Smyth v Nambucca Shire Council & Anor

LEGISLATION CITED: Environmental Planning & Assessment Act 1979, s 5A, s 77(3)(d1)

DATE OF JUDGMENT DELIVERY: 09/23/1999

APPLICANT: W R Davison SC SOLICITORS: Pike Pike & Fenwick

FIRST RESPONDENT: LEGAL REPRESENTATIVES: No appearance

SECOND RESPONDENT: S M Berveling (Solicitor) SOLICITORS: Abbott Tout

JUDGMENT: IN THE LAND AND Matter No: 10537 of 1998 ENVIRONMENT COURT Coram: Lloyd J OF NEW SOUTH WALES Decision date: 23/09/99

1. This is an appeal under s 56A of the Land & Environment Court Act 1979 against the decision of a Commissioner who dismissed an appeal against the deemed refusal of a development application for the subdivision of land. An appeal under s 56A is limited to a question of law.

2. The Commissioner identified a number of issues in the proceedings, only the first of which was considered. That issue was stated as follows: 1. Whether the development application needs to be accompanied by a Species Impact Statement prepared in accordance with Division 2 of Part 6 of the Threatened Species Conservation Act 1995 before the Court is empowered to embark upon a consideration of the development application.

3. The issue was governed by s 77 of the Environmental Planning & Assessment Act 1979 ("the EP&A Act") prior to the amendment of that section in 1998. Subsection (3) of s 77 relevantly provided: (3) A development application shall: ...

(d1) 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, be accompanied by a species impact statement prepared in accordance with Division 2 of Part 6 of the Threatened Species Conservation Act 1995.

4. Section 5A of the EP&A Act, as it stood prior to its amendment in 1998, is also relevant. It provided as follows: 5A Significant effect on threatened species, populations or ecological communities, or their habitats

For the purposes of this Act and, in particular, in the administration of sections 77, 90 and 112, the following factors 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) in the case of a threatened species, whether the life cycle of the species is likely to be disrupted such that a viable local population of the species is likely to be placed at risk of extinction,

(b) in the case of an endangered population, whether the life cycle of the species that constitutes the endangered population is likely to be disrupted such that the viability of the population is likely to be significantly compromised,

(c) in relation to the regional distribution of the habitat of a threatened species, population or ecological community, whether a significant area of known habitat is to be modified or removed,

(d) whether an area of known habitat is likely to become isolated from currently interconnecting or proximate areas of habitat for a threatened species, population or ecological community,

(f) whether a threatened species, population or ecological community, or their habitats, are adequately represented in conservation reserves (or other similar protected areas) in the region,

(g) whether the development of activity proposed is of a class of development or activity that is recognised as a threatening process,

(h) whether any threatened species, population or ecological community is at the limit of its known distribution.

The Commissioner noted in his decision that no species impact statement had been prepared. The Commissioner then summarised the evidence on the issue as follows: Evidence for the applicant was provided by Mr Dominic Fanning, an Environmental Scientist. His evidence was based on field surveys undertaken by his company together with a number of specialist reports dating back to 1992. He identified the Koala and Glossy Black Cockatoo as being the only threatened species recorded during field investigations of the site. His "8 part test" indicates that it is unlikely that there would be a significant adverse effect on these threatened species. The qualification given to this statement is the subdivision and subsequent development of the site are carried out as proposed, including the specified amelioration measures.

Evidence for the respondent was provided by Ms Kylie Maryott-Brown. She provided specialist advice in this area to the Council's consultant whose brief was to provide an independent review of the application. Two separate reports dated January 1998 and February 1998 were tendered, as was a specific statement for the proceedings. Her involvement was based on a review of the applicant's documentation and other studies carried out, with limited field surveys. While her conclusions varied over her reports, her final conclusions were similar to Mr Fanning's i.e. the "8 part test" revealed that if the amelioration measures can be adhered to, then it is unlikely that a significant impact will result from the development.

The Commissioner listed in his decision the amelioration measures identified by Mr Fanning and noted that those amelioration measures were reflected in the subdivision layout and in the proposed conditions of consent. \

The Commissioner then made the following statements, which are criticised by the applicant as demonstrating legal error: The test of whether a SIS is required in (sic) found in s 5A of the EPA Act. As distinct from the repealed s 4A of the EPA Act, whose task was similar to the current s 5A, no provision exists to take into account any ameliorative measures as part of the '8 part test".

Section 110 of the Threatened Species Conservation Act (TSC Act) species the content of an SIS. Sub-clause (2) species the information that must be included in relation to threatened species and populations. It relevantly addresses this matter in subclauses (h) and (i), which state:- 2.(h) a description of any feasible alternatives to the action that are likely to be of lesser effect and the reasons justifying the carrying out of the action in the manner proposed, having regard to the biophysical, economic and social considerations and the principles of ecologically sustainable development;

(i) a full description and justification of the measures proposed to mitigate any adverse effect of the action on the species and populations, including a compilation (in a single section of the statement) of those measures. It follows, in my understanding, that any feasible alternatives or ameliorative measures (or measures proposed to mitigate any adverse effect) must be included in an SIS and not considered independent of an SIS, as was the case at the hearing.

Mr W R Davison SC, who appears for the applicant, submits that the Commissioner was in error in holding that any ameliorative measures could not be taken into account as part of the 8-part test under s 5A of the EPA Act; and the Commissioner fell into error in assuming that the difference in wording between s 5A and the repealed s 4A meant that the ameliorative measures could not be considered in determining the threshold question of whether a species impact statement was required.

The parties agreed that for the purpose of paragraph (d1) of subsection 77(3) of the EP&A Act, the land to be subdivided was not, neither was it part of, critical habitat. Thus, the question that the Commissioner had to determine was whether the proposed development was likely to significantly affect threatened species, populations or ecological communities, or their habitats. The Commissioner did not answer this question. I accept the submission of Mr Davison that this question can only be answered by reference to the development which is proposed, which in turn requires a consideration of any ameliorative measures proposed as part of that development. That this must be so is clear from the reference to whether it is the " development " which is likely to significantly affect threatened species, populations or ecological communities, or their habitats. It is not a question of whether the land contains threatened species, populations or ecological communities, or their habitats. The only reference to the land is whether the land is, or is part of, critical habitat. As I have said, the parties accepted that the land is not, neither is part of, critical habitat. The focus of the provision is on the development, which necessarily includes any ameliorative measures which are proposed as part of such development.

This view is confirmed by s 5A of the EP&A Act. The factors to be taken into account on the question of whether there is likely to be a significant effect on threatened species, populations or ecological communities, include factors which require an assessment of the impact of the proposed development and thus necessarily any associated ameliorative measures which may be part of such development. Recourse may be had to the proposed development (and its associated ameliorative measures, if any) for the purpose of paragraphs (c), (d), (e) and (g) of s 5A. It is also at least arguable that recourse may also be required to the proposed development (and its associated ameliorative measures, if any) for the purpose of paragraphs (a) and (b) of s 5A.

The Commissioner found that the proposed development in the present case included a number of specified ameliorative measures. The Commissioner did not go on to make any finding as to whether, given the proposed development and the specified ameliorative measures, there was likely to be a significant effect on threatened species, populations or ecological communities, or their habitat. As noted in paragraph 8 above, the Commissioner decided, in effect, that the answer to this question must be resolved by reference to a species impact statement. The Commissioner's task, however, was to determine for himself whether there was likely to be a significant effect by dint of the proposed development and its ameliorative measures. Only if the answer to that determination is in the affirmative does a species impact statement become necessary.

It seems that the Commissioner was led into error by, at least partly, the omission from s 5A of any express reference to any proposal to ameliorate the impact of a proposed development. It seems to me that the answer to this is that there is no need for there to be any express reference to ameliorative measures in that section. The terms of the section make it plain that the matters for consideration necessarily include the impact of a proposed development and any associated ameliorative measures.

Mr S M Berveling, who appears for the second respondent, submits that the Commissioner did in fact take the ameliorative measures into consideration. He refers to parts of the Commissioner's decision which suggest that ameliorative measures can and were taken into consideration. It must be borne in mind, however, that it is undesirable in an appeal from a lay tribunal where the appeal court is confined to a question of law, that it should examine too narrowly the words used in the decision, at least unless those words are central to the decision ( Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368). The passages upon which Mr Berveling relies are not, however, central to the decision, whereas the passages in the decision to which I have referred in paragraph 8 above are clearly central to the decision. Those passages show that the Commissioner was of the view that he could not take into account any ameliorative measures in the proposed development for the purpose of resolving the question posed in paragraph (d1) of subsection 77(3), namely whether the development was likely to significantly affect threatened species, populations or ecological communities, or their habitat.

The matter must, therefore, be remitted to the Commissioner for him to make the determination called for by paragraph (d1) of subsection 77(3). In making that determination the Commissioner must not set from his mind the ameliorative measures which are proposed as part of the development application. Such determination must be made having regard to all of the relevant matters set out in s 5A, which necessarily includes both the proposed development and any such ameliorative measures.

I therefore make the following orders: 1. Appeal allowed.

3. The matter is remitted to the Commissioner for determination in accordance with this judgment.

4. The second respondent must pay the applicant's costs of this appeal.

5. No order for costs as between the applicant and the first respondent.

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