184 . Neither study saw any reason to change the status of the threatened specie to one of lesser priority.
185 . The tetratheca on the site and adjoining were agreed by Dr Clements and Dr Robertson as a significant viable population in excess of 100 plants under the NPWS Guideline.
186 . As such it is to be protected even though there are a considerable number of other significant colonies of the plant in the Sydney Bio-region and in its wider distribution in NSW. There was agreement it is poorly represented in the southern areas of the bioregion where the site is located.
187 . Dr Robertson's position in summary is that the proposal will only take a small number of plants, others affected by the development will be maintained and propagated by a Bush Management Plan, and the proposal occupies only a peripheral area of the colony, and the sustainability of the colony will not be affected and no Species Impact Statement is needed under the Act.
188 . Dr Clement's position in summary on the 8 part test under s 5A of the Act, is that the construction process of building the house and driveway and the bushfire OPZ and IPZ is a threatening process, and their continued existence thereafter is a threatening process to the significant local population of tetratheca .
189 . The proposal will isolate the southern part of the colony from the northern part with a physical barrier of the house and a modified area of vegetation about 100 m in diameter by scale from Exhibit B.
190 . The proposal in both construction, and thereafter, existence and occupation of the building and grounds will have unknown impacts on soil moisture regime, fertility, mycorrhizal and soil bacterial structures that currently sustain the habitat of the threatened specie.
191 . The Court accepts Dr Clements evidence on s 5A(a), (c), (d), and (g) of the Environmental Planning and Assessment Act 1979 and that there is likely to be a significant effect on threatened species, a local significant population of tetratheca species and its habitat.
192 . That being the case the appeal must fail.
193 . In regard to the Southern Brown Bandicoot, Mr Williams report in reply showed that the recommended procedure in Exhibit 25 for assessing the presence and potential impact on that threatened specie was not followed on this site although other surveys were done nearby. The specie is known to be in the vicinity and diggings of it or the more common Long Nosed Bandicoot were observed on the house site and shown to the Court. The 8 part test for the Southern Brown Bandicoot was not properly carried out, and as a result the appeal must fail.
194 . In regard to the Red Crown Toadlet it would seem that the Conacher Travers survey was carried out in reasonable compliance with the procedures in Exhibit 26 and although the toadlet is known to be in the Red Hill reserve nearby, its existence on the subject house site is unlikely. If it was on site in the crevices of rocks and around the edge of the plateau Dr Robertson agreed that the construction and occupation of the proposal and consequent changes to the water regime and its content would lead to the demise of the toadlet.
195 . If the impact of the house and its use and the IPZ and OPZ and revegetation program would have such an effect on the water regime, that it would kill any toadlets; there may be other effects too. The water regime change could also affect the important soil structure, soil bacteria and mycorrhizal relationships of tetratheca that are important for its long term sustainability on Portion 1092 and the Red Hill Reserve adjoining. A Specie Impact Statement would reveal that information.
196 . Having reached a conclusion on these matters, the other issues need not be addressed.
197 . Overall the Court has concluded the proposal should be refused.
198 . The orders of the Court are:
1. The appeal is dismissed.