Ryan v Northern Regional Planning Panel [2020] NSWLEC 55 | Case summary

Ryan v Northern Regional Planning Panel [2020] NSWLEC 55 | Case summary | Zoe

The relief sought in the Third Further Amended Summons is: 1 A declaration that the [sic] s 78A(8) of the Environmental Planning and Assessment Act 1979 applied for a purported Development Application ("the DA") on land described as Lot 2 DP 1214953 and Lot 3 DP 808657, Dunoon Road ("the land") by reason of the existence of threatened species including: a. A viable local population of Carterornis leucotis (also known as White-eared Monarchs), defined as a threatened species under Schedule 1 of the Biodiversity Conservation Act 2016; and b. A viable local population of Nyctophilus bifax (also known as Eastern LongEarred [sic] Bats), defined as a threatened species under Schedule 1 of the Biodiversity Conservation Act 2016. 2 By virtue of order 1, a declaration that Development Consent 2017/270 granted on 17 October 2018 by the First Respondent to the 2nd, 3rd, 4th and 5th Respondents ("the Consent") was invalidly made, void and of no effect as the DA when lodged failed to comply with s 78A(8) of the Environmental Planning and Assessment Act 1979, 2A A declaration that Construction Certificate CC 14.2017.270.1 granted on the 12th February 2019 by the Second Respondent to the Third Respondent ("the Construction Certificate") is invalid and thereby void and of no effect. 3 A declaration that the Third, Fourth and Fifth Respondents have breached or will cause to be breached either jointly or severally: a. section 139 of the Heritage Act 1977, b. or alternatively section 86 of the National Parks and Wildlife Act 1974. [NOT PRESSED] 4 A declaration that the third respondent in undertaking activity purportedly in reliance on the consent or construction certificate is unapproved development without consent. 5 Further to pleadings 1, 2, 2A, 3 and 4 above an order requiring the Second, Third, Fourth and Fifth Respondents to reinstate the land to any extent necessary in accordance with section 9.46(2)(c) of the Environmental Planning and Assessment Act 1979 and s 154(1)&(2) of the Heritage Act 1977. 6 An order restraining the second, third, fourth and fifth respondents their partners, employees, agents, contractors and servants from undertaking any work that seeks reliance on the consent and/or construction certificate.

[5]

Environmental Planning and Assessment Act 1979

Relevant sections of the EPA Act as at 24 August 2017 (date of lodgement of DA) provided: Part 1 Preliminary … 5A Significant effect on threatened species, populations or ecological communities, or their habitats (1) For the purposes of this Act and, in particular, in the administration of sections 78A, 79B, 79C, 111 and 112, the following must be taken into account in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats: (a) each of the factors listed in subsection (2), (b) any assessment guidelines. (2) The following factors must be taken into account in making a determination under this section: (a) in the case of a threatened species, whether the action proposed is likely to have an adverse effect on the life cycle of the species such that a viable local population of the species is likely to be placed at risk of extinction, … (d) in relation to the habitat of a threatened species, population or ecological community: (i) the extent to which habitat is likely to be removed or modified as a result of the action proposed, and (ii) whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed action, and (iii) the importance of the habitat to be removed, modified, fragmented or isolated to the long-term survival of the species, population or ecological community in the locality, … (g) whether the action proposed constitutes or is part of a key threatening process or is likely to result in the operation of, or increase the impact of, a key threatening process. (3) In this section: assessment guidelines means assessment guidelines issued and in force under section 94A of the Threatened Species Conservation Act 1995 or, subject to section 5C, section 220ZZA of the Fisheries Management Act 1994. key threatening process has the same meaning as in the Threatened Species Conservation Act 1995 or, subject to section 5C, Part 7A of the Fisheries Management Act 1994. … Part 4 Development assessment … Division 2 The procedures for development that needs consent … 78A Application (1) A person may, subject to the regulations, apply to a consent authority for consent to carry out development. … (8) A development application (other than an application in respect of State significant development) must be accompanied by: … (b) if the application is in respect of development on land that is, or is a part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats - a species impact statement prepared in accordance with Division 2 of Part 6 of the Threatened Species Conservation Act 1995.
Sections 4.16 of the EPA Act (current) as at 12 February 2019 (date CC issued) provided: Part 4 Development assessment and consent … Division 4.3 Development that needs consent (except complying development) 4.16 Determination (1) General A consent authority is to determine a development application by: (a) granting consent to the application, either unconditionally or subject to conditions, or (b) refusing consent to the application. … (12) Effect of issuing construction certificate If a consent authority or an accredited certifier issues a construction certificate, the construction certificate and any approved plans and specifications issued with respect to that construction certificate, together with any variations to the construction certificate or plans and specifications that are effected in accordance with this Act or the regulations, are taken to form part of the relevant development consent (other than for the purposes of section 4.55). …
Sections 9.45 and 9.46 of the EPA Act (current) provide: Part 9 Implementation and enforcement … Division 9.5 Civil enforcement proceedings … 9.45 Restraint etc of breaches of this Act (1) Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach. (2) Proceedings under this section may be brought by a person on his or her own behalf or on behalf of himself or herself and on behalf of other persons (with their consent), or a body corporate or unincorporated (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings. (3) Any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings. (4) (Repealed) 9.46 Orders of the Court (1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach. (2) Without limiting the powers of the Court under subsection (1), an order made under that subsection may - (a) where the breach of this Act comprises a use of any building, work or land - restrain that use, (b) where the breach of this Act comprises the erection of a building or the carrying out of a work - require the demolition or removal of that building or work, or (c) where the breach of this Act has the effect of altering the condition or state of any building, work or land - require the reinstatement, so far as is practicable, of that building, work or land to the condition or state the building, work or land was in immediately before the breach was committed. (3) Where a breach of this Act would not have been committed but for the failure to obtain a consent under Part 4, the Court, upon application being made by the defendant, may - (a) adjourn the proceedings to enable a development application to be made under Part 4 to obtain that consent, and (b) in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned. (4) The functions of the Court under this Division are in addition to and not in derogation from any other functions of the Court. (5) Nothing in this section affects the provisions of Division 3 of Part 3 of the Land and Environment Court Act 1979.
The Applicant accepts that it cannot avail itself of s 6.32 of the EPA Act given that it came into effect on 1 December 2019 replacing reg 145(2) of the EPA Regulation. Division 6.8 Miscellaneous 6.32 Validity of certificates under this Part Without limiting the powers of the Court under section 9.46 (1), the Court may by order under that section declare that a certificate under this Part (other than an occupation certificate) is invalid if: (a) proceedings for the order are brought within 3 months after the issue of the certificate, and (b) the plans and specifications or standards of building work or subdivision work specified in the certificate are not consistent with the development consent for the building work or subdivision work.
Accordingly reg 145 (2) of the EPA Regulation applies to the CC.

[7]

Lismore Local Environmental Plan 2012

The Land Use Table of the Lismore Local Environmental Plan 2012 provided: Zone E2 Environmental Conservation 1 Objectives of zone To protect, manage and restore areas of high ecological, scientific, cultural or aesthetic values. • To prevent development that could destroy, damage or otherwise have an adverse effect on those values.C • To retain areas of unique natural vegetation, particularly rainforest remnants and ecologically endangered communities. 2 Permitted without consent Environmental protection works 3 Permitted with consent Boat launching ramps; Building identification signs; Business identification signs; Environmental facilities; Extensive agriculture; Flood mitigation works; Jetties; Oyster aquaculture Research stations; Roads; Water recreation structures 4 Prohibited Business premises; Hotel or motel accommodation; Industries; Multi dwelling housing; Pond-based aquaculture; Recreation facilities (major); Residential flat buildings; Restricted premises; Retail premises; Seniors housing; Service stations; Tank-based aquaculture; Warehouse or distribution centres; Any other development not specified in item 2 or 3 Zone E3 Environmental Management 1 Objectives of zone • To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values. • To provide for a limited range of development that does not have an adverse effect on those values. • To encourage the retention of wildlife habitats and associated vegetation and wildlife corridors. 2 Permitted without consent Environmental protection works; Extensive agriculture; Home occupations 3 Permitted with consent Bed and breakfast accommodation; Boat launching ramps; Building identification signs; Business identification signs; Camping grounds; Caravan parks; Cellar door premises; Community facilities; Dairies (pasture-based); Dwelling houses; Eco-tourist facilities; Emergency services facilities; Environmental facilities; Farm buildings; Farm stay accommodation; Flood mitigation works; Home-based child care; Home businesses; Home industries; Information and education facilities; Jetties; Kiosks; Neighbourhood shops; Oyster aquaculture; Pond-based aquaculture; Recreation areas; Research stations; Roads; Roadside stalls; Tank-based aquaculture; Water recreation structures 4 Prohibited Industries; Multi dwelling housing; Residential flat buildings; Retail premises; Seniors housing; Service stations; Warehouse or distribution centres; Any other development not specified in item 2 or 3

[8]

Threatened Species Conservation Act 1995

Relevant sections of the repealed TSC Act as between 18 August 2017 to 24 August 2017 provided: Part 1 Preliminary … 3 Objects of Act The objects of this Act are as follows: (a) to conserve biological diversity and promote ecologically sustainable development, and (b) to prevent the extinction and promote the recovery of threatened species, populations and ecological communities, and (c) to protect the critical habitat of those threatened species, populations and ecological communities that are endangered, and (d) to eliminate or manage certain processes that threaten the survival or evolutionary development of threatened species, populations and ecological communities, and (e) to ensure that the impact of any action affecting threatened species, populations and ecological communities is properly assessed, and (f) to encourage the conservation of threatened species, populations and ecological communities by the adoption of measures involving co-operative management. 4 Definitions (1) In this Act: habitat means an area or areas occupied, or periodically or occasionally occupied, by a species, population or ecological community and includes any biotic or abiotic component. … key threatening process means a threatening process specified in Schedule 3. … threatened species means a species specified in Part 1 or 4 of Schedule 1, Part 1 of Schedule 1A or Part 1 of Schedule 2. ... vulnerable species means a species specified in Part 1 of Schedule 2. … 8 Schedule 3 list of key threatening processes Schedule 3 contains a list of key threatening processes for the purposes of this Act. Part 6 Licensing … Division 1 Grant of licences … 94A Assessment guidelines (1) The Minister may, by order published in the Gazette, issue guidelines (assessment guidelines) relating to the determination of whether an action is likely to significantly affect threatened species, populations or ecological communities, or their habitats. (2) An order under this section (including any order that amends, revokes or replaces such an order) may be made only with the concurrence of the Minister for Planning. … Schedule 3 Key threatening processes (Section 8) Aggressive exclusion of birds from woodland and forest habitat by abundant Noisy Miners, Manorina melanocephala (Latham, 1802) … Anthropogenic Climate Change Bushrock removal (as described in the final determination of the Scientific Committee to list the threatening process) Clearing of native vegetation (as defined and described in the final determination of the Scientific Committee to list the key threatening process) … Invasion and establishment of exotic vines and scramblers … Invasion, establishment and spread of Lantana (Lantana camara L. sens. lat) Invasion of native plant communities by African Olive Olea europaea subsp. cuspidata (Wall. ex G. Don) Cif. Invasion of native plant communities by Chrysanthemoides monilifera Invasion of native plant communities by exotic perennial grasses … Loss and degradation of native plant and animal habitat by invasion of escaped garden plants, including aquatic plants Loss of hollow-bearing trees … Predation by the Feral Cat Felis catus (Linnaeus, 1758) … Removal of dead wood and dead trees

[9]

Land and Environment Court Act 1979

Relevant sections of the Land and Environment Court Act 1979 (LEC Act) provide: Part 3 Jurisdiction of the Court … Division 3 Orders of conditional validity for certain development consents 25A Application of Division (1) This Division applies to - … (b) a development consent granted, or purporting to be granted, under the Environmental Planning and Assessment Act 1979 - (i) by any other consent authority, and (ii) in respect of a development application made on or after the commencement of this subsection. (2) This Division extends to invalidity arising from any steps preliminary to the granting of a development consent to which this Division applies, whether those steps were taken, or should have been taken, by the Minister or any other consent authority, or by any other person or body. (3) In particular, this Division extends to invalidity arising from non-compliance with requirements declared to be mandatory requirements under section 102 of the Environmental Planning and Assessment Act 1979. (4) A reference in this Division to the Minister is a reference to the Minister responsible for the administration of the Environmental Planning and Assessment Act 1979. … 25C Orders for validity of development consents (1) On application by the Minister or any other consent authority for an order under this subsection on the grounds that the terms specified under section 25B have been substantially complied with and that it is not proposed that the relevant development consent be regranted with alterations, the Court may make an order - (a) declaring that the terms have been substantially complied with, and (b) declaring that the consent is valid, and (c) revoking the order of suspension. (2) On application by the Minister or any other consent authority for an order under this subsection on the ground that the terms specified under section 25B have been substantially complied with and that the development consent has been regranted with alterations as referred to in section 103 of the Environmental Planning and Assessment Act 1979, the Court may make an order - (a) declaring that the terms have been complied with, and (b) declaring that the development consent has been validly regranted, and (c) declaring that the suspended development consent has been revoked, and (d) revoking the order of suspension. … 25E Duty of Court It is the duty of the Court to consider making an order under this Division instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part.

[10]

Heritage Act 1977

Relevant sections of the Heritage Act as at 12 January 2018 provided: Part 1 Preliminary … 4 Definitions (1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires: … relic means any deposit, artefact, object or material evidence that: (a) relates to the settlement of the area that comprises New South Wales, not being Aboriginal settlement, and (b) is of State or local heritage significance. … 4A Heritage significance (1) In this Act: … local heritage significance, in relation to a place, building, work, relic, moveable object or precinct, means significance to an area in relation to the historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value of the item. … Part 6 Other measures for the conservation of the environmental heritage … Division 9 Protection of certain relics … 139 Excavation permit required in certain circumstances (1) A person must not disturb or excavate any land knowing or having reasonable cause to suspect that the disturbance or excavation will or is likely to result in a relic being discovered, exposed, moved, damaged or destroyed unless the disturbance or excavation is carried out in accordance with an excavation permit. (2) A person must not disturb or excavate any land on which the person has discovered or exposed a relic except in accordance with an excavation permit. … Part 7 Implementation and enforcement … Division 2 Orders of the Court … 153 Restraint etc of breaches of this Act (1) Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been infringed by or as a consequence of that breach. (2) Proceedings brought under subsection (1) shall be brought in accordance with the rules of Court. 154 Order of the Court (1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach. (2) Without limiting the powers of the Court under subsection (1), an order made under that subsection may: (a) where the breach of this Act comprises a use of a building or work or of land - restrain that use, or (b) where the breach of this Act comprises the erection of a building or the carrying out of a work - require the demolition or removal of the building or work, or (c) where the breach of this Act has the effect of altering the appearance of a building or work or the state of land - require the restoration of the building or work or the reinstatement, so far as is practicable, of the land to the condition the building, work or land was in immediately before the breach was committed, or (d) where the breach of this Act comprises the demolition of the whole or part of a building - require the rebuilding of the building, as it was immediately before the breach was committed, in accordance with plans and specifications approved by the Heritage Council. (3) (Repealed)

[11]

Statement of Agreed Facts

An agreed statement of facts (SOAF) relied on by the parties states: The development consent 1. The proceedings concern a development consent for the subdivision of land at Lismore, being part of the area known as the North Lismore Plateau. 2. Development application 17/270 (the Development Application) was lodged with Lismore City Council (the Second Respondent) on 24 August 2017. The development application was lodged by Planners North, being the consultant planning firm retained by the Third, Fourth and Fifth Respondents. 3. The Development Application, as assessed by the Second Respondent, included: (a) A flora and fauna assessment prepared by Peter Parker. The assessment was updated during the course of assessment of the development application and submitted in final form prior to determination of the development application on 30 July 2018. (b) An engineering report and civil plans prepared by TGM Group and Planit Consulting. The report and plans were updated during the course of assessment of the development application and submitted in final form prior to determination of the development application on 21 September 2018. 4. The Development Application did not include a species impact statement. 5. The decision to grant development consent subject to conditions was made by the Northern Regional Planning Panel (the First Respondent) on 17 October 2018, following assessment of the Development Application by the Second Respondent. 6. The Notice of Determination of the Development Application was issued by the Second Respondent on 24 October 2018, being Development Consent 5.2017.270.1 (the Consent). 7. The Consent granted development consent to development on the following lots (together, the Land): (a) Lot 2 DP 1214953 and Lot 3 DP 808657 - owned by Glorbill Pty Ltd (the Fifth Respondent) (b) Lot 1 DP 367581, Lot 12 DP 844585 and Lot 1 DP 772627 - owned by the Second Respondent 8. The Consent approved residential subdivision of the Land across two "precincts" (precincts 1 and 2) plus a local centre allotment, open space and areas for environmental management. 9. The Consent also includes a concept approval only of 43 residential lots in precinct 3. 10. The Consent also includes approval on the lots owned by the Second Respondent for the purposes of emergency fire access. 11. The development approved by the Consent is depicted in the plan attached and marked "A" [attach "Ultimate Overall Proposal Plan" 14 Feb 2018117312-30B1] [omitted by parties] 12. The Third Respondent is the proponent of the development application and intends to develop the Land in accordance with the Consent. The other parties 13. The Applicant, Michael Ryan, is a traditional owner of the land, a member of the Widjaba/Wiyabal clan within the Bundjalung nation, and a Bundjalung elder. 14. At the time of lodging the Development Application the Fourth Respondent was the owner or one of the owners of Lot 2 in DP1044983, and consented to the lodging of the Development Application. The Fourth Respondent is the sole director of the Fifth Respondent. 15. The Fifth Respondent is the owner of Lot 2, DP1214953 and Lot 3 DP 8088657. The planning proposal 16. The Development Application was made following a rezoning of the Land in 2015 from RU1 Primary Production. 17. The Land was rezoned R1 General Residential, E2 Environmental Conservation and E3 Environmental Management. A small portion in the south-east was zoned B1 Neighbourhood Centre. A portion of the Land was retained as RU1 Primary Production. 18. Ecological studies were carried out in the course of the planning proposal the subject of the rezoning. These studies were referred to by Peter Parker in the flora and fauna assessment submitted with the Development Application. The construction certificate 19. Subsequent to the Consent being issued, the Third Respondent, through its consultant engineering firm, Planit Consulting, made an application for a civil works construction certificate reliant on the Consent. The application was for bulk earthworks in precinct 1 and precinct 2. 20. Civil Works Construction Certificate 14.2017.270.1 (the Construction Certificate) was issued by the Second Respondent on 12 February 2019. 21. The Construction Certificate provides for excavation of a "borrow pit" in precinct 2 and the use of excavated material for the purposes of fill in precinct 1. 22. The works the subject of the Construction Certificate are in the course of being carried out by the Third Respondent's contractors. These works are subject to undertakings given by the Third Respondent to the Court in the course of interlocutory proceedings determined by Justice Moore on 2 December 2019. The suspected grave 23. Consultants for the Third Respondent, Everick Heritage Consultants, undertook a site inspection of the Land on 30 November 2016 prior to submission of the Development Application. This inspection identified a suspected grave within the area of precinct 2. 24. On 18 January 2017, Richard Yelf of Georadar carried out a ground penetrative survey of the suspected grave. The report of Mr Yelf concluded as follows: ... it is our interpretation that this grave-like feature near the ridge line on the Winten Property Group site on the North Lismore Plateau represents the probable burial of two persons. They appear to be the graves of early settlers inferred to be from the 1850- 1890 period. The interpreted burial on the north western side of the inferred grave appears to be an adult of full stature, and the adjacent burial appears to be more diminutive and possible represents a female, or a large (teenage) child. 25. In November 2017, Everick Heritage Consultants published a report in response to the findings of Mr Yelf and concluded that the site could have high archaeological potential because of the suspected grave. This report made two alternative recommendations. 26. On 12 January 2018 Tony Lowe of Casey & Lowe Archaeology & Heritage were retained by the Third Respondent to further investigate the suspected grave. Physical works were carried out at the location of the suspected grave. Mr Lowe provided a report to the Third Respondent in which he concluded there was no evidence that the suspected grave was a grave. 27. The Third Respondent did not obtain an excavation permit under the Heritage Act 1977 [or an Aboriginal heritage impact permit under the National Parks & Wildlife Act - not pressed]. Threatened species 28. The Eastern Long-eared Bat, nyctophifus bifax, has been detected on the Land. It is a threatened species within the meaning of the Threatened Species Conservation Act 1995. 29. The White-eared Monarch, Carterornis leucotis, has been detected on the Land. It is a threatened species within the meaning of the Threatened Species Conservation Act 1995.
The planning proposal referred to in pars 16-18 of the SOAF for the North Lismore Plateau was approved in 2015. It provided for the rezoning of rural land in three areas, the northern, central and southern sections, to R1 Residential, E2 Environmental Conservation and E3 Environmental Management. The precise area of rezoned land on the North Lismore Plateau is unclear in the evidence. A reference to 225 hectares appears in the evidence as does 334 hectares. The land the subject of the development consent (the Land) is located in the central section of the wider rezoned area of the North Lismore Plateau.
The Land relevant to those proceedings (see par 7 of SOAF) is described in the Statement of Environmental Effects (SEE) as 70.95 hectares (Lot 2 DP 1214953), 8.091 hectares (Lot 3 DP 808657), excluding roads. Lot 2 and Lot 3 are divided into Precincts 1, 2 and 3 for the purpose of the subdivision. For clarity, references to the Land mean Precincts 1, 2 and 3.
The development is described in the development consent as follows: Subdivision of land to create a total of 433 residential allotments, a commercial allotment, open space and areas for environmental management. The proposed development will be undertaken as follows: • Precinct 1: total of 95 residential allotments, local centre allotment, open space and provision for environmental management; • Precinct 2: total of 295 residential allotments, open space and areas for environmental management; • Precinct 3: staged development consent sought in accordance with Section 83B of the EP&A Act for the creation of 43 residential allotments. Concept approval is sought for Precinct 3 and this area will be the subject of a further development application.
On the map below the Land is outlined in red and some of the wider rezoned area on the North Lismore Plateau is indicated by a dashed yellow line. The development footprint is shown in black hatching. The Land is between two roads, Dunoon Road on the east boundary and Booerie Creek Road on the west boundary.
Precinct 1 is on the eastern side of the Land. It is mostly covered by the development footprint. Small patches of vegetation, including a patch of forest red gum grassy open forest, fall within the development footprint and will be cleared. There are no areas of E2 or E3 zoned land in Precinct 1. Dunoon Road runs along the eastern boundary of Precinct 1.
Precinct 2 is the largest precinct, located centrally between Precincts 1 and 3. The western side of Precinct 2 is zoned R1, and is mostly covered by the development footprint. The vegetation types that fall within the development footprint on Precinct 2 that will be cleared are low closed forest to tall closed shrubland dominated by privet and camphor laurel, camphor laurel closed forest, and forest red gum grassy open forest. The remainder of Precinct 2 is zoned either E2 or E3 (largely), and includes various vegetation types that will be retained including low closed forest to tall closed shrubland dominated by privet and camphor laurel and hoop pine yellow tulipwood dry rainforest. The vegetation that will be retained on Precinct 2 includes a large band of E3 zoned forest that runs from north to south along the eastern edge of Precinct 2. This band of E3 zoned forest is interrupted by the development footprint where a road is to be developed between Precincts 1 and 2.
Precinct 3 is the smallest precinct, located on the western side of the Land. Precinct 3 contains land zoned E2, E3 and R1. The vegetation on Precinct 3 consists of low closed forest to tall closed shrubland dominated by privet and camphor laurel with shrub layer of desmodium acanthocladum (thorny pea). The development footprint has not been mapped on Precinct 3 as only concept approval has been granted. It is therefore unclear what vegetation will be cleared and what will be retained if development proceeds on Precinct 3. Booerie Creek Road runs along the western boundary of Precinct 3.

[14]

Threatened species assessment guidelines

Under s 5A(3)(a) of the EPA Act any assessment guidelines must be taken into account in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats. "Assessment guidelines" mean assessment guidelines issued and in force under s 94A of the TSC Act. The parties tendered the TSCA Guidelines dated August 2007 relied on by the ecologists in their evidence as the relevant guideline for the purposes of the TSC Act.
Extracts of the TSCA Guidelines (Ex 2) state: Introduction … The Threatened Species Conservation Amendment Act 2002 revised the factors that need to be considered when assessing whether an action, development or activity is likely to significantly affect threatened species, populations or ecological communities, or their habitats, previously known as the "8-part test". The changes affect s 5A EP&A Act, s 94 Threatened Species Conservation Act 1995 (TSC Act) and s 220ZZ Fisheries Management Act 1994 (FM Act). These revised factors of assessment maintain the earlier intent of the legislation but focus particularly on likely impacts to the local rather than the regional environment. The reason for the shift to a local focus is that the long-term loss of biodiversity at all levels arises mainly from the accumulation of losses and depletions of populations at a local level. This is the broad principle underpinning the TSC Act, state and federal biodiversity strategies, and international agreements. … Assessment guidelines Section 94A of the TSC Act and s. 220ZZA of the FM Act provides that the Minister for Climate Change, Environment and Water and the Minister for Primary Industries, with the concurrence of the Minister for Planning, may prepare assessment guidelines to assist in the interpretation and application of the factors of assessment. These guidelines have been prepared to help applicants/proponents of a development or activity with interpreting and applying the factors of assessment. The aim of the guidelines is to help ensure that a consistent and systematic approach is taken when determining whether an action, development or activity is likely to significantly affect threatened species, populations or ecological communities, or their habitats either directly or indirectly. Making determinations requires technical expertise, and knowledge of species and their habitats. The guidelines assume that those undertaking an assessment of significance have sufficient knowledge and experience to do so. These guidelines clarify the specific terminology of the relevant legislation and provide clear interpretations of the factors of assessment. Further guidance, including examples and case studies will be provided in a supplementary document. The assessment of significance should not be considered a "pass or fail" test but a system allowing applicants/proponents to undertake a qualitative analysis of the likely impacts, and ultimately, whether further assessment needs to be undertaken through a species impact statement. All factors must be considered and an overall conclusion must be drawn from all factors in combination. Where there is reasonable doubt regarding the likely impacts, or where detailed information is not available, a species impact statement should be prepared. Other issues not specifically addressed by the factors of assessment should be included and discussed in the broader impact assessment process, for example, in a review of environmental factors or an environmental impact statement. … Terminology … Subject site means the area directly affected by the proposal. Study area means the subject site and any additional areas which are likely to be affected by the proposal, either directly or indirectly. The study area should extend as far as is necessary to take all potential impacts into account. Direct impacts are those that directly affect the habitat and individuals. They include, but are not limited to, death through predation, trampling, poisoning of the animal/plant itself and the removal of suitable habitat. When applying each factor, consideration must be given to all of the likely direct impacts of the proposed activity or development. Indirect impacts occur when project-related activities affect species, populations or ecological communities in a manner other than direct loss. Indirect impacts can include loss of individuals through starvation, exposure, predation by domestic and/or feral animals, loss of breeding opportunities, loss of shade/shelter, deleterious hydrological changes, increased soil salinity, erosion, inhibition of nitrogen fixation, weed invasion, fertiliser drift, or increased human activity within or directly adjacent to sensitive habitat areas. As with direct impacts, consideration must be given, when applying each factor, to all of the likely indirect impacts of the proposed activity or development. The factors of assessment (a) in the case of a threatened species, whether the action proposed is likely to have an adverse effect on the life cycle of the species such that a viable local population of the species is likely to be placed at risk of extinction. … Life cycle: the series or stages of reproduction, growth, development, ageing and death of an organism. Viable: the capacity to successfully complete each stage of the life cycle under normal conditions. Local population: the population that occurs in the study area. The assessment of the local population may be extended to include individuals beyond the study area if it can be clearly demonstrated that contiguous or interconnecting parts of the population continue beyond the study area, according to the following definitions. … • The local population of resident fauna species comprises those individuals known or likely to occur in the study area, as well as any individuals occurring in adjoining areas (contiguous or otherwise) that are known or likely to utilise habitats in the study area. … Risk of extinction: the likelihood that the local population will become extinct either in the short-term or in the long-term as a result of direct or indirect impacts on the viability of that population Application The key assessment is risk of extinction of the local population. The risk of extinction will increase if any factor operates to reduce population size or reproduction success. The components of the life cycle of a species are dependent on its habitat and affected by threats to the species. The removal or modification of habitat or changes to the nature of important periodic disturbances such as fire or flood may affect the survival of that species. Therefore, it is important that the applicant/proponent not only has an understanding of the species' life cycle, but also an understanding of the way in which a species makes use of its habitat, the way this may change at particular times or in certain seasonal conditions, and whether the life cycle is dependent on a particular disturbance. … (d) in relation to the habitat of a threatened species, population or ecological community: (i) the extent to which habitat is likely to be removed or modified as a result of the action proposed, and (ii) whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed action, and (iii) the importance of the habitat to be removed, modified, fragmented or isolated to the long term survival of the species, population or ecological community in the locality Interpretation of key terms used in this factor Habitat: the area occupied, or periodically or occasionally occupied, by any threatened species, population or ecological community and includes all the different aspects (both biotic and abiotic) used by species during the different stages of their life cycles. Extent: the physical area removed and/or to the compositional components of the habitat and the degree to which each is affected. Importance: related to the stages of the species' life cycles and how reproductive success may be affected. Locality: the same meaning as ascribed to local population of a species or local occurrence of an ecological community. Application When applying this factor, consideration must be given to all short-and long-term impacts (direct and indirect) on habitat which are likely to support threatened species, populations and ecological communities regardless of whether the habitat occurs on the subject site. This applies to both occupied and unoccupied habitat because the recovery of threatened species, populations and ecological communities relies on them having access to suitable habitat to move into as numbers increase. The extent to which habitat is likely to be removed or modified should be determined by estimating the total area of habitat to be directly and indirectly impacted by the proposed development, activity or action. This may be an estimation of the surface area of land to be affected, and/or in some cases the number of key habitat components to be affected. When deciding whether an area of habitat is likely to become fragmented or isolated from other areas of habitat, it is necessary to identify and assess the patterns and extent of habitat connectivity. The affected habitat may form part of a habitat corridor, cul-de-sac or an isolated area. Recent Landsat imagery, aerial photographs, vegetation maps, topographic maps and data obtained from on-ground investigations are useful information sources for assessing this. The dispersal and genetic exchange mechanisms of individual species should be considered. For example, will the isolation of habitat for threatened species, populations or ecological communities that are currently connected or near to each other adversely affect the maintenance of gene flow and the ability to sustain viable populations. It should also be noted that isolation can occur through a variety of habitat modifications and is not confined to the clearing of vegetation. When assessing the importance of the habitat likely to be removed, modified, fragmented or isolated in the locality, a quantitative and qualitative approach should be adopted as follows: • an assessment of the area and quality of habitat of the threatened species, population or ecological community that occurs within the locality from recent Landsat imagery, vegetation mapping, topographic maps, air photos and in some cases data obtained from on-ground investigations • an estimate of the area and quality that the habitat of the study area represents in relation to the area and quality of that habitat within the locality • an assessment of the role of the habitat to be affected in sustaining habitat connectivity in the locality an assessment of the ecological integrity of the habitat to be affected in the study area, in relation to the ecological integrity, tenure and security of the habitat which will remain both in the study area and in the locality. … (g) whether the action proposed constitutes or is part of a key threatening process or is likely to result in the operation of, or increase the impact of, a key threatening process Context This factor refers only to those key threatening processes (KTPs) listed in Schedule 3 of the TSC Act and Schedule 6 of the FM Act. … … Application In addition to deciding whether the action/activity constitutes a KTP, consideration must also be given to whether the proposal is likely to exacerbate a KTP. Species listed in the determination as being "at risk" warrant particular considerations if these species are known or likely to occur within the study area of the development or activity. Making an assessment of significance … All factors should be considered as well as any other information deemed relevant to the assessment. The assessment of significance should not be used as a substitute for a species impact statement. Application of the precautionary principle requires that a lack of scientific certainty about the potential impacts of an action does not itself justify a decision that the action is not likely to have a significant impact. If information is not available to conclusively determine that there will not be a significant impact on a threatened species, population or ecological community, or its habitat, then it should be assumed that a significant impact is likely and a species impact statement should be prepared. Proposed measures that mitigate, improve or compensate for the action, development or activity should not be considered in determining the degree of the effect on threatened species, populations or ecological communities, unless the measure has been used successfully for that species in a similar situation. In many cases where complex mitigating, ameliorative or compensatory measures are required, such as translocation, bush restoration or purchase of land, further assessment through the species impact statement process is likely to be required. In determining the nature and magnitude of an impact, it is important to consider matter such as: • pre-construction, construction and occupation/maintenance phases • all on-site and off-site impacts, including location, installation, operation and maintenance of auxillary infrastructure and fire management zones • all direct and indirect impacts • the frequency and duration of each known or likely impact/action • the total impact which can be attributed to that action over the entire geographic area affected, and over time • the sensitivity of the receiving environment • the degree of confidence with which the impacts of the action are known and understood. Recovery and threat abatement plans, priorities action statements, threatened species profiles and other fact sheets prepared by DECC and DPI may provide further guidance on whether an action or activity is likely to be significant.

[15]

Ecological Evidence

As part of the development assessment process, ecological studies were carried out by Greenloaning Biostudies Pty Ltd (Greenloaning) in 2012 and by Peter Parker in 2018. Greenloaning prepared an ecological assessment in April 2012 and supplementary report in June 2012, based on an ecological constraints analysis undertaken by Warren and Associates in 2011. The Greenloaning assessment report included a seven-part test of significance for species detected during field surveys, including the eastern long-eared bat. Greenloaning concluded that the proposed development was unlikely to have a significant impact on the eastern long-eared bat.
A flora and fauna assessment was prepared by Mr Parker in July 2018 (Parker report), updated during the course of assessment for the DA and submitted in final form on 30 July 2018. Mr Parker undertook the seven-part test of significance under s 5A of the EPA Act for various threatened species on the North Lismore Plateau, concluding that the development would have a negligible impact on the eastern long-eared bat as no roosting sites or potential habitat would be impacted, and no impact on the white-eared monarch as the dry rainforest would be conserved and enhanced.
A landscape schematic design report dated 18 August 2017 was prepared by RPS Group for the DA. The Landscape Masterplan included in that report showed planned landscaping across the Land, including areas of revegetation in Precincts 1 and 2 where removal of weed species and regenerative planting would be carried out. Local park nodes were indicated on the map including in areas marked on the Landscape Masterplan for revegetation where lookout shelters, park furniture, lighting, pedestrian pathway, signage and amenity landscaping would be developed. One of these local park nodes is located in the band of E3 zoned vegetation to be retained on Precinct 2, as described above in [22].
A SEE prepared in August 2017 for the DA proposed various ameliorative measures regarding biodiversity and vegetation on the development site. The SEE contained a "Statement of Commitments" which included a commitment to enter into a voluntary planning agreement to ensure the biodiversity certification of Precinct 3 for which concept approval was being sought. In the course of analysing environmental interactions applicable to the proposed development, the SEE stated that compensatory planting of over 2,000 forest red gums would occur following grant of development consent. A site planning objective was "to protect and enhance the biodiversity of the North Lismore Plateau and surrounding areas". To meet that objective, a vegetation management plan was proposed, specifically with the aim of achieving the conservation of threatened species and the progressive rehabilitation of the endemic vegetation communities in conservation lands zoned E2 and E3.

[18]

Reports of Mr David Milledge

Mr David Milledge expert ecologist relied on by the Applicant prepared three reports. According to his curriculum vitae (CV), Mr Milledge is a fauna ecologist residing in far north-eastern NSW and Director of Landmark Ecological Services Pty Ltd. Mr Milledge holds a Master of Resource Science from the University of New England and has 50 years' experience as an ecologist specialising in forest and woodland ecosystems, concentrating on endangered vertebrate species. His employment history and experience includes, inter alia, employment as a scientific technical officer and as a consultant wildlife ecologist and then director of Landmark Ecological Services Pty Ltd from 1995-2004 and again from 2008-present. A 20-page list of publications and reports attached to his CV shows extensive published reports on a range of species and ecological topics from 1964-2019 as well as contributions to books and journals on the Australian environment, ecology and avifauna since 1976.
Mr Milledge's first report dated 18 March 2019 reviewed Mr Parker's 2018 seven-part test of significance under s 5A of the EPA Act for micro-bat species on the North Lismore Plateau. Mr Milledge found that Mr Parker's seven-part test was inadequate and that a SIS should have been prepared. No further reference to this report is required.
Mr Milledge's second report dated 9 October 2019 detailed a brief field inspection conducted on 6 June 2019 of potential threatened micro-bat roosting and breeding habitat and other threatened fauna species in Precinct 2. Mr Milledge traversed Precinct 2 on foot to locate trees likely to provide micro-bat roosting and breeding habitat. The inspection focussed on a stand of forest red gums and surrounding regenerating dry rainforest in western Precinct 2. Eleven forest red gums were measured and inspected for visible hollows that may have provided roosting or breeding habitat. Mr Milledge concluded that Precinct 2 contained potential roosting and breeding sites for the eastern long-eared bat. As the habitat fell within an area proposed to be cleared for development, Mr Milledge concluded that the potential for significant effect under s 5A of the EPA Act should be examined. In arriving at this conclusion Mr Milledge took into account both the proposed clearing of roost and maternity site habitat and potential high-quality foraging habitat on the Land and the potential loss of roost and breeding sites in dry rainforest and other vegetation adjoining the site because of noise, light and other disturbance from residential development.
Mr Milledge's third report dated 10 November 2019 reported on a two-night survey targeting threatened micro-bat species and other threatened fauna species in Precinct 2 and assessed impacts of the proposed residential subdivision on threatened fauna values. Mr Milledge set four two-bank harp traps at separate locations within potential micro-bat flyways. Two eastern long-eared bats were captured in harp traps between 15 and 17 October 2018 in Precinct 2.
Mr Milledge also undertook opportunistic observations of other vertebrate species and rainforest habitats. A white-eared monarch was observed and photographed foraging and calling in a stand of regenerating dry rainforest in the south-western section of Precinct 2 on 16 October 2019. The bird stayed in that regenerating dry rainforest stand all day, calling and hover-pecking through tree foliage. Its behaviour suggested it was breeding in the vicinity.
Discussion of the eastern long-eared bat included: Based on the Lunney et al. (1995) findings, the trapping results of this survey (Table 2) indicate that the regenerating dry rainforest, together with the small area of dry rainforest around harp trap sites HT1 and HT3 (Fig. 2) provide important roosting habitat for the local population of the Eastern Long-eared Bat. This is evinced by the presence of rainforest trees with dense foliage and carrying numerous vines, together with dead trees with hollows and crevices plus emergent Forest Red Gums containing a number of hollows (as demonstrated by Milledge 2019b). Again, based on the results of Lunney et al. (1995), this habitat is highly likely to provide maternity roosts for the local population of the Eastern Long-eared Bat.
Discussion of the white-eared monarch included: 4.2.2 White-eared Monarch The insectivorous White-eared Monarch is predominantly a lowland rainforest specialist in far north-eastern NSW where it is confined to the coastal plain and foothills from the Clarence River to the Queensland border. It is scarce and sparsely distributed in this area, occurring most commonly on edges of rainforest, particularly drier associations and vine scrubs and often in regrowth (regenerating) forests (Higgins et al. 2006, CSIRO Division of Wildlife and Ecology 1996, Holmes 1987, Morris etal.1981) The site appears to support at least one breeding pair of White-eared Monarchs, recorded in the western section of Precinct 2 (Fig. 1). Although Peter Parker does not indicate where this species was recorded in Precinct 2 or 1 (Fig. 7, Peter Parker 2018), suitable habitat elsewhere in the site and adjoining habitat on the North Lismore Plateau may support an additional one or two pairs of White-eared Monarchs, based on a breeding home range of approximately 10 to 15 ha (D. Milledge unpubl. data for Byron LGA).
Mr Milledge carried out a seven-part test of significance under s 5A of the EPA Act for both the eastern long-eared bat and white-eared monarch. These assessments focussed on the impact of clearing 6.7 hectares of habitat (30 per cent of total potential breeding habitat) on Precinct 2.
Considering s 5A(2)(a) (adverse impact on life cycle) and s 5A(2)(d) (impact on habitat), Mr Milledge found for the white-eared monarch that: In relation to the habitat of a threatened species, population or ecological community: i) the extent to which habitat is likely to be removed or modified as a result of the action proposed, and ii) whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed action, and iii) the importance of the habitat to be removed, modified, fragmented or isolated to the long-term survival of the species, population or ecological community in the locality, the record(s) of Peter Parker (2018) and the results of this survey (s.4.2.2 above) suggest that a viable population of the White-eared Monarch is likely to occur on the North Lismore Plateau. Although this population may only comprise one to three pairs, the clearing of 6.7 ha of likely breeding habitat (dry and regenerating dry rainforest) for the proposal (Fig 3) and 30% of the total potential breeding habitat in the site (8.11 ha [corrected to 6.7 ha] of a total 23 ha, Fig. 3) must be considered as placing the viability of the local population at risk of extinction.
Considering s 5A(2)(g) (KTPs), Mr Milledge found two key threatening processes (KTPs) relevant to the white-eared monarch were likely to operate or increase as a result of the proposed development. Those KTPs were aggressive exclusion of birds from woodland and forest habitat by abundant noisy miners and anthropogenic climate change.
Mr Milledge found similarly for the eastern long-eared bat. Considering s 5A(2)(a) and (d) he concluded that the clearing of 6.7 hectares of habitat on Precinct 2 placed the viable population of eastern long-eared bats at risk of extinction. He also found that the likely modification of remaining areas of habitat for bushfire asset protection zones (APZs) and the detrimental edge effects from proximity to residential development would further add to the risk of extinction of the eastern long-eared bat on the North Lismore Plateau.
Mr Milledge found that s 5A(2)(g) applied to the eastern long-eared bat. Four KTPs were relevant to the eastern long-eared bat as a result of the proposed development. They were anthropogenic climate change, loss of hollow-bearing trees, removal of dead wood and trees and predation by feral cats.
Mr Milledge concluded that under s 5A of the EPA Act, the proposed development in Precinct 2 was likely to have a significant effect on both the eastern long-eared bat and white-eared monarch.

[19]

Report of Dr David Robertson dated 27 December 2019

Dr Robertson, ecologist, relied on by Winten, prepared one report dated 27 December 2019. According to his CV, Dr Robertson, Director of Cumberland Ecology, is a senior ecologist with more than 30 years' experience in ecological survey, impact assessment and research. Dr Robertson holds a Bachelor of Science, Ecology, and Doctor of Philosophy, Ecology, from the University of Melbourne. His CV includes a list of extensive experience as an expert witness in the NSW Supreme Court, Queensland Planning and Environment Court, and NSW Land and Environment Court (in Classes 1, 3, 4 and 5 proceedings). A list of several publications is included in his CV published from 1983-1995, as well as peer reviews conducted by Cumberland Ecology from 2009-2019.
Dr Robertson described the "subject site" (Precincts 1, 2 and 3) as being located generally between Dunoon Road and Booerie Creek Road, in the locality known as North Lismore Plateau. The report methodology consisted of a literature review and desktop analysis, GIS mapping and database analysis, and a field survey carried out between 8-10 October 2019. The literature review examined the 2012 Greenloaning report and the 2018 Parker report, drawing the conclusion that it was appropriate to reassess the significance of impacts of the approved development footprint on the eastern long-eared bat and the white-eared monarch.
Dr Robertson relied on the Parker report and a "Vegetation Clearing Report and Tree Protection Plan" prepared by Planit Consulting (Planit) in February 2019 to say that future conservation management within "conservation lands" identified by the Parker report and Planit (2019) would limit and offset the adverse impacts on the two subject species. Dr Robertson said that the Parker report relied on "conservation zoning" of forest remnants and regrowth to E2 and E3 zoned land on the North Lismore Plateau to say that areas of dry rainforest would be "conserved and enhanced". The conservation areas identified by Planit were those areas zoned E2 and E3 on the Land where it said restoration and wildlife planting would occur at the conclusion of construction works.
Dr Robertson introduced his assessments of significance as follows (figures omitted): … 131. The habit on the subject site, plus forested habitats elsewhere on the plateau are mapped and shown in Figure 5. What should be noted from this mapping is that the approved development will clear only a small proportion of the North Lismore Plateau. Based upon the Cumberland Ecology mapping and GIS measurements, the proposed development will clear ~ 12 ha of about 112 ha of forest and regrowth forest across the wider area of the rezoning (including Winton [sic] and other land). Approximately 77 ha is zoned for conservation within E2 or E3 land within the rezoned land. The balance of forest remains in other zonings and is in no immediate danger from clearing. 132. It is understood that the Stage 3 development has not been approved and will be subject to separate impact assessments and offsetting under the current Biodiversity Conservation Act 2016. Forest and regrowth habitats on this area will be subject to the impact assessment rules that apply under that legislation, which may result in more forest and tree hollows being conserved than is currently indicted by draft plans. In any case, the Stage 3 assessments are yet to take place and will be independent of the current approval. 133. Tree hollows are of relevance as habitat for bats including the Eastern Long-eared Bat, which frequently roosts in hollows. For this reason, they have been mapped and counted across the Winton [sic] land by Cumberland Ecology. Figure 5 provides a map of trees with hollows detected in recent surveys for Cumberland Ecology. On current estimates there are about 59 trees with hollows on site at a density of about 1.74 hollow trees per ha of forest/regrowth. Of these, about 34 or 57% will be removed for the approved development and the remainder retained. However, as per the total forest and regrowth areas in the rezoning area, there are trees with hollows in the contiguous vegetation in the remainder of the rezoning area and these should be taken into consideration when completing assessments of significance. 134. Across the wider rezoning area, assuming a similar density of trees with hollows there would be a further 64 hollow trees. Therefore, the impact of approved forest clearance for the Winton [sic] site, which would clear 34 trees with hollows, should be seen in the wider context, with close to 100 trees with hollows remaining. 135. It should also be considered that the E2/E3 areas of the rezoned land will be permitted to regenerate and as trees age, further hollows can be expected to form in the long term.

[20]

Assessment of white-eared monarch

Regarding the white-eared monarch, Dr Robertson noted one BioNet Atlas record of the bird within the subject site and the additional record by Mr Milledge. The BioNet Atlas record was in Precinct 3.
Considering s 5A(2)(a), Dr Robertson found that a viable population of white-eared monarchs may exist on or around the subject site as there were two records of the species. The population was unlikely to be placed at risk of extinction because the approved development would only clear a minority of habitat on site in the context of the wider rezoned area. While 12 hectares of forest and regrowth was estimated to be cleared by the development, only 8.7 hectares (corrected to 6.7 hectares by Winten in oral submissions) of this was rainforest, the vegetation preferred by the white-eared monarch. Dr Robertson made the following further points concerning the potential impact of the proposed development on the white-eared monarch: areas of high value vegetation that are favourable foraging and roosting habitat would be maintained; large expanses of weedy regrowth that represent habitat for the white-eared monarch would only be selectively cleared or enhanced through ongoing management; much of the perimeter of the subject site was on land greater than 18 degree slope meaning boundary vegetation would be retained; and 77 hectares of forest would be retained in the wider rezoned area.
Considering s 5A(2)(d), Dr Robertson found the extent to which habitat is likely to be removed or modified was minimal compared to areas retained on site and within the wider rezoned area. Fragmentation or isolation of habitat was unlikely because the areas of rainforest suitable for habitat were already mostly isolated habitats and clearing would not result in further fragmentation. Rather, connectivity would be improved through the enhancement and management of low closed forest and tall closed shrubland. The habitat removed would be unlikely to be of long-term importance to the survival of the species as there was only one record of the species from the locality. (Note: whilst reference is made here to only one record of the white-eared monarch, Dr Robertson acknowledged elsewhere in his evidence that there are two records of the species, see above in [58] and below in [85]). Areas of rainforest in the general locality of the subject site would provide additional foraging and nesting sites such that the long-term survival of the species would not be jeopardised.
Considering s 5A(2)(g), Dr Robertson listed seven KTPs relevant to the white-eared monarch the proposed development could contribute to. They were bush rock removal, clearing of native vegetation, invasion and establishment of exotic vines and scramblers, invasion, establishment and spread of Lantana, invasion of native plant communities by exotic perennial grasses, loss of hollow-bearing trees, and removal of dead wood and dead trees.
Dr Robertson concluded that the proposed development would result in the removal of limited potential habitat for the white-eared monarch, but that the majority of known and potential habitat on site, and in the wider rezoned area, would be retained and conserved. No significant impact was likely on the white-eared monarch as a result of the proposed development.

[21]

Assessment of eastern long-eared bat

Turning to the eastern long-eared bat, Dr Robertson noted that suitable roosting and breeding habitat existed on the subject site for the eastern long-eared bat. The species was detected by Greenloaning at two locations in the wider rezoned area, and more recently by Mr Milledge within the area proposed for clearing and twice by Cumberland Ecology both in the area proposed for clearing and in the area proposed for conservation (by reference to Figure 6, see below in [71]).
Dr Robertson found that the majority of suitable habitat for the eastern long-eared bat was to be conserved on the subject site and within the wider rezoned area. He estimated that of 59 trees with hollows on site, 34 or 52 per cent would be removed for the approved development. Trees with hollows were also present in contiguous vegetation in the wider rezoned area. Dr Robertson stated that such vegetation should be taken into consideration when completing assessments of significance.
Considering s 5A(2)(a), Dr Robertson found that the proposed development was not likely to place a viable local population of the eastern long-eared bat at risk of extinction as the majority of potential habitat would be retained on the subject site and wider study area, and the bat is highly mobile with a wide foraging range beyond the subject site.
Considering s 5A(2)(d), Dr Robertson found that the habitat values located on the subject site were replicated in the more extensive areas to be retained, including best quality rainforest remnants. Dr Robertson identified the following habitat features within the development footprint that would be removed: seven large forest red gums; 25 dead stags containing hollows; 11 camphor laurel trees with hollows; 17 areas of rock outcrops containing crevices and caves; and four other rainforest trees with hollows. The habitat was previously fragmented and no substantial further fragmentation or isolation was expected as a result of the proposed development. Rather, retention and enhancement of rainforest on the subject site would form corridors between areas of better quality habitat. Proposed vegetation modification and thinning would not reduce the availability of foods for the eastern long-eared bat as much of the vegetation on the subject site would be retained, providing a suitable habitat for a variety of insect species to survive. The species has a large foraging range meaning it would utilise other sites beyond the subject site for foraging. Dr Robertson found that the habitat provided on the subject site was not important for the long-term survival of the eastern long-eared bat.
Considering s 5A(2)(g), Dr Robertson listed seven KTPs relevant to the eastern long-eared bat the proposed development could constitute or contribute to. They were: clearing of native vegetation; invasion, establishment and spread of Lantana; invasion of native plant communities by exotic perennial grasses; invasion of native plant communities by African Olive; loss and degradation of native plant and animal habitat by invasion of escaped garden plants including aquatic plants; invasion of native plant communities by chrysanthemoides monilifera; and removal of dead wood and dead trees.
Dr Robertson concluded that the proposed development would result in the removal of limited potential habitat but that the majority of known and potential habitat on site, and in the wider rezoned area, would be retained and conserved. No significant impact was likely on the eastern long-eared bat as a result of the proposed development.
Dr Robertson finally concluded that the rezoning of areas of the North Lismore Plateau to E2 and E3 zoned land, including areas of highest conservation values, was intended to provide for broad areas of conservation including the areas of highest conservation values for flora and fauna by Warren and Associates (2011) and Greenloaning (2012). The rezoning was intended to provide for a conservation outcome that avoided significant detrimental impact on threatened flora and fauna. The likely benefits arising from such rezoning for conservation purposes were not adequately factored into Mr Milledge's reports. Although the proposed development would result in some habitat clearance on the subject site, it would also entail retention of the majority of remnant and regenerating forest. No SIS was required to support the DA submitted to Lismore Council.
Annexed to Dr Robertson's report were Figures 1-8 (also reproduced as Appendix F of the ecologists' joint report and tendered by Winten in A3 version (Ex 1)).
Figure 1 is an aerial photo of the wider rezoned area taken in 2019 with the Land outlined in red and the wider rezoned area outlined in yellow dashes. Figure 2 is an aerial photo of the wider rezoned area taken in 2009 with the Land outlined in red and the wider rezoned area outlined in yellow dashes. Figure 3 is an aerial photograph overlayed with the zoning of the wider rezoned area, showing that the Land contains areas zoned R1 General Residential, E2 and E3. Figure 4 shows the location of surveys carried out by Cumberland Ecology. Figure 5 is a vegetation map prepared by Cumberland Ecology showing the location of hollow-bearing trees on the Land as well as the location of different types of rainforests and grasslands that occur on the Land. Figure 6 maps four sightings of the eastern long-eared bat (two within the boundaries of the Land recorded by Cumberland Ecology in 2019 and two outside the Land recorded by Greenloaning in 2012). Two sightings of the white-eared monarch are mapped, both occurring within the boundaries of the Land, one taken from a record in the BioNet Atlas and the other sighted by Mr Milledge in 2019. Figure 7 shows the development footprint in black hatching overlayed on the vegetation map (Figure 5). Figure 8 shows the broad forest cover within the wider rezoned area, showing where forest with E2/E3 zoning, forest approved to be cleared, and forest within B1/R1/RU1 zoning are each located in the wider rezoned area.

[22]

Joint Report of the ecologists

Mr Milledge and Dr Robertson prepared a joint report dated 29 January 2020. Annexed to the joint report were Mr Milledge's CV (Appendix A), Dr Robertson's CV (Appendix B), additional evidence prepared by Mr Milledge (Appendix C), additional evidence comprising updated assessments of significance for the two subject species prepared by Dr Robertson (Appendix D), data supplied by Dentons in January 2020 including photographs, harp trap data, echolocation data and bat call analysis (Appendix E), and Figures 1-8 reproduced from Dr Robertson's original report (Appendix F).
The key areas of agreement in the joint report were firstly, that the Parker report relied heavily on the report by Greenloaning, particularly with respect to micro-bats, and that Mr Parker did not conduct any additional targeted fauna studies other than surveys for the presence of koalas to support his investigations; and secondly, that the Parker report contained omissions with respect to the assessment of impacts on both the white-eared monarch and the eastern long-eared bat and either misquoted or overlooked the details contained within the report by Greenloaning.
The key area of disagreement continued to be whether a SIS was required for the development proposal in Precincts 1 and 2. The experts also disagreed about the validity of Dr Robertson's assessments of significance.
On whether a SIS was needed, Mr Milledge confirmed his view that the development would remove approximately one third of suitable habitat for the species and modify remaining habitat through imposition of APZs (requiring reduction of the tree canopy by 15 per cent) and high level direct human disturbance from adjoining high density residential development, and cause the operation of a number of KTPs. Contrary to Dr Robertson's view, E2 and E3 zoning is incompatible with the conservation of sensitive threatened species such as the white-eared monarch and eastern long-eared bat and it is invalid to depend on E2 and E3 zoned lands elsewhere on the North Lismore Plateau as mitigating the impacts of development as this zoning does not provide secure areas managed in perpetuity for conservation. Other uses are permitted on E2 and E3 zoned land.
Mr Milledge considered there is an absence of targeted fauna surveys for the site. The Greenloaning report was not such a survey and was deficient in its methodology and conclusions. It recommended further survey work which was undertaken only in relation to koalas in the Parker report.
Mr Milledge considered Dr Robertson's knowledge and experience of both subject species deficient which contributed to a flawed assessment of the potential impacts of the development on the species and his erroneous finding that a SIS was not needed. Dr Robertson's report demonstrated a lack of understanding of the essential habitat requirements and behavioural characteristics of the species by:

Making claims about the type of rainforest on the North Lismore plateau that represents the highest quality habitat in the subject site for the bird and the bat which are not supported by published scientific literature and within which no known records of the two species on the North Lismore Plateau exist.
Suggesting that the white-eared monarch is a hollow-nester, when it builds an open cup-nest, and consequently would be unlikely to benefit from the installation of nest boxes.
Failing to consider that the white-eared monarch is easily disturbed by the presence of people and will desert nests under construction at the slightest disturbance.
Claiming that the eastern long-eared bat is a highly mobile species with a large foraging range, often flying great distances overnight, when a scientific study of the species demonstrated that it did not move large distances between roosts and met all it needs within a relatively small patch of rainforest.
Failing to recognise the likelihood that several KTPs are likely to operate as a result of the development, specifically adversely affecting the subject species.

In his additional evidence (Appendix C of the joint report), Mr Milledge reiterated that E2 and E3 zones outside the subject site cannot be considered adequate or suitable for mitigating impacts of the development on the white-eared monarch and eastern long-eared bat. This is because the habitat values for the bat and bird in these areas have not been established (including whether any large, hollow-bearing trees are present) and the E2 and E3 zones do not constitute offsets or secure areas managed for these species in perpetuity.
E2 and E3 zones within the subject site also cannot be considered suitable for mitigating impacts from the development on the white-eared monarch and eastern long-eared bat for the same reason that they do not constitute protection for the species in perpetuity. Further, the E3 zone will be directly impacted by the implementation of APZs meaning tree canopy cover will be reduced to less than 15 per cent, both zones will be indirectly impacted by human disturbance, noise, exposure to bright lights and predation by domestic animals and the E2 and E3 zones may be subject to permissible uses that will adversely impact the species including roads and agriculture which are permitted with consent.
On whether a SIS was needed Dr Robertson maintained in the joint report that the impacts of habitat clearing would be offset by future conservation management. The majority of remnant and regenerating forest on the subject site would be retained. Significant areas of known habitat for the two subject species would not be cleared.
Dr Robertson agreed that there is potential for indirect impacts from the residential development and associated roads but that such impacts would not be significant and were already considered by Greenloaning who made recommendations for future active management of forest to be retained and conserved on the North Lismore Plateau.
Dr Robertson also undertook updated assessments of significance for the white-eared monarch and eastern long-eared bat (Appendix D of the joint report). For the white-eared monarch, Dr Robertson's key findings under ss 5A(2)(a) and (d) were the same as in his primary report (above in [59]-[60]). The key difference was that under 5A(2)(g), Dr Robertson included two KTPs relevant to the white-eared monarch in addition to those in his primary report (above in [61]): aggressive exclusion of birds from woodland and forest habitat by abundant noisy miners and anthropogenic climate change. His conclusion that no significant impact is likely remained the same as in his initial assessment of significance (above in [62]).
Regarding the eastern long-eared bat, Dr Robertson provided additional comments on Lunney et al (Ex 3). Winten's plan to remove weeds and restore the rainforest would benefit the species as, according to Lunney et al, intact rainforest canopy is important for the eastern long-eared bat. The eastern long-eared bat is mobile. Little data exists about how far the eastern long-eared bat travels while foraging. Lunney et al recorded it travelling up to 262 metres between consecutive roosts. Dr Robertson said it is likely the eastern long-eared bat travels hundreds of metres foraging. Nothing on this species has been recorded in the last 25 years to corroborate the findings by Lunney et al.

[23]

Cross-examination

Considering the white-eared monarch, Dr Robertson was cross-examined in relation to his opinion that there is a population of the white-eared monarch within the forests and woodlands on the North Lismore Plateau but considered that two records over a number of years on the Land is low. He agreed it was a cryptic species and that he had not carried out surveys specifically targeting that species such as bird call recordings or call back monitoring. If he had wished to establish whether or not the bird was on the Land he agreed that was a natural step to take. As a bird which prefers rainforest or forested areas it can be difficult to spot by simply walking around. Dr Robertson agreed the bird is usually seen singly or in twos according to Higgins et al and is difficult to observe. He did not conduct and is not aware that anyone else has conducted a targeted survey on the site.
Mr Milledge agreed and stated that his and Mr Parker's sightings were opportunistic. In Mr Milledge's view it is a difficult species to observe. Its call is often confused with other bird species as it is not particularly obvious. Mr Milledge is familiar with it because he lived for 17 years on the edge of a rainforest which that species of bird inhabited. He initially noticed the bird on the Land from its call.
The two sightings (Parker/Milledge) identified on Fig 6 prepared by Dr Robertson (as part of his primary report and then reproduced in the joint report and in A3 version as Ex 1) were on the edge of regrowth forest with extensive exotic understorey, Dr Robertson agreed. He considered that little-known species frequently choose areas that have not been identified as their preferred taste. There are denser areas of forest close to where the bird was sighted in Precinct 3. Dr Robertson agreed that these sightings suggest that the bird is using the lower quality regrowth forests as a foraging area. Dr Robertson agreed that his hierarchy of rainforest quality was based on floristic content rather than suitability as habitat for either of the relevant species.
Mr Milledge considered that, as the white-eared monarch is an edge species which does not penetrate into large intact areas of rainforest, identifying higher floristic quality habitat on the site as best habitat is an incorrect approach.
In relation to the E2 and E3 zones on the Land, Dr Robertson did not assume these would be fenced to prevent human or domestic animal ingress. He understood there would be walking trails and access trails in this area.
Part of Dr Robertson's reasoning in the assessment of significance included his review of the rezoning studies. Virtually all the forest regrowth had been set aside in E2 and E3 zones. Habitat or potential habitat for both species continues to the north and south of the subject land. He reasoned there would be future development, that being the whole purpose of the rezoning. The approval of the DA maintains and improves the E2 and E3 zones on the Land. According to Dr Robertson, the approval of the Precincts 1 and 2 development required that the E2/E3 zoned land be not only maintained but improved in the future through conservation measures designed to remove weeds and to promote growth of native species and to maintain connectivity. Dr Robertson considered the vegetation on the Land was regenerating. Much is disturbed and was degraded and weed-infested. Dr Robertson assumed that any future development would have to have a similar type of approval so that there would be maintenance of the connectivity of habitat. Where a development is the first cab off the rank in a new area of subdivision, the impacts are assessed having regard to what exists. Later developments will have regard to what has already been done if they take place when Winten's development has been largely constructed. Dr Robertson also took into account residential zoned land and rural zoned land and he assumes all these areas will remain of use as connected forest habitat for birds and bat.
Dr Robertson agreed that the provision of nest boxes would not be relevant to the white-eared monarch. In relation to the availability of tall trees as nesting sites, Dr Robertson agreed that it could take eight to 10 years for regrowth to occur. Some of the existing vegetation will benefit from weed removal and will flourish. If the adjacent farmland and the wider zoned area is considered, a relatively small area of about 12 hectares will be cleared. A high proportion of forest regrowth will be retained on site. There will be some clearing and reduction of actual or potential habitat but in the context of the wider plateau it will not be particularly significant.
Mr Milledge considered there was a high level of uncertainty about the future of the areas around the Land which Dr Robertson relied upon. A basic ecological principle is that when individuals of a particular species are displaced from one area, particularly if they have specialised requirements and are sensitive, they invariably perish. They don't simply move from one area to another. If there are other suitable areas of habitat nearby they would likely be occupied by other breeding pairs. Dr Robertson agreed that potentially that was the case.
In re-examination of Dr Robertson he confirmed he took into account both sightings of the white-eared monarch when doing the seven-part test. He agreed that availability of other habitat offsite was a significant reason why he considered there would not be a significant impact on the bird. He considers the loss of habitat is in the order of 10 per cent not 30 per cent.
Mr Milledge accepted that the objectives of the E2 and E3 zones included the protection, management and restoration of high environmental value areas and prevented development that has an adverse impact on those values. He agreed a number of the permitted uses had no relevance to the subject land. Part of his consideration of the operation of the E2 and E3 zoning is that it may not operate effectively in practice.
The white-eared monarch is sedentary, meaning it sticks in its home range according to Mr Milledge. It has a range of 10-15 hectares.
Considering the bat, Mr Milledge's conclusions supported by Lunney et al was that the small area of dry rainforest around the harp trap sites provides important roosting habitat for the bat. That is why he criticises Dr Robertson's view that the bat is highly mobile. Mr Milledge agreed that there were areas of dry rainforest to be retained on the site that are suitable for the bat and adjacent to the site, particularly in the E2 and E3 zones. There are likely to be hollow-bearing trees closely adjoining the site. Mr Milledge agreed that based on Lunney et al the bat roosts in foliage as well as hollows in trees.
Mr Milledge agreed that at the time the Lunney et al study was done there were limitations in how bats were surveyed due to the equipment available, for example, there was no GPS tracking. Small transmitters tracked the bat at night and in the morning - no movements during the night were recorded (radio telemetry). The Iluka rainforest is dense rainforest compared to the subject site. Where the bats were trapped on Precinct 2 did not have those characteristics.
Mr Milledge did not agree that his reliance on Lunney et al was misplaced because the Iluka rainforest met all the needs of the bats studied and did not depend on adjoining woodland for food or roosts. He identified that some bats were trapped in woodland adjacent to the Iluka rainforest.
Dr Robertson considered that while there is not a lot of information about this bat, other bats of the same genus have been tracked and studied and can move up to several kilometres, but he is not suggesting this species does that. Looking at Figs 6 and 7 of Dr Robertson's report (Ex 1) showing the wider rezoned area, Dr Robertson identified areas of vegetation he considered would be retained as a vegetation corridor adjoining the site. Mr Milledge identified that Greenloaning harp traps only captured two of the relevant bat species close to the site.
Mr Milledge considered the E2 and E3 zones did not preserve habitat in perpetuity as these can be rezoned and some development is allowed. He did not agree there was an error in his approach ecologically in applying the seven-part test. The TSCA Guidelines require focus on the subject site as the impact area. Regarding the extent to which habitat offsite should be considered, Mr Milledge said E2 and E3 zoned land offsite should not be considered as it will not be maintained in perpetuity. Mr Milledge does not agree with Dr Robertson in relation to connectivity of habitat as the E2 and E3 zones are not connected across the North Lismore Plateau. The large number of houses (400) on the Land will interrupt any connectivity of vegetation.
Dr Robertson considered it was possible for bats to fly over the houses which would include homes with planted gardens, meaning it would not be a completely impassable barrier of a couple of hundred metres. He agreed that the houses would be a largely alien environment for the bats. He noted that there are records of eastern long-eared bats in urban areas of Lismore. Dr Robertson also referred to sites he has visited in Sydney where micro-bats were able to survive and move around in suburban areas as evidence that some can live in patches of forest that are adjacent to houses and move across built-up areas to an extent. He agreed there was no scientific basis for considering the bat to be an urban creature. He agreed it is a rainforest animal. He would expect the bat to stick to the forest, that is, it would be light-sensitive and avoid lights. He agreed the urban development would likely be uncomfortable for the bat to cross and would reduce the bats' willingness to traverse these areas to habitat areas. More than half the habitat is to be retained on the Land in Precincts 1 and 2, in that 45 per cent of habitat in these areas will be removed. Dr Robertson was shown the Landscape Masterplan (above in [35]). When asked whether the provision of park furniture, walking tracks, public water fountains and other methods of encouraging human recreation would reduce the value of E3 areas he had considered to be suitable offset to protect the habitat of the bat and the bird, he said there is potential for further impact as a result of that, but subject to detailed design and the location.
Dr Robertson considered the species can move along the lengths of forest retained in the E2/E3 zoned areas and in the forest between the E2 and E3 areas. Dr Robertson considered that while a lot of land immediately outside the Land is zoned rural, if rezoned in future it would have environmental studies that would have to have regard to flora and fauna values in connectivity, referring to Fig 3 (Ex 1).
Mr Milledge advised that the identification of bats in Lismore referred to by Dr Robertson related to sightings in Wilson Nature Reserve and other records are confused and appear to be locations where bats have been taken into care rather than reflecting bat habitat.
Dr Robertson denied that he had substituted a test of certainty of local extinction in place of the statutory test of likely to be at risk. He has not recommended a research project of this bat species which will address the limitations he identifies in Lunney et al. He rejected the submission that he engaged in speculation about the characteristics of this bat over the available published evidence. Dr Robertson agreed that the largest distance recorded by Lunney et al travelled by a bat was 513 metres which could include foraging distances, reflecting when a transmitter fell off. He denied he was trying to explain away the Lunney et al data. He accepted it was the best and most recent study taken of the behaviour of the bat.
Dr Robertson considered the extent of habitat cleared in light of surrounding areas on the North Lismore Plateau and mitigation measures such as replanting of native species and removal of weeds. His analysis of areas to be retained commenced with the Greenloaning report based on the work of Warren and Associates as to what should be retained and what land is suitable for clearance. An important part of his reasoning is that the areas identified in the earlier studies carried out by Warren and Associates/Greenloaning as having the highest ecological value were generally retained in E2 and E3 zones as recommended. Dr Robertson accepted that some high conservation areas mapped in the draft Warren and Associates report have not been zoned E2 or E3. In relation to Precinct 3 as presently indicated by way of a concept plan some of the high conservation land is to be cleared and some kept in an APZ on the western side of Precinct 3. An area of high conservation value land identified as APZ will require thinning and will not retain its high conservation value. The Warren and Associates constraints map with overlay of Precincts 1 and 2 was tendered by the Applicant (Ex J).
Dr Robertson agreed that any tree survey work was undertaken after the road between Precincts 1 and 2 had been cleared of some trees as part of being constructed and widened and would not therefore have been included in the survey of hollow-bearing trees. Mr Milledge stated that 11 hollow-bearing trees had been removed as identified in the GeoLink report referred to in par 14 of Ms Walsh's affidavit.

[25]

Applicant's submissions

The test of whether a SIS is required is that provided by s 78A of the EPA Act. Section 5A is a guide to the application of that test. Other factors may be relevant such as cumulative impact of the proposed development: BT Goldsmith Planning Services Pty Limited v Blacktown City Council [2005] NSWLEC 210 (BT Goldsmith) at [90]; and Friends of Tumblebee Inc v ATB Morton Pty Ltd (No 2) (2016) 215 LGERA 157; [2016] NSWLEC 16 (Tumblebee) at [214]-[215]. The likelihood of future development can be a factor that is considered depending on circumstances: Tumblebee at [56]. The relevant principles are identified in Tumblebee at [75]-[83]. The TSCA Guidelines must be considered to the extent they are relevant but these guidelines are not legislation. The Court is not prevented from reaching a positive answer to the question stated in s 78A(8) just because the TSCA Guidelines are not met. The TSCA Guidelines refer to cumulative effects and the precautionary principle at pp 1, 2 and 12.
There is no doubt the white-eared monarch is present on the Land, it having been observed by Mr Parker in 2015, a record he supplied to the BioNet Atlas, and observed and photographed by Mr Milledge in 2019. At least two separate independent sightings would constitute sufficient foundation for finding the presence of any threatened species. No targeted study of a bird that is difficult to see has been undertaken by Winten or anyone else (see Higgins et al). There is a population of the threatened species the white-eared monarch on the North Lismore Plateau, and it uses the Land at least for foraging, and probably for breeding. The development is likely, and at the time of approval was likely, to significantly affect the white-eared monarch and/or its habitat. Those effects would be produced by some (or some combination of) loss of habitat through clearance of vegetation; fragmentation of remaining vegetation; and indirect threats or pressures such as increased human activity and increased numbers of predatory domestic animals.
The proposed amelioration measures based on regenerating or replanting other areas of bushland have not been shown to have been used successfully for the same species in other locations, or to be sufficient to offset the impact on the species and its habitat.
A population of eastern long-eared bats is resident on the North Lismore Plateau and is centred or focussed on the western part of Precinct 2 of the Land. That species of bat has been found on or near the Land by Greenloaning, Mr Milledge and Dr Robertson (six sightings in total). The bats are likely to be relatively narrow or confined in their range of roosting and foraging sites and unlikely to travel extensively outside of the proposed development area (Mr Milledge and Lunney et al). Lunney et al represents the best current evidence of the habits of this bat. To the extent that the evidence permits any conclusion to be drawn, the Land and the vegetation on it are the focus or centre of the bat's local range.
The proposed development is and was at the time it was approved, likely to significantly affect the eastern long-eared bat population or its habitat. Roughly 30 per cent of available breeding habitat will be lost according to Mr Milledge. Dr Robertson says at least 57 per cent of hollow-bearing trees will be lost (or 34 per cent if you take into account trees elsewhere on the North Lismore Plateau). That is a significant amount. In Tumblebee, 0.1 per cent loss of habitat was significant. Hollow-bearing trees are critical to the species as this is the location where female bats give birth (per Lunney et al), a critical stage in the life cycle of the species. Newly planted trees will take 50 to 100 years of growth to provide suitable hollows for the bats according to Mr Milledge.
That effect on the bat or its habitat will be brought about by some (or some combination of) clearing of vegetation suitable for its habitat, fragmentation of remaining vegetation, and indirect threats such as increased pressure of human habitation including increased levels of nocturnal light, human disturbance, and predation by domestic pets. The proposed amelioration measures based on regenerating or replanting other areas of bushland have not been shown to be successful for the same species in other locations, or to be sufficient to offset the impact on the species and its habitat.
The Applicant made the following criticisms of Dr Robertson's evidence. Dr Robertson did not carry out any targeted survey to seek to identify the white-eared monarch and was unaware of any such survey on the North Lismore Plateau having been conducted by anyone else.
Dr Robertson's evidence focussed solely on questions of habitat loss for the white-eared monarch and only indirectly referred to other KTPs. Further, Dr Robertson's approach to the issue of habitat loss was to argue that despite the anticipated loss of a considerable area of suitable habitat, other available habitat both within and outside the development area would remain available to the white-eared monarch. This analysis should be rejected because it ignores the cumulative effect of past and likely future habitat loss. Further, the assertion that better quality habitat would be maintained for the white-eared monarch was misleading because the hierarchy of "best" habitat included in Dr Robertson's report was based on its floristic content rather than its suitability for the white-eared monarch.
In claiming that retained areas of habitat would be suitable for the white-eared monarch in the long term, Dr Robertson did not take into account that the uses permissible in E2 and E3 zoned land are not exclusively ecological but encourage human recreation. He also did not account for modification to parts of retained E2 and E3 zoned land for bushfire APZs. Dr Robertson conceded that modification for APZs would require thinning of tree cover to 15 per cent canopy coverage for inner protection zones and 30 per cent canopy coverage for outer protection zones. Dr Robertson did not substantiate his assumption that despite these modifications the habitat would remain suitable for the white-eared monarch. The E2 and E3 zones do not offer long-term protection for the white-eared monarch according to Mr Milledge.
Dr Robertson's emphasis on the steps proposed for future regeneration on the subject site did not account for the impact in the shorter term or the time needed for new plantings to mature to the height which the white-eared monarch frequents and nests in, typically 17 metres or more above the ground. Dr Robertson's initial suggestion that nest boxes would help ameliorate the loss of suitable nesting trees was incorrect. Dr Robertson accepted in oral evidence that nest boxes would not help the white-eared monarch because it makes open nests in tree forks high in the rainforest canopy. Dr Robertson also accepted that the scattering of basalt boulders and logs of dead trees would not help the white-eared monarch as it makes no use of either.
Dr Robertson did not consider the impact that the development would have on the ability or willingness of the white-eared monarch to move between pockets of retained habitat. Dr Robertson's use of scientific literature was selective. He cited Higgins et al yet made statements that contradicted it. Dr Robertson did not approach the task of assessing the white-eared monarch possessing or seeking to obtain a detailed understanding of this species, its habits, or its needs.
Many of the same criticisms apply to Dr Robertson's analysis of the eastern long-eared bat. Dr Robertson's assertion in [65] above that the eastern long-eared bat has a wide range and flies long distances was not substantiated. Lunney et al shows that the eastern long-eared bat has a narrow range. Dr Robertson did not conduct a tracking survey to substantiate his opposing view. The evidence gained from harp trap data only supports the conclusion that the subject site and vegetation on it are the centre of the bat's local range and that it should be treated as having a narrow range.
Dr Robertson's emphasis on future planting of new red gums to replace the number being removed did not consider the short-term impacts of removal or time needed for new trees to mature and provide suitable hollows. Dr Robertson's analysis was that at least 57 per cent of the hollow-bearing trees on the site would be lost. It is likely that Dr Robertson understated the loss of hollow-bearing trees as he did not carry out the survey himself and did not include in the pre-clearance total 11 hollow-bearing trees removed for the building of the road. If included, the proportion of removal on the site increases from 57 per cent to 62 per cent.
Dr Robertson did not consider the impact that the development would have on the ability or willingness of the eastern long-eared bat to move between pockets of retained habitat. This fragmentation is particularly detrimental to the bat because of its sensitivity to light pollution. Dr Robertson's suggestion in cross-examination that these bats are occasionally found in urban or suburban settings should be given no weight as he accepted that this claim was formed by analogy to a similar species.
Dr Robertson's CV reveals that his publications focus on botany and fish and that the real focus of his work is the preparation of evidence for legal proceedings. Mr Milledge has greater knowledge of the specifics of both subject species and his evidence should be preferred.
Winten's case that while there will be impact on the Land (or just Precincts 1 and 2) as a number of hollow-bearing trees and 12 hectares will be removed is acceptable because vegetation will be improved in Precinct 2 and surrounding areas are yet to develop ignores cumulative impact. The problem is not only for the next developer of subdivisible land.
There is nothing erroneous in Mr Milledge's approach to the E2, E3 zones off-site. These were not offered as ameliorative measures as part of the DA such as off-set land that is set aside.
In reply, the meaning of "study area" is not informed by the local population definition in the TSCA Guidelines. Winten's construction of the guidelines is circular. The study area is that which is affected, or is expected to be affected, by the development. Winten did not point to any impacts of the proposed development on E2, E3 or RU1 zoned areas elsewhere or anything to suggest the development would have a direct influence on conditions on those sites. Winten's contention that because it is the first developer on the rezoned plateau areas its impact is discounted by the lack of development on surrounding land, is not reflective of the scheme of the EPA Act or the TSCA Guidelines. The statutory provisions ask the Court to look at development on the Land the subject of the DA and decide whether the application in respect of development on that land is likely to have a significant impact on threatened species or their habitats.

[26]

Winten's submissions

It is accepted that both the eastern long-eared bat and white-eared monarch have a presence on the Land. Section 5A(2)(a), (d) and (g) of the EPA Act are relevantly applicable to the significance assessment and the TSCA Guidelines (Ex 2) are a mandatory consideration under s 5A(1)(b) when assessing significance of impacts. The subject site is Precincts 1 and 2 as Precinct 3 was approved as a concept only.
The principles in BT Goldsmith and Tumblebee are accepted. Unlike in BT Goldsmith the species in issue are mobile fauna. Unlike in Tumblebee the species are not critically endangered with extremely limited remaining habitat. Tumblebee is not authority that future development can be taken into account.
Mr Milledge's approach to the study area as required by the TSCA Guidelines is too narrow given the vegetation on surrounding land. The definition of "study area" requires additional areas which are likely to be affected by the proposal to be considered. The local population as defined in s 5A(2)(a) of the TSCA Guidelines includes (second bullet point) "individuals known or likely to occur in the study area, and in adjoining areas (contiguous or otherwise)". Both species are mobile.
In relation to s 5A(2)(d) habitat, extent, importance and locality are all defined. There is no doubt the local population of both species can exist beyond the developable footprint. Consequently Mr Milledge too narrowly defines the area by which significance is to be considered. Mr Milledge ignored the presence of other habitat trees adjoining the Land in his report but accepted they were there in cross-examination. Mr Milledge's refusal to consider the physical attributes of the land in the immediate locality, in particular that vegetation located in the E2 Environmental Conservation and E3 Environmental Management zones under the Lismore Local Environmental Plan 2012, is fatal to his assessment.
Mr Milledge confirmed in cross-examination that his assessment was influenced by the assumption that a consent authority would not maintain the environment protection objectives of the E2 and E3 zones and these could be rezoned in the future. This impermissibly considers impacts that do not arise from the DA but from some other potential future DA. Under ss 5A and 78A of the EPA Act it is the impacts of the development the subject of the DA that must be considered in the assessment task required in this case.
The E2 and E3 zoned land on the site and off the site are part of the study area that should be considered. The objects of these zones include environmental protection. The limited development that can be approved must be consistent with the objects of the zone. In the E2 zone development must comply with the objectives of the protection, management and restoration of high ecological values. In the E3 zone the objectives include the protection, management and restoration of areas with special ecological value. Any development should not have an adverse effect on those values. The retention of wildlife habitats and associated vegetation and wildlife corridors is another objective. These zones were created as part of the rezoning of the North Lismore Plateau so that the residential development did not impact on threatened species, as identified in the planning proposal.
Both experts agree there is suitable habitat to be retained on the subject site, which is in the E2 and E3 zone, and similarly zoned land in the locality. The assumption must be made that planning approval will be compatible with the current zonings. One of the purposes of the zoning changes on the North Lismore Plateau was to preserve habitat whilst rezoning some land for residential development.
Considering the bat, Dr Robertson's approach to assessment of significant impact should be accepted whereby areas outside the developable site on the Land (Precincts 1 and 2) can be considered, particularly the E2 and E3 zones. The "study area" for the purposes of the TSCA Guidelines was Precincts 1 and 2 and any additional areas likely to be affected by the development proposal, either directly or indirectly. This is because "study area" is informed by the definition of "local population" which extends to include individuals in contiguous or interconnecting parts of habitat. As the species in question are mobile and can exist beyond the developable footprint, the study area should extend as far as necessary to take all potential impacts into account. Dr Robertson properly examined the "study area" and considered all likely impacts on the eastern long-eared bat and white-eared monarch in the context of the extent of habitat being cleared in the order of 10 per cent rather than 30 per cent. Viewed in the proper context, his opinion that there will not be adverse impact on a viable local population (s 5A(2)(a)) should be accepted.
Dr Robertson correctly assessed habitat as required by the TSCA Guidelines in relation to s 5A(2)(d) as to the quality of habitat within the locality and the study area and connectivity in the study area (the wider rezoned area) and in the wider locality. In his five-part assessment in the joint report for the bat (par 175) he states that the proposed vegetation modification and thinning on the subject site will not affect food sources being insects for the bat. The species have large foraging ranges and the subject site is likely to be one of many sites utilised. Much larger areas of potential habitat exist throughout the locality. He therefore concludes that the habitat to be removed on the subject site is not important for the long-term survival of the species in the wider locality. Dr Robertson's assessment correctly emphasised the conceivability of regenerating forest and unlikeliness of significant additional fragmentation of habitat as a result of the development.
Mr Milledge's reliance on the conclusions of the paper prepared by Lunney et al (Ex 3) as being definitive and absolute about particular roosting habits of the bat (it does not exclusively roost in tree hollows) and the extent to which they will travel also demonstrates a lack of rigour in his assessment of significance. The limitations evident from the methods of recording used as the foundation of Lunney et al should not be ignored and to ignore them is to overstate likely impacts on the bat. Dr Robertson's evidence is consistent with the scientific evidence, his wider knowledge about this genus of bat and consistent with the paper prepared by Lunney et al bearing in mind the limitations of the survey, given the technology available at the time it was done in 1995.
In his five-part assessment in the joint report for the bird (pars 86-134), in relation to s 5A(2)(a), Dr Robertson identifies that there may be a viable population of the bird on or around the subject site. That population is unlikely to be placed at risk of extinction because the approved development will only clear a minority of habitat on site and from the wider rezoned area. Areas of high value vegetation will be retained, large expanses of weedy regrowth that represent habitat for the species are to be selectively cleared and/or enhanced through ongoing management. About 77 hectares of forest will be retained in the wider rezoned area and more forest adjoins the rezoned area. In relation to s 5A(2)(d)(i) the limited area of habitat to be cleared will be offset by the retention of dry rainforest and enhancement of regrowth areas forming corridors between areas of better-quality habitat. In relation to s 5A(2)(d)(ii) areas of habitat are unlikely to become significantly fragmented or isolated from other areas as a result of the development. In relation to s 5A(2)(d)(iii), the habitat to be removed is limited relative to the areas of vegetation to be retained and is unlikely to be of long-term importance to the survival of the species in the locality as there are only limited records of this species in the locality. Dry rainforest in the wider rezoned area and the general locality provide additional foraging and nesting sites so that the long-term survival of the species in the locality would not be jeopardised. Dr Robertson identifies KTPs for both species.
Dr Robertson's opinions were not undermined in cross-examination and these should be accepted.
Cumulative impact has no relevance to this case. Winten is the first developer in a newly rezoned area which has set aside areas for conservation of vegetation in the E2 and E3 zones.
On this proper application of s 5A of the EPA Act and the TSCA Guidelines it is clear that the development would not be likely to have a significant effect on either species under s 78A of the EPA Act. The SIS ground should be dismissed.

[27]

Consideration of species impact statement ground

Under s 9.45 of the EPA Act any person may apply to the Court to seek to remedy or restrain a breach of that Act. Under s 9.46 if the Court is satisfied that a breach has been committed or will be if not restrained it may make any such order as it thinks fit to remedy or restrain the breach.
At the time the DA was lodged s 78A(8)(b) of the EPA Act was in force. It required that a SIS prepared in accordance with Div 2 Pt 6 of the TSC Act accompany a DA if development on land was likely to significantly affect threatened species, populations or their habitats. Threatened species is defined in s 4 of the TSC Act and includes vulnerable species listed in Pt 1 of Sch 2. The eastern long-eared bat and the white-eared monarch are each listed as vulnerable species in Pt 1 Sch 2 of the TSC Act. No SIS accompanied the DA. A flora and fauna assessment prepared by Mr Parker dated August 2017 which was updated on 18 January 2018 was lodged with the DA. It stated the development was not likely to cause a significant impact on threatened species.
There is no dispute that there is habitat of threatened species on the Land and that some will be cleared as part of the approved residential subdivision. There is no real disagreement as to what was physically on the Land when development consent was granted. The likelihood of significance is to be determined by reference to the seven-part test (to the extent factors are relevant) in s 5A of the EPA Act. The ecologists identified that s 5A(2)(a), (d) and (g) were relevant.
There is generally no dispute about the overall principles which apply to the assessment of significance required by s 78A(8)(b). Following Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8 (Timbarra) cited in numerous other cases referred to in Tumblebee at [75], whether or not a SIS is required is a question of jurisdictional fact which the Court must decide for itself on the basis of the evidence before it. If a SIS is required but does not accompany the DA, development consent cannot be granted: Timbarra at [94] and [108]; and Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited (2010) 210 LGERA 126; [2010] NSWLEC 48 (Speleological Society) at [81]. The inquiry must focus on the development as it stood immediately prior to the determination: Speleological Society at [82] citing Corowa v Geographe Point Pty Ltd (2007) 154 LGERA 117; [2007] NSWLEC 121 (Corowa) at [50]-[51]. Ameliorative measures proposed as part of the DA can be considered (not measures imposed as conditions of development consent); Speleological Society at [83]. The word "likely" means "a real chance or possibility" not "more probable than not": Tumblebee at [79] and the cases cited therein. "Significantly" means "important", "notable", "weighty" or "more than ordinary": Oshlack v Richmond River Council (1993) 82 LGERA 222 at 233; Corowa at [52]; BT Goldsmith at [59]; and Speleological Society at [84].
The consideration of relevant factors is not limited only to factors in s 5A(2), the list not being exhaustive: BT Goldsmith at [12] and Tumblebee at [82]. A positive answer to any one or more of the relevant factors in s 5A(2) does not mandate an affirmative answer to the question of whether there is likely to be a significant effect on threatened species or habitats but also does not preclude a negative answer: Carstens at [61]; Smyth v Nambucca Shire Council (1999) 105 LGERA 65; [1999] NSWLEC 226 at [12]; also cited in Tumblebee at [81]. A positive answer to one of the seven-part test factors is sufficient to support a positive answer to the s 78A(8)(b) enquiry per Carstens v Pittwater Council (1999) 111 LGERA 1; [1999] NSWLEC 249 (Carstens) at [50]-[51]; and Tumblebee at [77]. Other relevant factors can include cumulative impacts of a proposed development: BT Goldsmith at [89]-[90] and Tumblebee at [214]. The precautionary principle applies at the present stage of determining whether a SIS is required: BT Goldsmith at [68]-[73]. The precautionary principle was applied in Tumblebee at [181]-[185].
One area of disagreement is whether the potential for future development on neighbouring land can be considered, the Applicant citing Tumblebee at [56]. At [173] Pepper J did not accept she should take into account proposed development not yet approved as this was too speculative.
Clarification of the area of the subject site and the Land in light of the evidence is required. Development consent was granted for residential subdivision on Precincts 1 and 2. Approval for the development of 43 residential lots on Precinct 3 in concept was also given. While Winten sought to exclude this area from the subject site on the basis that it would not be developed under this consent as it required another DA, in my view it should not be ignored entirely. It was the subject of the DA and was referred to expressly in the grant of development consent, see [19] above. Vegetation located on the concept plan for Precinct 3 identified as possibly for retention was referred to by Dr Robertson in his evidence.
The TSCA Guidelines are a mandatory relevant consideration in the assessment of impact by virtue of s 5A(1)(b) and (3) of the EPA Act, defined as assessment guidelines issued under s 94A of the TSC Act. They are not exhaustive so that other relevant matters can also be considered where appropriate: Tumblebee at [82]. They were considered extensively by the ecologists in undertaking their assessments of significance.

[28]

Section 5A(2)(g) key threatening processes

Concerning s 5A(2)(g) (KTPs), there is no dispute that habitat of the two threatened species the subject of evidence is present on the Land and that some habitat will be removed by the approved subdivision, a KTP. Mr Milledge says habitat removal will be in the order of 30 per cent whereas Dr Robertson says it will be in the order of 10 per cent reflecting their different approaches to study area, an issue discussed below. In addition numerous KTPs are identified by Mr Milledge in relation to the bat, totalling four in Sch 3 of the TSC Act as listed above in [52]. Two were identified by Mr Milledge as likely to be exacerbated by the subdivision in relation to the bird. Dr Robertson did not dispute that any of these are relevant. His initial report referred to seven KTPs relevant to the bird and five relevant to the bat. He expanded on these in the ecologists' joint report, adding two KTPs for the bird and three for the bat. Cumulatively, the ecologists identify nine KTPs likely to be exacerbated in relation to the white-eared monarch and 11 KTPs likely to be exacerbated in relation to the eastern long-eared bat.
I accept the evidence of the ecologists that, but for a KTP concerning bushrock removal, KTPs likely to be exacerbated in relation to the white-eared monarch are: aggressive exclusion of birds from woodland and forest habitat by abundant Noisy Miners, Manorina melanocephala; anthropogenic climate change; clearing of native vegetation (as defined and described in the final determination of the Scientific Committee to list the KTP); invasion and establishment of exotic vines and scramblers; invasion, establishment and spread of Lantana (Lantana camara L sens lat); invasion of native plant communities by exotic perennial grasses; loss of hollow-bearing trees; predation by the Feral Cat Felis catus (Linnaeus, 1758); and, removal of dead wood and dead trees.
I accept the evidence of the ecologists that the KTPs likely to be exacerbated in relation to the eastern long-eared bat are: anthropogenic climate change; clearing of native vegetation (as defined and described in the final determination of the Scientific Committee to list the KTP); invasion and establishment of exotic vines and scramblers; invasion of native plant communities by African Olive Olea europaea subsp cuspidata (Wall ex G. Don) Cif; invasion of native plant communities by Chrysanthemoides monilifera; invasion, establishment and spread of Lantana (Lantana camara L sens lat); invasion of native plant communities by exotic perennial grasses; loss and degradation of native plant and animal habitat by invasion of escaped garden plants, including aquatic plants; loss of hollow-bearing trees; predation by the Feral Cat Felis catus (Linnaeus, 1758); and, removal of dead wood and dead trees.
In the application of subs (g) the TSCA Guidelines state that species listed as at risk warrant particular consideration. Whether a species is at risk is determined by reference to the final determination of the NSW Threatened Species Scientific Committee to list a KTP in Sch 3 of the TSC Act. If the final determination lists a species particularly at risk of, or adversely affected by, the operation or exacerbation of that KTP, those species warrant particular consideration. In the final determination listing "clearing of native vegetation" as a KTP ("Clearing of native vegetation - key threatening process listing", NSW Scientific Committee final determination, 21 September 2001), the white-eared monarch is listed as a threatened species adversely affected by that KTP. In the final determination listing "loss of hollow bearing trees" as a KTP, the eastern long-eared bat is listed as a species that is reliant on tree hollows for shelter and nests ("Loss of hollow-bearing trees - key threatening process listing", NSW Scientific Committee final determination, 5 October 2007). Both species are at risk from these KTPs.

[29]

"Study area" "local population" "locality" application

Turning to the matters in s 5A(2)(a) and (d), when BT Goldsmith was determined in 2005 s 5A(c) (predecessor to s 5A(2)) stated that whether a significant area of known habitat was to be modified or removed was to be assessed in relation to the regional distribution. No guidelines for assessment as referred to in s 94A of the TSC Act were then in place. Section 5A(2) introduced on 31 October 2005 refers to "viable local population" in subs (a). Subsection (d) refers to locality which is defined in the TSCA Guidelines by reference to local population of a species (p 27 of this judgment). The introduction in the TSCA Guidelines issued in August 2007 refers to the shift to assessment of significance based on local rather than regional impacts due to long-term biodiversity loss because of the accumulation of losses and depletions at a local level (see p 25 of this judgment). The focus on local impacts was also identified in Tumblebee at [113].
Concerning s 5A(2)(a) and (d), one important matter to resolve in determining whether the proposed development on the Land is likely to have a significant effect on threatened species, populations or their habitats is the appropriate approach to the TSCA Guidelines, as informed by the ecological evidence, in relation to "study area", "local population" and "locality" in the circumstances of this case. These terms appear in these subsections and are defined in the TSCA Guidelines extracted in [32] above. "Subject site" is "the area directly affected by the proposal". "Study area" is "the subject site and any additional areas which are likely to be affected by a proposal, either directly or indirectly. The study area should extend as far as necessary to take all potential impacts into account." "Direct impacts" and "indirect impacts" are also defined. All impacts identified are adverse. In relation to fauna species the local population comprises "those individuals known or likely to occur in the study area, as well as any individuals occurring in adjoining areas (contiguous or otherwise) that are known or likely to utilise habitats in the study area". "Locality" has the same meaning as local population of a species.
The TSCA Guidelines are not statutory instruments and precise construction may not necessarily be required. In this case the definitions are clear on their terms, give rise to no ambiguity and should be applied.
Winten's argument about the study area, local population and locality is circular in construction and application. The subject site here is the Land, particularly Precincts 1 and 2, the location of the proposed development. Study area means the area likely to be affected by the proposal including the subject site (affected area) and additional areas affected directly or indirectly, also defined. The defined impacts are all adverse being direct (kill fauna) and indirect (for example, predation by domestic or feral animals, loss of breeding opportunities, loss of shelter, weed invasion, or increased human activity within or directly adjacent to sensitive habitat areas) which harm or have the potential to harm threatened fauna.
The amelioration of the adverse impact of displacement of threatened species to other areas of suitable habitat (if they exist, and if the assumption that individuals will move is correct, an issue I discuss below) is not the kind of impact engaged by the TSCA Guidelines. Winten's approach treats offsite areas which ameliorate the impact of the development the same as offsite areas which suffer adverse impacts from a proposed development. The former are not part of a study area, the latter are under the definitions in the TSCA Guidelines. The fact that a threatened species and/or its habitat may occur across the North Lismore Plateau does not mean that wider area is the study area for the purposes of the TSCA Guidelines. The Winten/Dr Robertson approach is opportunistic and reduces focus on the local, direct and indirect, adverse impacts of a development on a subject site and its surrounds if relevant. To the Winten submission that the effect of too narrowly defining the area by which significance is to be considered overstates the likelihood of significant impact on the bat and the bird, I consider the opposite occurs with the Winten approach, namely an understatement of the likelihood of significance. Such an approach does not accord with the overall tenor of the TSCA Guidelines which in my view encourage a conservative approach to the assessment of impact in determining significance. The introduction states that the assessment of significance is the first step in considering potential impacts.
Under the heading "Assessment Guidelines" at p 2 it states: Where there is reasonable doubt regarding the likely impacts, or where detailed information is not available, a species impact statement should be prepared. Other issues not specifically addressed by the factors of assessment should be included and discussed in the broader impact assessment process, for example, in a review of environmental factors or an environmental impact statement. At p 12: The threatened species assessment of significance should not be considered a "pass or fail" test. Instead, consideration of the factors will inform the decision-making process of the likelihood of significant effect. Where necessary, the process will trigger further assessment in the form of a species impact statement. All factors should be considered as well as any other information deemed relevant to the assessment. The assessment of significance should not be used as a substitute for a species impact statement. Application of the precautionary principle requires that a lack of scientific certainty about the potential impacts of an action does not itself justify a decision that the action is not likely to have a significant impact. If information is not available to conclusively determine that there will not be a significant impact on a threatened species, population or ecological community, or its habitat, then it should be assumed that a significant impact is likely and a species impact statement should be prepared. Proposed measures that mitigate, improve or compensate for the action, development or activity should not be considered in determining the degree of the effect on threatened species, populations or ecological communities, unless the measure has been used successfully for that species in a similar situation. In many cases where complex mitigating, ameliorative or compensatory measures are required, such as translocation, bush restoration or purchase of land, further assessment through the species impact statement process is likely to be required.
The study area applying the TSCA Guidelines definition of "impact" in this case is largely the Land and the immediate areas adjoining it (as considered by Mr Milledge in [43] above), not the wider rezoned area. The local population of the bat and bird on and close to the Land must be considered for the purposes of s 5A(2)(a). That is also the locality for the purpose of s 52A(d).
A key difference between the ecologists is their approach to "study area". Mr Milledge generally looked at the Land (the subject site) with consideration of the land immediately adjoining the subject site. Given my finding above on the application of the TSCA Guidelines, that is correct from a construction perspective.
Dr Robertson looked to the wider rezoned area of the North Lismore Plateau, including the Land (either 255 or 334 hectares), and other adjoining rural land to the west of the Land not rezoned in forming his opinions. The ameliorative impact Dr Robertson relied on to identify the study area was that displaced individuals, whether bat or bird, would be able to move to land within the subject site and to adjoining land which had suitable habitat. This included (i) areas zoned E2 Environmental Conservation and E3 Environmental Management on the subject site; (ii) areas zoned E2 and E3 beyond the subject site in the wider rezoned area of the North Lismore Plateau; and (iii) forested areas in R2 residential zoned areas in the wider rezoned area of the North Lismore Plateau. In oral evidence Dr Robertson also referred to RU1 rural zoned land adjoining the site to the west (outside the rezoned area the subject of the planning proposal). According to Dr Robertson 112 hectares of forested land exists in the wider rezoned area of which 77 hectares are E2 and E3 zoned land. I do not consider this approach reflects the approach required by the TSCA Guidelines.
Turning to consider the conflicting approaches of the ecologists from a discipline perspective, there is substantial disagreement between the two ecologists. To give expert opinion in a court expertise must necessarily be developed by study, training and experience and any opinion proffered must be based wholly or substantially on the expert knowledge of a witness: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 at [85], Dasreef Pty Limited v Hawchar (2011) 243 CLR 588; [2011] HCA 21 at [37]. Ecology is a very broad discipline with many specialities, reflecting the great complexity of the interactions of animals with their surroundings, given the many classes (for example mammals (bats), aves (birds)) in the animal kingdom, divided further into orders (here chiroptera (bats) and passeriformes (birds)), families (categories here vespertilionidae (bat) and monarchidae (bird)), genus (types of bats and birds) and species (the particular bat and bird). The focus of these proceedings is two entirely different classes of vertebrate (chordata) animals. While both ecologists have many decades of working in the broad field of ecology their expertise within that varies. Mr Milledge's experience of the genus of bats and birds and of the two particular species in northern NSW the focus of these proceedings is substantially greater than Dr Robertson's as is clear from his CV and the direct experience he referred to in his oral evidence. I agree with the Applicant's criticism of Dr Robertson that, to the extent he has done field work and study to develop his ecological expertise, it is in relation to fish and botany according to his CV. Dr Robertson's CV cites his extensive attendance at various courts as an expert witness. Citing attendance at court as an expert witness without more detail is not study, training or experience relevant to the development of ecological expertise. Dr Robertson did not refer to any relevant study, experience or training in relation to either genus or species I must consider. I am therefore likely to accept Mr Milledge's opinion where there is disagreement between the ecologists as I found his opinion credible, based on appropriate expertise and supported by scientific study where available. Mr Milledge's evidence also better reflects the requirements of the statutory scheme.

[30]

Mobility of species

Another fundamental area of difference between the ecologists is the extent to which they consider these species will move off the Land when development occurs that impacts on them directly or indirectly, whether through loss of habitat or impacts of building and then occupation of houses. Dr Robertson identified no difficulty in the bird and bat doing so because they can fly, and that approach underpins the Winten case. Mr Milledge stated that from an ecological perspective displaced individuals rarely move and are likely to die. Mr Milledge also identified that other individuals of the same species may be occupying nearby habitat meaning it cannot be assumed to be available for displaced animals to move into. From an ecological perspective I consider Mr Milledge is likely to be correct.
A related assumption underpinning Dr Robertson's approach to study area is that the bat is highly mobile and ranges widely when foraging, meaning it can and will readily move to other areas of habitat within and off the Land. While I accept that a bat can move, how far is a matter of fundamental debate between the ecologists. That the relevant local population is located on the Land or very near it is reinforced by the six sightings of individuals on the Land and in the immediate area, as identified by Mr Milledge.
The limited survey work undertaken of the bat by Greenloaning using harp traps did not detect its presence widely across the North Lismore Plateau. Greenloaning did not place harp traps on the Land. On every occasion that Cumberland Ecology and Mr Milledge set harp traps bats were trapped. Four bats were trapped on Precinct 2 where both experts set traps. Mr Milledge set his traps in the development footprint area. Cumberland Ecology traps were on the edge of that area and in the E3 zoned land in the south-east of Precinct 2 as shown on Fig 4 (Ex 1).
The sightings of the bat on the Land (Milledge/Cumberland Ecology - four sightings) or very close to it (Greenloaning - two sightings) give rise to the inference that the species inhabits the Land and very close to it. Mr Milledge's opinion that the Land is at the centre of habitat for a local population of the bat is supported by this data.
Mr Milledge's evidence displays a greater understanding of the habitat and behaviour of the bat including his consideration of Lunney et al in [46] above, the only in-depth ecological study presently available about the bat's behaviour in northern NSW as Dr Robertson agreed in cross-examination in [104] above. Winten's counsel sought to undermine the impact of that study in cross-examination as outlined above in [97]-[98], suggesting it used old technology and not the modern GPS tracking which would be used if done today, and took place in intact rainforest likely to satisfy all the bats' needs unlike the subject site. In the absence of any other study, that study should be given weight as Mr Milledge did in stating that in his opinion the bat does not range widely from roosting sites when foraging. Dr Robertson's opinion in his report and in oral evidence that it did range widely lacks any scientific foundation for this particular species and is not supported by the limited survey work conducted on the Land and surrounds. Dr Robertson's statement in the joint report in [83] above that no study had been conducted in 25 years to corroborate Lunney at et al, as if that enabled his otherwise unsupported opinion about the mobility of the bat to be given weight, was unhelpful evidence. While Winten's counsel submitted Dr Robertson's opinion was supported by other scientific opinion, he only extracted Lunney et al in the joint report at folios 208-209, while simply naming another report.
Considering whether there is a local population of the white-eared monarch, two sightings, one on Precinct 2 and one on Precinct 3, are recorded in the evidence, one by Mr Parker and one opportunistically by Mr Milledge. Mr Milledge concludes that there is likely to be a breeding pair using the Land and its vicinity. Dr Robertson agreed that a viable population of white-eared monarch may exist on or around the subject site as there were two records of the species (in [59] above). Both ecologists referred to Higgins et al (summarised above in [39]-[40] and referred to by Mr Milledge in his primary report in [47] above and by Dr Robertson in cross-examination in [85] above), which identifies that the bird is easily disturbed. The ecologists agree the bird is cryptic and Mr Milledge advised in his oral evidence that it is difficult to detect and is usually first identified by its call which is easily confused with other bird species, above in [85]. Mr Milledge has extensive experience of the bird having lived in close proximity to a population for many years, above in [86]. Dr Robertson had no specific experience of the bird that he identified.
The range of the monarch is 10 to 15 hectares according to the undisputed evidence of Mr Milledge. He described it as sedentary meaning it sticks to its home range. The study area for the bird must also be considered as Precincts 1 and 2 and the land immediately adjoining.
These findings about study area, local population and locality, and mobility inform the application of s 5A(2)(a) and (d).

[31]

Section 5A(2)(d) removal, modification, fragmentation, isolation of habitat

Given that loss of habitat is the KTP with the most immediate and greatest adverse impact on these species, it is appropriate to next consider s 5A(2)(d) as that will inform consideration of s 5A(2)(a), the risk of extinction of a local population. Section 5A(2)(d) requires consideration of (i) the extent of habitat removal or modification; (ii) the likelihood of fragmentation or isolation from other areas of habitat; and (iii) the importance of the habitat to be removed, modified, fragmented or isolated to the long-term survival of the species and/or population in the locality, here Precincts 1 and 2, and 3 to a lesser extent, and land immediately adjoining the site. An important part of Winten's case is the existence of E2 and E3 zoned land on and beyond the Land in the wider rezoned area. Given my conclusions on locality, E2 and E3 zoned land across the North Lismore Plateau has no role to play in my analysis.
"Habitat" is defined in the TSC Act and also in the TSCA Guidelines, as set out above. Habitat is occupied whether permanently, periodically or occasionally in the definition in the TSC Act. The TSCA Guidelines state similarly that habitat "includes all the different aspects (both biotic and abiotic) used by species during the different stages of their life cycles". "Extent" is also defined. "Importance" relates to the stages of a species' life cycle and how reproductive success may be affected. The area of habitat to be cleared and its quality must be assessed. Dr Robertson identifies that the development proposal removes up to 12 hectares of habitat of which 6.7 hectares is considered by the ecologists to be rainforest or regenerating rainforest. Mr Milledge considered the 6.7 hectares was optimal breeding habitat. The evidence of the ecologists, particularly Mr Milledge, suggests that the habitat on the Land is occupied on a permanent basis by the bat, which has a narrow home range and possibly by the bird as part of its home range of 10 to 15 hectares.

[32]

Section 5A(2)(d)(i) extent of removal of habitat

The TSCA Guidelines refer to consideration of short and long-term impacts of habitat removal. The ecologists agree on how much habitat is to be lost. Their opinion of the impact of that loss varies primarily because of their different approaches to study area. Their respective conclusions on the application of s 5A(2)(d) are summarised above in [49] and [51] (Mr Milledge) and [60] and [66] (Dr Robertson). Mr Milledge's view is that the loss of 6.7 hectares amounts to loss of 30 per cent of habitat on Precincts 1 and 2. Dr Robertson's view is that the loss amounts to approximately 10 per cent of habitat (12 hectares out of 112 hectares of forest in the wider rezoned area) based on the wider area he considered. Mr Milledge's opinion is preferred as this better reflects what the statutory scheme requires, in accordance with my finding above in [154]-[159].
The habitat on the Land includes areas potentially used for nesting, an important part of the life cycle of any species. The bat relies predominantly on hollow-bearing trees for nesting, not exclusively but substantially according to Mr Milledge, supported by Lunney et al. Dr Robertson accepted that, while identifying that nesting also occurred in other locations. The number of hollow-bearing trees to be removed according to Dr Robertson is 34. This does not take into account 11 hollow-bearing trees removed as part of clearing along the haul road between Precincts 1 and 2. Winten submitted this represented 57 per cent of the hollow-bearing trees on Precincts 1 and 2. Dr Robertson submitted this fell to 34 per cent if areas elsewhere on the North Lismore Plateau were taken into account. I have not accepted Dr Robertson's approach to the study area above suggesting Mr Milledge's assessment of the substantial adverse impact of the loss of hollow-bearing trees should be preferred.
Dr Robertson relied on the proposed improvements of vegetation in the E2 and E3 zones on the Land as part of his overall analysis that the loss of habitat would not have a significant impact on the white-eared monarch. The detail available about that regeneration in the Landscape Masterplan and the SEE prepared for the DA summarised in [35]-[36] above was general. The SEE referred to planting 2,000 river red gums, above in [36]. Dr Robertson agreed in cross-examination in [87] above that the improvements to the quality of the vegetation in the E2 and E3 zones were from a botanical perspective rather than being an improvement of what the two species preferred. The white-eared monarch was photographed by Mr Milledge in a camphor laurel, a weed species, in the area of Precinct 2 to be cleared which is identified as of low botanical quality in Dr Robertson's evidence (see Fig 6 of Ex 1). As the Applicant submitted the key issue is whether the vegetation is suitable habitat for the bird not whether it is good quality native bush.
I should also note that Dr Robertson referred to a "Vegetation Clearing Report and Tree Protection Plan" prepared by Planit Consulting which identified future conservation management including a vegetation management plan which was prepared in February 2019, after development consent was granted in October 2018. I was not taken to that report. As identified in the case law summarised above, requirements imposed as a result of development consent being granted are not relevant to consideration of impacts for the purposes of s 78A(8).
The benefits of the proposed improvements to vegetation including the maturing of trees sufficient to provide nesting sites such as hollows for bats were disputed by Mr Milledge as having any positive impact for a long time. In relation to red gums Mr Milledge's evidence was that the provision of suitable hollows in red gums would occur after 50-100 years. In the meantime the existing habitat will not be available. Dr Robertson considered in [91] above that the regeneration of vegetation and weeding of the currently degraded areas would result in better habitat in an 8-10 year timeframe. No evidence that this has been or is likely to be effective in maintaining the local population of either species is provided in the evidence.
Further, the TSCA Guidelines state that if bush restoration is proposed further assessment through the SIS process is likely to be required.
As accepted by Dr Robertson in cross-examination in [91] above, the provision of nesting boxes will not assist the white-eared monarch as it nests high in the open canopy of mature rainforest trees.
Winten, supported by Dr Robertson's approach, relies on the zoning of land as E2 and E3. Most of the vegetation to be preserved on the eastern side of Precinct 2 is zoned E3. The zoning table is set out above in [12]. While the objectives include the protection, management and restoration of areas with special ecological values inter alia, a range of development can be consented to. The zone does not provide the same protection of habitat as an area where no development is permitted. Focussing on Precinct 2, part of the E3 zoned land in the south-east will be used for recreation and include walking paths (see [35] above). As the Applicant submitted the E2 and E3 zoned areas will not be fenced off from humans and their pets. Part of the vegetated area identified in the concept plan for Precinct 3 next to houses is earmarked for an APZ, with consequent substantial loss of tree cover to reduce the canopy to 15 per cent.
The extent of removal of important habitat necessitated by the development in the study area is substantial.

[35]

Section 5A(2)(a) whether action likely to have adverse effect on life cycle of viable local population

Turning to s 5A(2)(a), the subsection requires assessment of whether the action proposed is likely to have an adverse effect on the life cycle of the species such that a viable local population of the species is likely to be placed at risk of extinction. Viable means the capacity to successfully complete each stage of the life cycle under normal conditions. Under the TSCA Guidelines, the local population of resident fauna comprises those individuals known or likely to occur in the study area, and individuals occurring in adjoining areas that are known or likely to utilise habitats in the study area. Risk of extinction is both short-term and long-term as a result of direct or indirect impacts on the viability of the population. The risk of extinction increases if any factor reduces population size or reproduction success. The applicant/proponent must have an understanding of the species' life cycle and how it makes use of habitat including changes in seasonal conditions. The ecologists agree that a viable local population of the bat and the bird does or may exist on the Land. Dr Robertson did not expressly use words to that effect when considering the bat. He appeared to accept that a viable population of the bat exists by stating that the bat is using the Land for foraging, albeit as part of what he contends is a much larger foraging range.
In considering s 5A(2)(a) an applicant for development must have an understanding of a species' life cycle and how a species uses its habitat according to the TSCA Guidelines. A further issue that clearly arises from the collective evidence of the ecologists is the lack of any targeted study of both threatened species the subject of this case to better understand their range and life cycle. That absence is specifically identified in Mr Milledge's evidence. That is an issue that counts against Winten given the requirement in the TSCA Guidelines extracted in [32] above for an applicant for development to have a good knowledge of the species in issue.
The ecologists formed opposing opinions on whether a viable local population of either the bird or the bat is likely to be placed at risk of extinction by the proposed subdivision, driven in large part by their different approaches to study area, as I have already discussed above. I have found that Mr Milledge's approach to the study area is correct and that is the area in which the local population exists.
Considering the eastern long-eared bat, Mr Milledge's conclusion that the Land is key habitat for the bat given that the bat has a narrow range of movement is accepted. Dr Robertson's opinion that individuals of this species can move readily and survive is not accepted in the absence of any evidence to support it and any relevant demonstrated expertise on his part in relation to this bat species.
A further challenge for the bat not already considered is that the subdivision will introduce a large number of houses on Precincts 1 and 2 where previously the Land was zoned rural and undeveloped. Housing is also intended on Precinct 3 with the precise location yet to be determined. In Precinct 2 the area of vegetation currently available as habitat on the western side where most sightings occurred will be cleared. The cleared area will contain a large number of houses which must first be built with the necessary construction activity and then occupied in due course by people and their pets with noise and lights as would be expected of 295 occupied houses, and roads with streetlights and cars. Precinct 1 will have 95 occupied houses, and roads with streetlights and cars. If the 43 houses intended for Precinct 3 are included a total of 433 houses will be built.
Once these precincts are developed, if the bats want to move east to west or vice versa across Precinct 2 they will have to cross the subdivided residential area on Precinct 2 with 295 occupied houses in order to move from one band of vegetation running north to south on the eastern side of Precinct 2 to another band of such vegetation on the western side of Precinct 3 and beyond, assuming that will exist in the future. Dr Robertson did not identify these impacts as an insurmountable problem in that he considered the bats could conceivably cross such areas. The ecologists agree that the bat is a rainforest dweller and the only credible evidence available is that it has a limited foraging range. I accept the evidence of Mr Milledge that this developed human environment will present a very real challenge to the bats. No assumption should be made that bats would readily attempt to cross or cross at all those built-up areas. Dr Robertson's observation in his oral evidence that he was aware that micro-bats exist in urban areas of Sydney (above in [101]) was unhelpful and lacked scientific rigour. The same observation applies to his oral reference to the bat being identified in Lismore given Mr Milledge's observations at [103] above concerning the nature of the data which he had personally reviewed.
My acceptance of Mr Milledge's evidence that the bat has a limited home range focussed on the Land also means that the existence of other potential habitat further afield than immediately around the site has little role to play in the analysis required by subs (a). As identified in the TSCA Guidelines the risk of extinction is in the short-term and/or the long-term as a result of the direct and indirect impacts on the viability of the population. The life cycle of a species is dependent on its habitat inter alia. The removal or modification of habitat may affect its survival. I consider that Dr Robertson did not correctly approach the test in s 5A(2)(a) of "likely to be at risk" and did effectively substitute a test of certainty of extinction.
I conclude in accepting Mr Milledge's opinion that the development with the consequent loss of habitat particularly, and also other KTPs, is likely to have an adverse impact on the life cycle of the bat such that the local population of the bat is likely to be placed at risk of extinction.
Considering the white-eared monarch, Mr Milledge concludes that there is likely to be a breeding pair using the Land and its vicinity. Dr Robertson stated that a viable population of white-eared monarch may exist on or around the subject site as there were two records of the species. The bird has a range of 10 to 15 hectares and a third of its habitat will be cleared on Precincts 1 and 2.
Both ecologists agree the bird is easily disturbed by human activity. I accept Mr Milledge's evidence that its movement and life cycle will be affected by the introduction of so many occupied houses on Precincts 1 and 2, given the effects of light, noise and occupied buildings.
I conclude in accepting Mr Milledge's opinion that the development with the consequent loss of habitat particularly, and also other KTPs, is likely to have an adverse impact on the life cycle of the bird such that the local population is likely to be placed at risk of extinction.

[37]

Overall conclusion

Mr Milledge's evidence, which I have accepted, establishes that the adverse impacts identified are likely, meaning a real chance or possibility, to occur and be significant, meaning more than ordinary. For all the reasons I have given above in relation to s 5A(2)(a) and (d) and mindful of the large number of KTPs which will result from the development as referred to in s 5A(2)(g), I consider the approved development the subject of Development Consent 2017/270 is likely to have a significant impact on the white-eared monarch and the eastern long-eared bat. As well as in case law, a precautionary approach to consideration of whether a SIS is necessary is referred to expressly in the TSCA Guidelines p 12 extracted above in [158]. Adopting such an approach further suggests that in considering the risk of extinction from short-term and long-term impacts on both species, both identified as at risk, a finding of likely significant impact is warranted.
A SIS was required in order to comply with s 78A(8) of the EPA Act when Development Consent 2017/270 was granted on 17 October 2018 and was not provided.
The issue then arises of whether an order under Pt 3 Div 3 of the LEC Act ought be made in light of s 25E which imposes a duty on the Court to consider making an order under this Division instead of declaring a development consent invalid. Such an order would be made under s 25B(1). Given the substantive nature of the preparation of a SIS I consider it is difficult to make orders which essentially carve out only this aspect of the development to enable consideration separately from any other aspect of the development process. Relevant considerations were identified in Aldous v Greater Taree City Council (2009) 167 LGERA 13; [2009] NSWLEC 17 at [97ff]. In Coffs Harbour City Council v Arrawarra Beach Pty Ltd (2006) 148 LGERA 11; [2006] NSWLEC 365 at [16] Talbot J considered an order under s 25B of the LEC Act was not appropriate in a case where there was a failure to lodge a SIS. Winten accepted an order under s 25B of the LEC Act was not appropriate if I found that a SIS was required.
The Applicant is successful on the SIS ground and a declaration of invalidity of Development Consent 2017/270 as identified in prayer 2 of the Third Further Amended Summons will be made. There is no need to also make the declarations sought in prayers 1 and 3 as I have made appropriate findings in this judgment. Whether further orders as sought in prayers 5 and 6 need be pressed will be discussed with the parties.

[39]

Evidence

The DA was lodged on 22 August 2017 by Planners North with a SEE and several technical reports (TB vol 2 tabs 19 & 20). The "Cultural Heritage Assessment" dated August 2017 prepared by Everick addressed heritage issues generally, reviewing the European and Aboriginal heritage significance of the Land (TB vol 2 tab 20(e)). This assessment identified that the inferred gravesite was first discovered during a site inspection undertaken by Everick on 30 November 2016. Everick prepared a "Cultural Heritage Management Plan" dated August 2017 (CHMP) that outlined methods to manage potential impacts to Aboriginal cultural heritage arising in the course of the development (TB vol 2 tab 20(f)).
A "Report on GPR Survey at Winten Property Group Site on North Lismore Plateau, NSW" dated 19 January 2017 was prepared by Georadar with the results of a GPR survey performed across the inferred gravesite. The objectives of the GPR survey were to establish if the feature was a human burial. The investigation was conducted by Dr Richard Yelf on 18 January 2017. The GPR method is a non-destructive and non-invasive geophysical technique for rapidly imaging the shallow subsurface and producing high-resolution colour sections in real time.
The summary of the report was as follows: 5. SUMMARY This is a difficult site to interpret the data from due to the very short length of the radar lines. The short lines restrict the ability to contrast the data from within the inferred grave with the undisturbed soil outside the grave. None-the-less, there appears to be a contrast between the surrounding soil and the A and B soil horizons which appear to be truncated, for example on Figure 13. There also appears to be disturbed backfill within the inferred grave, for example on Figures 13 and 16. There do not appear to be clear targets from decomposed human remains. However, due to the variable water table at this site, we would expect the accelerated decomposition of remains to have occurred and hence potential remains to have been largely obliterated. The inferred burial appears to have been made directly into the soil, and not in a coffin. In consideration of these factors, from an examination of the less-than-perfect GPR data, it is our interpretation that this feature represents the burial of two persons. The burial depth is shallow and approximately 1.0 m depth. The interpreted burial on the north western side appears to be an adult of full stature, and the adjacent burial appears to be more diminutive and possible represents a female, or a large (teenage) child.
A letter from OEH regarding the DA (Ex G) dated 31 October 2017 provided recommendations and detailed comments on the proposed residential subdivision. Regarding the inferred gravesite, it stated: We note the comments in Section 12.2.1 (Page 18) of the CHMP regarding the potential grave site. The discussion on the grave site notes an intention to carry out further research on the "Potential Grave" to determine its cultural significance. The OEH notes that any invasive investigation not carried out under Chapter 5 of the Coroners Act 2009 will require appropriate authorisation from OEH before being conducted.
A "North Lismore Plateau Historic Grave Site: Assessment of Significance" dated November 2017 was prepared by Everick. The assessment was based on an investigation conducted through the use of historic images, plans, maps, records, and other secondary sources, and a physical site inspection of the inferred gravesite to assess its existing condition and surrounding land uses. The inferred gravesite was located in the western section of the proposed development area, close to the southern boundary. The area was vegetated, adjacent to a large tree, and surrounded by large amounts of historic debris including old car bodies. Under the proposed development at the time the assessment was prepared, the inferred gravesite would have been located beneath a road on the edge of a lot in the south-western corner of the subdivision.
The assessment provided a legislative and planning context to the possible historic significance of the inferred gravesite. It stated that the Heritage Act is relevant to historic burials or skeletal remains which have been buried for more than 50 years. A grave cannot be moved without an excavation permit issued under s 140 of the Heritage Act. An application must be made to the Heritage Office before any disturbance, removal or work commences on the site. Additionally, approval for the exhumation of human remains is required under the Public Health Regulation 2012. Buried human remains fall within the definition of a relic in s 4(1) of the Heritage Act as a "deposit, object or material evidence".
Dr Yelf's GPR survey results were identified. The heritage significance of the inferred gravesite was not conclusively determined at the time the Everick assessment was prepared. The assessment found that there was a high likelihood that the inferred gravesite holds significance for one or more cultural groups within the local or State area, depending on the identity of the individuals buried there.
The conclusions and recommendations were as follows: 6.1 Conclusions The Project will result in impact to the NLP [the North Lismore Plateau] Historic Grave Site, an early- contact period burial (1840-1890) that contains the remains of two individuals. Property ownership of the land surrounding the grave site was able to be traced back to the 1840s. It is unlikely that any of the associated family members were buried there as the grave appears to be more of a "pauper's burial" than a "middle class burial"; the individuals were placed directly in the ground, rather than in a coffin, and the grave was delineated with stones rather than a headstone or iron railing as was traditionally used by early European settlers who were rich enough to purchase land. The heritage significance of the grave is not able to be determined at this stage, but it is highly likely that it will hold significance for one or more cultural groups within the local or state area, depending on the identity of the individuals. The site could have high archaeological potential, should the remains not have been completely obliterated through the action of the variable water table. 6.2 Recommendations The following recommendations are made: Recommendation 1: Alteration of the Proposed Project It is preferable that the proposed Project for the NLP subdivision is altered to avoid impact to the NLP Historic Burial Site, and the site is conserved. Recommendation 2: Archaeological Excavation Permit Should the Project proceed as currently proposed, it will disturb the NLP Historic Grave Site. The likelihood of historic archaeological features and/or deposits being present within the grave site is considered to be moderate to high, and may be of local, or state heritage significance. Should the grave site be deemed to be European, the "relics provision" requires that no archaeological relics be disturbed or destroyed without prior consent from the Heritage Council of NSW. Ground disturbance works may only proceed in areas identified as having archaeological potential after first obtaining an Excavation Permit in relation to activities pursuant to section 139 of the Heritage Act 1977 (a "Section 140 permit application"). Additionally, approval for the exhumation of human remains is required under the Public Health Regulation 2012. If the remains are identified as Aboriginal, Part 6 (Section 83-91) of the NPW Act contains provisions concerning the ownership and appropriate treatment of Aboriginal relics. It is an offence to disturb or excavate land in order to find a relic, or to move, disturb or take a relic, except in accordance with a valid permit. If excavation is demonstrated to be a justifiable option, then the burial relocation must be conducted in a sensitive and dignified manner. Controlled excavation and removal should be undertaken by archaeologists and other appropriate specialists, including a historical archaeologist and a physical anthropologist.
A report titled "Suspected Early Settlers Grave, North Lismore: Results of Archaeological Testing" dated 14 March 2018 was prepared by Mr Tony Lowe, director of Casey & Lowe, and states: Re: Suspected Early Settlers Grave, North Lismore Results of Archaeological Testing As you are aware, Casey & Lowe were engaged by Winten Property Group at the request of Lismore Crime Scene Detectives to manage the testing of a suspected "Early Settler's Grave" at a proposed development area in North Lismore. A colleague Dr Denise Donlon, Physical Anthropologist, Sydney University and I were originally contacted by Lismore Crime Scene Detectives who were investigating whether the site was indeed a grave and, if so, whether it was a modern or historic interment. Whether it was connected to crime scene, or was a European or Aboriginal burial was relevant to whether the NSW Police and Coroner need to be involved, or whether appropriate permits from the Office of Environment and Heritage needed to be obtained. An European or Aboriginal grave would also trigger the need for appropriate community and family consultation.
Testing of the inferred gravesite occurred on 12 January 2018. Mr Lowe was accompanied by several officers from Lismore Crime Scene Section. The rocks from both sides of the centre of the inferred gravesite were removed, beneath which only a slight indentation was visible. A mud bucket was used to scrape through the feature in an effort to detect a sign of a rectangular cut that could indicate the presence of a grave. As no cut was discerned, the machine excavation continued deeper. The excavator removed topsoil and exposed thick robust roots spreading horizontally through the feature from the adjacent tree. The roots were removed to reveal clean and consistent grey clay which was interpreted as clayey subsoil, a natural strata. There was no sign of disturbance in the strata. Excavation continued to 1.5 metre depth where the clay was uniform and showed no sign of disturbance.
The interpretation of results was as follows: • The theory that the feature is a grave is not supported by the results of the testing. • The identification of human remains, particularly two bodies lying side by side, one being adult and the other an adolescent or female, is not supported by the results of the testing. • The patterns of soil shown on the scans appear similar on either side of the lines of rocks, implying that the stones may have led to differential moisture content and drying patterns which showed up on the scans. • The rocks appear to have been relatively recently placed in the area as they were only slightly embedded in the topsoil derived from decaying leaf litter from the adjacent trees. • The GPR results could not be used to date the feature as an early settler's grave from the pre-1890s. • The evidence for the timber framework and tarpaulin implies that the feature was covered. This and its proximity to the vehicles strongly suggests that it was constructed by the persons using the area as a shelter.
The conclusions were as follows: • There was no evidence that the feature is a grave. • It is probably connected to the recent use of the area. • It probably acted as the base of an elevated shelter. • There is no evidence that the feature is connected to the nineteenth-century settlement of the area, either European or Aboriginal. Please contact me should you need any additional details regarding this report.
Within its assessment of matters for consideration under s 4.15 of the EPA Act, the Council's "Delegated Determination Report" dated 27 September 2018 states: 11.7.8 Grave site on North Lismore Plateau It is noted that Everick archaeologists reported a possible grave site on the proposed development site on the basis of a configuration of stones which was assumed to be a marking of a historic grave. The police had carriage of the investigation in accordance with the Coroners Act 2009 and engaged experts with archaeological experience in the identification of graves and in the identification of human skeletal remains. The findings conclusively overturned a suggestion by a ground penetrating radar investigation that burials of two individuals may be present. In fact the ground comprises heavy clay quite unsuited to digging graves in comparison to sandy alluvial soils along the river valley distant from the NLP. It is also noted that NSW Police have legal jurisdiction in the matters of investigating human remains and it is understood that NSW Police arranged for the expert investigators, Tony Lowe and Denise Donlon, who are experienced in such matters to conduct the grave site investigation. This is detailed in the report documentation provided by Casey & Lowe, Archaeology & Heritage dated 14 March 2018.
A plan titled "Earthworks Construction Staging Plan Month 2" dated 1 March 2019 prepared by Planit Consulting identified the inferred gravesite in the south-western corner of Precinct 2. The inferred gravesite was labelled "site inspected by Casey & Lowe". The plan showed that the inferred gravesite was outside the development site, with residential lots not intruding on the site.
The Applicant relied on the evidence of Dr Penny McCardle, forensic archaeologist and forensic anthropologist. Dr McCardle prepared two reports on cultural heritage issues dated 11 April 2019 and 16 June 2019. The second report included a description of a site visit undertaken by Dr McCardle with Mr Jim Punch (Winten) on 12 June 2019. The reports summarised legislative requirements and practical processes if suspected graves, human remains, or unidentified bones are uncovered during assessment or development. Practically, when a suspected grave or burial is located, the developer should immediately contact a heritage consultant or local NSW police to commence investigations of the feature.
Dr McCardle summarised the progress of the project and investigations of the inferred gravesite up to the date of her report. She noted Everick's conclusion that rocks as a grave marker was a common practice for both Aboriginal people and early settlers and that without exhumation of the deceased it was unlikely further information about the identity of the deceased could be determined. Dr McCardle found it unusual that Dr Yelf reported information such as the number of remains, age and antiquity of remains in his GPR survey report because GPR cannot indicate the age of deceased or antiquity of a gravesite. The GPR survey did identify anomalies that may be interpreted as a possible gravesite.
Dr McCardle reported that Casey & Lowe were engaged by Winten at the request of Lismore Crime Scene Section to investigate the inferred gravesite. Dr McCardle expressed concerns about the methodology used by Casey & Lowe. Dr McCardle acknowledged that while the Casey & Lowe investigation followed the correct procedures according to the appropriate legislation, the report lacked significant detail including depth of spits and soil details such as pH. Further, the report failed to recognise that a grave outline is not always evident. Altered methodologies to take this into consideration were not implemented. Given that there was a known anomaly at one metre below the surface, the mechanical scraping used by Casey & Lowe should have ceased 10-20 centimetres above the anomaly and all deposits from 10 centimetres above to 10 centimetres below the identified anomaly should have been sieved to ensure identification of any remains.
On the basis of her site visit, Dr McCardle reported that the possible grave stones appeared to have once been part of a stone wall next to the inferred gravesite. This indicated that the feature may not have been a burial, but not with certainty. Dr McCardle concluded in her report that as anomalies were identified during the GPR survey, deposits remaining on site should be sieved to ensure identification of any remains or other items or interest.
Dr McCardle also gave oral evidence concerning possible relief measures set out in "Terms of Relief in relation to the Grave Destruction Issue" (MFI 2). With amendments suggested by her the measures achieve the greatest degree of remediation of the inferred gravesite possible. In cross-examination, regarding the need for OEH permits when police are involved in excavating a suspected grave, Dr McCardle stated that permits are not necessarily required. Rather, if a human bone is found, the police will take over the investigation. Once police are notified, the Forensic Services Group (FSG) complete the excavation, remove the remains and take them to the Department of Forensic Medicine where they are investigated, or the FSG can call a forensic anthropologist to assist in the recovery and make an identification on site. Usually, bones will be taken to a morgue. Dr McCardle acknowledged that on her understanding the police were present for the excavation of the inferred gravesite. When a gravesite has already been excavated, no permits are needed. Concerning the site visit, Dr McCardle recalled in cross-examination seeing rubbish and car parts at the site. Dr McCardle denied that the fact that the stones may have come from the nearby wall meant that the feature was less likely to be a burial site, stating that she did not know. Dr McCardle confirmed comments made in her reports that Dr Yelf's findings were unusual, explaining that GPR results do not identify human remains, the identity of individuals, or the antiquity or age of the deceased. In re-examination Dr McCardle was asked about the process for permitting where there is an identified suspected gravesite that is to be excavated and replied that unless there is strong evidence that an historic grave exists the Coroners Act 2009 comes first. If it is unknown what type of grave exists the police must be notified and they investigate.

[40]

Applicant's submissions

Legal analysis of the grave issue should focus on the Heritage Act as the actions taken by Winten prevented determination of the ethnicity of any human remains without further forensic investigation. Further investigation may reveal that the NPW Act applies, but that cannot currently be determined. Section 4 of the Heritage Act defines a "relic" as including any deposit, artefact, object, or material evidence that relates to the settlement of the North Lismore Plateau and that is of local heritage significance. It does not require that the relic be human remains. "Harm" to an object or relic is defined as including "damage, despoil, move or alter". Section 139 of the Heritage Act prohibits harm to relics. Section 139(1) applies when a person has reasonable cause to suspect that an activity will cause harm to a relic, unless there is an excavation permit in place. Section 139(2) requires a relic to have actually been discovered or exposed. If the Court is satisfied that in January 2018 Winten had reasonable cause to suspect that the inferred gravesite related to settlement and was of local heritage significance then the actions it took were unlawful under s 139(1).
The evidence easily meets that standard as Winten's own consultants were advising it that the inferred gravesite had heritage significance. Everick concluded that the site was an "early contact period burial (1840-1890)" and that it was "highly likely that it will hold significance for one or more cultural groups within the local or Strata area". Recommendation 2 (see [212] above) was based on the moderate-to-high likelihood of archaeological features or deposits being present at the site. As such deposits have potential local heritage significance, Everick warned that "ground disturbance works may only proceed… after first obtaining an excavation permit" (TB vol 1 tab 16).
The GPR report by Dr Yelf was similarly forthright, identifying the features characteristic of historic graves as either definitely or probably present in the inferred gravesite. The uncertainty over direct evidence of decomposed human remains was partly explained by the variable water table at the location. The clear conclusion was that Dr Yelf interpreted the feature as representing the burial of two bodies (TB 1 tab 15).
At the time of Casey & Lowe carrying out the excavation work in January 2018, there was nothing to contradict the aforementioned reports. Winten therefore had reasonable cause to suspect the presence of a relic. Winten had also been told that it could not proceed with ground disturbing investigations without permission from the OEH (Ex G).
Winten replaced its heritage consultants with Casey & Lowe without explanation. Nobody from Everick or the local Aboriginal community was informed of the intention to dig up the inferred gravesite, or invited to be present when it happened.
Dr McCardle's unchallenged evidence revealed the inadequacy of the steps taken in the excavation carried out by Casey & Lowe on 12 January 2018. Even if the work was performed at the highest archaeological or heritage standards it would have been unlawful as no permit had been obtained. Despite Winten's attempt to use police presence to defend its actions, the Heritage Act does not contain any exception from the permit requirement for police action. The role of the police on 12 January 2018 was unclear. Winten did not call any evidence to clarify this. It can be inferred from this that any evidence given by the police would not have assisted Winten with the allegation that it had reasonable cause to suspect a relic and that a permit was required. It is not logical to assume that the police were interested in the grave due to a real suspicion of a modern illicit burial because the inferred gravesite was not consistent with a surreptitious burial - it was clearly delineated by rocks and a depression in the ground.
Under s 154(1) of the Heritage Act the Court may make any order it thinks fit to remedy or restrain a breach. The Applicant seeks relief in the terms suggested in the "Terms of Relief in relation to the Grave Destruction Issue" (MFI 2). Dr McCardle endorsed the course of action outlined in MFI 2 in her oral evidence.

[41]

Winten's submissions

Winten accepted that Dr Yelf's conclusions were that the inferred gravesite was a possible burial site for two people, that decomposed remains were not visible and were likely obliterated by the site's variable water table, and that the site was probably the grave of an early settler from the period 1850-1890. However, Dr McCardle concluded that GPR cannot identify skeletal remains and that it was "unusual for Dr Yelf to report additional information such as the number of remains, age and antiquity". Summarising Everick's results, Dr McCardle observed that rocks as a grave marker was a common practice for both Aboriginal people and early settlers and that without exhumation of the deceased it was unlikely that any further information regarding the identity of the individuals could be determined.
On the basis of the material available to it at 12 January 2018, Winten did not know whether the inferred gravesite contained remains at all, or if it had contained remains, whether there would be any left due to the impact of the water table, or, assuming there were remains, the ethnicity of any remains. Any suspicion regarding the possibility of unearthing a "relic" was not, on balance, reasonable. For an item to be a "relic" as defined in the Heritage Act it must be identified as a non-Aboriginal item that is of local or State heritage significance. Winten only had a finding that there was an anomaly in the soil demonstrated by the GPR and speculation as to what the source of that anomaly might be. That no permit was obtained under the Heritage Act prior to the excavation of the inferred gravesite is not an issue if the Court concludes there was no reasonable suspicion for the purpose of s 139(1).
Winten submitted that the development footprint was amended to avoid the inferred gravesite in accordance with the first recommendation of the Everick report, see [212] above. The plan showing this was in evidence, see [218] above.
If the Court finds there was a reasonable suspicion for the purpose of s 139(1), failure to find any relics upon excavation means there was no relevant breach. The test under s 139(1) of the Heritage Act is whether the excavation "will or is likely to result in a relic being discovered, exposed, moved, damaged or destroyed".
Should the Court find that there was a breach of s 139(1), the Court's power under s 154 of the Heritage Act to remedy or restrain the breach would be enlivened. The orders sought by the Applicant set out in MFI 2 are beyond the scope of orders to "remedy or restrain" available to the Court under s 154 - they are for further investigation of the inferred gravesite.
The Court should not exercise its discretion to make orders upon finding a breach under s 139(1) of the Heritage Act in these circumstances for several reasons. Firstly, Dr McCardle considered that the correct procedures were already followed in respect of the possible exhumation of remains. Secondly, the excavation was managed by Lismore Crime Scene detectives meaning Winten, having changed the development footprint to exclude the site as recommended by Everick, had no need to further investigate the inferred gravesite other than to comply with a request of Lismore Police. Thirdly, Dr Denise Donlon, physical anthropologist, was present during the excavation and did not identify any remains. Fourthly, the excavated spoil was backfilled into the excavated area meaning the land has been reinstated and no further order is appropriate.

[42]

Consideration of Heritage Act ground

Under s 153 of the Heritage Act any person can bring proceedings seeking to challenge a suspected breach of that Act. Under s 154 the Court can make orders remedying a breach or suspected breach. The Applicant relies on s 139(1) to submit Winten had reasonable cause to suspect that the inferred gravesite related to non-Aboriginal settlement of the area and was of local heritage significance and therefore within the definition of "relic" in s 4, in January 2018 before Casey & Lowe acted. Winten's action of engaging Casey & Lowe to excavate was unlawful as, according to the Applicant, the work required a permit under s 139(1) which prohibits disturbance or excavation, and this was not obtained.
Section 139(1) states that a person must not disturb or excavate land knowing or having reasonable cause to suspect that such work is likely to result in a relic being discovered, exposed or damaged inter alia. The Applicant does not rely on s 139(2). Section 139(2) applies if a person has discovered or exposed a relic, in other words where the existence of the relic is known. Section 139(1) is directed to, in this case, the reasonable suspicion of the presence of a relic.
The Applicant bears the onus of proof of establishing that a breach of the Heritage Act has occurred. Inferences must be drawn from the documentary record in evidence. The Applicant seeks to establish that Winten had reasonable cause to suspect a relic was in the inferred gravesite location at the time that Casey & Lowe undertook the excavation work which Winten paid for in January 2018. It relies on the Georadar report of January 2017 and the November 2017 Everick report which Winten commissioned. The Georadar report is summarised in [206] above and the summary in [207] above states that two people may be buried. The Everick report summarised in [209]-[212] above referred to a possible historic gravesite, identified the location and the relevant legislative framework including the Heritage Act. It accepted the Georadar report interpretation and identified the grave may have significance for one or more local cultural groups. The report's conclusions are identified in [212] above and state the project will impact on the inferred gravesite and that its heritage significance is unknown at this stage. Two recommendations are made that (i) the project footprint be altered; or (ii) if the project proceeds, an archaeological permit be obtained. Winten accepts that it had the reports. It made two alternative submissions. It submitted in writing the reports did not establish the presence of a relic. The Georadar report was not evidence of the presence of a relic. It submitted orally that the inference arises that Winten adopted Everick's first recommendation and changed the development footprint to avoid the inferred gravesite as identified on the plan dated 1 March 2019 in [218] above. That action does not confirm knowledge of the presence of a relic on Winten's part.
As Winten submitted, the Georadar report does not establish that a relic as defined in s 4 was present. That is not the relevant consideration in relation to s 139(1) which refers to having reasonable cause to suspect the presence of a relic. I accept the Applicant's submission that these two reports do give rise to a reasonable suspicion of the presence of a relic on Winten's part.
The challenging circumstance to consider from a legal perspective in light of s 139(1) is the involvement of Lismore Police in causing Winten to engage Casey & Lowe. The Applicant submitted that the role of the police was unclear. The Applicant's counsel submitted that the statements in the Casey & Lowe report that the police requested work to be undertaken could not be taken at face value and that there was an onus on Winten to better demonstrate the role of the police if it wanted to rely on their involvement as exculpating. A Jones v Dunkel (1959) 101 CLR 298 submission was not put expressly but was strongly inferred, essentially suggesting the absence of further evidence from Winten about police involvement would not have assisted Winten.
Winten relies on the text of the Casey & Lowe report extracted in [213] above. The first sentence states that the company was engaged by Winten at the request of Lismore Crime Scene detectives to test the "Early Settler's Grave". The second sentence states that Dr Donlon a physical anthropologist and Mr Lowe, director, were contacted by the same police unit who wished to determine if the site was a grave at all, and if so, whether it was of modern or historic internment. The third sentence states "whether it was connected to crime scene, or was a European or Aboriginal burial was relevant to whether the NSW police or NSW State Coroner needed to be involved, or whether appropriate permits from the OEH needed to be obtained". Dr McCardle referred to these statements in her evidence without criticism. Given the clear statements in these documents, there is no lack of clarity about why Casey & Lowe did what they did and why Winten engaged them to do it, namely at the request of Lismore Police.
In Gold and Copper Resources Pty Limited v Hon Chris Hartcher MP, Minister for Resources and Energy, Special Minister (No 2) [2014] NSWLEC 30 at [75] I stated: The principle in Jones v Dunkel recognises that an inference may be drawn about the absence of a witness but only where evidence already gives rise to an inference. In New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2012] NSWLEC 174; (2012) 190 LGERA 171 I held similarly at [93] citing Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5 where the High Court stated: In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture (see per Lord Robson, Richard Evans & Co Ltd v Astley [1911] AC 674 at 687). But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise: cf per Lord Loreburn, above, at p 678
The clear and definite inference arises that the reason Winten paid Casey & Lowe to do work, which Casey & Lowe determined the scope of, was because of the request of Lismore Police that work of that nature be done. There is no conjecture or speculation necessary in so concluding. No Jones v Dunkel inference arises that in the absence of evidence of, for example, a police officer from Lismore Police, such evidence would not have assisted Winten. But for that police request the strong inference arises that Casey & Lowe would not have been employed by Winten at all to do the excavation. As the Applicant submitted, that is strictly irrelevant to whether s 139(1) of the Heritage Act has been breached, but if it has been that would clearly be an exculpating circumstance for Winten.
While the role of Lismore Police is clear, the legal framework which applies is not. The OEH letter dated 31 October 2017 (Ex G) relied on by the Applicant provides no guidance on the circumstances that arose here where Lismore Police requested further action intended to determine whether the NSW Coroner should become involved or other law enforcement action was required. According to the OEH letter the Coroners Act Pt 5, if it applies, renders the application of the Heritage Act permit provisions inapplicable. I was not taken to the Coroners Act by Winten meaning it was not relied on. There would appear to be some tension between the two separate schemes in that investigation of some sort may well be required to determine if the Coroners Act applies which may well be work which the Heritage Act regulates, as seems to be the case here.
The Council's Delegated Determination Report extracted at [216] above states expressly that the police had carriage of the investigation in accordance with the Coroners Act. That is not conclusive evidence of the legal position which applies.
Dr McCardle's evidence set out above in [221] was to similar effect, that on this occasion the statutory scheme had been followed. It is not obvious that is the case in relation to s 139(1) of the Heritage Act. A request from Lismore Police alone to do excavation work does not overcome the requirement to obtain an excavation permit if there is reasonable cause to suspect the presence of a relic, as there was. As at 18 January 2018 before Casey & Lowe commenced work, I consider there was reasonable cause to suspect a relic may have been present given the findings in the Georadar and Everick reports. One of the reasons given by Casey & Lowe for doing the work was to establish if a permit was required from OEH. That is too late given s 139(1) refers to whether reasonable cause exists to suspect that an excavation is likely to result in a relic being discovered. It is not appropriate to ask the question after Casey & Lowe completed the work at the inferred gravesite. That the result of their investigation was that there was no indication of human burial and no other form of relic was otherwise recovered is not relevant to establishing whether a breach of s 139(1) occurred before the excavation took place. It is relevant to the exercise of discretion whether to grant relief, as I discuss below.
There was also criticism of Winten by the Applicant for not involving the experts Everick and Georadar earlier employed by them. Nothing relevant to any legal issues arises from this criticism. How Casey & Lowe came to be engaged is clear. Casey & Lowe specialise in work of the kind requested by Lismore Police according to their director. The work was undertaken by Mr Lowe in the presence of Dr Donlon a qualified physical anthropologist. That Dr McCardle was critical of the excavation undertaken by Mr Lowe in terms of the methodology applied does not assist in the construction of the statutory scheme.
A permit under the Heritage Act in these circumstances was required before the excavation commenced on 18 January 2018. The Applicant has established that Winten, in engaging Casey & Lowe to do the excavation work, acted in breach of s 139(1) the Heritage Act. No mention has been made of the Fifth Respondent by the Applicant in its substantive submissions. My finding does not apply to it. The circumstances surrounding that engagement are entirely exculpating. In addition, Casey & Lowe did not find any evidence of a relic including human remains and Dr Donlon a suitably qualified anthropologist was present during the excavation. Dr McCardle, while critical of some of the procedures applied, stated that the correct procedures were used. These matters are relevant to the exercise of my discretion as to whether any declaration of a breach of the Heritage Act is made as set out in the Third Further Amended Summons and whether relief ought be granted in the terms sought by the Applicant in MFI 2. The Court has wide discretion in determining whether to grant relief and if so on what terms: Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335; ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67. These matters suggest that no declaration of a breach ought be made and that the relief sought in MFI 2 is unwarranted in the exercise of my discretion.
I appreciate and acknowledge from the affidavits read by the Applicant summarised above at [26]-[29] that protection of Aboriginal heritage is an understandably significant concern for the Applicant and his supporters. The evidence before me does not suggest that such harm has been caused and no breach of the NPW Act was pressed.

[44]

Amended Points of Claim

The Amended Points of Claim stated: Construction Certificate 33 The Applicant seeks a declaration that Construction Certificate CC 14.2017.270.1 granted on the 12th February 2019 by the Second Respondent to the Fourth Respondent [sic] ("the Construction Certificate") is invalid and thereby void and of no effect. Particulars i) The Second Respondent granted Civil Works Construction Certificate (CCC) 14.2017.270.1 to the Fourth Respondent [sic] on 12 February 2019 in non-compliance with the consent conditions for DA No 5.2017.270.1 ii) Further or in the alternative the CCC approval purportedly allowing the construction of a Haul Road and the excavation of a "borrow pit" was not a matter applied for in the DA, underwent assessment or contemplated in the consent conditions. iii) Civil Construction Works Certificate 14.2017.270.1 purportedly approves the construction of a haul road from the Plateau to the floodplain through an area of vegetation that had not been assessed for the presence of stone wall, evidence of Aboriginal heritage and/or threatened species which the Applicant knows to be present. iv) Further the Second Respondent approved Civil Construction Works Certificate 4.2017.270.1 purportedly marks out excavation of a 'borrow pit' on the plateau within precinct 2. v) No assessment to excavate an unquantified amount (apparently up to 108,000 cubic metres of material) of the impact on the geo hydrology, ecology or cultural heritage. There is no evidence in any of the assessment documents of the specific dimension or layout of the Borrow Pit. vi) The Applicant claims that the scale of the borrow pit, if it were not for a possible protection afforded by Para 37A of Schedule 3 of the EP&A Regulation would be designated development pursuant to clause 19 of Schedule 3. vii) There is no information by which the First Respondent could assess impacts, such as: • truck and machine movements, • whether explosives will be utilised, • is there to be dewatering • noise and dust Impacts viii) The drawings by Planit Consulting issued for Civil Construction Works Certificate 14.2017.270.1, mark out a haul road from an area of an excavation pit on the Plateau to the floodplain were not part of the development application as approved by the First Respondent. ix) The Applicant claims the construction of the haul road and the borrow pit will likely cause significant adverse environmental impact particularly on threatened species. x) The initial clearing for the borrow pit has seen 10 nesting and 11 hollow bearing trees removed and all but two destroyed.
The issues identified in particulars (v), (vi), and (vii) above in the Amended Points of Claim were not pressed at hearing.

[46]

Road

Development Consent 5.2016.7.1 granted 14 April 2016 (2016 DC) and Development Consent 2017/270 granted 17 October 2018 (2018 DC) are both relevant to the road issue in light of Winten's arguments.
A set of plans approved in the 2016 DC was tendered by Winten and marked Ex 4. These plans show a road referred to as "internal access road" traversing Precinct 1 and ending in a cul-de-sac in northern Precinct 2 [W] (vol 3 tab 24(b); Ex 4).
The SEE prepared in August 2017 for the 2018 DC included an aerial photograph of the Land (folio 863). Winten submitted that an existing track visible in this photograph is the access track and location of the road approved in 2016 and the haul road intended to be used to move material cut from Precinct 2 to Precinct 1 for fill as part of the bulk earthworks referred to in the CC [W] (vol 2 tab 20 p. 863).
On 18 September 2017 the Council wrote to Planners North (engaged by Winten) requesting additional information relating to the DA, specifically concerning a road it called "the road connecting Precinct 1 to Precinct 2". The Council requested Planners North provide details of this road including long section and cross section and an indication of time frame for construction of the road by reference to the proposed DA staging of works [W] (vol 3 tab 22 p 1374).
Planit Consulting responded to this request for information on 12 January 2018 noting that the final road design would be confirmed during the detailed design phase of the development (vol 3 tab 24 p. 1382). Copies of the 2016 DC plans were attached to this letter from Planit Consulting, which it said showed the preliminary design of the road connecting Precincts 1 and 2 (TB vol 3 tab 24(b)] [W]).
The 2018 DC (Ex A) was granted on 17 October 2018 with a schedule of conditions of consent.
Condition 44 of the 2018 DC provides [W], [A]: The person acting upon this consent shall provide the following road works with associated stormwater drainage structures that have been designed and constructed in accordance with Council's Development, Design and Construction Manual (as amended). Design details of the required works are to be submitted to and approved by Council prior to the issue of a Civil Works Construction Certificate. The proponent shall be responsible for any costs, including maintenance, for a period of six months from the date of approval of completion of the work. Note: * the width may be reduced to 12.5m subject to approval at Civil Works Construction Certificate stage as this road is adjacent to Hairy Joint Grass and reduction In road reserve width may be beneficial Intersection Works (1) Construction of an Auxiliary Left Turn (AUL) lane and Basic Right Turn (BAR) lane at the Junction of Dunoon Road and Road 1 (Development Consent 5.2016.7.1) in accordance with AUSTROADS Part 5 "Intersections at Grade" giving particular attention to sight distance. (2) Construction of an intersection at the junction of Road 2 and Road 1 (Development Consent 5.2016.7.1) 1 in accordance with AUSTROADS Part 5 "Intersections at Grade" giving particular attention to sight distance. (3) Construction of a roundabout at the junction of Road 2, Road 5, and Road 8 in accordance with AUSTROADS Part 5 "Intersections at Grade" giving particular attention to sight distance. (4) A temporary turning circle shall be constructed at any road termination pending the completion of the road. A certificate prepared by an appropriately qualified and practising Civil Engineer, shall be provided to the Certifying Authority to certify compliance with these requirements. Reason: To facilitate suitable road access for vehicular traffic and to ensure appropriate access and infrastructure protection that is integral with infrastructure on surrounding sites.
Condition 49 of the 2018 DC provides: [W] Traffic calming shall be designed and installed along proposed Road 1 (Development Consent 5.2016.7.1) to maintain the signposted speed in accordance with the Austroads Guide to Traffic Management Part 8: Local Area Traffic Management. Design details of the required works are to be submitted to and approved by Council prior to the issue of the relevant Civil Works Construction Certificate.
The 2018 DC conditions required certain plans be submitted to Council prior to commencement of work. An "Integrated Construction Management Plan" (ICMP) dated 27 October 2017 was prepared. The ICMP contained the following appendices: "Safety Management Plan" (Appendix A); "Environmental Management Plan" (the EMP) (Appendix B); "Quality Management Plan" (Appendix C); "Traffic Management Plan" (Appendix D); "Community Management Plan" (Appendix E); and "Emergency Response Plan" (Appendix F). In its description of the construction methodology, the ICMP said Stage 1 works would include the upgrade of an existing track to borrow pit in Precinct 2 to be an all-weather haul road, suitable for construction traffic, including passing bays, berms, drainage and adequate erosion and sediment controls (TB vol 4 tab 60) [A].
The EMP dated 2 October 2019 described the scope of work as including the development of an existing track to borrow pit for all-weather haul road (TB vol 4 tab 59) [A].
A "Dilapidation Report" dated February 2019 identified the public infrastructure that may be affected by the proposed development. In Appendix B ("Precinct 1 Construction Staging"), Portion 1 "Site Establishment and Main Access Road Preloading" listed works including "clearing and grubbing of borrow pit area and Precinct 1" and "upgrade haul road to borrow pit" (TB vol 4 tab 53 [A].
Approved 2018 DC plans labelled "Ultimate Overall Proposal Plan" shows a road labelled Road 1 travelling from Precinct 1 across Precinct 2 and integrating into the road system by way of a roundabout joining Road 1 to Road 12 and Road 13 in northern Precinct 2 (TB vol 4 tab 37) [W].
A staging diagram was prepared which showed the stages of construction for the planned development and the approximate dates on which each construction task would be carried out. Under the heading "Upgrade of existing track to haul road between Precinct 1 and Borrow Pit" works were described as including "cut from roadside hill to build up road camber and fill existing drain" [A].
Civil Works CC 14.2017.270.1 was issued by Lismore City Council on 12 February 2019. Plans issued with the CC show a road labelled Road 1, between Precincts 1 and 2 (for example, Earthworks Construction Staging Plan Month 1). Winten submitted that was in the same position as Road 1 in the 2016 DC plans (vol 4 tab 50) [W].
A report titled "NLP Precinct 1 - Post Clearing Report" dated 6 November 2019 annexed to the affidavit of Ms Vanessa Walsh dated 27 November 2019 was a report of clearing supervision by GeoLink totalling 41.5 hours over five separate days in October and November 2019. Habitat clearing on a road referred to as the "haul road" was reported. Winten objected to Ms Walsh's affidavit on the basis that it did not go to any pleaded issue or matter of relevance. Only par 14 and the annexed GeoLink report were read (TB vol 5 tab 72) [A].
The photograph in Ex K taken at the Land sometime after 6 November 2019 shows a "Keep Left" sign on a track that the Applicant said showed that the haul road had been upgraded. Drone photographs 1-3 of Ex D taken on or about 13 January 2020 show a track on the Land from an aerial perspective. The Applicant said photograph 1 of Ex D was taken by a drone facing south towards Lismore and showed a road partially on Precinct 1, departing Precinct 1 and ascending an escarpment onto Precinct 2. The Applicant said photograph 2 of Ex D was taken from the opposite direction and showed part of the same road ascending a hill substantially on Precinct 2. The Applicant said photograph 3 of Ex D showed substantially the same subject matter, including material being brought along the road from higher ground [A].

[47]

Borrow pit

Photograph 4 of Ex D captured on or about 13 January 2020 shows a cleared and scraped area on Precinct 2. This is what the parties referred to as the "borrow pit" on Precinct 2.
Prior to the grant of the 2018 DC, materials submitted with the DA in August 2017 contemplated the earthworks required for the development. Plans prepared by TGM Group Pty Ltd (TGM Group) lodged with the DA included an "Earthworks Plan" on Precinct 1. The words "Precinct 1" do not appear on the Earthworks Plan. The Applicant submitted that by comparing this plan with plans of the whole Land that show the shape and area of all three precincts, it can be inferred that only Precinct 1 is shown on the Earthworks Plan. The indicative cut and fill volumes estimated by TGM Group on the Earthworks Plan were 35,239 cubic metres of cut and 82,810 cubic metres of fill. The Applicant relied on the fact that no similar plans were prepared and submitted with the DA for earthworks on Precinct 2, where the contested borrow pit is located (vol 2 tab C pp. 816-817) [W], [A].
The SEE also contemplated earthworks and estimated the volumes of cut and fill that would be required (vol 2 tab 20) [W]: The subject site ranges in level from 10m AHD to 130m AHD. Significant sections of cut and fill are required for the site in order to maintain maximum grade requirements for the proposed road network. Preliminary earthworks plans have been prepared to estimate total cut and fill volumes. These estimate that the volume of cut will be in the order of 410,138m3 and the fill volume will be in the order of 491,280m3, resulting in a balance of 81,142m3 (fill).
A "Balance Land Report" was prepared in June 2017 by TGM Group to provide an engineering assessment on the balance of the land and a discussion of critical design components of the development. The Balance Land Report estimated the total cut and fill volumes that would result from the earthworks in the course of carrying out the development. Annexed cut/fill plans displayed the extent of cut and fill planned on the Land, including on Precinct 2. Winten said the borrow pit can be identified on these plans by reference to the extent of cut on Precinct 2 (vol 2 tab 20(a)) [W], [A].
The Council's request for information in September 2017, referred to above in [260], sought clarification of the total volume of fill required for Precincts 1, 2 and 3, and details of any proposed fill material including the source and primary haulage routes [W].
In its response to the Council's request, referred to above in [261], Planit Consulting prepared a report dated 12 January 2018 which specified revised cut and fill figures for all three Precincts: 47,500 cubic metres fill on Precinct 1, 108,000 cubic metres cut on Precinct 2, and 74,000 cubic metres fill on Precinct 3. The response included a revised set of Precinct 2 and 3 drawings including a cut/fill plan [W] (vol 3 tab 24(c) folio 1460).
An updated version of the Balance Land Report was provided to the Council in September 2018 to reflect these updated figures provided by Planit Consulting in its response to the Council's request for information. The updated total estimates were 391,151 cubic metres cut and 357,253 cubic metres fill, with a balance of 33,898 cubic metres cut. The Report annexed the same plans provided by Planit Consulting to the Council with its letter of 12 January 2018 [W].
The Council's own assessment of the DA ("Development Assessment Report") included an engineer's assessment which reflected the revised figures of cut and fill volume provided by Planit Consulting and incorporated into the revised Balance Land Report. The engineer's assessment acknowledged that earthworks would be required on Precinct 2. The Development Assessment Report stated "Council is satisfied that the earthworks are acceptable" (vol 4 tab 34 p 2043, p 1951) [W].
Plans issued with the CC included the locality of bulk earthworks, site layout, planned construction stages, sediment and erosion control plans, cut/fill depths, and sections of work (vol 4 tab 50). A plan titled "Earthworks Construction Staging Plan Month 1" showed an area of planned cut in north-western Precinct 2. A plan titled "Earthworks Construction Staging Plan Month 3-6 - Stage 1" showed an area of planned cut in the same location in north-western Precinct 2, bearing the label "earthworks borrow area" [W].

[53]

Consideration

The Applicant bears the onus of proof on the balance of probabilities of establishing the invalidity of the CC issued by the Council as the certifying authority. As identified at [252] above and as accepted by the Applicant, reg 145(2) of the EPA Regulation applies. The Applicant alleges that, firstly, no development consent or CC approval was granted for work on the haul road and, secondly, the borrow pit on Precinct 2 in the CC was not approved in the 2018 DC so that the CC is inconsistent with the 2018 DC. The statutory provisions in force at the relevant time were considered in Burwood v Ralan and Bunderra.
In Burwood v Ralan plans for a large residential and commercial development including a particular facade treatment were approved by the relevant local council. The plans submitted by the developer to the certifier to enable the mandatory CC to be issued varied substantially from the approved plans including in relation to the facade treatment. The CC was issued by the private certifier in relation to the changed plans. At issue was whether the CC plans were not inconsistent with the development consent plans and, if they were, what the legal consequence was. At [147] Sackville AJA (Leeming, Payne JJA agreeing) said the ordinary meaning of inconsistent includes "lacking in harmony between different parts or elements" or "self-contradictory", "discrepancy" or "incongruity". Not every difference between a development consent and plans and specifications furnished to the certifying authority and approved in a CC amounts to an inconsistency, at [148]. The judge must determine objectively whether there is inconsistency (and not consider the subjective view of the certifier who issued the CC as determinative), at [149]. Findings must be made about the nature and extent of variations, at [151]. On the assumption that the plans and specifications provided to the certifier were inconsistent with the development consent, the issue arose of whether this did give rise to invalidity of the CC, considered at [154]-[193]. The conclusion was no, the CC was not void and of no effect in the circumstances.
In Bunderra the Court of Appeal confirmed the application of Burwood v Ralan that inconsistency did not necessarily result in the invalidity of a CC applied to more than minor differences in plans, at [77]. Whether invalidity arises need only be considered if the Applicant can demonstrate inconsistency between the development approved in the DA and the CC.

Ryan v Northern Regional Planning Panel

At a glance

Court

Decision date

Before

Source

Judgment (57 paragraphs)

Parties

Cases Cited (33)

Cited By (7)