Hornsby Shire Council v Vitone Developments Pty Ltd

[2003] NSWLEC 272

>

Land and Environment Court

of New South Wales

CITATION:	Hornsby Shire Council v Vitone Developments Pty Limited [2003] NSWLEC 272
PARTIES:	Hornsby Shire Council (Appl) Vitone Developments Pty Limited (Resp)
FILE NUMBER(S):	40500 of 2003
CORAM:	McClellan CJ
KEY ISSUES:	Development Application - Judicial Review :- Whether species impact statement required Whether development consent void due to absence of jurisdictional fact Whether endangered ecological community existed on site Construction of Final Determination of Scientific Community Conflicting methodologies of expert witnesses Whether council estopped from challenging validity of consent Whether s 101 Environmental Planning and Assessment Act a bar to proceedings Whether s 101 is privative clause which does not operate to prevent challenge on ground of jurisdictional error Uncertainty of Final Determination Discussion of consequences of criminal offences in relation to endangered ecological communities Problems for ordinary citizen in identifying community
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Threatened Species Conservation Act 1995 National Parks and Wildlife Act 1974
CASES CITED:	Baulkham Hills Shire Council v Cosmopolitan Homes No 2 Pty Ltd (1986) 61; Breitkopf v Wyong Council (1996) 90 LGERA 269); Brickworks Limited v The Council of the Shire of Warringah (1963) 108 CLR 568; Canterbury Municipal Council v Perri (1982) 47 LGRA 111; Coffs Harbour Shire Council v Ben Hall Industries Pty Ltd (1983) 48 LGRA 391; Coles Supermarkets Australia Pty Ltd v Minister for Urban Affairs and Planning (1996) 90 LGERA 341; Egan v Hawkesbury City Council (1993) 79 LGERA 321; F N Eckold Pty Ltd v Auburn Municipal Council (1975) 34 LGRA 114; Greenpeace Australia v Redbank Power Co (1994) 86 LGERA 143 ; Hawkesbury City Council & Anor v Sammut (2002) 119 LGRA 171.; Hillpalm Pty Ltd v Heaven's Door Pty Ltd (2002) 55 NSWLR 446; Holidays A-Float Pty Ltd v Hornsby Shire Council (1992) 75 LGRA 127; Jurkovic v City of Port Adelaide (1979) 41 LGRA 71; Leatch v National Parks & Wildlife Service & Anor (1993) 81 LGERA 270; Nicholls v Director-General of National Parks and Wildlife (1994) 84 LGERA 397; Plaintiff 5157/2002 v Commonwealth of Australia (2003) 195 ALR 24; Plumb v Penrith City Council (2002) NSWLEC 223; Proudman v Dayman (1941) 67 CLR 536; R v Hickman; Ex parte Fox and Clinton [1945] 70 CLR 598); Rockdale Municipal Council v Duffy Bros Pty Ltd (1974) 29 LGRA 279; Sericott v Snowy River Council (1999) 108 LGERA 66; Timbarra Protection Coalition v Ross Mining NL (1999) 46 NSLWR 55; Trimboli v Penrith City Council (1981) 48 LGRA 323; Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78; 101 LGERA 297; VAW (Kurri Kurri) Pty Ltd v Scientific Committee (Established under s 127 of the Threatened Species Conservation Act 1995) [2003] NSWCA 297; Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
DATES OF HEARING:	22-26 September 2003
DATE OF JUDGMENT:	11/11/2003
LEGAL REPRESENTATIVES:	A E Galasso (Barrister - Appl) Abbott Tout (Solicitors - Appl) J E Robson (Barrister - Resp) McPhee Kelshaw (Solicitors - Resp)

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

40500/03

McCLELLAN J

11 NOVEMBER 2003

HORNSBY SHIRE COUNCIL

Applicant
v

VITONE DEVELOPMENTS PTY LIMITED

Respondent

JUDGMENT

1 HIS HONOUR: Hornsby Shire Council seeks a declaration that a development consent and subdivision approval which it granted in 1998 is void and of no effect. The Council alleges that the application which it approved was not accompanied by a Species Impact Statement (SIS) as required by s 78A(8)(b) of the Environmental Planning and Assessment Act1979 (“the Act”). Vitone Developments Pty Limited is the owner of the relevant land and is the family company of Mr Robert Ghisla. The property contains the family home and is located within a developed residential area.

2 The land the subject of these proceedings is known as 39-47 Robert Road and 20 Ashford Road Cherrybrook. It is agreed that it has an area of approximately 1.75 hectares. The land is Lot 102 in Deposited Plan 1007427. The approved subdivision provides for 17 residential allotments with appropriate road and drainage works. The subdivision was contemplated as occurring in stages. Stage 1 provided for the creation of one lot, being Lot 101. This has occurred and that lot is now Lot 101 in DP 1007425. Lot 101 has been sold and pursuant to relevant consents a dwelling has been erected upon it.

The legislative scheme

3 Section 78A provides for the making of development applications. Section 78A(8) provides that a development application must be accompanied by:

“(a) if the application is in respect of designated development – an environmental impact statement prepared by or on behalf of the applicant in the form prescribed by the regulations, or
(b) if the application is in respect of development on land that is, or is a part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats – a species impact statement prepared in accordance with Division 2 of Part 6 of the Threatened Species Conservation Act 1995. ”

4 It is agreed that in the present case a species impact statement was not lodged.

5 The expression “threatened species, populations or ecological community” in the Environmental Planning & Assessment Act is given the same meaning as in the Threatened Species Conservation Act1995. It is defined as a “species, population or ecological community” specified in Schedules 1 and 2 to that Act. Schedule 1 is a lengthy list of matters described as “Endangered Species, Population and Ecological Communities”. Schedule 2 is another lengthy list described as “Vulnerable Species and Ecological Communities”. Part 3 of Schedule 1 provides for Endangered Ecological Communities and includes the following:

“Blue Gum High Forest (as described in the final determination of the Scientific Committee to list the ecological community).”

6 “Ecological community” is defined in s 4 of the Act as “an assemblage of species occupying a particular area.” “Assemblage” is not defined in the Act, but is defined in the Macquarie Dictionary as “… a number of persons or things assembled.” Because the community is “ecological”, before it can be found to exist there must be a collection of relevant species in a particular area which interact ecologically to sustain the community.

7 Section 127 of the Threatened Species Conservation Act provides for the establishment of a body known as the Scientific Committee and s 128 sets out the functions of that body. Section 128(1)(c) provides that a principal function of the Scientific Committee is to:

“determine which ecological communities are to be listed under the Act as endangered ecological communities and to advise the Director-General on the identification of their critical habitat.”

8 The make-up of the Committee is provided by s 129. The members must all be scientists with expertise in various disciplines. The Committee may seek advice from suitably qualified persons (s 133) and is not subject to the control or direction of the Minister (s 135).

9 This legislative structure is unique and its effect of considerable significance. Once a matter has been included in the schedule as an “endangered species, population or ecological community” very significant consequences follow. Apart from the obligation imposed by s 78A, s 118A(2) of the National Parks and Wildlife Act 1974 makes it an offence to harm listed animals, or to pick listed plants unless the action is authorised. “Pick” is defined in the Act to mean “gather, pluck, cut, pull up, destroy, poison, take, dig up, remove or injure the plant or any part of the plant.” A breach of s 118A(2) carries a maximum penalty of 2,000 penalty units ($220,000) or two years imprisonment or both, with an additional 100 penalty units in respect of each whole plant that is affected.

The history of the land

10 Evidence was given of the history of the land since European settlement in Australia. Lot 102 originally formed part of the parcel of the land which was in 1801 designated as the Government Farm at Castle Hill. Government Farm had an area of 34,000 acres. The main work camp for Government Farm was located approximately 1.5 kilometres away from the land. By 1916 the convict sawmilling establishment was located at Hull Road, Pennant Hills approximately 2.7 kilometres from the land. There were a number of sawmills in the area.

11 In 1817 part of Lot 102 was included in a 60 acre land grant in favour of Eleanore Kilpack. The balance of the land was within a 100-acre grant in favour of James Milson. Various parts of the land granted to Milson are known to have been cleared for orchard and planted to some crops.

12 The parties are agreed that following European settlement the subject land was cleared and all of its major timber removed. This is evident from the fact that none of the trees on the land are “old growth.” There are some significant trees on the site but none of them is more than about 25 metres in height. None of the trees would be described as tall trees which for relevant purposes is agreed to be a tree in excess of 30 metres in height.

13 Various photographs were tendered in evidence. The photographs demonstrate that the extent of clearing of the site has varied from time to time. It is plain from photographs that at various times in the last century the greater part of the land was cleared of any significant vegetation.

14 Mr Ghisla purchased the land in 1987. At the time he and his wife had young children and when the property was purchased there was an existing substantial dwelling on it. Prior to their purchase the property had been owned by Mr and Mrs Wheelan who kept a horse on the property. By 1987 the property was fenced and divided into horse paddocks, a horse ring and stables.

15 At the time of the purchase the north-western position of the land was a tangle of tall blackberry bushes. They were some feet in height. There was an impenetrable thicket of privet, blackberry, lantana and wandering jew in the western part of the site to a distance of approximately 20 to 30 metres on each side of the bed of the original watercourse which passes generally north/south on the western third of the land.

16 Mr Ghisla is a builder and was able to maintain the property himself. He gave evidence in the proceedings and was not required for cross-examination. I accept his evidence. He purchased a ride-on mower which enabled him to keep the grass on much of the property under control. He also devised a homemade “cutting blade” for one of his mowers and used this device to cut through the thick vegetation which was on the property. He had observed a number of snakes along the creek line and was concerned to clear the property in order to ensure the safety of his children. Although he was able to maintain a good deal of the property he had difficulty with the area to the west of the watercourse which was overgrown with blackberry and privet.

17 There were other parts of the site which he was unable to maintain. Some parts were used, by others, for the illegal dumping of rubbish and trail bike riders entered parts of the property.

18 In 1991 the Sydney Water Board constructed a sewer line through the property. The line was constructed generally along the line of the creek. A number of large trees were removed in the course of this construction and the soil in the area above and adjacent to the sewer line was left bare and compacted. Apparently an attempt was made to restore the surface and establish new plants. However, this was not successful. The plants did not survive. The photographs of the property reveal sparsely vegetated patches today which are consistent with this disturbance.

19 In the early 1990s there was an infestation of brown lace loop which affected many ironbark trees in the Hornsby shire. At this time six ironbarks (eucalyptus penanticulate) were lost from the land.

20 Mr Ghisla continued his practice of mowing all accessible areas within the property from 1987 to around April/May 2002. At that time he received correspondence from the solicitors for the Council foreshadowing the commencement of the present proceedings. He took advice from an ecological consultant and ceased mowing the property. Some of the property was however mowed by Mr Ghisla’s daughter in May 2003.

21 Evidence was given by Mr Jones, a construction foreman. He was engaged as a foreman on subdivision work in the Cherrybrook/Castle Hill area over many years. He is familiar with Lot 102 and was engaged in the supervision of the major sewerage construction works. He gave evidence of construction of a diversion of the creek to assist in the effective disposition of storm water drainage from the land. During the course of these works not only was the creek line disturbed but major machinery was also located within areas adjoining the line of the creek and the surface disturbed. Fill was placed on parts of the site. He gave evidence that approximately one third of the site, being the western part of the land, was disturbed by machinery during the course of these construction works.

22 Mr Ghisla also gave evidence about the construction of the sewer. He said that during the course of the construction the contractors used excavators in the vicinity of the main creek line making a deep excavation into which a pipe was laid. The excavation was benched, a large excavator being used for the purpose. A number of manholes were constructed. During this work the watercourse was temporarily diverted and hundreds of cubic metres of material including hard rock were removed. Stockpiles comprised of large rocks, rich top soil, shale, clay and patches of sub soil were all created. The ultimate restoration of the site was carried out without regard to the original soil horizon. The result of the sewerage installation left a band of rock, clay, and shale traversing the original creek area of the site.

23 Mr Ghisla also described the drainage works which were carried out on the land. These works involved significant disturbance adjacent to the watercourse. In this area the understorey, which previously comprised privet and blackberry, was removed. Filling was introduced. Mr Ghisla told the court that he was engaged in building work in the area in the early years of the 1990s. In the course of those works he secured excess topsoil which he transported to the land and spread over the surface. He said that he caused many tonnes of topsoil to be deposited on the land. However, he found it extremely difficult to establish a permanent grass cover in the area near the creek because of the hard rock and compacted soil.

24 Mr Ghisla retained Rose Consulting Group to act on his behalf and lodge the development and subdivision application in 1998. The application was with the council for many months. Ultimately a planning report was prepared for the meeting of the Council of 16 December 1998. That report makes plain that the land had been inspected by Council officers and, although concern was expressed in relation to the retention of some trees on the site, there was no suggestion that the land could not be subdivided or that a Species Impact Statement was required.

25 As it happened the Scientific Committee had made a final determination, gazetted on 5 September 1997, to list Blue Gum High Forest in the relevant areas as an Endangered Ecological Community in Part 3 of Schedule 1 of the Threatened Species Conservation Act1995.

The Final Determination

26 The Ecological Community to be listed was described by the Committee in the following terms:

“1. The Blue Gum High Forest which is the accepted name for a plant community occurring on deep shale-derived soils with high rainfall in the north shore and northern suburbs of Sydney.
2. It has the structural form predominantly of tall open-forest to open forest.
3. The characteristic assemblage of vascular plant species in the community is:

Acacia implexa	Adiantum aethiopicum
Allocasuarina torulosa	Angophora floribunda
Billardiera scandens	Blechnum cartilagineum
Brachycome angustifolia	Breynia oblongifolia
Calochlaena dubia	Clematis aristate
Clematis glycinoides	Clerodendrum tomentosum
Commelina cyanea	Dichondra repens
Echinopogon caespitosus	Elaeocarpus reticulatus
Entolasia marginata	Eucalyptus paniculate
Eucalyptus pilularis	Eucalyptus saligna
Eustrephus latifolius	Glochidiion ferdinandi
Glycine clandestina	Goodenia heterophylla
Hardenbergia violacea	Helichrysum scorpioides
Hibbertia scandens	Imperata cylindrica
Indigofera australis	Kennedia rubicunda
Leucopogon juniperinus	Leucopogon lanceolatus
Lomandra longifolia	Microlaena stipoides
Notelaea longifolia	Omalanthus populifolius
Oplismenus aemulus	Oxalis exilis
Pandorea pandorana	Persoonia linearis
Pittosporum revolutum	Pittosporum undulatum
Playtlobium formosum	Poa affinis
Polyscias sambucifolius	Poranthera microphylla
Pratia purpurascens	Pseuderanthemum variabile
Pteridium esculentum	Rapanea variabilis
Rubus parvifolius	Smilax glyciphylla
Syncarpia glomulifera	Themeda australis
Tylophora barbata	Zieria smithii

4. The total species list of the community is considerably larger than that given in 3 (above), with many species present only in one or two sites or in very small quantity. In any particular site not all of the assemblage listed in 3 may be present at any one time (at least above ground), seeds of more species may be present in the soil seed bank. The species composition of a site will be influenced by the size of the site and by its recent disturbance history. For a number of years after a major disturbance, dominance by a few species may occur, with gradual restoration of a more complex composition and vegetation structure over time. The balance between species will change over the fire cycle, and may also change in response to changes in fire frequency.
5. The Blue Gum High Forest is confined to soils derived from Wianamatta Shale, and is distinct from the open-forest that occurs in sandstone gullies or on alluvium which may include trees of Eucalyptus deanei, Eucalyptus pilularis, Eucalyptus saligna or Syncarpia glomulifera.
6. The community has been reported from areas of Wianamatta Shale in the Local Government Areas of Lane Cove, Willoughby, Ku-ring-gai, Hornsby, Baulkham Hills, Ryde, Parramatta.
7. The Scientific Committee noted that general information on the Blue Gum High Forest is contained in Benson, D. and Howell, J., 1990, Taken for Granted; The bushland of Sydney and its suburbs, Kangaroo Press, Kenthurst.

27 In its Final Determination the Scientific Committee found that:

8. The Community, as defined by the proposal, satisfies the definition of an ecological community under the Act; i.e., an assemblage of species occupying a particular area.
9. About 1% of the original area of the community currently exists in the form of a number of remnants.
10. Threats to the survival of the community include fragmentation, developments, increased nutrient status, inappropriate fire regimes, invasion by exotic plants, mowing and clearing.
11. Although a small part of the surviving Blue Gum High Forest is included within Dalrymple-Hay Nature Reserve, this in itself does not ensure the survival of the community unless the threats to the integrity of the community are ameliorated. In view of the substantial reduction in the area occupied by the community, its fragmentation and the numerous threats to the integrity of the community, the Scientific Committee is of the opinion that the Blue Gum High Forest is likely to become extinct in nature in New South Wales unless the factors threatening its survival cease to operate.

12. In view of 9, 10 and 11, the Scientific Committee is of the opinion that the community is likely to become extinct in nature in New South Wales unless the circumstances and factors threatening its survival cease to operate. Accordingly the Committee has made a Final Determination to support the listing of the Blue Gum High Forest on Part 3 of Schedule 1 of the Act.

A problem emerges

28 At a time when he was engaged in detailed considerations of nearby land, Mr Steven Douglas, an ecologist and environmental consultant looked at the land and provided advice to Hornsby Council in which he said:

“The site was inspected by Steve Douglas and Jamie Slaven on 24 January 2000. It was readily determined that the site supports significant remnant of the endangered ecological community known as Blue Gum High Forest (BGHF). This community occurs throughout most of the site however, only the roughly rectangular section of the block furthest from the existing dwelling was inspected. It cannot at this stage be confirmed whether the community occurs throughout the whole property, though on the basis of initial observations and past experience with such matters, the community is likely to be extant where tree cover remains relatively intact and where soil disturbance is minimal. It is unlikely that the community exists in the immediate vicinity of the dwellings due to disturbance associated with the construction, landscaping and weed invasion.”

29 In the same memorandum he observed:

“The site has been subject to mowing for considerable time and appears to have been subject to grazing and logging in the past. It is in a relatively early stage of recovery is evidenced by the unnatural age class distribution of many key species and by the type of species that has survived. For example there are very few young trees, yet there are numerous seedlings that are less than 30cm tall which have apparently emerged in recent weeks during the absence of mowing. Most of the species that remain evident are early colonisers, those that are able to survive mowing, or have only survived and refugia around the base of trees or in other areas where mowing has not occurred.
The majority of the site would regenerate to relatively healthy BGHF if mowing was to cease and if this was supported by at least some control of weeds, particularly exotic pasture species and highly invasive shrubs such as privet. Some relatively small, peripheral areas and land immediately adjoining and within the watercourse are unlikely to recover to a healthy condition due to the level of soil disturbance, weed invasion and increased soil nutrients. These areas would require more intensive management if they were to be rehabilitated.”

30 Douglas inspected the site again on 16 February 2000 and wrote a further note on this matter on 20 February 2000 in which he said:

“I confirm again that the bulk of the site is considered to be the endangered Blue Gum High Forest community based on the soil, location and composition of the canopy and understorey vegetation.”

31 In this document he says he estimates that greater than ninety percent of the property supports the endangered community. He said of the site:

“It has the potential to be an excellent example of Blue Gum High Forest and is considered to be of very high conservation value, despite the impacts of mowing and weed invasion.”

32 Douglas was asked about these initial inspections in his oral evidence. He conceded that he was in error in determining that the majority of the site was Blue Gum High Forest. He accepted that the correct area to be identified as Blue Gum High Forest would be of the order of fifty percent of the land.

33 Because of the advice which Douglas gave to the Council the Council sought his opinion as to whether, if the site contained Blue Gum High Forest, it would be likely that the subdivision which had been approved would impact upon the Blue Gum High Forest community in a way which would relevantly be described as significant. Douglas formed the view that this was the case and advised the Council that a Species Impact Statement would, in his opinion, be required to support any development application for the land. Following this advice the Council commenced the present proceedings.

Issues

34 The following issues have been raised by the parties in these proceedings.

1. Whether the Council is estopped from seeking a declaration that its consent is void.
2. Whether s 101 is a bar to the proceedings.
3. Whether the Endangered Ecological Community existed on the land when the Development Application was made or when the building approval was entered.
3. Whether, if a Species Impact Statement was required to accompany the development application, in all of the circumstances the court should grant relief in the exercise of its discretion.

Estoppel

35 The Council submits that because in the circumstances of this case s 78A(8)(b) requires a species impact statement to accompany the development application, without which neither the application nor any decision made in relation to it is valid, it cannot be estopped from challenging the validity of the consent which it granted. The council relies on the decision of Spigelman CJ in Timbarra Protection Coalition v Ross Mining NL (1999) 46 NSLWR 55, where his Honour said that the requirement for a species impact statement plays “such a significant role in the legislative scheme” that it is an essential pre-condition to any valid decision by the Council and that accordingly it is appropriately described as a jurisdictional fact (at 73).

36 The respondent submits that the Council is estopped from challenging the validity of the consent which the Council itself granted.

37 In Brickworks Limited v The Council of the Shire of Warringah (1963) 108 CLR 568 the Council put in issue whether it had granted a development consent. Windeyer J discussed the difficulties with the evidence and said:

“It cannot be inferred from the absence of a minute that consent had not then or at any time been refused. I do not understand how, when afterwards the Council said implicitly that the mining on Portion 4 was being done with its consent, and still later said expressly that it had consented, it could expect to obtain relief in equity on the basis that it had never consented at any time. … Whether or not a person consented to something is a question of fact. It may be proved that he did by proving an express consent or by showing conduct evidencing consent: Booton v Clayton (1948) 48 SR (NSW) 336. But I do not think a person can, by words and conduct, state that he has consented and is consenting, and then deny that he meant what he said and did. “

38 His Honour expressed the following conclusions in the circumstances of that case:

“The case, as I see it, does not depend upon an estoppel, but on actual admissions of a fact. The Council said that it had consented. Until it spoke by the mouth of its lawyers it never said otherwise. But if, notwithstanding this, it can somehow be said that it did not in fact consent, then an estoppel seems to me to arise. The Council did not at any time before it commenced this suit repudiate what its President had told the Company. In effect it repeated it. And the Company relied jupon these purported consents. Does not this found an estoppel? It was argued that it could not do so because estoppel by representation cannot prevent the performance of a statutory duty or the exercise of a statutory discretion. There is no doubt about the principle; but I doubt its application to this case. The decision of the Court of Appeal in Southend-on-Sea Corporation v Hodgson (Wickford) Ltd [1962] 1 QB 416 was relied on. The facts of that case do bear a superficial resemblance to those of this case. But there is a distinction. There the Corporation had, by its engineer, said that its permission for the use of land as a builder’s yard was not in fact and law required. It was mistaken in this view; and it was held that what the engineer had said could not create an estoppel preventing the Corporation from exercising its statutory discretion to forbid the land being used as a builder’s yard. That is to say, the Corporation had in effect said to the respondent company there, ‘you do not need our permission; we have no discretion to prevent your act.’ In the present case, on the other hand, the Council said in effect, ‘you do need our permission; we have a discretion which we have exercised in your favour’. It seems to me that, in the circumstances of this case, the Council was estopped from denying that it had exercised its discretion in the manner it had said it had done.”

39 The availability of an estoppel in planning law has been the subject of discussion in a number of cases since Brickworks. It is important to emphasise the distinction which Windeyer J made between a representation by a public authority that it had made a decision, a representation of fact, and a representation by the authority as to the existence of some other fact, typically whether existing use rights exist or as to a matter of law.

40 In Coffs Harbour Shire Council v Ben Hall IndustriesPty Ltd (1983) 48 LGRA 391 the respondent had sought approval to open a gravel quarry. It asserted in its application that the development was not designated and did not require an environmental impact statement. The Council granted consent but later formed the opinion that it had erroneously done so since the proposed use was in fact designated development. It was submitted that the Council was estopped from contending that it did not grant a consent effective in law. Perrignon J said:

“In the present case I am of the opinion that no estoppel arises to prevent the council from exercising the statutory duties and discretions which are imposed upon it by the Environmental Planning and Assessment Act and which it has not yet exercised. I think that the general principle which was enunciated in the Southend-on-Sea case, and which is set out above, should be applied.”

41 Perrignon J also emphasised that in his opinion the public interest would override any estoppel which might otherwise have arisen.

42 Perrignon J had occasion again to consider the application of the doctrine of estoppel in Baulkham Hills Shire Council v Cosmopolitan Homes No 2 Pty Ltd (1986) 61 LGRA 200. That case involved a purported grant of consent under delegation to use two lots for exhibition homes. As it happened the proposed use was prohibited. His Honour held that a Council could not be estopped from asserting that a purported consent could not operate to authorise a use which was in fact prohibited. See F N Eckold Pty Ltd v Auburn Municipal Council (1975) 34 LGRA 114 at 116-117; Rockdale Municipal Council v Duffy Bros Pty Ltd (1974) 29 LGRA 279 at 286-287; Jurkovic v City of Port Adelaide (1979) 41 LGRA 71 at 78-79; Canterbury Municipal Council v Perri (1982) 47 LGRA 111; Trimboli v Penrith City Council (1981) 48 LGRA 323 at 333-337 and Coffs Harbour Shire Council v Ben Hall Industries Pty Ltd (1983) 48 LGRA 391 at 396-398.

43 The approach adopted by Perrignon J was considered and applied by Stein J in Holidays A-Float Pty Ltd v Hornsby Shire Council (1992) 75 LGRA 127 see 131.

44 The problem was recently considered by the Court of Appeal in Hawkesbury City Council & Anor v Sammut (2002) 119 LGRA 171. In that case the respondent sought consent from the Council to erect a shed on his land in order to operate a tractor repair business. The Council purported to grant consent and the shed was constructed. Both the Council and a neighbour commenced proceedings in the Land and Environment Court seeking declarations as to the invalidity of the consent. The Court of Appeal, following the reasoning in Egan v Hawkesbury City Council (1993) 79 LGERA 321, held that if the tractor repair business could be fairly categorised as an “industry” then it was prohibited under the Local Environmental Plan and it was irrelevant that the use could also have been categorised under the separate permissible category of “rural industry”. Mr Sammut contended that the Council was estopped from challenging its own consent, relying on the judgment of Windeyer J in Brickworks.

45 Mason P considered the submission and, although it was not necessary to determine the matter as proceedings had also been commenced by a neighbour of the respondent, referred to Brickworks and said:

“Whatever that passage indicates, it does not represent a decision that an ultra vires act, indubitably establishing a fact, can never be challenged at the suit of the administrator who did it: see generally Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 211-214 per Gummow J. In my view Stein J, as he then was, was correct to decide that the public interest in the carrying out of statutory duties requires that a council is not estopped from asserting that a prohibited use to which it had previously granted conditional consent is invalid: Holidays-A-Float Pty Ltd v Hornsby Shire Council (1992) 75 LGRA 127.”

46 There is a public interest in ensuring that decisions are made in accordance with the law but there is also a public interest in achieving certainty in the planning process. It is for this reason that s 104A was provided in the Environmental Planning and Assessment Act. That section, following amendment, now finds expression in s 101 of the Act. It seems to me that if a council has stated that it has carried out the necessary process and has made a decision to grant a consent which is within its jurisdiction to make, it may, as Windeyer J concluded, be estopped from denying that a consent has been granted.

47 In the present case the Council submits that the development application was not accompanied by the required species impact statement and accordingly the Council, although purporting to exercise its power in relation to the application, could not do so. In these circumstances the Council does not resile from the fact that it made a decision but submits that it was a decision which it had no lawful capacity to make. If the Council’s submission is correct no estoppel can arise.

Section 101

48 The respondent relies upon s 101 of the Environmental Planning & Assessment Act as protecting the development consent from challenge The section at the relevant time was expressed in the following terms:

“If public notice of the granting of a consent or a complying development certificate is given in accordance with the regulations by a consent authority or an accredited certified, the validity of the consent or certificate cannot be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of 3 months from the date on which public notice was so given.”

49 The council published the relevant public notice on 21 January 1999. More than three months elapsed before these proceedings were commenced.

50 The applicant submits that s 101 does not protect the consent from challenge. It is submitted that the section is a privative clause which should be applied in a manner consistent with the Hickman principles (see R v Hickman; Ex parte Fox and Clinton [1945] 70 CLR 598) and accordingly does not operate to prevent a challenge on the ground of manifest jurisdictional error (see Sericott v Snowy River Council (1999) 108 LGERA 66).

51 The foundation for the council’s submission is the decision of the Court of Appeal in Timbarra where, as I indicated above, the court held that the decision as to whether a species impact statement is required was a jurisdictional fact. Although the council had the authority to receive and deal with the development application, and was required when exercising that power to consider whether the proposal may affect threatened species, the court held that “the authority’s opinion as to the existence of that occasion is not determinative, because a species impact statement is not only directed to informing a consent authority. It is also directed at informing both those who make submissions and the Director-General of National Parks and Wildlife.” (p 71)

52 No submission was put to the court that the decision in Timbarra should be reconsidered (see also Plumb v Penrith City Council (2002) NSWLEC 223), and the parties accepted that the failure to lodge an SIS (if I found that one was required) would invalidate the consent but for the operation of s 101.

53 The effect of s 101 was only briefly explored in argument. In his written submissions counsel for the respondent said the following:

“The EP & A Act provides for a specific procedure to validate development consents. Although it has been suggested that such a procedure cannot validate a consent where there is a lack of jurisdiction, the intent of s 101 of the EP & A Act (properly understood) is to provide finality in relation to council’s conduct. Given that the ‘main purpose’ of provisions such as s 101 is to ‘remove any uncertainty that might exist concerning the validity of development consents’ the court would look at the existence and reliance upon s 101 as a further matter disentitling the applicant to relief in circumstances where the court must, at least, balance the equities involved.”

54 The applicant referred to the decision in Sericott but the observations of Powell JA in that case were not referred to in argument.

55 In Sericott the Court of Appeal considered s 104A of the Act which has been replaced by s 101. Beazley JA, with whom Handley JA agreed, was of the opinion that s 104A was a privative clause, citing Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78; 101 LGERA 297 as authority. That decision effectively resolved a controversy in this Court, Pearlman J having concluded that s 35 and s 104A were private clauses, Bignold J preferring the view that they were time limiting clauses (see Coles Supermarkets Australia Pty Ltd v Minister for Urban Affairs and Planning (1996) 90 LGERA 341 and Breitkopf v Wyong Council (1996) 90 LGERA 269). However, in Sericott, Powell JA said:

“Even assuming that s 35 of the Act, the relevant provision of the Act which was under consideration in Vanmeld, is to be treated as being pari materia with s 104A of the Act, and even though Spigelman CJ was of the view that s 35 of the Act was a privative provision, that cannot be regarded as having been the view of the court, Meagher JA did not assent to it, while my tentative view, to which I adhere, was that it was not a privative provision by [sic[ a time limitation provision.”

56 It may be that because Handley JA agreed with Beazley JA in Sericott, Powell JA’s observations are no longer of significance. However, since that decision it now appears to be settled that a decision which is infected by jurisdictional error will not be protected by a privative clause (see Plaintiff 5157/2002 v Commonwealth of Australia (2003) 195 ALR 24). If that be the case the consequence is that the protection which s 101 affords to those who may seek to act upon a development consent has significant limits and the decision in Sericott may have had a different outcome.

57 In Sericott Beazley JA held applying Hickman that “even if the council had no power to grant consent, the validity of the consent is protected by s 104A”. It would appear that the court decided that jurisdictional error which may not be “manifest” is protected after notification and the lapse of three months. Accordingly, the observations of the Chief Justice in Vanmeld are of greater significance. In that case his Honour said:

“The often stated proposition that privative clauses do not protect against jurisdictional error – sometimes confined to ‘manifest jurisdictional error’ (Church of Scientology v Woodward (1982) 154 CLR 25 at 56) or to ‘refusing to exercise’ or ‘exceeding’ jurisdiction (Public Service Association (SA) (at 160); Darling Casino (at 555)) – may need to be reviewed in view of the extension of the concept of jurisdictional error in recent years: see Anisminic (at 171) per Lord Reid, (at 194) per Lord Pearce; Craig v South Australia (1995) 184 CLR 163 at 177-179; Darling Casino (at 633-634; 135-136).” p 324

58 There can be no doubt that in relation to decisions as to whether or not to grant consent in a planning context there are compelling reasons to exclude the opportunity for judicial review, at least after a limited period. Although the court maintains in all cases a capacity to ameliorate the consequences of a challenge by the exercise of its discretion (see Spigelman CJ in Timbarra at p 22, referred to below, and Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335), this can never be a complete answer to the problem. The mere prospect of a challenge will be enough to imperil many proposed developments. The principal, or the almost inevitable financier, may not invest where there is a prospect of litigation which, even if a challenge fails, will inevitably bring uncertainty and delay. The purpose of s 101 is not so much to protect the decision maker from challenge but to provide assurance to those who seek to act upon a consent.

59 I am not satisfied that these issues have been adequately explored in argument in the present case. If I had come to the view that a species impact statement was required I would have requested the parties to provide me with comprehensive submissions on the matter. However, as I have come to the view that the claim fails it is preferable that I express no concluded view as to the effect of the council’s notification of the consent.

The existence of the ecological community – the evidence of the experts

60 Evidence was given by consultant ecologists called by both the applicant and respondent. The applicant called Mr Steve Douglas. The respondent called Dr David Robertson.

Evidence of Dr Robertson

61 Dr Robertson has a Bachelor of Science with majors in Botany and Zoology and a PhD in Ecology. He has carried out many ecological assessments. He has lectured in Ecology and Aquatic Biology and has worked as a senior ecologist with the Australian Museum. He has carried out assessments in relation to threatened species on many occasions.

62 After problems had been identified with the development consent Robertson was engaged to carry out a vegetation analysis of the subject land. He was asked to carry out the analysis in order to:

“describe and name the vegetation community or communities that occur on the subject site and in particular to:

(a) determine whether all or part of the vegetation consists of Blue Gum High Forest, an endangered ecological community as listed by the NSW Threatened Species Conservation Act 1995 (TSC Act)

(b) determine whether a proposed subdivision development, that was granted development consent by Hornsby Shire Council is likely to have a significant effect on any endangered ecological community that occurs on the site.”

63 Having regard to the issues in these proceedings only the first matter is now of relevance. If the community exists the impact is plainly significant.

64 Robertson began his assessment by discussing the use of the land with Mr Ghisla. Robertson visited the site on a number of occasions and initiated a detailed vegetation analysis on 12 July 2003 during which six 20 x 20 metre quadrats were identified in representative areas of the site. The quadrats were pegged in a conventional manner and Robertson’s staff carried out a detailed survey. Robertson himself inspected the quadrats on 17 July 2003. He gave evidence that the quadrats were chosen in a manner which ensured that a quadrat was located in each of the discernible vegetation types on the land.

65 In his evidence, Robertson considered the difficulty in describing “an ecological community”. He identified the fact that the relevant Final Determination of the Scientific Committee does not relate to any one particular species. The determination requires consideration of whether or not a community comprised of multiple species exists. Robertson drew upon various published definitions of “community” and offered the opinion that “a community is a group or species occupying a given area that is characterised by various environmental parameters.” Applying this definition he says that “a Blue Gum High Forest consists of many native plant species that occur on shale derived soils, which interact with one another which are influenced by numerous other factors including fire history, rain fall and temperature.”

66 With this definition in mind Robertson examined the history of the site and the various disturbances including logging, clearing for agriculture, operation of orchards, grazing by live stock including cattle and horses, realignment of the creek, emplacement of top soil across much of the site, mowing, altered fire regimes, progressive weed invasion and altered hydrology. He understood that parts of the site had been extensively cleared and variously used for agriculture. He believed that the westernmost portion had been extensively cleared, having regard to the evidence of the aerial photographs. He formed the opinion that:

“Key ecological processes that influenced the vegetation of the site prior to European settlement have either been disrupted or terminated. For example, the site had not been burnt for many years and the drainage and soil had been substantially altered.”

67 He said:

“The impacts of past disturbances have been significant for vegetation on the subject site. The information available to me concerning past disturbances indicate that these disturbances have:
a. covered the original soil across most of the site with fill imported from other sites;
b. removed soil from along the creek line;
c. resulting in clearance of trees and alteration of the original forest structure;
d. removed a high proportion of the original plant species; and
e. significantly changed the structure of the understorey and ground strata.”

68 Robertson concluded that:

“Blue Gum High Forest, as defined by the final determination of the Scientific Committee does not occur on the subject land and, due to a protracted history of site disturbance, has not existed on the land for many years. Available evidence indicates that the site did not contain Blue Gum High Forest in 1998, as the site had undergone too much perturbation to support the community by the time.”

69 Robertson’s reasons for this conclusion included the following:

“According to the final determination of the Scientific Committee of NSW, Blue Gum High Forest is defined as an open forest to tall open forest that occurs on Wianamatta shale and which is generally comprised of a characteristic assemblage of plant species. Although the vegetation is a forest form, it no longer has the species composition to be considered Blue Gum High Forest.
The vegetation on the subject site is a mixture of cleared areas and open forest to tall open forest. Although the treed areas comprise trees that originally dominate Blue Gum High Forest and another forest type known as Sydney Turpentine-Ironbark Forest, the majority of plant species that make up the community have been lost.”

70 Robertson concluded that although investigation has shown that characteristic species of Blue Gum High Forest occur on the site they are “low in number and consist largely of plants that are relatively widespread and which occur in a number of endangered ecological communities, especially Sydney Turpentine-Ironbark Forest.” He further said:

“In all, the final determination lists 56 plant species as part of the characteristic assemblage for Blue Gum High Forest. The majority of these plants do not occur on the subject site, or are scattered as minor occurrences amongst introduced plants. …. Sixty-seven percent of species recorded on site are exotic species. The cover and abundance of these species was also found to be much greater than that for native species, indicating dominance by these species.”

71 He further indicated:

“The vegetation data available for the subject site clearly indicates that the vegetation of the subject site lacks characteristic species. Very few of the diagnostic species that are listed by NPWS (2002) for Blue Gum High Forest were found within any of the areas assessed … The vegetation on the subject site has been mown and variously disturbed so the understorey is largely either missing or confined to grasses and low growing herbaceous plants, of which weeds predominate.”

72 In his second affidavit Robertson develops his thesis that the large proportion of this site when covered by a forest community would have been covered by Sydney Turpentine Ironbark Forest and not Blue Gum High Forest. He accepts that there may have been Blue Gum High Forest adjacent to the watercourse but not otherwise.

73 He says in his second affidavit:

“I say that Mr Douglas was clearly in error in concluding that the site vegetation was almost entirely Blue Gum High Forest when he prepared his two short reports in January 2000 (without any detailed field work and without inspecting the entire site). At the time that he wrote, final determinations were available for both Blue Gum High Forest and Sydney Turpentine Ironbark Forest and so was additional literature outlining the differences between the two communities.
More recently, the much more detailed mapping and analysis of endangered vegetation of the Sydney Bioregion by NPWS has provided excellent, thorough analysis and descriptions of the two plant communities in question. Mapping clearly showed that Blue Gum High Forest does not occur across the majority of the subject land and that scattered trees found in both Blue Gum High Forest and Sydney Turpentine Ironbark Forest occur.
My research, including mapping, literature review and ground proofing has confirmed to me that the original vegetation of the subject site was predominantly Sydney Turpentine Ironbark Forest, possibly with a strip of Blue Gum High Forest along the creek. I do not consider that either community is now present on the site, or was likely to have been present in 1998.
My work has also clearly indicated that a very high proportion of the subject site has been highly altered since European settlement with exotic plant species predominating in the understorey across the site.
Blue Gum High Forest of the type described by the Scientific Committee Final Determination, and by the National Parks and Wildlife Service Map Interpretation Guidelines no longer occurs. Excavation for the diversion of the creek, the laying of the sewer line, clearing for the orchards, hydromulching and dressing with imported soil, the clearing and mowing of the site, and its use as the yard area for Mr and Mrs Ghisla’s home, have altered the original vegetation to the extent that the current vegetation is predominantly exotic, and, in my opinion, not representative of the original.”

The evidence of Mr Douglas

74 Mr Douglas is an ecologist. He holds a Master of Environmental Planning and a Bachelor of Science degree from Macquarie University. He has considerable experience in the assessment of the flora and fauna on land. He was responsible for nominating the Blue Gum High Forest and Sydney Turpentine Ironbark Forest communities for inclusion on the Schedule of Endangered Ecological Communities, and has also been responsible for nominating other ecological communities.

75 I have already related the evidence of Douglas’ initial inspections and determinations regarding this site. He indicated that he had been to the site for a total period of between two and three hours. During that time he surveyed the site by carrying out a number of meandering transects. This involved him walking across the site and identifying individual species. In this process he was able to identify several of the fifty-six species listed in the Final Determination, ranging across categories including trees, shrubs/small trees, ferns, climbers, aquatics, groundcovers, herbs/forbs, and grasses/graminoids. Douglas prepared a composite list of the species found on the site in the course of four different inspections; two by himself in 2000 and 2003, one by Gunninah in 2001 and one by Robertson in 2003. During these four inspections a total of twenty-eight of the fifty-six species mentioned in the Final Determination were found. Douglas concluded that the site currently supports species listed as characteristic of Blue Gum High Forest, pointing out that the Final Determination does not specify a threshold for the number of characteristic species that must be present for the subject vegetation to be considered Blue Gum High Forest. He said:

“A significant portion of the site exhibited canopy typical of Blue Gum High Forest, native understorey species that even after the considerable impact of the site’s long term disturbance history and no opportunity to recover from it, a still sufficiently diverse, abundant and characteristic to indicate that the subject vegetation is representative of Blue Gum High Forest”

76 In reaching this conclusion Douglas had regard to the prospect of “assisted natural regeneration” citing two studies of similar areas where regeneration of various species occurred after the cessation of mowing. He concluded that:

“It is far more likely than not that a considerable increase in native plant species numbers, diversity and cover would occur were this permitted through the process of assisted natural regeneration.”

77 Douglas disputed Robertson’s claim that the site had low resilience, claiming that Robertson had failed to take into account established natural regeneration trends and established knowledge of how Blue Gum High Forest has been shown to recover from a detrimental disturbance history. He said that the fact that approximately 74 native species had been recorded on the site, despite its disturbance history, was a testament to the relatively high resilience of this vegetation. He also said that even without an opportunity to recover, the site retains significant areas that are currently identifiable as Blue Gum High Forest.

78 Douglas was critical of Robertson’s reliance on National Parks & Wildlife Service mapping. He said that the mapping was never intended to be definitive and pointed out that the interpretation guidelines for the National Parks & Wildlife Service mapping state that the mapping is at a regional scale and needs to be ground-truthed for individual sites. Robertson accepted these limitations.

Quadrats v meandering transects – the appropriate methodology

79 Douglas gave evidence that in his opinion, Robertson’s use of quadrats was inappropriate on the subject site. In this respect he cited National Parks & Wildlife Service guidelines, which recommend that quadrats not be placed within 50 metres of a disturbed area, and a study by Lembit (2003) which apparently describes why quadrat sampling methods are not appropriate on a site such as the present. Douglas also pointed out that Robertson’s quadrat surveys had failed to detect certain species that were discovered on the site during other inspections.

80 Robertson did not accept that the suggested caveats on the use of quadrats were appropriate. He said he chose to conduct his analysis using 20 x 20 metre quadrats because this method has been extensively used by National Parks and Wildlife Service for NSW during surveys of the Cumberland Plain and other parts of the State. His evidence was that, when examining a site which had been subject to disturbance in its entirety, there was no option but to sample within disturbed areas and accepted that when placing quadrats in a disturbed site, it is necessary to be aware of the effect that disturbance may have on data. He indicated that in his opinion, only by application of that process could any reliable information be obtained as to the distribution and frequency of particular species, such information being necessary in order to determine whether a community exists on a site as opposed to whether individual species occur.

81 Douglas was particularly critical of Robertson’s comparison of data from quadrats on the subject site with data from National Parks & Wildlife Service studies of accepted Blue Gum High Forest sites. His view was that a disturbed site may not produce evidence of a community when the results of the survey are compared with data from samples taken from sites with different histories.

82 Although Douglas described his chosen method as a “meandering transect”, it was referred to by Robertson as a “random meander.” This approach involves walking across the site several times, allowing identification of individual species, following which a judgment is formed as to whether or not, given the presence of individual species and the potential for restoration of a greater number and a more complex composition of species, the community exists on the site. Robertson was critical of Douglas’ methodology due to its failure to provide information as to the relative abundance of species and the location of species on the site.

83 In my opinion Robertson’s approach in relation to methodology is to be preferred. The reality is that the whole of this site is in various ways disturbed and it is not possible to avoid disturbed areas and survey only undisturbed areas. Accordingly the usual reservation on the appropriateness of the quadrat method suggested by the National Parks & Wildlife Service are not relevant. The quadrat method enables some objective assessments to be undertaken from which it can be ascertained whether the individual species are reflected in sufficient numbers in identified areas of the site to enable an informed judgment to be made as to whether the community exists.

84 I accept Robertson’s evidence that the meandering transect method does not provide information as to species abundance or distribution and that this information is important when seeking to identify the existence of a community. In order to determine whether there is an “assemblage” of species, it seems to me necessary to have some understanding of the manner in which species are assembled, their location on the site and their abundance. The determination of the existence of a community will be better informed by Robertson’s method, provided the areas intensively examined are appropriately chosen. I am satisfied that Robertson’s quadrats were appropriate.

Use of NPWS Diagnostic species list

85 Douglas criticised Robertson for his reliance on the NPWS diagnostic species lists, and was of the opinion that the list of species in the Final Determination was the correct test for the existence of the community. The “diagnostic species” are statistically derived plant species that are said by the NPWS to be representative/diagnostic of the presence of endangered ecological communities. They are to be contrasted to the “characteristic species” listed in the Final Determination as species listed as characteristic of the assemblages of plants that grow in particular endangered communities.

86 Douglas gave evidence that the use of NPWS diagnostic species lists must take into account their statistical and related ecological limitations, arguing that such statistical approaches are of limited value when dealing with “critically endangered, modified, small, often isolated and frequently disturbed vegetation types that are often in a condition unsuitable for comparison with constructed models of what is supposed to constitute a representative example.” He said further that the diagnostic species lists were unreliable due to the small number and representative locations of samples used in constructing them.

87 However, Robertson said, and I accept, that he used the characteristic species list from the Final Determination as the legal definition of the community in question and only used the diagnostic species lists as an additional aid. I find no relevant flaw in Robertson’s approach.

The species composition on the land

88 Robertson and Douglas agreed that the site currently has no small tree layer. Robertson said that “the understorey is largely missing.” They also agree that exotic species are widely present across the site. Douglas’ evidence was that:

“… the mown condition of the site and the absence of weed control make it hardly surprising that Dr Robertson’s statistical analysis of the vegetation in this condition shows it to be degraded, relatively low in native species diversity and cover compared to typical examples (which would not have been mown when sampled) and having a significant week species diversity and cover.”

89 Douglas said that, on Robertson’s approach it would be possible to take a site unanimously agreed to be Blue Gum High Forest, remove the understorey (by human intervention or naturally occurring bushfire) and then argue that it is no longer Blue Gum High Forest because it lacks a representative structure. He gave evidence that, while in its ideal state a forest community would contain a total representation of trees at various stages of their maturity, this was not necessary for a forest community to exist. He said the site as it currently exists fits the ecological definition of a forest but that it was not in an ideally representative state due to its disturbed condition.

90 In contrast, Robertson said that for a community to exist, in applying the Final Determination he would break the characteristic list of species into “life form categories” which include trees, shrubs, ferns, creepers, and that he would expect each category to be represented before it could be said that the community exists.

Conclusion

91 The Final Determination of the Scientific Committee as expressed gives rise to difficulties. The determination does not make plain whether it is intended to apply only to communities which presently exist as identifiable communities, the elements of which can be observed, or whether it applies to areas of land where the potential for a community exists if either passive or active restoration is undertaken.

92 Some indication of the intention of the Committee is available from para 4 of the Determination. From that paragraph it is clear that the Committee had in mind that a relevant community might exist although not all of the characteristic species were found on the site. The Committee contemplated that a species may become established at a later time, the necessary seed being present in the soil. The Committee also recognised that disturbance, possibly by fire or perhaps by mowing or other transitory impact may have the consequence that at the time of any particular survey it may not be possible to identify sufficient individual specimens to ordinarily form the conclusion that a community existed. Having identified the impacts which have caused the disturbance it may be possible to conclude that the relevant community exists although its presence may be masked by the disturbance which has occurred.

93 I do not think that the determination should be applied so that a community can be identified irrespective of the extent of active regeneration which may be necessary to bring it to life. For a community to exist, enough species must be present on site to allow them to function as an interdependent group. However, the extent to which active regeneration could be accommodated will have to be considered in the circumstances of each individual case.

94 In the present case Douglas and Robertson have come to different conclusions in relation to the status of this site. Although they approached the physical examination of the site using different methodologies they have, of course, had access to each others’ data. Notwithstanding, they maintain their individual opinions as to the appropriate conclusion.

95 The question which must be determined is whether the proposed subdivision with its associated road and drainage works is likely to significantly affect the threatened ecological community Blue Gum High Forest. No other community is said by the council to require consideration.

96 The relevant community must exist before it could be said that it would be significantly affected by the proposed work. In this respect the parties agree that if it exists today it would have existed in 1998. However, the obligation to obtain a species impact statement does not exist in relation to a community which is merely prospective.

97 In this case only about half of the number of individual species from the characteristic assemblage of species comprising the community have been identified on the site. The site is also known to have been used for many years in a manner hostile to the maintenance of the community. I accept the evidence of Robertson that the site lacks the necessary representative structure, with the understorey largely missing, which would be required before it could be concluded that an ecological community exists.

98 With respect to the impact of mowing and the consequences for this site if mowing was to cease, Robertson’s opinion, which I accept, was that if mowing did cease regrowth would occur. However, that regrowth would be dominated by exotic species including various vines, creepers and other weeds. This would follow from the fact that the site has been disturbed and foreign soils introduced. In his opinion the resilience of the site was very low because of the absence of understorey, the fact that the understorey structure had been significantly altered (ie the shrub layer is largely missing), the soils have been highly modified and exotic plant species were dominant across the site.

99 I have no doubt that a community of Blue Gum High Forest was once on the site, although Robertson suggests that it was likely to have been in a confined area and not over the whole site. However, the evidence of disturbance, introduction of fill, lack of many typical species and presence of exotic species on the site in my opinion precludes the conclusion that a Blue Gum High Forest ecological community presently exists on the site so that the approved subdivision could significantly affect it.

Discretion

100 If I had concluded that a Blue Gum High Forest community existed on the land at the relevant time and that a species impact statement was required it would have been necessary to consider matters of discretion. In Timbarra Spigelman CJ said:

“The inconvenience arises when a consent authority decides that an SIS is not required and this decision is subsequently found to be wrong. In principle, the balance of the decision making process, and any decision to grant consent, is thereafter susceptible to being set aside.

However, remedies on judicial review are discretionary and may be refused, depending on the circumstances, including delay. The further a decision making process has gone, in reliance on the validity of a decision not to require an SIS, the more difficult it will be for an applicant to obtain relief.” (p 72)

101 In the present case there are significant reasons why relief might be refused if I had found that Blue Gum High Forest existed.

102 The respondent submitted that the council delayed the instigation of these proceedings unconscionably. The council first became aware of the apparent presence of Blue Gum High Forest after Douglas’ site inspection in January 2000. However, proceedings were not commenced until May 2003.

103 It was further submitted that the council, when considering the development application, gave close consideration to and raised concerns in respect of the loss of vegetation. It is said that the council cannot now rely on its own error made in considering the application.

104 It was further submitted that the grant of relief to the council would cause significant prejudice to both the respondent and to third parties, including the proprietor of Lot 101, which has already been subdivided and developed with a residence (see Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2002) 55 NSWLR 446).

105 Finally, the respondent submitted that the conduct of the respondent has been exemplary and has in no way contributed to the present situation.

106 Against these matters there is a need to balance the community interest in ensuring that threatened flora and fauna are not unnecessarily damaged or eliminated. The role, if any, of the precautionary principles, would also need to be considered. See Leatch v National Parks & Wildlife Service & Anor (1993) 81 LGERA 270; Greenpeace Australia v Redbank Power Co (1994) 86 LGERA 143 and Nicholls v Director-General of National Parks and Wildlife (1994) 84 LGERA 397.

107 Although these matters were raised, they were not adequately explored in argument. As it is unnecessary to determine the issue of discretion it is preferable that I do not express any conclusion with respect to these issues.

Some further matters

108 It is plain that there will be difficulties in the administration of the Threatened Species Conservation Act unless the descriptions in the Final Determinations of the Scientific Committee are clear and unambiguous. This is especially the case in relation to ecological communities. Because the Committee may be assumed, rightly, to be concerned with an effective description of an ecological community which has scientific integrity, it may not always express itself in language which enables all who must obey the law to recognise whether the community exists in a particular location.

109 The problem was considered by the Court of Appeal in VAW (Kurri Kurri) Pty Ltd v Scientific Committee (Established under s 127 of the Threatened Species Conservation Act 1995) [2003] NSWCA 297. In that case a challenge was brought to the validity of a determination by the Scientific Committee which listed the Kurri Sand Swamp Woodland as an endangered ecological community. Amongst other matters it was submitted that the description of the community was uncertain and accordingly the determination was bad in law.

110 The form of the Committee’s Final Determination in VAW generally follows the same form as the Final Determination for Blue Gum High Forest. Some of the theoretical difficulties in the application of the Final Determination identified by the appellant in VAW have arisen in fact in the present case.

111 The Court of Appeal did not detail the entire argument and response on the uncertainty issues which it considered. Apparently much of the argument was found in the written submissions of the Committee. However Beazley JA recognised that the process of identifying an ecological community “is a complex, detailed scientific process and goes beyond a mere listing of species in an area.”

112 The challenge to the validity of the determination in VAW failed. However, the Chief Justice acknowledged that “to satisfy the requirement of certainty to an appropriate standard, the terms of the Scientific Committee’s final determination must enable a citizen to decide whether a specific location falls within it.” His Honour found that the determination in VAW satisfied this test. The Chief Justice said:

“In my opinion, the Kurri Sand Swamp Woodland (‘KSSW’) final determination satisfies the requirement of reasonable certainty of expression. As to the ‘particular area’ to which it applies, the community must be found on certain specified soils in the Sydney Basin Bioregion. It was noted that the community had been known to occur in the Kurri-Kurri-Cessnock area in the Cessnock local government area, but may occur elsewhere in that general area, but not in the specific local government area. The restriction to the Kurri-Kurri-Cessnock area is, in my opinion, sufficient. The assemblage of species listed must be found within this area and on the type of soils identified, in order to constitute the KSSW. As to the specificity of the assemblage, I would adopt the reasons of Beazley JA and add the following. Two rare and defining canopy species were described as ‘generally’ present in the KSSW, and typical species were listed for all strata below the canopy – the shrubby, the lower and the ground. This is reasonably capable of ascertainment in a particular case.”

113 Hodgson JA also considered “the “uncertainty” issue and the “definition” issue”. His Honour said:

“Next, I turn to what have been called the ‘uncertainty’ issue and the ‘definition’ issue. There is, as submitted for the appellant, a measure of uncertainty and lack of definition in the ecological community determined to be an endangered ecological community in this case.
However, this question must be addressed having regard to the approach taken by the legislature in the Act, and in particular to the definition of "ecological community" as "an assemblage of species occupying a particular area". Although this definition refers to a particular area, plainly the terms of the definition are such that the area in question will generally be impossible of definition by precise boundaries: the very nature of "occupation" of an area by an "assemblage" of species (of plants and/or animals) in the wild is such that such an area cannot possibly be given precise boundaries.
Furthermore, what is contemplated is plainly a number of species, and specification of the species will not in most cases identify with precision either the extent of the assemblage or the area occupied. When one looks at any particular location, plainly one will not find all species at that particular location. It will often be the case that the species in question include many species which are commonplace. Thus there are questions inevitably raised as to whether a group of species at or near a particular location, some or all of which may be commonplace, do or do not form part of the assemblage of species, which assemblage of species includes but is not exhausted by the species at or near this particular area. There will often be cases where there are areas of transition between one ecological community, broadly considered, and another ecological community, where species which are part of each ecological community occur. Precise determination of whether those species in the transitional area are to be regarded as part of one ecological community or of the other, or of neither, will be incapable of precise and definite determination.
It is plain therefore that a certain amount of vagueness and uncertainty in the determination of boundaries of ecological communities is an inevitable result of the formulations chosen by the legislature. It must follow, in my opinion, that a certain amount of vagueness and imprecision will not necessarily cause a determination that a named ecological community is an endangered ecological community to be regarded as void or invalid because of uncertainty or lack of definition.
When one has regard to these considerations, and to the further discussion by Beazley JA, it is clear to my mind that this particular attack made by the appellant must fail.
I appreciate that there is force in the appellant's submission, based on s.118A of the National Parks & Wildlife Act 1974, that this raises difficulties for people having to decide whether to remove or otherwise damage a plant of a particular species in an area which may or may not be occupied by an endangered ecological community. Section 118A of that Act is in the following terms:
[Section 118A was then set out]
Regard should also be had to s 181(2A) of the same Act, which is in the following terms:
181. Evidentiary provision etc.
…
(2A) An allegation, in an information in respect of an offence against this Act or the regulations, that an animal or plant is a member of a species, population or ecological community specified in that information is sufficient proof of the matter so alleged unless the defendant proves to the contrary.
I accept that these provisions raise difficulties for people considering what to do about plants or animals of particular species in areas that may or may not be occupied by an endangered ecological community. However, these difficulties are necessarily involved in the way the legislation has been framed. It may be possible that hardship will be avoided by consideration of the element of mens rea involved in s.118A offences: there may for example be recognised a defence to the effect that the person in question reasonably believed that the species being dealt with was not part of an endangered ecological community.”

114 Apart from difficulties which may arise for individuals who may face prosecution for an unwitting breach of the law, which Hodgson JA recognised, if significant uncertainties remain, the integrity of the legislative scheme may be threatened. The inclusion in the Schedule of an ecological community which was once commonly found in areas which have now been extensively developed, without clearly defining the extent to which its degradation will preclude a finding that that relevant community exists, has the potential to create considerable problems. Any large undeveloped curtilage of an existing dwelling in many parts of the northern areas of Sydney may contain a relevant community. However, few ordinary homeowners would be able to identify for themselves whether a relevant community exists. A law which requires homeowners to retain an ecological consultant before mowing the lawn or carrying out other domestic activities, which may be necessary even to sustain a defence of honest and reasonable mistake (see Proudman v Dayman (1941) 67 CLR 536, and the discussion in Gillies, Criminal Law (4th ed) p 99) may have been an appropriate temporary solution to a problem when the legislation was enacted. I doubt whether it will prove effective in the longer term. The solution to the problem may be to create a catalogue containing the parcels of land where the relevant communities have been identified, so that landowners may properly understand their obligations. This is, of course, the fundamental mechanism of the planning process utilised extensively to protect heritage items, and there is no reason why it could not be utilised for endangered ecological communities. Another possibility may be to consider whether, rather than providing an offence of absolute liability, criminal sanctions should be imposed only when someone knowingly damages a community.

115 As the evidence in the present case makes plain, experts with very considerable experience can have fundamentally different opinions about the existence of an ecological community on a site. Even if there was a common understanding of the effect of the Scientific Committee’s determination, experienced scientists may have different views as to how to go about verifying whether or not the relevant community is present. Given the difficulties which arise when the problem is addressed by experts, it is not readily apparent how lay people are to order their affairs.

116 This is not an ephemeral problem. Many listed communities will have existed in many parts of the state including in the developed areas of Sydney. In those places remnant vegetation may exist, often on private property.

117 The problem is equally significant with respect to the development process. The decision in Timbarra requires the court to decide whether a relevant community exists if a development consent is challenged. Where, as in this case, experts may legitimately disagree about the existence of the community, because its existence will inform a jurisdictional fact, the result may be that a consent which is granted without a species impact statement may not be immune from challenge, even if notified pursuant to s 101 of the Act.

Orders

118 For these reasons I make the following orders:

1. Application dismissed.
2. The applicant is to pay the respondent’s costs.

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