Broadwater Action Group Inc v Richmond Valley Council
[2003] NSWLEC 202
•09/11/2003
>
Land and Environment Court
of New South Wales
CITATION: Broadwater Action Group Inc v Richmond Valley Council & Anor [2003] NSWLEC 202 PARTIES: APPLICANT:
Broadwater Action Group IncFIRST RESPONDENT:
SECOND RESPONDENT:
Richmond Valley Council
New South Wales Sugar Milling Co-Operative LimitedFILE NUMBER(S): 10029 of 2003 CORAM: Lloyd J KEY ISSUES: Development Consent :- validity - requirement of a species impact statement - flora and fauna assessment - adequacy of - merits of flora and fauna impact LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 5A, s 5C, s 78(8)(b) and s 98(1)
Environment Protection and Biodiversity Conservation Act (Cth) 1999 s 9 and s 10
Fisheries Management Act 1994 s 220BA
State Environmental Planning Policy No. 44 - Koala Habitat Protection Sch 2
Threatened Species Conservation Act 1995 s 37(1), Div 2 Pt 6 s 110, Sch 2 and Sch 3CASES CITED: DATES OF HEARING: 24/07/03; 25/07/03 and 10/09/2003 DATE OF JUDGMENT:
09/11/2003LEGAL REPRESENTATIVES:
APPLICANT:
Mr A Oshlack (agent)
SOLICITORS:
N/AFIRST RESPONDENT:
SECOND RESPONDENT:
Mr D P Wilson (barrister)
SOLICITORS:
Wilshire Webb
Mr A M Pickels (barrister)
SOLICITORS:
Acuiti Legal
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
- 10029 fo 2003
Lloyd J
11 September 2003
- Applicant
- First Respondent
- Second Respondent
- Introduction
1 The applicant, Broadwater Action Group Inc, has appealed under s 98(1) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) against a grant of development consent by the first respondent, Richmond Valley Council, to the second respondent, NSW Sugar Milling Cooperative Ltd. This is the separate determination of two separate questions raised by the appellant separately from the other issues in the proceedings as permitted by Pt 31 r 1 of the Supreme Court Rules 1970, which applies in this Court (see Pt 6 r 1 of the Land and Environment Court Rules 1996).
2 The first question, if answered favourably to the applicant, will be determinative of the appeal: whether the development application should have been accompanied by a species impact statement prepared in accordance with Div 2 Pt 6 of the Threatened Species Conservation Act 1995 (“the TSC Act”). Such a species impact statement is required if the application is in respect of development on land that is or is likely to significantly affect threatened species, populations or ecological communities, or their habitats (s 78A(8) of the EP&A Act).
3 The second question is issue No. 7 raised by the appellant and is so closely related to the first question that the evidence called in relation to it is the same: whether the flora and fauna assessment is inadequate in measuring the impact of the proposal on a number of endangered species and (I infer) whether the proposal should be refused on the ground of its impact on endangered species and their habitat.
4 The proposed development is for a biomass co-generation facility, by which sugar cane waste from the second respondent’s mill is utilised in the production of electricity for use in the mill, with surplus electricity returned to the grid. The proposal includes a generating plant adjacent to the existing sugar mill, a stockpile of sugar cane (know as bogasse) waste on a grazing property nearby, and an overhead conveyer about 1.3 kilometres in length between the mill and the stockpile.
Should a species impact statement have accompanied the development application pursuant to s 78A(8) of the EP&A Act?
5 The applicant submits that the development will have adverse environmental impact on the habitat of threatened and endangered species. Therefore, the development application submitted to the council should have been accompanied by a species impact statement (“SIS”) pursuant to s 78A(8)(b) of the EP&A Act.
6 Evidence led by the applicant includes statements of evidence from ecologists Dr Steven Phillips and Mr Mark Fitzgerald. Mr Peter Parker and Mr F Dominic Fanning, also ecologists, have prepared reports for the second respondent. In addition to their individual reports, Dr Phillips, Mr Fitzgerald and Mr Parker have compiled a joint report entitled “Flora and Fauna Experts’ Joint Report” which highlights the points of contention between those experts.
7 Section 5A of the EP&A Act requires that in determining whether or not a species impact statement is required under s 78A(8)(b), factors forming an “eight-part test” must be taken into account. These elements establish whether or not there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats, and will be applied to the present matter by reference to the paragraphs in s 5A.
(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
8 A “threatened species “ under the EP&A Act has the same meaning as in the TSC Act. A “threatened species” under the TSC Act is a species specified in Pt 1 or Pt 4 of Sch 1 or in Sch 2 of the TSC Act. Part 1 of Sch 1 lists endangered species; and Pt 4 lists species presumed extinct. Schedule 2 lists vulnerable species and ecological communities.
9 The threatened species to be assessed in relation to the development proposal are the black-necked stork, the grey-headed flying fox, the glossy black cockatoo, the oxleyan pygmy perch, the wallum froglet, the wallum tree frog, the koala, the common planigale and the bush-hen. Mr Fitzgerald contends that Mr Parker’s reports refer to these species, but provide little detail on the nature of the impacts or potential impacts of the development on the species or their habitats.
10 The black-necked stork is listed as an “endangered species” in Pt 1 of Sch 1 of the TSC Act. Mr Parker observed a black-necked stork flying over the neighbouring property, “Ponderosa”, such land providing suitable foraging habitat for the species. Similarly, Mr Fanning observed a glossy black cockatoo flying over the area. However, according to Mr Parker and Mr Fanning, that is the extent of the presence of these species at the site. There is no evidence to contradict these statements. Further, Mr Parker noted that no suitable nesting area for the species would be affected by the proposal, also unchallenged by the applicant. Therefore, there is no evidence of there being a viable local population of the species likely to be placed at risk of extinction.
11 The grey-headed flying fox, listed as a “vulnerable species” under Sch 2 of that Act, was also recorded flying over the site. However, the criterion that there be a viable population of this species on the development site was not demonstrated. Therefore the relatively “insignificant impact” of the canopy pruning of the broad-leaved paperbark forest (which is already fragmented by existing development), whilst marginally reducing the species’ foraging habitat, will not disrupt its life cycle in the least.
12 Mr Parker came to the above-mentioned conclusion in his reports. Such finding is consistent with Mr Fanning’s opinion that “not a single individual of the Black- necked Stork or the Grey- headed Flying Fox will be affected to a significant extent, if indeed at all, by the proposed activity.” This is based upon Mr Fanning’s observations that the stork does not occupy “swamp forest” vegetation, such birds preferring open grasslands and wetlands, and that the quantity of potential foraging habitat for the flying fox proposed to be removed or affected is “miniscule” in relation to the foraging range of that species. In the absence of any evidence refuting this conclusion, I accept it.
13 Mr Fitzgerald states that Mr Parker’s failure to consider the potential impacts of the proposal on the endangered oxleyan pygmy perch is important. This species is listed as “endangered” in Pt 1 of Sch 4 of the Fisheries Management Act (NSW) 1994 (“FM Act”) and the Environment Protection and Biodiversity Conservation Act (Cth) 1999 (“EPBC Act”). However, species listed under the FM Act and the EPBC Act are not relevant considerations in the present examination pursuant to s 5A of the EP&A Act 1979. Section 78A(8) of the EP&A Act refers to a species impact statement in accordance with Div 2 of Pt 6 of the TSC Act only. Sub-section 110(2) in Div 2 of Pt 6 does not refer to species listed under any other act. Therefore the term “threatened species” referred to in s 110 is confined to its meaning set out in the dictionary of the TSC Act, referred to in par [8] above, that is, species listed in Pt 1 or Pt 4 of Sch 1 or in Sch 2 of that Act. It follows that species listed under the EPBC Act are not relevant to the present investigation (see ss 9 and 10 of the EPBC Act). Again, despite s 5C of the EP&A Act, unless an order under s 5A(1)(a) of the TSC Act has been made by the Minister such that a specific species listed as “endangered” under the FM Act is deemed to be a species of animal for the purposes of the TSC Act (see s 5A(2) of the TSC Act), any impact of the development proposal upon the species is again irrelevant to the present inquiry pursuant to s 78A(8) of the EP&A Act (see also s 220BA of the FM Act).
14 In the absence of any evidence of such an order having been made by the Minister in relation to the oxleyan pigmy perch, I find that such impact is indeed extraneous to the present examination. Moreover, in the event that an order under s 5A(1)(a) has in fact been made, there nevertheless has been no evidence to establish that the proposal is likely to have a significant effect on the lifecycle of the species, such that a viable local population is likely to be placed at risk of extinction. Although there is a potential habitat of the oxleyan pygmy perch in the adjoining national park, the evidence of Mr Fanning shows that the area of potential habitat is in a different catchment to the proposed development and there will thus be no impact upon that species.
15 Mr Fitzgerald further criticises Mr Parker’s reports by stating that they do not consider “a local population of Threatened Wallum Froglets Crinia tinnula which exists < 200 m from the fuel storage site and < 300 m from the area of groundwater extraction…”. This species is listed as “vulnerable” under Pt 1 of Sch 2 of the TSC Act.
16 Mr Parker recorded the wallum froglet in a swamp forest approximately 300 metres from the conveyor route and 700 metres from the borefield. However, he states clearly in his June 2001 report that such frogs are not expected to occur at the subject site due to the “paucity of suitable habitat (“Wallum’ heathland”)” in the area. This statement was made after Mr Parker searched on two occasions in perfect weather conditions, and in suitable habitat, such as “perennial water bodies under culverts, farm dams and a small creek east of the quarry access road” for representatives of the species. Further, the potential of the subject site for the wallum froglet is minimal due to nutrification and grazing by cattle. Mr Fanning, in his report, corroborates Mr Parker’s opinion, stating that there is “no loss of habitat; extremely limited possible impacts on marginal habitat; [and] no impact on known habitat” of the species.
17 Therefore, the improbability of there being a local population of this species close enough to the proposal so as to be effected by it, shows that it is highly unlikely that the “life cycle of the [wallum froglet would] be disrupted such that a viable local population of the species is likely to be placed at risk of extinction”.
18 The Koala is also listed as a “vulnerable species” under Sch 2 of the TSC Act. However, again, it is highly improbable that the species’ life cycle will be disrupted by the proposal such that a viable local population of the species is likely to be placed at risk of extinction. Mr Parker states that “no koala food trees will require removal”, and that the habitat is used by koalas infrequently: “[a]pproximately 50 koala food trees were inspected for koala usage… and dried scats were recorded under only three trees…” at “Ponderosa”, well separated from the proposed development. Mr Fanning agreed with Mr Parker, noting that the “overwhelming majority of the area to be affected by the proposed activity is one of no value as habitat for the koala”. Mr Fitzgerald, an expert for the applicant, also concurred on this point.
19 Further, the experts for the applicant contend that acid paperbark swamp and swamp forest on the subject site is potential habitat for the wallum tree frog, the common planigale and the bush-hen: “[a]cid [p]aperbark swamps and swamp forests are present in the immediate vicinity of the proposal”. Dr Phillips also claims that the wallum sedge frog “might also be present on the site”. However, the fact that Mr Fitzgerald and Dr Phillips categorise the site as merely “potential” habitat does not, of course, mean that there are any representatives of the species present at the site. Therefore, it is very difficult to conclude that, as a result of the development, a viable local population of these species is likely to be placed at risk of extinction. Moreover, the wallum tree frog and the wallum sedge frog are not listed under the TSC Act. Therefore these species are not relevant to the present inquiry pursuant to ss 5A and 78A(8) of the EP&A Act.
20 The common planigale is listed as a “vulnerable species” under Sch 2 of the TSC Act, as is the bush-hen. Mr Parker, however, states in his report in reply that although it was not specifically targeted, the common planigale was not recorded. Further, notwithstanding that broad- leaved paperbark swamp forest is a typical habitat of the species, given that the subject site, as noted in par [16] above, is fragmented and impacted by existing development, and that the conveyor route is limited to a narrow three metre corridor through the habitat, the life cycle of the common planigale is not likely to be disrupted such that a viable local population of the species is likely to be placed at risk of extinction.
21 In relation to the bush-hen, despite suitable habitat existing near “Ponderosa” and in the wallum heathland south of the site, and that the species had been recorded at the Broadwater National Park in 1995, Mr Parker states that play- back calls at the site on 18 June 2001 failed to uncover a single individual specimen. This entry in Mr Parker’s report is substantiated by the absence of the bush- hen from Mr Fanning’s table of “Threatened Species of possible relevance to the site at Broadwater”.
22 Therefore, it is clear from the evidence that the life cycles of the threatened species relevant to this assessment of the subject site are not likely to be disrupted such that a viable local population of a 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
23 The exhaustive list of “endangered populations” to be considered in this exercise is found in Pt 2 of Sch 1 of the TSC Act. No such collectivity occurs within the vicinity of the subject site. Accordingly, the only conclusion open to the Court in this instance is that the proposed activity would not disrupt the life cycle of any endangered population 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
24 Excepting the canopy pruning of the broad- leaved paperbark forest, and, possibly, the area occupied by one of the settlement ponds for the stockpile run-off, the development will not require the clearing or modification of habitat of threatened species. Further, little if any of the known koala habitat to the south of the subject land will be removed or modified as a result of the proposal. Mr Parker states in the joint report that the location of the koala habitat is over 100 metres from the stockpile site and no koala food trees listed under Sch 2 of the State Environmental Planning Policy No. 44 - Koala Habitat Protection will be removed. Indeed, Mr Fanning found that “the overwhelming majority of the area to be affected by the proposed activity is of no value as habitat for the [k]oala”.
25 Mr Fitzgerald concurs with this assessment. Dr Phillips does not agree with the other experts on this point, although, he offers no evidence to the contrary, leading the Court to the only possible conclusion: that no known habitat of the koala will be modified or removed by the proposal.
26 Therefore, in relation to the regional distribution of the habitat of the relevant threatened species, a “significant area of known habitat will not 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
27 In light of the discussion in paragraph (c) above, the proposal’s marginal impact on surrounding flora coupled with the fact that the proposal area is within the relatively “disturbed” site of the existing plant and the existing grazing property, shows that the threatened species’ habitat would be unlikely to become isolated from any currently interconnecting or proximate areas of habitat as a result of the proposed development. Indeed, that is what Mr Parker found and noted in his May 2000 report. Likewise, Mr Fanning particularly observed that “the proposal will not impede [k]oala movements through the general locality (if such movements currently occur).”
(e) Whether critical habitat will be affected
28 “Critical habitat” is defined in the TSC Act as “habitat declared to be critical habitat under Part 3”. Sub-section 37(1) in Div 1 of Pt 3 describes habitat eligible to be declared “critical” as “land comprising the habitat of an endangered species, population or ecological community that is critical to the survival of the species, population or ecological community”. Following a declaration of the Minister that an area constitutes “critical habitat”, such land would necessarily be considered in an eight- part test such as the present examination.
29 However, the development proposal does not involve or impact upon any area identified and declared “critical habitat” under Part 3 of the Act. Therefore, I accept the conclusion to which Mr Parker came in his June 2001 report, that is, that no critical habitat will be affected by the proposed activity.
(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
30 Mr Fitzgerald claims that “there is inadequate treatment [by Mr Parker] of the representation of individual [t]hreatened fauna species in conservation reserves”. In particular, he states that the threatened fishing bat and the greater broad-nosed bat are likely to occur at the subject site and are sparsely represented in the surrounding national parks. Dr Phillips also asserts that Mr Parker’s “treatments are less than satisfactory…”.
31 Conservation reserves are those areas dedicated as national parks, nature reserves and flora reserves. A “region” is defined in the TSC Act as “… a bioregion defined in a national system of bioregionalisation that is determined (by the Director - General under subsection (4)) to be appropriate for those purposes…”.
32 Mr Parker, in both his individual reports, refers to the system of biogeographic regionalisation for Australia (“IBRA”), developed by the Australian Nature Conservation Agency (“ANCA”) for the purpose of establishing a national comprehensive system of parks and reserves. He noted that reserved areas account for approximately five to ten percent of the total area of the north coast region of New South Wales and that the existing reserves in the region fail to include samples of the most extensive ecosystems. However, most of these reserves are on land containing vegetation and habitat types different to those within the subject site, and therefore would accommodate threatened species other than those relevant to the subject site.
33 Further, Mr Parker notes the existence of two national parks near to the proposal site and states that there are records of sitings, in addition to those held by the National Parks and Wildlife Service, of many of the threatened species recorded in those national parks, an assertion that is unchallenged. Also, Mr Parker’s reference to “the local availability of suitable habitat for all the threatened bat species likely to occur at the site” shows that, in the absence of contradictory evidence, those species are more than likely adequately represented in the region.
34 Given these considerations, Mr Parker concluded that the representation of threatened species in conservation reserves (or other similar protected areas) in the region appears adequate. Mr Fanning supports this conclusion. Therefore, in the absence of any specific evidence to the contrary, I accept and adopt Mr Parker’s assessment.
(g) Whether the development or activity proposed is of a class of development or activity that is recognised as a threatening process
35 A “threatening process”, distinct from a “key threatening process”, is defined in the dictionary of the TSC Act as “a process that threatens, or may have the capability to threaten, the survival or evolutionary development of species, populations or ecological communities”. Given my findings in relation to the other factors discussed, there is no evidence that any activity involved in this development proposal will have such an effect.
36 At this point it is convenient to discuss Mr Fitzgerald’s more serious claim that in Mr Parker’s reports “[t]he full extent of native vegetation clearing [a key threatening process] is not discussed; there is inadequate detail concerning the location, number of species of trees to be removed to accommodate the conveyor route and a related service road, or to provide and maintain asset protection zones for bushfire risk management along the conveyor route”.
37 The exhaustive list of “key threatening processes” is located in Sch 3 of the TSC Act. Mr Parker, in his report in reply, addressed each of these in relation to the development proposal, concluding that none will feature if the development is approved. Specifically, Mr Parker states that although bitou bush, the invasion of native vegetation by which is a “key threatening process”, was recorded at the site, the development would not alter the impact of this species on native plant communities. Likewise, european red fox scats were recorded at the site. Mr Parker concluded, however, that it is unlikely that the subject development will alter the status quo for this species.
38 The anticipated impact upon native vegetation of the conveyor from the plant to the stockpile is minimal. The proposed conveyor follows a relatively cleared pathway, dominated by camphor laurel (a noxious species of the north coast), and is largely located over grassland of little ecological value. Regular maintenance canopy pruning of the broad- leaved paperbark is expected, as well as the installation of one conveyor footing in that area. However, the evidence shows that the broad-leaved paperbark would survive and regenerate around the conveyor.
39 Again, a small number of young regenerating coast cypress may also need to be removed in order for the placement of conveyor footings: however, this species has already regenerated around the existing quarry margin. The stockpile site itself is located on cleared pastureland. Even with the possible removal of a small number of broad-leaved paperback at the site of a settlement pond for run-off from the stockpile, it cannot be said that the proposal involves a “key threatening process”, nor could it be recognised as a “threatening process”. Finally, the stockpile site is to be located on hardstand and covered with tarpaulins. The present experience that covered fuel stacks do not generate leachate can be accepted.
(h) Whether any threatened species, population or ecological community is at the limit of its known distribution
40 Mr Parker’s reports state that consultation of the National Parks and Wildlife Service database revealed no threatened species, population or ecological community relevant to this proposal which are likely to be at the limit of its known range. There is no evidence to the contrary. Therefore, I adopt Mr Parker’s assessment of this factor in the eight-part test.
Conclusion
41 Given my findings in each portion of the eight- part test pursuant to section 5A, it is overwhelmingly clear that the proposed development is unlikely to have a significant effect on threatened species, populations or ecological communities connected with the subject site, or their habitats. Therefore, the submission of a species impact statement for the proposal is not required under s 78A(8) of the EP&A Act.
42 The same findings also resolve issue No. 7, noted in par [3] above. The evidence as to (a) whether a species impact statement was required and (b) as to the overall assessment of the impact of the proposed development upon flora and fauna is the same. For the various reasons discussed under the eight-part test, it is apparent that the assessment of the proposal upon the various identified species is adequate. It is also clear that the impact, if any, upon any of those species or their habitats will be insignificant. The impact will be so marginal that the development application could not be refused on this ground. As stated by Mr Fanning: “It is not likely that even individuals of threatened species would be significantly affected by the proposed activity and the extent of possible or potential habitat which could even conceivably be affected is minimal… The proposal manifestly is not unacceptable or unreasonable in terms of s 79C of the EP&A Act”.
I hereby certify that the preceding 42 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.
Dated: 11 September 2003Associate
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