G and B Affairs Pty Ltd v Lake Macquarie City Council

Case •

[2015] NSWLEC 1481

•

24 November 2015

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: G & B Affairs Pty Ltd v Lake Macquarie City Council [2015] NSWLEC 1481
Hearing dates:30 - 31 July, 20 August 2015
Date of orders: 24 November 2015
Decision date: 24 November 2015
Jurisdiction:Class 1
Before: Pearson C
Decision:

1. The appeal is dismissed.
2. Development Application DA/830/2014 for residential subdivision and associated works at Lot 4 DP 740377, 30 Green Valley Road Charlestown, is refused.
3. The exhibits are returned except for exhibits A, G and 1.

Catchwords: DEVELOPMENT APPLICATION: Residential subdivision – Removal of vegetation – Impact on Squirrel Glider – Whether likely to be significant effect on threatened species or habitat – Whether Species Impact Statement required
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Roads Act 1993
Rural Fires Act 1997
Threatened Species Conservation Act 1995
Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Environmental Planning and Assessment Regulation 2000
State Environmental Planning Policy No 1 – Development Standards
Lake Macquarie Local Environmental Plan 2004
Lake Macquarie Local Environmental Plan 2014
Cases Cited: Corowa v Geographe Point Pty Ltd [2007] NSWLEC 121
Gales Holdings Pty Ltd v Tweed Shire Council [2006] NSWLEC 212
Nambucca Valley Conservation Association v Nambucca Shire Council [2010] NWLEC 38
Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council & Anor [2010] NSWLEC 48
Timbarra Protection Coalition Inc v Ross Mining NL & Ors [1999] NSWCA 8
Texts Cited:

Threatened species assessment guidelines: The assessment of significance (August 2007)
Department of Environment and Climate Change

 

Squirrel Glider Review: Morisset Structure Plan Area (January 2008) Lake Macquarie City Council

 

Wyee Squirrel Glider Review (December 2008) Lake Macquarie City Council

  Draft Lake Macquarie Squirrel Glider Planning and Management Guidelines 2015 (June 2015)
Category:Principal judgment
Parties: G & B Affairs Pty Limited (Applicant)
Lake Macquarie City Council (Respondent)
Representation:

Counsel:
Mr A Galasso SC with Ms C Novak (Applicant)
Mr J Johnson (Respondent)

    Solicitors:
Mr J-P Shehata, Simpson Freed Lawyers (Applicant)
Mr S Lucy, Lake Macquarie City Council (Respondent)
File Number(s):11041 of 2014

Judgment

  1. This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal of a development application DA/830/2014 for demolition of an existing dwelling and associated outbuildings and subdivision for 37 lots and associated works, at Lot 4 DP 740377, 30 Green Valley Road Charlestown (the site).

  2. The development application was lodged on 3 June 2014. The Council requested additional information, and the applicant responded, making changes to the layout, and providing information including revised engineering plans and a revised layout. The applicant lodged the Class 1 appeal on 10 December 2014.

  3. A conciliation conference under s 34 of the Land and Environment Court Act 1979 (the Court Act) was conducted by another Commissioner on 18 March 2015. Following termination of the conciliation, the applicant was granted leave on 6 May 2015 to rely on amended plans, and the matter was listed for hearing.

  4. The development application as amended seeks consent for the following development:

  1. 34 lot subdivision (32 residential lots, 1 public reserve lot, and 1 drainage reserve lot);

  2. Earthworks in the nature of cut and fill;

  3. Formation of access road and construction of road on existing unmade road reserve;

  4. Retaining walls;

  5. Extension of reticulated water, electricity, sewer and telecommunications facilities to allotments;

  6. Ameliorative measures including:

  1. Protection and improvement of riparian corridor along the western boundary of the land and dedication of that land to the Council;

  2. Nest box installations within the riparian corridor;

  3. Water quality control basin; and

  4. Retention of existing house on Lot 10, approximately 2358sqm.

  1. The amended development application requires the consent of the owner of the unmade road reserve, being the Council (under the Roads Act 1993 ss 7, 145(3)). Accordingly, the applicant seeks an order pursuant to s 39(2) of the Court Act and cl 49 of the Environmental Planning and Assessment Regulation 2000 that consent is given to the lodging of the amended development application.

The site and locality

  1. The site is located approximately 1.6km south east of Charlestown, and has road frontage to Mimosa Avenue and a battleaxe handle access to Green Valley Road. The site has an area of 3.653ha. The majority of the site consists of native bushland with approximately 1ha of the site being partially cleared for a dwelling and lawns. The site contains a residential dwelling and associated out buildings, which were originally proposed to be demolished and which are now to be retained on the largest lot. The site has a moderate fall from the north east to the south west. Dicks Creek flows north to south along the western edge of the site, and one lot of 5,000sqm is proposed to be retained as a riparian corridor, dedicated to the Council as a public reserve. There is presently access from Tirriki Street on the western side of the site across an easement over 62A Tirriki Street, including a bridge over Dicks Creek. Vehicle access is proposed from Mimosa Avenue to the south, and Kalinda Parade to the north, with no access from Tirriki Street.

  2. The surrounding development is predominantly low density single detached dwellings. Remnant native bushland is located to the east of the site, and on the two public reserves to the north.

Issues

  1. The Council contends (ex 1) that the applicant has not provided sufficient information for the application to be assessed:

  1. The development is likely to have a significant effect on threatened species, being loss of habitat and fragmentation of habitat of the squirrel glider, and the applicant is required to provide a species impact statement (SIS) in accordance with the Threatened Species Conservation Act 1995 (the TSC Act);

  2. The flora and fauna investigations undertaken to date are inadequate and have not been undertaken in accordance with the Council’s Flora and Fauna Survey Guidelines (December 2012); and

  3. The development will have a significant effect on flora and fauna on the site:

  1. The alluvial tall moist forest ecological community found on the site is poorly represented in conservation reserves in the local government area;

  2. The development will have an impact on a local population of squirrel gliders; and

  3. The existing habitat for squirrel gliders is likely to improve significantly in the future as the forest matures and further hollows form.

  1. The applicant does not agree that it has not provided sufficient information for the application to be assessed, and does not agree that a SIS is required; that its flora and fauna investigations are inadequate; or that there will be a significant effect on flora and fauna, noting that approximately 3ha of the flora on the site will be cleared. The applicant proposed a nest box installation program in the Dicks Creek riparian area, and contends that the Council’s contentions relating to loss of hollow-bearing trees may be resolved by requiring such a program as a specific condition of consent.

  2. At the hearing the Council identified as the fundamental issue that the development is likely to have a significant effect on the squirrel glider and that because of that a SIS should be prepared; related to that is an issue about the adequacy of the investigations that have been done. The Council did not press its contention relating to effect on flora and fauna.

Planning controls

  1. At the time the development application was lodged the applicable local environmental plan was the Lake Macquarie Local Environmental Plan 2004 (the 2004 LEP). The objective of the 2004 LEP is provided in cl 3:

The objective of this plan is to achieve development of land to which this plan applies that is in accordance with the principles of ecologically sustainable development by:

(a) promoting balanced development of that land, and

(b) implementing the Lifestyle 2020 Strategy adopted by the Council on 27 March 2000.

  1. Part 2 of the 2004 LEP provides the vision, values and aims of the Lifestyle 2020 Strategy.

  2. The site is zoned 2(1) Residential, and the objectives of the 2(1) Residential zone are provided in cl 15:

(a) permit development of neighbourhoods of low-density housing, and

(b) provide for general stores, community service activities or development that includes home businesses whilst maintaining and enhancing the residential amenity of the surrounding area, and

(c) ensure that housing development respects the character of surrounding development and is of good quality design, and

(d) provide for sustainable water cycle management.

  1. Clause 16 provides:

16 Development consent—matters for consideration

Consent must not be granted for development unless the consent authority:

(a) has had regard to the vision, values and aims of the Lifestyle 2020 Strategy expressed in Part 2, and

(b) is satisfied that such of the development as is proposed to be carried out within a zone is consistent with the relevant objectives for the zone, as set out in the Table to clause 15.

  1. Clause 24 of the 2004 LEP provides that development consent is required for subdivision, and that land may only be subdivided if the consent authority is satisfied that the resulting lots will conform to the requirements in Sch 2 (Subdivision standards) applicable to subdivision in the relevant zone. For land in the 2(1) Residential zone, for a subdivision that creates 10 or more lots, at least 10%, but no more than 50%, of lots must be small lot housing lots. Each lot in a subdivision for approved small lot housing is to be between 300sqm to 450sqm; lots otherwise are to have a minimum area of 450sqm. The proposed lots, other than the large lot on which the existing dwelling is to be retained, vary in size from 450sqm to 1576.7sqm. The applicant has provided an objection under State Environmental Planning Policy No 1 – Development Standards to compliance with that development standard (ex B).

  2. The Lake Macquarie Local Environmental Plan 2014 commenced on 10 October 2014. The 2014 LEP includes a savings provision in cl 1.8A, and the development application the subject of this appeal is to be determined “as if this Plan had not commenced”. Under the 2014 LEP the site is zoned R2 Low Density Residential. It was common ground that there are no significant differences between the 2004 LEP and the 2014 LEP of relevance to the issues raised in this appeal.

  3. At the north western corner of the site on Hallam Street, and at the rear of the adjoining properties in Kalinda Parade on the north eastern part of the site, are two Council reserves zoned 6(1) Open Space under the 2004 LEP, and RE1 Public Recreation under the 2014 LEP. To the east of the site, and extending south and south west, is an unnamed Council reserve comprising various parcels, classified as community land, and zoned 7(2) Conservation (Secondary) under the 2004 LEP, now E2 Environmental Conservation under the 2014 LEP. That land extends east to Bulls Garden Road. East of Bulls Garden Road are large areas of undeveloped land extending further to the east and south, with a variety of zonings for environmental conservation and management, public recreation, national park, and transition purposes.

  4. The development application is for integrated development, requiring referral to the Rural Fire Service (RFS), and the Office of Water. On 24 September 2014 the RFS provided a bush fire safety authority as required under s 100B of the Rural Fires Act 1997, requiring that the entire property be managed as an inner protection area (IPA) as outlined in Planning for Bushfire Protection 2006 and the RFS “Standards for asset protection zones”; and that public road access comply with Planning for Bushfire Protection 2006 requirements (ex 2, vol 3, p 942). The Office of Water provided General Terms of Approval (GTAs) on 4 August 2014 (ex 2 vol 3, p 956), which included a requirement that the Office of Water be notified if any plans or documents are amended and those amendments significantly change the proposed development or result in additional works on waterfront land.

Review documents and guidelines

  1. In evidence are the following documents:

  1. Squirrel Glider Review: Morisset Structure Plan Area prepared for Lake Macquarie Council by M Fallding & A Smith, January 2008 (ex 2, vol 2, p 545) (the Squirrel Glider Review), which states (at p 548):

This review focuses on conservation significance (primarily a function of population size and viability) and on identifying realistic land use options and their implications for the future of this species. Minimum habitat sizes for maintaining population viability have been calculated, as well as minimum connectivity requirements. Likely barriers to connectivity have been identified for the purpose of enabling the design of a land use pattern to maintain long term connectivity.

Note: Proposals in this report have been prepared for discussion purposes to inform strategic decision making for the Morisset Structure Plan. The proposals have not been adopted by Lake Macquarie City Council and this report precedes the finalisation of the Structure Plan.

  1. Wyee Squirrel Glider Review R Economos & A McDonald, Lake Macquarie City Council, December 2008 (ex 2, vol 2, p 607) (the Wyee Review).

  2. The Wyee Review states that it was based on the model developed for the Squirrel Glider Review, and that consideration of the population size and distribution, viability and habitat connectivity of the Squirrel Glider in the Study Area (1,636ha) will inform the assessment of ecological attributes and enable review of options for future landuse in the Wyee Structure Plan ( p 612).

  3. Draft Lake Macquarie Squirrel Glider Planning and Management Guidelines 2015 prepared for Lake Macquarie City Council by M Fallding, June 2015 (ex 2, vol 2, p 684) (the Draft SG Guidelines).

  1. The Squirrel Glider Review and the Wyee Review relate to specific areas of the Lake Macquarie local government area (LGA). The Draft SG Guidelines are more broadly based, and relate to the whole LGA; their purpose is stated in the following terms (ex 2, vol 2, p 688):

These guidelines compile information about squirrel glider to inform conservation, strategic land use planning and land management. One objective of the guidelines is to compile current knowledge for the species into one reference document to inform local planning and management and to guide future scientific research programs.

  1. All three documents draw on similar research publications (ex 2, vol 2, pp 583-584, pp 661-662, pp 734-738), with the Draft SG Guidelines more comprehensively referenced. Mr Anderson referred to the Squirrel Glider Review in his statement of evidence (ex E, p 44), and Mr Murray to that review and the Wyee Review (ex 3, p 21). The oral evidence traversed all three documents, and neither expert suggested that it would be inappropriate to rely upon them. I accept that these documents provide a substantial background in understanding the issues raised in this appeal.

  2. Table 1 of the Draft SG Guidelines (ex 2, vol 2, p 693) summarises important squirrel glider characteristics, relating to life cycle, habitat, population, movement, disturbance and threats. For life cycle, it states that squirrel glider nest in tree hollows and live in family groups typically comprising a mature male, one or more adult females and their offspring for the season; typically live for 3-4 years; have an average adult weight of about 200g; are nocturnal, emerging at dusk and gliding to preferred feeding sites, and are rarely observed on the ground; and live in social groups of two to nine individuals in leaf-lined nests in tree hollows generally within a 5-15ha home range. Home range varies according to habitat quality and may vary seasonally. For habitat, it states that squirrel glider occurrence is highly localised and dependent on availability of suitable foraging habitat with tree hollows. For population (at p 694), it notes that the minimum habitat patch size that will be occupied by squirrel glider is strongly influenced by habitat quality; the probability of a patch being occupied by squirrel glider decreases with remnant size, and modelling predicts that density and occurrence begins to decline when patch size falls below 100ha depending on time since isolation, remnant shape, and distance to nearby habitat; habitat patches of less than 4 ha are considered unsuitable for permanent occupancy; small habitat patches of 4ha to 30ha are considered at high risk of local extinction, minor habitat patches of 30ha-100ha are considered at moderate to low risk in the short-term and high risk in the long-term, and major habitat patches of 100ha-1,000ha are considered at no risk in the short-term and low to moderate risk in the long-term. Average population density varies with habitat quality from 0.5 to 1.6 animals per hectare; estimated densities (based on vegetation communities) in the Lake Macquarie LGA are from 0.3 to 0.4 individuals/ha. For population viability, a remnant patch of habitat would need to exceed 400ha to ensure continued survival of a viable population; in Wyong LGA it has been estimated that remnant habitat patches greater than 250ha or populations of more than 90 individuals should have close to a 100% probability of surviving in the short-term. In relation to movement, the Draft SG Guidelines (p 695) notes that the probability of small habitat patches separated by roads or clearing gaps being occupied by squirrel glider in Wyong district is 50% for gaps of 35m, 20% for gaps of 100m and close to zero for gaps ≥ 250m wide; for practical purposes, road gaps ≤ 35m wide are considered a potential barrier to crossing, and a road canopy gap of at least 50m appears to be almost complete barrier to glide crossings.

  3. Section 8 of the Draft SG Guidelines provides guidelines for considering future squirrel glider conservation requirements in future land use planning and management processes. Table 8 (p 725) states:

Local Population:

A local population (for the purposes of determining significant impacts) comprises the squirrel gliders occupying the site, plus connected habitat area up to a maximum of 50 ha, and the habitat linkages allowing for regular movement.

Viable population:

A viable population is a population (or metapopulation) with a 95% probability of persistence over 100 years. …

Minimum area of habitat:

For planning purposes within the Lake Macquarie LGA, the minimum area of habitat likely to be permanently occupied by squirrel gliders is 4 – 6 ha of contiguous habitat (not including connecting corridors) if well connected to adjoining habitat patches or ≥30 ha if poorly connected to other habitat.

  1. Table 8 outlines survey requirements for land identified as likely squirrel glider habitat, and provides that where field surveys have been undertaken in accordance with the guidelines, a significant impact is expected to occur where squirrel gliders are present (or assumed to be present) if

• An area of squirrel glider habitat of more than 4 ha will be cleared, and/or

• More than 1 ha of habitat will be cleared and the habitat patch size will be reduced to less than 4 ha, and/or

• There is a greater than 5% loss of a habitat patches with an area of more than 10 ha, and/or

• There will be any impact on a key strategic corridor linkage connecting habitat patches, and/or

• Habitat connectivity to a habitat patch will be lost, or narrowed to a width that is not suitable for maintaining in the long term.

  1. Table 8 also notes that “in addition to the above, for the population in the north east of Lake Macquarie LGA any loss of habitat is likely to have a significant impact on squirrel gliders and a reduction of habitat patch size below 4 ha would be significant”.

Evidence

  1. The hearing commenced on site with a view. Submissions were made on site in opposition to the development by the owners of 54 Tirriki Street, 58 Tirriki Street, 70 Tirriki Street, 38 Kalinda Parade, and 28 Green Valley Road, and in support of the application by the owner of 62A Tirriki Street. Those opposed raised concerns that the proposal is an overdevelopment, and will increase flows to the creek area with consequent flooding; that squirrel gliders have been seen in the area, including 18 months ago; that the development is too dense for the environment and habitat, and there are two families of bower birds, and bandicoots, in the area. The submission in support of the application supported the removal of vehicle access to the site over the easement.

  2. The view included two potential crossing points on Bulls Garden Road identified as A and B, being at the intersection of Justine Avenue, and further north at 51A Bulls Garden Road. The location of the site (in red), and crossing points A and B, are shown on the following image (ex K):

  1. Written submissions made in response to the Council’s notification of the development application are in evidence (ex 2 vol 3, tab E). Those submissions raised concerns as to adequacy of the ecological assessment, impacts on flora and fauna, density of the development, and increased traffic.

Expert ecological evidence

Vegetation

  1. The applicant provided a review of vegetation mapping of the site by Dr David Robertson dated 9 July 2015 (ex F). Dr Robertson mapped two broad forest types on the site, MU 12c – Hunter Valley Moist Spotted Gum-Ironbark Forest, and MU 5 – Alluvial Tall Moist Forest, neither forest type being listed in the TSC Act or under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). Two variants of the MU 5 forest type were mapped on the site, being Eucalyptus grandis (Flooded Gum) Moist Forest, and Syncarpia glomulifera (Turpentine) Moist Forest. The review noted that based on the analysis of vegetation and habitats on site there is a narrow strip of land beside Dicks Creek within the 1:100 year flood zone that supports some of the MU 5 – Alluvial Tall Moist Forest that may be considered to support the threatened ecological community of River Flat Eucalypt Forest. Dr Robertson was not required for cross examination.

Squirrel Glider

  1. Expert evidence was given on behalf of the applicant by Mr Craig Anderson, and on behalf of the Council by Mr Michael Murray. Mr Anderson prepared reports submitted with the development application, and a report in relation to the amended application dated February 2015 (ex C), and provided a statement of evidence dated July 2015 (ex E). Mr Murray prepared a statement of evidence dated 23 June 2015 (ex 3), reviewing the ecological assessment undertaken by Mr Anderson. Mr Anderson’s statement of evidence dated July 2015 (ex E) reviewed Mr Murray’s statement of evidence. Mr Anderson and Mr Murray provided a joint report (ex 4), which consisted of statements of agreement or disagreement as to nine matters, which were elaborated on, and in some instances, qualified, in oral evidence.

  2. Mr Anderson undertook an assessment of significance on threatened species and habitat by reference to the 7-part test in s 5A of the Act (ex E, pp 31-35); and Mr Murray commented on that assessment (ex 3, pp 10-11). Mr Anderson concluded that the development is not likely to have a significant effect on the Squirrel Glider or its habitat (ex E, p 35); Mr Murray disagreed (ex 4, p 3).

  3. In their joint report (ex 4) the experts agreed that the site supports habitat that is suitable for the squirrel glider. They addressed the issues of habitat linkage crossing points; whether habitat to the west of Bulls Garden Road (including the site) is occupied by squirrel gliders; whether if squirrel gliders are present west of Bulls Garden Road and 30ha of habitat is the extent of habitat for a local population of squirrel gliders, the 3ha loss of habitat would be significant; whether sufficient evidence exists of use or presence of squirrel glider in relation to a nest box attached to the house on the site; whether the area of occupation by the local population of squirrel glider is limited to the habitat to the west of Bulls Garden Road including the site; and whether habitat connectivity downstream along Dicks Creek riparian corridor from the site across Green Valley Road is viable.

  4. The issues of habitat linkage and connectivity were addressed by reference to the following figure from Mr Murray’s statement of evidence (ex 3, fig 6, p 19):

  1. In Table 4 (ex 3, p 18) Mr Murray provided details of the area of each patch and connectivity between patches. Patch A is 1.9ha; patch B, 0.60ha; patch C, 0.98ha; patch D, 29.90ha; patch E, 4.18ha; patch F, 98.51ha, and patch G, 0.90ha. There are no suitable crossing points between patches A-C, A-B, E-F, and D-G. Between patch D and patch C, and between G and F, there is a suitable crossing point for gliders. Between patch D and patch E there is a crossing point, however it is marginal due to low trees and narrow width.

  2. Mr Anderson agreed with Mr Murray’s connectivity assessment for patches A, B and C, noting that Mr Murray had considered land outside of Council reserve areas. In his opinion, the site is connected to adjacent habitat areas: to the east, connections of intact open forest habitat occur into the adjacent Council reserve; to the south, connections occur along the Dicks Creek corridor in the form of remnant and rehabilitated riparian vegetation; to the west, connections occur in the form of remnant backyard trees in adjoining residential properties; and to the north, connections occur into immediately adjacent areas of the Council reserves; and all those habitat connections are contiguous over the site boundary (ex E, p 15).

  3. Mr Murray noted that the proposed 30m wide riparian corridor in the west of the site along Dicks Creek would link Hallam Street upstream and Green Valley Road downstream from the site. Mr Anderson considered that continued connectivity would be available post development along that retained Dicks Creek corridor, crossed downstream by Green Valley Road and upstream by Hallam Street (ex E, p 28). Mr Murray considered, however, that current and future development of the land downstream of Green Valley Road, which is zoned R2 Low Density Residential, has the potential to sever linkage of bushland remnants from the E2 land to the east of the site and Council reserves zoned RE1 Public Recreation northwest of the site and Hallam Street (ex 3, p 9). Mr Murray was of the opinion that it is possible that a modification of the development footprint with a reduction in the number of lots and preservation of a vegetated corridor along the northern boundary of the subject site would lessen the impact such that a significant impact may be reduced (ex 3, p 20).

  4. The central difference in approach between the experts was that Mr Anderson’s consideration was based on the area of potential and known habitat for the squirrel glider being approximately 350ha, that is, including the land to the east of Bulls Garden Road in patch F which includes Awabakal Nature Reserve, whereas Mr Murray’s focus was on patch D (ex 4, p 3). The significance of the impact of the reduction in potential habitat by the clearing of the site depends on the connectivity of the remaining habitat in patch D; and that depends on whether there are suitable crossing points around patch D, in particular across Bulls Garden Road into patch F.

  5. In their joint report (ex 4) the experts agreed that habitat crossing points across Bulls Garden Road are present, but tenuous. Mr Murray considered that the area of occupation of the local population of Squirrel Glider is limited to the habitat to the west of Bulls Garden Road including the site. Mr Anderson disagreed, commenting that movement across Bulls Garden Road cannot be discounted.

  6. In his statement of evidence Mr Murray considered that there is no suitable crossing point between patch E and patch F on the eastern side of Bulls Garden Road, and that crossing point A (ex K) is not suitable because the trees are not tall enough. In oral evidence Mr Murray agreed it could be made suitable by the installation of glide poles, preferably on both sides. Mr Murray considered that crossing point B between patch G and patch F is suitable, with trees at a height of 18-20m and power lines on the eastern side at 6m and 8m, however between patch D and patch G there is not a suitable crossing point, because of clearing of trees for construction of a house on 51A Bulls Garden Road.

  7. Mr Anderson stated (ex E, p 26) that he had measured the gap at crossing point A and found the gap to be 33.4m from trees on the northern side of Justine Avenue directly across Bulls Garden Road to the east, and 39.2m from trees to the south of Justine Avenue directly across Bulls Garden Road to the east. For the potential linkage north of Justine Avenue, the trees on the west are 11m in height and those on the east are 20m in height; a glide from east to west of 32.4m would be feasible, and a glide of 16.2m from west to east would be feasible. Mr Anderson concluded that regular and expected movement of gliders would be unlikely across this gap at present, however movement may still occur as an unusual circumstance and should not be totally discounted (ex E, pp 26-27).

  8. The experts disagreed as to whether there is sufficient evidence that habitat to the west of Bulls Garden Road including the site is occupied by Squirrel Glider. They agreed (ex 4) that if it is assumed that Squirrel Glider are present west of Bulls Garden Road, and the 30ha area to the west of Bulls Garden Road is the extent of habitat for a local population of Squirrel Glider, then 3ha of development on the site would equate to a 10% loss of habitat which would be significant; Mr Anderson qualifying his agreement by noting that he disagreed with the starting assumption of Squirrel Glider presence west of Bulls Garden Road.

  9. Mr Anderson noted that the nearest record of Squirrel Glider to the site in the NSW Atlas of Wildlife was just to the east of Bulls Garden Road, recorded by “observation” in February 2000 (ex E, p 17). He calculated the area of potential habitat available east of Bulls Garden Road at approximately 350ha, based on connected vegetation types likely to offer suitable foraging and nesting resources for the Squirrel Glider (ex E, p 19); using the average density of occupancy of 0.46 animals/hectare, he estimated the local population at 161 individuals (ex E, p 20).

  10. In oral evidence Mr Murray accepted that there would not be 50 individuals in patch D (T 30/7/15, p 33); he did not accept that based on the Wyee Review (p 637) there would be little merit in protecting the isolated population in that patch, stating that even though it is a small patch it provides habitat and has tenuous linkage, and long term it may persist for another 50 years if there is no further disturbance. He accepted that it might improve if the connectivity at crossing point A was improved. The term “isolation” with regard to squirrel gliders would refer to a gap of 250m or so. Mr Murray accepted that at 30ha patch D is already a suboptimum patch, and that it does not have optimum connectivity with the patch to the east.

After the hearing

  1. On 3 August 2015 (three days after the hearing) Mr Matthew Kennedy, a research student at the University of Newcastle, checked a trap he had set at 2A Hallam Street on 1 August 2015, and found a squirrel glider in it. The Council’s application for leave to re-open was not opposed, and leave was granted on 20 August 2015 to rely on an affidavit sworn by Mr Kennedy on 5 August 2015. In that affidavit Mr Kennedy stated that he is carrying out research in his honours project for the Degree of Bachelor of Environmental Science and Management (Honours) at the University of Newcastle, conducting ecological monitoring of the squirrel glider through eastern Lake Macquarie. He describes installation of nest boxes from 2 to 8 June 2015, and setting of traps from 12 June 2015, including 15 traps in Warren Road at Whitebridge, 2 traps in Hallam Street, 3 traps along a creek line near the corner of Burwood and Kahibah Roads, 3 between Seacourt Avenue and Railway Street at Dudley, and 1 along Kaleen Street and Guna Street Whitebridge. He has caught at least 23 individual squirrel gliders, and no sugar gliders.

  2. Mr Kennedy’s opinion was that the squirrel glider in the trap at 2A Hallam Street was a large female squirrel glider: its weight range was consistent with a squirrel glider, 240g (190-300g), and well above the usually observed weight range for a sugar glider (95-135g female); the tail length was at the top end of the squirrel glider ranges, 270mm (22-300mm) and over that of the sugar glider (165-210 mm). In his opinion, as squirrel gliders typically live in family units, there are likely to be other squirrel gliders in the vicinity.

  3. Mr Kennedy was not required for cross examination.

Consideration

  1. The central issue in the appeal is whether a SIS is required. No SIS has been prepared, and the applicant’s position is that it is not required. The Council contends that a SIS is required, and that consent cannot be granted in the absence of an SIS.

  2. The applicant submits that there is an insufficient evidentiary basis to support the contention that the development is likely to have an unacceptable impact on the local population of Squirrel Glider. If Squirrel Glider occupy an area of land west of Bulls Garden Road, the issue is whether they are a viable local population in that area, and whether they are isolated from the population to the east of Bulls Garden Road. The applicant submits that if there are Squirrel Glider within patch D, that is well below the minimum to support a viable population and that area of potential habitat is already on the cusp of high-moderate risk of not being able to support a population, regardless of this application. If Squirrel Glider do occur west of Bulls Garden Road, it is not necessary to determine whether there is connectivity across Bulls Garden Road: if there is no connectivity, there can be no assumption of a viable population; and if there is connectivity, the patch size west of Bulls Garden Road is not critical because of that connectivity. The reporting of a female Squirrel Glider at 2A Hallam Street, while self-evidently relevant to the issue of occupation west of Bulls Garden Road, does not affect the findings for which the applicant contends, namely that if there is no connectivity to the habitat to the east of Bulls Garden Road there can be no viable population west of Bulls Garden Road and therefore the development is unlikely to have a significant impact; and alternatively, if there is connectivity, the loss of approximately 3ha in the context of a much larger area of habitat in the order of 350ha, much of which is zoned for National Parks and conservation, is not critical.

  3. The Council submits that the investigations undertaken are inadequate to determine that an SIS is not required, and there has been no investigation beyond the limits of the site and thus no assessment of the presence of Squirrel Glider in the 27-31ha of contiguous habitat in patches D and E; and the evidence is that it is likely that Squirrel Glider occasionally use the site. Together with the fact that detailed information is not available, that leads in accordance with the assessment guidelines under the TSC Act to the conclusion that the development is likely to have a significant effect on the Squirrel Glider by reason of loss of habitat and fragmentation of habitat, so that a SIS should be prepared. Given the small patch size and poor connectivity, the likely local population will be placed at risk of extinction; a significant amount of habitat is likely to be removed which is important for the long term survival of the species; and the clearing for the development is part of a key threatening process.

  4. An SIS is required to accompany a development application if the development either is on land that is, or is part of, critical habitat, or is likely to significantly affect threatened species, populations or ecological communities, or their habitats: s 78A(8)(b) of the Act. If an SIS is required, but has not been prepared, then development consent cannot be granted: Timbarra Protection Coalition Inc v Ross Mining NL & Ors [1999] NSWCA 8; Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council & Anor [2010] NSWLEC 48. Section 78A(8)(b) focuses on the development proposed in the development application, and it is the development as it stands immediately before the determination of the application that has to be evaluated for its likely impact on threatened species, populations or ecological communities or their habitats: Speleological Society; Corowa v Geographe Point Pty Ltd [2007] NSWLEC 121. Ameliorative measures to prevent, mitigate, remedy or offset impacts of the development, where proposed as part of the development application, may be considered; however, ameliorative measures not proposed as part of the application but imposed afterwards such as in conditions of consent, cannot be considered in answering the inquiry as to likely impact: Speleological Society at [83]. Any ameliorative measures must be practical, enforceable and effective: Nambucca Valley Conservation Association v Nambucca Shire Council [2010] NWLEC 38; Speleological Society at [117].

  5. The word "likely" as used in s78A(8)(b) means "a real chance or possibility", and "significantly" means "important", "notable", "weighty" or "more than ordinary": Speleological Society at [84].

  6. The site is not critical habitat and so the first part of the threshold test in s 78A(8)(b) is not relevant. In determining whether the second part of the threshold test is met, the matters in s 5A of the Act must be taken into account. Section 5A provides:

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,

(b) in the case of an endangered population, whether the action proposed is likely to have an adverse effect on the life cycle of the species that constitutes the endangered population such that a viable local population of the species is likely to be placed at risk of extinction,

(c) in the case of an endangered ecological community or critically endangered ecological community, whether the action proposed:

(i) is likely to have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction, or

(ii) is likely to substantially and adversely modify the composition of the ecological community such that its local occurrence 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,

(e) whether the action proposed is likely to have an adverse effect on critical habitat (either directly or indirectly),

(f) whether the action proposed is consistent with the objectives or actions of a recovery plan or threat abatement plan,

(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.

  1. The Squirrel Glider (Petaurus norfolcensis) is specified in Sch 2, Part 1, to the TSC Act as a Vulnerable species, and as such is a “threatened species”. The relevant factors of assessment in s 5A are s 5A(2)(a), (d), and (g).

  2. A positive answer to any one or more of the seven factors in s5A does not mandate an affirmative answer to the question of whether there is likely to be a significant effect such that a SIS is required, and equally does not preclude a negative answer: Speleological Society at [85], [86].

  3. The assessment guidelines referred to in s 5A(1)(b) and (3) are the Threatened species assessment guidelines: The assessment of significance (August 2007) (the TSA Guidelines) (ex 7). The TSA Guidelines state (p 2):

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.

  1. In making an assessment of significance (p 12):

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.

  1. Mr Anderson and Mr Murray agreed that the site provides potential habitat for Squirrel Glider, supporting vegetation types likely to offer suitable foraging and nesting resources. Mr Anderson noted a variety of Eucalypt trees including the winter flowering Corymbia maculata (Spotted Gum) and to a lesser extent some suitable understorey forage species such as Acacia spp.; and potential nesting resources are also present in the form of hollow trees (ex E, p 22). Mr Murray noted that the site provides foraging resources including canopy and tall understory, and a high diversity of canopy tree species several of which are important winter flowering species (ex 3, p 17). Both Mr Anderson and Mr Murray identified potential hollow trees on the site, although there were some minor differences as each had identified some that the other had not; Mr Anderson’s evidence was that it was difficult to accurately assess hollow trees on the site (ex E, p 8).

  2. I accept the agreed expert evidence that the site provides potential habitat for Squirrel Glider, supporting vegetation types likely to offer suitable foraging and nesting resources. While the experts differed as to the location of hollow trees, they each identified potential hollow trees on the site, and based on that evidence, I accept that there are potential hollow trees on the site that would be used by squirrel glider. It was common ground that apart from the riparian corridor on the western boundary of the site, the proposed development for residential purposes is likely to mean removal of most of the trees on the site.

  3. In considering s 5A(2)(a), the first issue to determine is whether there is a viable local population; and secondly, whether a viable local population is likely to be placed at risk of extinction. The TSA Guidelines explain the interpretation of those terms (p 5):

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.

  1. The TSA Guidelines continue (p 6):

Demonstrating that a population is not viable would require considerable effort and study. Therefore any known or presumed local population should be assumed viable unless the contrary can be conclusively demonstrated through analysis of local ecological information, records, references and knowledge of species’ behaviour and habitat or through a comprehensive on-site ecological study.

  1. The TSA Guidelines define the terms “subject site” and “study area” (p 3). The "subject site" is the area directly affected by the proposal. The "study area" is:

…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.

  1. “Direct impacts” are those that directly affect the habitat and individuals, including, but not limited to, “death through predation, trampling, poisoning of the animal/plant itself and the removal of suitable habitat”; and “indirect impacts” can occur when project-related activities affect species, populations or ecological communities in a manner other than direct loss, including 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.

  2. The Council’s position is that in the case of the proposed development, the subject site is habitat for Squirrel Glider likely to occupy patch D and accordingly the “study area” should have been patch D. Mr Anderson, while acknowledging (ex E p 6) that the site is part of a larger urban remnant habitat patch occurring west of Bulls Garden Road, treated the site as the study area. In oral evidence Mr Anderson agreed that areas off site adjacent to the site would be affected by the proposed development, and that if there was a squirrel glider population on the broader area of patch D then the proposed development would be a loss of their habitat on the site. Mr Anderson considered that the study area as defined in the TSA Guidelines relevant to the development application would be the area of patch D, and that impacts would be indirect impacts on the subject site.

  3. Patch D, which includes the site, has an area of approximately 30ha. For the reasons which follow, I am satisfied that that is the “study area” for the purposes of consideration of local population. If there are Squirrel Glider in patch D, then based on Mr Anderson’s evidence that home range for an individual Squirrel Glider varies according to habitat quality from 1.5ha to 10ha (ex E, p 20), it is likely that they would utilise the habitat on the site. If so, removal of approximately 3ha of habitat on the site is a direct impact on the rest of patch D, and so patch D is the “study area”. The assessment of the local population should include Squirrel Glider utilising the whole of the habitat in patch D.

  4. Mr Murray and Mr Anderson disagreed as to whether Squirrel Glider occupy an area of land west of Bulls Garden Road, and whether, if they do in fact occur, they are a viable local population in that area. In considering the evidence on the first question, I note that neither Mr Anderson nor Mr Murray had the opportunity to respond to the additional evidence of Mr Kennedy.

  5. The evidence as to whether there is a population of Squirrel Glider in patch D comes in the form of survey work undertaken by both Mr Anderson and Mr Murray on the site; observations by residents; prior observations; and the more recent trapping of a female Squirrel Glider on 2A Hallam Street by Mr Kennedy. Mr Anderson’s field survey work for arboreal mammals involved 7 traps for 4 consecutive nights, and more than 8 hours of spotlighting undertaken on foot over 4 nights during August and September 2014 (ex C, p 16), and hollow tree mapping in February 2015 (ex C, pp 14-15). Mr Murray undertook additional work to identify if a local Squirrel Glider population occurs on or utilises habitat resources on the site. His fieldwork, conducted between 11-27 May 2015, included arboreal tree trapping, stag-watch and spotlight searches, habitat assessment and mapping of habitat trees as potential den sites (ex 3, p 12). The tree trapping was conducted over 8 nights, using 20 traps; four habitat trees were stag-watched; spotlight searches were conducted on foot on 3 nights; and 13 habitat trees were recorded. Neither Mr Anderson nor Mr Murray detected Squirrel Glider.

  6. Mr Murray noted (ex 3, p 16) that the site contains 2 possum, 1 glider, and 1 microbat nest boxes, and 2 natural hollows. The glider box shows the presence of old leaves and surface scratches around the hole entrance, and evidence of past feral bee infestation. Mr Anderson considered that while the scratches on the front of the nest box and around the entrance hole appeared consistent with a clawed animal using it in the past, he could find no definitive evidence that the nest box had been utilised by Squirrel Glider or any other mammal; although the leaves in the bottom could indicate past nesting by an animal, it could not be discounted that the leaves were placed in the nest box by humans at the time of nest box installation (ex E, p 12). In oral evidence Mr Murray accepted that there was no recent evidence of a Squirrel Glider using the nest box.

  7. As noted above, at the site view residents gave evidence of seeing gliders, the most recent being 18 months earlier. In oral evidence Mr Murray accepted that there was some misidentification, it being difficult to distinguish a Squirrel Glider from a sugar glider. Mr Murray and Mr Anderson disagreed as to whether sugar gliders are found in the location of the site. Mr Murray’s opinion was that they can co-exist but squirrel glider tend to dominate because of their larger size; whereas Mr Anderson referred to the NSW Atlas of Wildlife database which includes records of sugar gliders within 10km of the site including east of the Pacific Highway. They both agreed that they are sufficiently similar that a person who is not an expert getting a fleeting glance would not be able to tell which one was which.

  8. Mr Murray relied on a record in a Statement of Effect on Threatened Flora and Fauna of an observation of a squirrel glider on a site proposed for residential development on the western side of Bulls Garden Road, south of Justine Avenue, in February 2000 (ex 8). The identification of the glider was described in the following terms:

The Glider was observed within the thick stand of Allocasuarina located in the south-west of the site. Positive identification could not be made, however, due to the visual characteristics noted such as large body size and records of the threatened Squirrel Glider in the surrounding area, this species is considered to be found on site for the purposes of this study.

  1. Mr Anderson noted that this record is not present in the NSW Atlas of Wildlife database (ex E, p 18).

  2. The evidence of Mr Kennedy as to his trapping of a Squirrel Glider at 2A Hallam Street, and his expertise in identifying the squirrel glider, was not contested. That site is the Council reserve adjoining the site at its north western corner. Mr Anderson had considered that reserve, one of five Council reserve areas zoned 6(1) Open Space under the 2014 LEP to the north of the site, including the two adjoining the site on Hallam Street and Kalinda Parade. In his assessment those areas, collectively 1.13ha, are relatively isolated remnants of open forest vegetation, largely to totally surrounded by residential development and roads, with weed invasion, clearing and dumping of rubbish affecting understorey habitat with canopy being largely maintained throughout each patch (ex E, p 13); and while offering some potentially suitable habitat for Squirrel Glider in regards to foraging resources, movement corridors and nesting habitat, would have lesser value than intact native forest habitat due to their condition and also their small spatial area and linear shape (ex E, p 14).

  3. In considering the evidence as to the presence of squirrel glider west of Bulls Garden Road, I note that the survey work undertaken by both Mr Anderson and Mr Murray totalled 188 trap nights (160 trap nights by Mr Murray, and 28 trap nights by Mr Anderson). I accept the evidence of Mr Anderson that this is an intensive coverage on a site of 3.65ha (ex E, p 36); and it exceeds the recommended minimum in the Council’s Flora and Fauna Survey Guidelines 2012 which recommend 6-10 traps for 3 consecutive nights. However that survey work did not include any part of patch D outside the site. Given the agreement of the experts as to the difficulty in distinguishing Squirrel Glider from sugar glider, I would not rely on the evidence of the residents to confirm the presence of squirrel glider in the area. I accept that at its highest the state of the nest box on the site would indicate that while it may have been used by squirrel glider at some time, based on the agreed expert evidence does not provide evidence of recent occupation. The record of an observation of a squirrel glider to the south west of the site (ex 8) is from 2000. The strongest evidence in support of the proposition that there are Squirrel Glider west of Bulls Garden Road is the evidence of Mr Kennedy, whose expertise in identification of squirrel glider was not controverted. While the evidence from the field survey work, the nest box, and the residents, was inconclusive as to the presence of Squirrel Glider on the site, I am satisfied based on Mr Kennedy’s evidence that there is at least one individual occurring in, or likely to utilise the habitat in, the study area, patch D. I accept Mr Kennedy’s evidence, which is consistent with the statement in the Draft SG Guidelines that squirrel glider typically live in family groups, that there are likely to be other squirrel gliders in the vicinity. On that basis, there is a “local population” as defined in the TSA guidelines.

  4. The issue is whether any local population is a “viable” local population, that is likely to be placed in risk of extinction. That requires consideration of population density, and habitat size, and the issue of connectivity of patch D to other areas of squirrel glider habitat to the west of Bulls Garden Road, and to the area east of Bulls Garden Road.

  5. I accept the agreed expert evidence that there is connectivity between patches C, D and E. The issue is connectivity across Bulls Garden Road to patch F. Mr Anderson’s evidence was that the area of potential habitat available east of Bulls Garden Road is approximately 350ha, based on connected vegetation types offering likely suitable foraging and nesting resources, personal observations in the lower Hunter Valley, and the scientific literature available on habitat requirements of the squirrel glider (ex E, p 19). Mr Murray agreed. I accept that evidence. There is evidence of a population of squirrel glider in the 350ha east of Bulls Garden Road, most recently in the trapping results listed in Annexure C to Mr Kennedy’s affidavit.

  6. I accept the agreed evidence that the crossing points on Bulls Garden Road are tenuous. In relation to crossing point A at Justine Avenue, Mr Murray based his reservation on the height of the trees, Mr Anderson’s evidence being that while glides across would be feasible, regular and expected movement of gliders would be unlikely at present. Mr Murray’s reservations as to crossing point B related to the gap between patch D and patch G; Mr Anderson was unable to assess whether that gap has been lost due to tree clearing for the construction of the house at 51A Bulls Garden Road, and he was unable to verify whether any previous linkage through this area has been lost or the current status of any remnant linkage (ex E, p 26).

  7. In estimating population density, the experts relied on the Squirrel Glider Review, the Wyee Review and the Draft SG Guidelines.

  8. Based on the Squirrel Glider Review, Mr Anderson’s evidence was that an area of 350ha would constitute “major habitat” with a variety of forest types likely to provide all necessary resources for a viable local population; this size of habitat would be at no risk in the short term (50-100 years) and low to moderate risk in the long term when considering population viability (ex E, p 27). Using an average density of occupancy of 0.46 animals/hectare, he estimated the local population of that 350ha area to be 161 individuals (ex E, p 20).

  9. In oral evidence Mr Murray was questioned on the Wyee Review (ex 2, vol 2, p 607), which states (at p 636) that with an average glider density of 0.46 animals/hectare, habitat remnants greater than 250ha or populations more than 90 individuals should have close to 100% probability of surviving in the short-term, for a period of about 40-60 years, and that over the long term (above 100 years) such populations may require periodic renewal or genetic enrichment; that the minimum viable population necessary to sustain populations of Squirrel Glider for a period of 40-100 years is 115 individuals; and (at p 637), that there is little merit in protecting isolated populations of less than 50 individuals over the long-term as below this level there is a greater increased risk of local extinction from inbreeding. Mr Murray agreed that there would be a population of fewer than 50 individuals in patch D; he did not agree that there would be little merit in protecting that population, as even though it is a small patch it provides habitat and has tenuous linkage, and long-term it may persist for another 50 years if there is no further disturbance to that patch. Mr Murray agreed that it might improve if the connectivity at point A was improved.

  1. Mr Murray was also taken to the discussion of minimum habitat size in the Draft SG Guidelines (ex 2, vol 2, p 694). He accepted that patch D is already within the range of 4ha-30ha considered at high risk of local extinction, however noted that there are variations on that and a 4ha patch beside a 1000ha patch that is separated by a gap of 50m would be viable until such time as the gap is removed or the habitat is removed. Mr Murray accepted that at 30ha, patch D is on the cusp of either high risk of local extinction moving to a moderate risk, agreeing that it is not secure. Mr Murray stated that population density can vary, and for the subject site which supports spotted gum ironbark the numbers were about 0.3 per hectare, ranging from 0.2 to 0.6, resulting in approximately 9 individuals on a 30ha site. Mr Murray accepted that a patch of 30ha is well below the minimum of 400ha for a remnant patch of vegetation to ensure continued survival of a viable population. He is treating patch D as a separate population or patch because of the tenuous connectivity, and he accepted that if so, according to the Draft SG Guidelines this patch would not ensure the continued survival of a viable population. Mr Murray agreed that at 30ha the patch could not support a population greater than 50 individuals; he stated that the maximum that could be assumed to occupy the patch would be between 10 and 20, noting that squirrel glider live in small colonies of up to four or five individuals. Mr Murray accepted that even at 20, it is significantly less than the 50 assumed for a viable population, and agreed that in terms of long term persistence if there is a population on the site it is not a viable one.

  2. Mr Murray’s evidence was that there needs to be the injection of fresh genetic material, that is, a glider crossing into a patch, in order to prevent the risk of local extinction from inbreeding, of at least one individual per generation, that being five years; so once in five to ten years there would need to be a crossing of the boundaries and if that is not possible there is isolation. In time crossing A has the potential to be connected; that gap is only of the order of 40m so potentially a glider can cross the road and the ground: they are probably reluctant to do so. He considered that a crossing once every five to ten years may occur. Mr Anderson considered that that is likely at crossing A. Mr Murray considered that unless there is an improvement into the crossing point at A the whole patch system is not viable long term.

  3. I accept the evidence of Mr Anderson that areas D and E together, at 350ha, would support a viable local population of Squirrel Glider. The issue is whether patch D can support a viable local population. According to the Draft SG Guidelines (ex 2, vol 2, p 695) and the Squirrel Glider Review (ex 2, vol 2, p 555) at 30ha patch D is on the margin of small habitat patch (4ha-30ha) and minor habitat patch (30ha-100ha), at high, or moderate to low, risk of local extinction; as accepted by Mr Murray it could not be regarded as secure. The agreed evidence is that a connection at crossing point A is tenuous. I accept the evidence of Mr Murray that a crossing once every five to ten years might occur; that is consistent with the evidence of Mr Anderson that movement may still occur as an unusual circumstance and should not be totally discounted. Mr Murray’s evidence that in order to prevent the risk of local extinction from inbreeding, once in five to ten years there would need to be a crossing of the boundaries, was not disputed. On that basis, while based on the Draft SG Guidelines, patch D is at the lower end of habitat area likely to be permanently occupied by squirrel glider if poorly connected to other habitat, the potential crossing and provision of fresh genetic material for any population in patch D cannot be discounted; however, on the agreed evidence it cannot be confirmed.

  4. What is not known is the extent of population in patch D outside the site. While I accept that the field survey work on the site undertaken by both Mr Anderson and Mr Murray in which no squirrel glider was located, was comprehensive, that work was limited to the site and did not include the broader area of patch D. The Draft SG Guidelines estimate (ex 2, vol 2, p 694) population density in the Lake Macquarie LGA to be in the order of 0.3-0.4 per hectare, which would, if evenly distributed mean 9-12 on patch D and 10-13 on patches D and E combined. However, those guidelines also note that population density varies with habitat quality, and ranges from 0.5-1.6 per hectare. While Mr Murray agreed in oral evidence that the population is likely to be less than the 50 noted in the Squirrel Glider Review and the Wyee Review below which there is a greatly increased risk of local extinction, he and Mr Anderson agreed that there is the potential for a crossing between patches D and F every five to ten years, which would, based on the Draft SG Guidelines, be sufficient frequency to provide fresh genetic material for a generation.

  5. The crossing points between the area west of Bulls Garden Road and east of Bulls Garden Road are, on the agreed evidence, marginal. On that basis, I accept Mr Murray’s approach of focus on the patches west of Bulls Garden Road. On the evidence of Mr Kennedy, there is a local population in patch D. Having regard to the Draft SG Guidelines, at 30ha patch D is on the cusp of high to moderate risk of extinction in terms of area; it is, according to those guidelines, for planning purposes at the minimum area of squirrel glider habitat likely to be permanently occupied by squirrel glider if poorly connected to other habitat. The approach of the TSA Guidelines is to assume that any known or presumed local population is viable unless the contrary can be conclusively demonstrated. Applying that approach, in the absence of an understanding of the remainder of the study area outside the site, I am not satisfied that it has been established that any local population in patch D is not a viable local population. If it is, in the absence of confirmed connectivity to the larger 350ha area in patch F, the 10% loss of habitat would, on the agreed expert evidence, be significant.

  6. Section 5A(2)(d) requires consideration of (i) the extent to which habitat of a threatened species is likely to be removed or modified as a result of the action proposed; (ii) whether an area of habitat is likely to become fragmented or isolated 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 in the locality.

  7. The TSA Guidelines state (at p 8) that 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, regardless of whether the habitat occurs on the subject site, and including both occupied and unoccupied habitat. The extent to which habitat is likely to be removed or modified is to be determined by estimating the total area of habitat directly and indirectly impacted. In 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. When assessing the importance of the habitat likely to be removed or modified, a quantitative and qualitative approach is to be adopted.

  8. The experts agreed that if the 30ha area in patch D is the extent of habitat for a local population of Squirrel Glider, then 3ha of development would equate to a 10% loss of habitat, which would be significant. I accept Mr Anderson’s evidence (ex E p 33) that if the extent of habitat to be considered is 350ha, the proposed development would remove less than 1% of potential habitat.

  9. I accept Mr Anderson’s evidence that the development would increase fragmentation and isolation of the potential habitat present, and that the habitat to be removed and isolated offers potentially suitable foraging and nesting resources for the Squirrel Glider (ex E, p 33). While Mr Anderson did not consider that the importance of this habitat to the long term survival of the species in the locality was high, given the absence of definitive evidence of the species from the site or immediately adjacent area, that conclusion must be read in the context that Mr Anderson’s evidence was provided before Mr Kennedy trapped the Squirrel Glider at 2A Hallam Street.

  10. The significance of the impact of the loss and fragmentation of habitat depends on the connectivity of the remaining habitat in patch D, and the gaps around patch D. In the context where patch D is only tenuously connected to the larger area of habitat in patch F, I am satisfied that the impact on the habitat of the squirrel glider should be regarded as significant.

  11. Section 5A(2)(g) requires consideration of whether the action proposed is or is part of a key threatening process (KTP). The KTPs are listed in Sch 3 of the TSC Act, and those of relevance to the Squirrel Glider are clearing of native vegetation, loss of hollow bearing trees, and removal of dead wood and dead trees. I accept Mr Anderson’s evidence that the development will involve the removal of 3.15ha of native vegetation, a loss that is a direct contribution to this KTP and contributes to incremental habitat loss in the locality; that some existing hollow bearing trees would be lost, and potential short-medium term future hollows would be lost in areas cleared of vegetation; and the development will remove areas that contain some dead wood and dead trees. Mr Anderson also considered invasion and spread of aggressive weed species, noting that removal of native vegetation and replacement with a developed residential landscape would require steps to ensure that retained areas are not mistreated resulting in exacerbation of the weed problem (ex E, pp 34-35). I am satisfied that the proposed development constitutes KTPs of clearing of native vegetation, loss of hollow bearing trees, and removal of dead wood and trees.

  12. On the evidence before me, and taking into account the approach of the TSA Guidelines as required by s 5A(1) of the Act, I am satisfied that there is a positive finding for the three relevant s 5A factors, namely s 5A(2)(a), (d), and (g). Patch D is small, at the margin of high to moderate risk of local extinction, and with tenuous connectivity to the larger area of squirrel glider habitat in patch F; and the survey work to determine the population density of the local population using habitat in patch D has not included the parts of the study area outside the area of the site of the proposed development. A significant amount of habitat in patch D is to be removed, which would increase fragmentation and isolation of potential habitat. The proposed clearing of vegetation and removal of trees including actual or potential hollow bearing trees is a key threatening process. In considering the factors in s 5A(2)(a), (d) and (g), I conclude that there is likely, in the sense of a real chance or possibility, to be a significant effect on the local population of squirrel glider.

  13. As noted above, a positive finding in respect of one or more of the relevant s 5A factors does not necessarily lead to the conclusion that an SIS is required. However, in the circumstances of this application, where detailed information as to the area of patch D outside the site is not available, and where connectivity to larger areas of squirrel glider habitat is potentially significant but tenuous, it is appropriate to adopt the approach taken in the TSA Guidelines (at p 2) that where there is reasonable doubt regarding likely impacts or where detailed information is not available, a SIS should be prepared. That would ensure that the process of consideration of the development application is fully and adequately informed: Gales Holdings Pty Ltd v Tweed Shire Council [2006] NSWLEC 212, at [45]. A SIS would, among other things, consider measures to mitigate adverse impacts (s110(2)(i) TSC Act). That could include Mr Anderson’s recommended ameliorative approaches including installation of nest boxes in the retained Dicks Creek riparian area (proposed in the development application); relocation of dead wood into retained riparian areas; and education of future residents (ex E, pp 34-35); and possibly installation of glider poles, which Mr Murray considered would improve connectivity at crossing point A.

Conclusion

  1. For the above reasons, I am satisfied that the proposed development is likely to significantly affect a threatened species or its habitat; and that as a consequence a SIS must be prepared: s 78A(8)(b) of the Act. The Council’s position at the hearing was that if that conclusion was reached, the proceedings could be adjourned to enable the preparation of a SIS, as occurred in Gales Holdings Pty Ltd v Tweed Shire Council [2006] NSWLEC 212. The applicant’s position, however, was that if that conclusion was reached it would prefer that the application be refused. Whether or not the proposed development would otherwise merit approval on consideration of the matters in s 79C of the Act, in the absence of a SIS the Court has no power to grant development consent. Accordingly, the orders of the Court are:

1. The appeal is dismissed.

2. Development Application DA/830/2014 for residential subdivision and associated works at Lot 4 DP 740377, 30 Green Valley Road Charlestown, is refused.

3. The exhibits are returned except for exhibits A, G and 1.

Linda Pearson

Commissioner of the Court

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Decision last updated: 24 November 2015

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