38). Each of these vegetation communities have been mapped in the LHCCREMS. The locations at which these communities are mapped to occur are therefore incorporated by reference to be locations on which the Swamp Sclerophyll Forest community (in the case of Map Unit 42) and River-Flat Eucalypt Forest community (in the case of Map Unit 38) are identified to occur. Other descriptors of the communities 46 In addition to the principal descriptions of the communities by reference to floristic and locational descriptors, the Scientific Committee uses other supplementary descriptors. These include ecological or biotic factors: see, for example, paras 2 and 5 of each description. The debate between the parties 47 The issues between the parties relate to the interpretation of the descriptions of each community in the Final Determinations of the Scientific Committee and the application of these descriptions to the site in this case. Specifically, the issues between the parties are:

At a glance

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Judgment (23 paragraphs)

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