Collett v ACT Planning and Land Authority (Administrative Review) - [2024] ACAT 39

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COLLETT & ORS v ACT PLANNING AND LAND AUTHORITY (Administrative Review) [2024] ACAT 39

AT 101/2023

Catchwords: ADMINISTRATIVE REVIEW – review of decision to approve development proposal for construction of crematorium adjacent to Callum Brae Nature Reserve – where issue arose whether the development will have, or is likely to have, a significant impact on the Swift Parrot – where the Swift Parrot is listed as ‘critically endangered under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) – where the Minister with responsibility under the EPBC Act previously determined that the development proposal was not a ‘controlled action’ because it was unlikely to have any significant impacts on any protected matters, including Swift Parrots – where subsequent events, including the sighting of large numbers of Swift Parrots in the Callum Brae Nature Reserve in May 2021, potentially call that decision into question – where the Tribunal is satisfied that the issue is real and not merely colourable – where the Tribunal does not have jurisdiction to decide the issue – where the respondent (with the support of all parties) sought an order that the Tribunal direct the respondent to refer the matter to the Commonwealth Department of Climate Change, Energy, the Environment and Water for consideration – interlocutory application granted – proceeding adjourned until further order

Legislation cited: ACT Civil and Administrative Tribunal Act, s 22P(3)
Environmental Protection and Biodiversity Conservation Act 1999 (Cth), ss 69, 72, 75, 76, 524, 527E
Nature Conservation Act 2014
Planning and Development Act 2007, s 120(h)

Subordinate

Legislation cited: Lease Variation General Code
Environmental Protection and Biodiversity Conservation Regulations 2002 (Cth), rr 4.02, 4.03

Tribunal:Senior Member M Orlov
Senior Member A Pegrum

Date of Orders:  28 May 2024
Date of Reasons for Decision:      28 May 2024
Date of Publication:  29 May 2024

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 101/2023

BETWEEN:

PAMELA COLLETT
First Applicant

MARJA ROUSE
Second Applicant

DIETLIND SOMMER
Third Applicant

FRANCE MEYER
Fourth Applicant

JAMES LINDSAY
Fifth Applicant

INVOCARE AUSTRALIA PTY LTD ACN 060 060 031
First Party Joined

RED BOX CONTRACTORS PTY LTD
Second Party Joined

AND:

ACT PLANNING AND LAND AUTHORITY
Respondent

TRIBUNAL:Senior Member M Orlov
Senior Member A Pegrum

DATE:28 May 2024

CORRECTED ORDER

The Tribunal orders that:

By 4 June 2024, the respondent is to send a written request to the Commonwealth Department of Climate Change, Energy, the Environment and Water (copied to the Tribunal and all other parties):
(a)attaching a copy of these orders, the Tribunal’s reasons for decision and copies of the material relating to potential significant impact of the proposed development on the Swift Parrot listed in the schedule below; and
(b)containing the following questions:
(i)      Does any of the material provided with this request change the Department’s views expressed in Referral Decision Brief – South Canberra Memorial Park, ACT (EPBC 2019/8595) dated 26 May 2020, under the following headings:
a.‘Recommendations’, in items 2 and 3;
b.‘Recommended Decision’, in paragraphs 11 and 12; and
c.‘Swift parrot (Lathamus discolour) – critically endangered’, in paragraphs 49 to 56.
(ii)     If so, how has the Department’s view changed?
(iii)   Are there any conditions that the Department would impose on the proposed development that would address any new concerns arising as a result of the material provided?
The respondent is to file and serve any response to the request and any correspondence in relation to the request within 3 working days of receipt.
The application is adjourned part-heard for mention to a date to be fixed by the Tribunal.
The registry is directed to list the application for a further extension of the period to decide the application under section 22P(3) of the ACT Civil and Administrative Tribunal Act 2008, for hearing before the President on a date that is before 7 June 2024.

SCHEDULE

Notice of Decision – T-docs pp 25-48
Extract of Department’s Referral Decision Brief produced on subpoena – exhibit R3
ESO given by Conservator on 24 April 2023 – T-Docs pp 447, 451-456
Blakers representation – T-docs pp 274-277
Dr Laura Rayner’s initial advice – exhibit R1
Professor Heinsohn’s reports dated 15 December 2023 – exhibit A1 – and 23 April 2024 – exhibit A2
Transcript of Professor Heinsohn’s oral evidence and cross-examination – 21 May 2024, pp 8-60
Report of Dr Debbie Saunders dated 11 March 2024 – exhibit A4
Transcript of Dr Saunders’ oral evidence and cross-examination – 22 May 2024, pp 10-32
National Recovery Plan for Swift Parrots, published April 2024 – exhibit PJ3
Capital Ecology report by Robert Spiers, dated 21 October 2022 – T-docs pp 380-446
Capital Ecology report by Robert Spiers, dated 9 April 2024 – exhibit PJ4
Appendix B: Supplementary tree assessment data – exhibit PJ5
Aerial photographs (Figures 1 to 5) – exhibit PJ6
Transcript of Mr Spiers’ oral evidence and cross-examination – 22 May 2024, pp 34 to 64
Dr Laura Rayner’s witness statement – exhibit R7
Email communications with Dr Rayner re Capital Ecology report – exhibit R4
Email communications with Conservator re change in Dr Rayner’s opinion – exhibit R5
Swift Parrot and Regent Honeyeater 2021 Annual Survey Summary and General Update by Birdlife Australia – exhibit R6

………………………………..
Senior Member M Orlov
For and on behalf of the Tribunal

REASONS FOR DECISION

The Tribunal is currently part-heard in an application for review of a decision to approve, subject to conditions, a proposal to construct a new crematorium and associated landscaping and other works on Block 1 Section 3 Symonston (the site) and to vary the Crown lease as necessary to authorise the development and proposed used. The site is located next to the Callum Brae Nature Reserve (the reserve), located on the lower eastern slopes of Mount Mugga Mugga.
The evidence was completed on Wednesday, 23 May 2024. The Tribunal commenced to hear submissions on Thursday, 24 May 2024.
The applicants’ position is that the decision under review should be set aside and substituted by a decision to refuse approval because, among things, the proposed development will have, or is likely to have, a significant impact on the Swift Parrot which is listed as a ‘critically endangered’ species under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) and the Nature Conservation Act 2014.
The issue arises in at least one of two ways. First, probable environmental effects may be relevant to the question whether the site is suitable for the development or use authorised by the varied lease.[1] Second, one of the discretionary factors the Tribunal must consider in deciding the application is the probable impact of the proposed development, including the nature, extent and significance of probable environmental impacts.[2]
[1] Criterion C1(ii) of the Lease Variation General Code.
[2] Planning and Development Act 2007 (repealed), section 120(h)
The position of the respondent and the parties joined is that the decision under review should be confirmed. Necessarily, this would require the Tribunal to be satisfied that the proposed development will not have, nor is it likely to have, a significant impact on the Swift Parrot.
The problem this creates for the Tribunal is twofold.
First, the Tribunal does not have jurisdiction to decide whether the ‘action’[3] – in this case, the proposed development – will have, or is likely to have a significant ‘impact’[4] on a ‘listed threatened species’ included in the ‘critically endangered’ category under the EPBC Act, which is a matter arising under a Commonwealth law.
[3] ‘Action’ has the meanings given by Subdivision A, Division 1 of Part 23 of the EPBC Act and includes a development and any alteration of a development (s 524) but does not include a decision by a government body, including an agency of a self-governing Territory, to grant a governmental authorisation for another person to take an action (s 524).
[4] Section 527E of the EPBC Act gives the meaning of ‘impact’
Second, the Tribunal is satisfied that the issue is real and not merely colourable. As will appear, it arises squarely for decision on the evidence and potentially may determine the outcome.
The Tribunal raised these matters with the parties during the hearing of submissions on Thursday, 24 May 2024. The hearing was adjourned to allow the parties to confer and obtain instructions.
At 2:15 pm, the Tribunal gave leave for the respondent to file an application for interim or other orders seeking the following orders:
1. That the time for consideration and determination of the decision under review be extended, for the purposes of section 22P of the ACAT Act, until a date fixed by the Tribunal.
2.   That the hearing of the matter be adjourned to a date for written submissions to be fixed by the Tribunal.
3.   That the Respondent be directed to send, within 5 days, to the Commonwealth Department of Climate Change, Energy, the Environment and Water (copied to the other parties) a request:
a. attaching such material in relation to the potential impact of the development on the swift parrot as determined by the Tribunal as is necessary or appropriate; and
b. which contains the following questions:
i. "does any of the material provided with this letter change the Department's view expressed in the referral recommendation dated 26 May 2020? If so, how has the Department's view changed?" and
ii. "are there any conditions which the Department would impose on the proposed development which would address any new concerns arising as a result of the material provided?"
4.   That the Respondent be directed to file with the Tribunal any response to the request made in accordance with Order 3 above, along with any correspondence in relation to that request, within 3 business days of the receipt thereof.
The application was supported by the applicants and the parties joined.
The Tribunal granted the application (except for the application for an extension of time under section 22P of the ACT Civil and Administrative Tribunal Act 2008, which is a matter for President) and advised that it would make final orders in chambers supported by brief reasons.

Background

On 6 January 2020, the proposed development was referred to the Commonwealth Department of Agriculture, Water and the Environment (now called the Department of Climate Change, Energy, the Environment and Water) (the Department) for a decision whether the proposed development was an action requiring assessment and approval under the EPBC Act due to the requirement to clear an area of 0.31 hectares of White Box – Yellow Box – Blakely’s Red Gum Grassy Woodland and Derived Native Grassland (Box Gum Woodland), a community listed as critically endangered under the EPBC Act (referral 2019/8595). The proposal was varied in May 2020 to remove a woodland memorialisation component and to commit to the development and implementation of a Woodland Conservation Management Plan (WCMP) to ensure the condition and extent of the retained EPBC Act Box-Gum Woodland was maintained.
The proposal to take action was referred to the Commonwealth Minister for the Environment for decision under section 75 of the EPBC Act, which required the Minister to decide whether the proposed action is a ‘controlled action’ and which provisions of Part 3 (if any) are controlling provisions for the action. Subdivision C of Part 3 deals with listed threatened species and communities. Under section 75, in making the decision, the Minister must consider all adverse impacts the action has, will have, or is likely to have, on the matter protected by each provision of Part 3 and must not consider any beneficial impacts the action has or will have, or is likely to have on the relevant matter.
The Department’s Referral Decision Brief to the Minister[5] recommended that the Minister decide that the proposal is not a controlled action, because there are unlikely to be significant impacts on any protected matters. The reasons for the recommendation included the following discussion of the potential impact on Swift Parrots:
[5] An extract of which is included in Exhibit R3
Species information
49.    Swift Parrots occur as a single, migratory population. They breed only in Tasmania and migrate to mainland Australia in autumn, where they are semi-nomadic during winter and disburse widely. They move in response to changing food availability. Swift Parrot’s forage in forests and woodland throughout the coastal and western slopes regions of New South Wales, including the Australian Capital Territory…
50.    The recovery plan for the Swift Parrot states that habitat loss through land clearing, a key threatening process, is the greatest threat to the survival of the species.
Proposed action area
51.    The referral indicates that suitable habitat is present in the action area and Swift Parrot may move through the site in winter to forage, but there are few records of Swift Parrots in the region.
Potential impacts
52.    The proposed action will lead to a loss of some potential foraging resources, as a small number of remnant mature eucalyptus (14 of 106) will be removed from the site. However, this will not substantially reduce the availability of key feed trees in the general location. Swift Parrots do not nest in the region.
53.    The amount of potential foraging habitat within the action area would not be of great importance to the species. The small number of trees to be cleared from the site will not immediately impact Swift Parrots moving through the area.
Avoidance and mitigation measures
54.    The proponent has designed the action to avoid the Box Gum Woodland and will be removing only a small number of remnant mature eucalyptus. The proponent has committed to develop and implement a conservation management plan on the site to ensure the condition and extent of the retained Box Gum Woodland is maintained.
Conclusion
55.    Given the Swift Parrot may only visit the action area periodically and that most of the Box Gum Woodland and mature remnant trees on the site will be retained, the Department considers the proposed action is unlikely to lead to adverse effects to habitat critical to the survival of the species or interfere with its recovery.
56.    In accordance with the Significant Impact Guidelines 1.1 – Matters of National Environmental Significance, the Department considers the proposed action is unlikely to have a significant impact on the species.
On 25 May 2020, the delegate of the Minister decided that the proposed action, as varied in May 2020, was not a controlled action.
Conditional environmental significance opinions (ESO) were granted by the Conservator of Flora and Fauna (the Conservator) on 18 August 2020[6] and the ACT Heritage Council on 31 August 2020.[7] The development application (DA) was lodged in the merit track on 2 September 2021
[6] NI 2020-527
[7] NI 2020-578
The DA was amended multiple times. On 24 April 2023, the Conservator gave an ESO in relation to the proposed development.[8] The current amended application (s144G) was lodged the same day.
[8] T-docs (Exhibit R2) pages 447, 451 to 456
On 30 May 2023, Margaret Blakers lodged a representation in relation to the amended DA objecting to the proposal on the grounds of its potential impact on the Swift Parrott (Blakers representation).[9] The representation included a table giving details of the largest single group of Swift Parrots recorded in the ACT in each year since 2000, including 60 in 2021 (which were recorded at the Callum Brae Reserve), 13 in 2022 and 38 in 2023.
[9] The Blakers representation is at T-docs (Exhibit R2 pages 274-277)
In July 2023, Karen Taylor, a Conservator Support Officer working within the Environment, Planning and Sustainable Development Directorate of the Territory Government referred the Blakers representation to Dr Laura Rayner to determine whether there may be an impact on the Swift Parrott. Dr Rayner is a Senior Ecologist and Assistant Director of the ACT Environmental Offsets – Research and Evaluation team, and the ACT representative on the National Swift Parrot Recovery Team and a member of the Difficult Birds Research Group at the Australian National University (ANU).[10]
[10] Exhibit R1
On 24 August 2023, Dr Rayner provided the following advice:
·   Swift parrots are critically endangered and all remaining potential habitat is important habitat for their recovery.
·   The development area provides connected foraging habitat for swift parrots, with 12 sightings within 1 km of the development footprint in the last 2 years (CNM data).
·   Records of swift parrots in the ACT have increased in recent years, indicating that such habitats may be increasingly important in their migration (Blakers submission).
·   The most important part of the development area for swift parrots is the eastern woodland patch, which captures 23 trees marked for removal.
·   Of these 23 trees:
o 7 are dead and would not be contributing to swift parrot foraging habitat, but…
o at least 15 are living components of endangered BGW (Blakely’s Red Gum or Yellow Box) and
o at least 10 trees are > 10 m in height and likely to be contributing important swift parrot foraging habitat.
Given its relatively small area and lack of swift parrot sightings directly on site, the development overall is unlikely to significantly impact on the swift parrot.
However, the loss of 15 important foraging trees, of substantial age and size, has the potential to reduce and fragment existing swift parrot habitat and should be avoided if at all possible, or compensated otherwise.[11]
[11] Exhibit R1
The amended DA was approved subject to conditions on 13 October 2023. Dr Rayner’s advice was incorporated as part of the Conservator’s assessment of the amended DA in Part C of the Notice of Decision (NOD).[12] The conditions relating to development and entity requirements in Part A of the NOD included a requirement to provide revised plans and supporting information showing, relevantly:
[12] T-docs (Exhibit R2) p 42
iv) Minor changes to the approved development to preserve some or all of the (15) trees identified by the Conservator used for foraging by the Swift Parrott;
OR
If unavoidable (balanced against the development configuration), information be provided to the Authority demonstrating that removal of the trees be compensated for to ensure that fragmentation of the Swift parrot habitat does not occur. [13]

Evidence given at the hearing in relation to Swift Parrots

For the applicants
[13] T-docs (Exhibit R2) p 27

The applicants tendered reports dated 15 December 2023 and 23 April 2024 by Professor Robert Heinsohn, a conservation biologist working at the Fenner School of Environment and Society at the ANU, specialising in parrot conservation for over 30 years, commenting on the significance of the sighting of flock of 65 Swift Parrots at the Callum Brae Nature Reserve in 2021 and the potential impact of the proposed development.[14] In his first report, Professor Heinsohn concluded:
Cumulative impacts of persistent, small-scale habitat loss are a pervasive threat for many endangered species. Predicting the magnitude and timing of such impacts is challenging, particularly for highly mobile species with large ranges and nomadic movement patterns such as swift parrots. This in turn makes it challenging to account for potential cumulative impacts in planning decisions.
Assuming threats in Tasmania can be addressed within the coming decade and the swift parrot population stabilises at a modest size of 500, our research has shown that there will need to be major efforts to minimise the cumulative impacts that habitat loss in the wintering grounds might have on an otherwise recovering population. Callum Brae Nature Reserve has been shown to be an important component of the swift parrot winter range. Planning decision makers need to balance the need for development with the need to avoid and minimise impacts on threatened species such as the swift parrot. Public sightings data suggest that in some years, a high proportion of the entire population can aggregate in the Callum Brae Nature Reserve.
Development pressure is likely to impact swift parrot wintering habitat throughout South-Eastern Australia over the next few decades. Our analyses have shown that this loss is likely to lead to around a 16 percent decrease in the swift parrot population. Further uncertainties around the impacts of climate change on future habitat availability are important to include in analyses of loss of habitat. Callum Brae is likely to continue to be of high importance to swift parrots in the future and its ecological integrity must be preserved.
[14] Exhibits A1 and A2

In his second report, Professor Heinsohn discussed the significance of a flock of 65 Swift Parrots recorded at the Callum Brae Nature Reserve in 2021, which he said is close to the largest flock size recorded for the ACT. He said that Swift Parrots show high fidelity to winter foraging sites, including individual trees and that Swift Parrots are likely to continue to rely disproportionately on Callum Brae Nature Reserve and surrounding areas in future years. He opined:
The proposed development adjacent to Callum Brae is likely to undermine the network of key swift parrot habitat in the ACT that is becoming increasingly important. Small patches of habitat such as that of Callum Brae Nature Reserve are often only viable because of remaining habitat (in this case mature trees) bordering the reserve. Even single mature trees outside of a reserve may prove essential to maintain the quality of the habitat inside the reserve. The proposed development will exacerbate habitat loss and increase fragmentation and degradation of a site now known to be of great importance to at least 10 percent of the remaining swift parrot population.
Professor Heinsohn gave oral evidence and was cross-examined on 21 May 2024.[15] He gave evidence the Tribunal considers to be of significance at page 21 (line10) to page 22 (line 12), page 26 (line 5) to page 27 (line 45), page 47 (line 29 to 47) and particularly at page 55 (line 7 to 28) where he said, in response to a question whether he had considered the positive impact of future plantings on increased connectivity:
I haven’t, and I continue in a very general sense that, you know, if you can envision a positive impact down the track, you know, from replanting or something like that. The situation with swift parrots is much more urgent than that. This thing is projected to be extinct in less than 10 years, okay? We have to do something in the next few years, and I’m going five maximum, so planting a tree now will not stop the bird from going extinct. If we get them through this bottleneck and out the other side, then that planted tree will help them, but we are in a crisis with swift parrots. We know very accurately that there are less than 500 left. We know they’re heading to extinction awfully quickly, and we have to use a precautionary principle whenever we possibly can, and when I saw that there was more than 60 percent [sic] of the birds at the Callum Brae site in 2021, that was – that to me said that potentially important. How important, we can’t know yet, but it’s potentially very important. So, no, I haven’t turned my mind to what other positive impacts this place could bring because they will be too far down the track to matter to the swift parrot.
[15] Transcript of proceedings (21 May 2024), pages 8 to 60
The applicants also tendered a report by Dr Debbie Saunders, an expert on the ecology and movements of swift parrots within their winter range and a long-term member of the National Swift Parrot Recovery Team.[16] Dr Saunders gave evidence of her own observations of swift parrots flying and calling among the tree canopy on the proposed development site and landing and foraging in the trees on the boundary fence line between the site and Callum Brae Nature Reserve in 2021 and discussed the significance of the increased flock side in the context of changes in migratory behaviour of the species and the growing importance of known habitat sites in the ACT. Dr Saunders concluded that the proposed development is likely to have a significant adverse impact on the critically endangered swift parrot and gave reasons for her opinion.[17]
[16] Exhibit A4
[17] Exhibit A4, page 7
Dr Saunders gave oral evidence and was cross-examined on 22 May 2024.[18] She gave evidence the Tribunal considers to be of importance at page 19 (line 41) to page 20 (line 4), page 26 (line 1 to 12) – where she said that Callum Brae Nature Reserve would most likely be identified as a Key Biodiversity Area if an assessment were to be undertaken now – and page 27 (line 9) to page 29 (line 44).
For the parties joined
[18] Transcript of proceedings (22 May 2024), pages 10 to 32
The parties joined tendered a copy of the National Recovery Plan for the Swift Parrott published in April 2024[19] and a report by Robert Spiers, Director and Principal Ecologist of Capital Ecology Pty Ltd, dated 9 April 2024, discussing the probable ecological impact of the proposed development on Swift Parrot habitat and the adjacent Callum Brae Nature Reserve in light of the reports by Professor Heinsohn and Dr Saunders.[20] An earlier report by Mr Spiers, dated 21 October 2022, which discussed and made recommendations in relation to matters arising under the EPBC Act, was also referenced.[21]
[19] Exhibit PJ3
[20] Exhibit PJ4
[21] T-docs (Exhibit R2) pages 380 to 446
As part of his evidence, Mr Spiers provided an updated assessment of trees to be removed and trees to remain on the site[22] and aerial photographs of the site showing the footprint of the proposed development in relation to trees considered to be likely or potential Swift Parrot habitat (based on criteria identified in his report), Yellow Box and Blakely’s Red Gum marked for removal and remnant trees within the site.[23]
[22] Exhibit PJ5
[23] Exhibit PJ6
Mr Spiers recommended that additional avoidance/mitigation measures be adopted for areas of the site not covered by the WCMP:
To address the loss of habitat connectivity and foraging habitat within the development area for species reliant on high-quality Box-Gum Woodland in the locality, such as the Swift Parrot, the landscape designed for the approved development should be updated where reasonably practicable with the aim of improving the habitat connectivity and landscape functionality of the currently highly fragmented site through sympathetic design measures, guided by a fit-for-purpose Biodiversity Management Plan (BMP).
The abovementioned BMP should be developed for those areas of the site not covered by the WCMP, including relevant parts of the development area. To the extent reasonably practicable, the BMP should incorporate design guidance provided by the ACT Biodiversity Sensitive Urban Design Guide (ACT Government, 2023b), and it should be developed to obtain endorsement from a relevant ACT Government ecologist…[24]
[24] Exhibit PJ4, [53], [54]
Additionally, Mr Spiers recommended:
Additionally, as recommended in Section 10 of Saunders (2024), the design of the approved development, and therefore the BMP, should consider, and where practicable incorporate, design recommendations provided by Pfenningworth (2008) aiming to minimise the risk of collision of Swift Parrots and other bird species with built structures…[25]
[25] Exhibit PJ4, [55]
Mr Spiers concluded:
Although the connectivity values and available foraging habitat for the Swift Parrot and other native fauna species within the development area would be reduced in the short to medium term following clearance of vegetation, the long-term restoration of habitat connectivity and landscape function would be addressed through the implementation of the WCMP described in paragraph 51 and the BMP discussed in paragraph 54 and paragraph 55.
Through the implementation of measures to avoid and mitigate impacts on biodiversity discussed in Section 5 of Capital Ecology (2022), and additional mitigation and the landscape restoration measures to be incorporated into a BMP applicable to parts of the site not covered by the WCMP, the anticipated direct and indirect impacts of the approved development on biodiversity, including the Swift Parrot, during the construction and operational stages, would be minimal.
With consideration of the ongoing avoidance and minimisation measures to be incorporated into the design through the construction and operational stages discussed in Section 5 of Capital Ecology (2022), the additional mitigation and habitat restoration measures discussed in paragraph 54 and paragraph 55, the small size of the approved development, and the expected quiet and passive nature of the approved development as a Memorial Park and crematorium, it is unlikely that the ongoing operation of the approved development will result in a significant adverse environmental impact, direct or indirect, to:
(a) the ecological values of existing woodland within the site but outside the development area; or
(b) the ecological values of the Callum Brae Nature Reserve.[26]
(Emphasis added)
[26] Exhibit PJ4, [56] to [58]
In response to questions by the Tribunal, Mr Spiers clarified that by “short to medium term” in paragraph 56 of his report he meant 20 years and by “long-term restoration” he meant more than 20 years.[27]
[27] Transcript of proceedings (22 May 2024), page 51 (line 23) to page 52 (line 25)
Mr Spiers included a detailed assessment of the development against relevant criteria in the EPBC Act Matters of National Environmental Significance – Significant Impact Guidelines 1.1 in Appendix D of his report. He concluded:
With consideration of the value of the development area to the Swift Parrot, the scale and context of the approved development, and the mitigation measures approved, it is my opinion that it is unlikely that the approved development will have, or is likely to have, a significant impact on the Swift Parrot under any criterion relevant to EPBC listed ‘critically endangered’ or ‘endangered’ species per the EPBC Act Matters of National Environmental Significance – Significant Impact Guidelines 1.1.[28] (Emphasis added)
[28] Exhibit PJ4, [60]
In response to questions by the Tribunal, Mr Spiers clarified that by “the mitigation measure approved” in paragraph 60 of his report he meant the proposed mitigation measures to be approved.[29]
[29] Transcript of proceedings (22 May 2024), page 52 (line 27) to page 54 (line 14)
Mr Spiers gave oral evidence and was cross-examined on 22 May 2024.[30] He gave evidence the Tribunal considers to be of importance at page 45 (line 38) to page 47 (line 5), page 49 (line 13 to 42), page 50 (line 44) to page 56 (line 40) and page 62 (line 14) to page 64 (line 5).
For the respondent
[30] Transcript of proceedings (22 May 2024), pages 34 to 64
The respondent tendered a witness statement by Dr Rayner, dated 22 April 2024.[31] Unfortunately, Dr Rayner was on a field trip in Burma and was unavailable for cross-examination. At paragraphs 5 to 8 of her witness statement, Dr Rayner explained the reasons for her original advice to the Conservator. However, based on the new information contained in the reports by Dr Saunders and Professor Heinsohn, Dr Rayner considered that the conditions imposed by the Conservator in the NOD should be amended. She explained at paragraphs 11 and 12:
After consideration of the witness statements provided by Dr Saunders and Professor Heinsohn, my opinion expressed on 24 August 2023 has changed. I believe that the development will have a significant impact on Swift Parrots as it will result in the fragmentation of important and limited foraging habitat, which has been identified by experts as a threatened process and contributor to decline of the species.
Given this new information, and likely adverse impacts to Swift Parrots associated with DA 202138789, my advice is that an alternate site is located for the development. (Original emphasis)
[31] Exhibit R7
Dr Rayner was given a copy of Mr Spiers’ report and asked whether it changed her opinion. Dr Rayner advised that it did not.[32]
[32] Exhibit R4
Given Dr Rayner’s revised opinion, the respondent sought the Conservator’s opinion whether the conditions in the NOD are adequate for the proposed development. The Conservator’s response stated:
I note that Dr Rayner has considered new scientific information made available during ACAT process and confirmed that this would have altered her advice to the Conservator.
There is therefore the potential that the Conservator’s original decision may have been different on granting an ESO, or the nature and type of conditions imposed, if Dr Rayner’s advice was different.[33]
[33] Exhibit R5
The respondent also tendered a copy of the Swift Parrot & Regent Honeyeater 2021 Annual Survey Summary and General Update prepared by Birdlife Australia, which discussed sightings in the Callum Brae Nature Reserve and other parts of Canberra in 2021.[34]

The respondent’s interlocutory application

[34] Exhibit R6

The main point of the respondent’s submissions in support of the application is that neither the respondent, nor the Tribunal (standing in the shoes of the respondent as the decision-maker) has “institutional competency” to deal with environmental issues of national significance. The considerations raised in the evidence, although overlapping to some extent with matters within the Tribunal’s jurisdiction, are largely outside of it – i.e. the issues raised are predominantly matters for the Commonwealth.
The Tribunal agrees.
Section 69(1) of the EPBC Act provides:
A State, self-governing Territory or agency of a State or self-governing Territory that is aware of a proposal by a person to take an action may refer the proposal to the Minister for a decision whether or not the action is a controlled action, if the State, Territory or agency has administrative responsibilities relating to the action.
The respondent’s decision to approve the development proposal on conditions is not an ‘action’ for the purposes of the EPBC Act even if the development is later found to constitute a controlled ‘action’.[35] However, it seems likely that the respondent is an “agency [that] has administrative responsibilities relating to the action” and therefore that it can refer a proposal to the Minister for decision under section 69.
[35] EPBC Act, s 524
Section 72 of the EPBC Act provides that a referral of a proposal to take action must be made in a way, and include the information, prescribed by regulation.
Reg. 4.02 of the Environment Protection and Biodiversity Conservation Regulations 2002 prescribes that a referral must be given to the Department and must be accompanied by a substantial fee unless the referral is made under section 69 of the Act.
Reg. 4.03 prescribes that the referral must include the information mentioned in Schedule 2. The Tribunal has had regard to Schedule 2 in identifying the evidence to be included with the request to the Department, noting that the Minister has power under section 76 of the Act to ask for more information if required.
In the first instance it is appropriate to adjourn the main application for mention to a date to be fixed by the Tribunal after the President has heard the application for an extension of time under section 22P of the ACAT Act. However, if it becomes apparent that the process of obtaining a response from the Commonwealth is likely to take more than a few weeks, it may be preferable to make an order staying the application until further order, with liberty to apply on 7 working days’ notice.

………………………………..

Senior Member M Orlov
For and on behalf of the Tribunal