Motorplex (Australia) Pty Limited v Port Stephens Council
[2007] NSWLEC 74
•16 February 2007
Land and Environment Court
of New South Wales
CITATION: Motorplex (Australia) Pty Limited v Port Stephens Council [2007] NSWLEC 74
This decision has been amended. Please see the end of the judgment for a list of the amendments.PARTIES: APPLICANT
RESPONDENT
Motorplex (Australia) Pty Limited
Port Stephens CouncilFILE NUMBER(S): 11328 of 2004 CORAM: Preston CJ KEY ISSUES: Development Application :- Species Impact Statement - whether required - whether endangered ecological communitites on development site - preliminary question LEGISLATION CITED: Threatened Species Conservation Act 1995 (NSW) s 4 CASES CITED: CBD Prestige Holdings Pty Ltd v Lake Macquarie City Council [2005] NSWLEC 367;
VAW (Kurri Kurri) Pty Ltd v Scientific Committee (2003) 58 NSWLR 631DATES OF HEARING: 08/11/2006, 09/11/2006, 21/11/2006, 01/12/2006
DATE OF JUDGMENT:
16 February 2007LEGAL REPRESENTATIVES: APPLICANT
Mr J Robson SC with Ms A Pearman
SOLICITORS
Norman WaterhouseRESPONDENT
Mr P Larkin (barrister)
SOLICITORS
Sparke Helmore
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
PRESTON CJ
16 FEBRUARY 2007
11328 OF 2004
MOTORPLEX (AUSTRALIA) PTY LIMITED V PORT STEPHENS COUNCIL
JUDGMENT
1 HIS HONOUR : Motorplex (Australia) Pty Limited operates car racing activities on land at Balickera, 14 kilometres north of Raymond Terrace. The land is described as Lots 1 and 2 in DP 245116 and Lot 3 in DP 787250 and is known as 42-53 Pacific Highway and 105 Italia Road, Balickera.
2 Motorplex wishes to expand its operations to construct a motorsport drag strip, racecourse and spectator facilities. Motorplex lodged a development application with Port Stephens Council. The Council refused the development application. Motorplex appealed to this Court.
4 Accordingly, the parties sought, and the Court directed, that preliminary questions in relation to this issue be heard and determined before the balance of the appeal. The preliminary questions are:3 The Council filed a statement of issues. One of the issues is whether any endangered ecological community listed under the Threatened Species Conservation Act 1995 (NSW) (“the Act”) occurs on the land. If one or more endangered ecological communities occur on the land, a species impact statement in relation to such communities needs to be prepared and to accompany the development application. Development consent cannot be granted if a species impact statement is required but has not accompanied the development application.
(a) Do any endangered ecological communities occur on the site?
(b) If the answer to (a) is “yes”:
(2) what is the extent of the community of the site?(1) which communities exist?
5 In hearing these preliminary questions I have been assisted by Commissioner Brown.
The endangered ecological communities
6 The candidate endangered ecological communities are threefold:Cognate Final Determinations
1. Swamp Sclerophyll Forest on coastal floodplains on the NSW North Coast, Sydney Basin and South East Corner bioregions;
3. Subtropical Coastal Floodplain Forest of the NSW North Coast bioregion.2. River-Flat Eucalypt Forest on coastal floodplains on the NSW North Coast, Sydney Basin and South East Corner bioregions;
7 The Scientific Committee established under the Threatened Species Conservation Act 1995 made Final Determinations to list each of the ecological communities as endangered ecological communities in Part 3 of Schedule 1 of the Act.
8 The Final Determinations are cognate, not only in terms of their temporal making but also in terms of the location of the endangered ecological communities to which they refer and their subject matter.
9 In temporal terms, the Final Determinations were made simultaneously and were also gazetted simultaneously on 17 December 2004.
10 In spatial terms, the endangered ecological communities are all located on or associated with the coastal floodplains of NSW.
11 In terms of subject matter, each of the Final Determinations expressly states that the endangered ecological community described “may adjoin or intergrade with several other endangered ecological communities”, these endangered ecological communities “collectively cover all remaining native vegetation on the coastal floodplains of NSW” and the Final Determinations for these endangered ecological communities “collectively encompass the full range of intermediate assemblages in transitional habitats”: see para 7 of the Scientific Committee’s descriptions of the Swamp Sclerophyll Forest, River-Flat Eucalypt Forest and Subtropical Coastal Floodplain Forest communities.
12 Each of the Final Determinations describe the endangered ecological communities using a variety of descriptors but of particular relevance are the floristic descriptors of the assemblage of species constituting the ecological communities and the locational descriptors of each ecological community. This accords with the definition of an “ecological community” as “an assemblage of species occupying a particular area” (s 4(1) of the Act).
Floristic descriptors of the communities
13 The floristic description for each endangered ecological community is necessarily generalised. I say necessarily for a number of reasons.
14 First, the location of occurrence of each community has a wide geographical and climatic distribution.
15 The location of each community is described in terms of bioregions. A bioregion is a relatively large land area characterised by broad, landscape-scale, natural features and environmental processes that influence the functions of entire ecosystems. They capture the large-scale geophysical patterns across Australia. These patterns in the landscape are linked to flora and fauna assemblages and processes at the ecosystem scale.
16 In New South Wales, the bioregions are described in accordance with the Australia-wide mapping exercise of the Interim Biogeographic Regionalisation for Australia (“IBRA”). Eighty five bioregions are recognised in Australia, of which 17 are found in New South Wales.
17 The Swamp Sclerophyll Forest and the River-Flat Eucalypt Forest communities are both recorded to occur in three contiguous bioregions along the entire length of the New South Wales coast: the NSW North Coast bioregion (starting just north of the Queensland-New South Wales border and extending to Nelsons Bay, just north of Newcastle), the Sydney Basin bioregion (starting from Nelsons Bay and extending to just north of Batemans Bay on the south coast of New South Wales) and the South East Corner bioregion (starting from just north of Batemans Bay and extending to beyond the Victorian border).
18 The Subtropical Coastal Floodplain Forest community is stated to occur only in the NSW North Coast bioregion.
19 The identified bioregions are very large areas. The North Coast bioregion in New South Wales is 5,692,351.6 ha, the Sydney Basin bioregion is 3,624,008 ha and the South East Corner bioregion in New South Wales is 1,302,141 ha.
20 The bioregions extend from sea level on the coast inland up into the Great Escarpment. They cover a variety of landforms.
21 The communities are each stated by the Scientific Committee in the descriptions in the Final Determinations to occur on or be associated with coastal floodplains within these bioregions. The language used to describe the locational relationship of the communities with the coastal floodplains is general. The precise ambit of the locational descriptors are a matter for debate between the parties and I will deal with this debate below. For now it is sufficient to note that each community is said to occur on a variety of landforms including “periodically inundated alluvial flats, drainage lines and river terraces associated with coastal floodplains” (para 1 of the descriptions of the Subtropical Coastal Floodplain Forest and River-Flat Eucalypt Forest communities) and “waterlogged or periodically inundated alluvial flats and drainage lines associated with costal floodplains” (para 1 of the description of the Swamp Sclerophyll Forest community).
22 These landforms are not stated to occur only on lower elevations near the coast, but also at high elevations inland from the coast. Thus, the Subtropical Coastal Floodplain Forest and River-Flat Eucalypt Forest communities are stated to generally occur below 50m elevation but may occur on localised riverflats up to 250m above sea level. The Swamp Sclerophyll Forest community is stated to generally occur below 20m although is sometimes found up to 50m elevation: see para 1 of the descriptions of each of these communities.
23 There are, therefore, large latitudinal, altitudinal and physiographical variations in the locations of each of the communities. These variations have climatic consequences.
24 In turn, these significant differences in the geographical and climatic distribution of the communities have consequences for the floristic composition and distribution of the communities. Self evidently, the floristic composition of the communities at their northern extent of their range will differ from that in the southern extent of their range and their floristic composition on the coast at sea level will differ from that inland from the coast at elevation in the escarpment. Any floristic description of a community with such a large geographical and climatic distribution needs to be generalised to incorporate these differences in floristic composition and distribution.
25 Secondly, there are localised physiographic and edaphic variations in the locations in which the communities occur. The Scientific Committee’s descriptions in the Final Determinations note that floristic composition of the communities varies according to such factors as “the frequency and duration of waterlogging and the texture, nutrient and moisture content of the soil” (para 1 of the descriptions of the Subtropical Floodplain and River-Flat Eucalypt Forest communities) and the “salinity nutrient…content of the soil” (para 1 of the description of Swamp Sclerophyll Forest community). Again, any floristic description of the communities has to be general enough to incorporate these localised differences.
27 Fourthly, any floristic description of an ecological community has to be broad enough to deal with the dynamism of an ecological community. As I have said elsewhere:26 Thirdly, the Scientific Committee’s descriptions in the Final Determinations of the structure and physiognomy of the communities reveals that there is significant variation. The Swamp Sclerophyll Forest community is stated to have a structure that is “typically open forest, although partial clearing may have reduced the canopy to scattered trees. In some areas the tree stratum is low and dense, so that the community takes on the structure of scrub. The community also includes some areas of fernland and tall reedland or sedgeland, where trees are very sparse or absent” (para 1 of the description of the Swamp Sclerophyll Forest community). The Scientific Community’s description of the Subtropical Coastal Floodplain and River-Flat Eucalypt Forest communities identifies the structure of the community to “vary from tall open forests to woodlands, although partial clearing may have reduced the canopy to scattered trees” (para 1 of the descriptions of Sub-tropical Coastal Floodplain Forest and River-Flat Eucalypt Forest communities). The variation in the structure and physiognomy of the communities reflects changes in floristic composition. Obviously, the floristic species found in fernlands, reedlands and sedgelands will differ from those found in forests. Any floristic description of the communities as a whole, must take into account these differences in floristic composition for components of the communities.
- “An ecological community is a dynamic, and not a static entity. It is a living entity, capable of growth, maturation, senescence and regeneration. The processes of succession mean that a community will alter over time in response to external and internal forces. External forces can be acute or chronic. Acute disturbances are events such as bushfire, storms or floods. Chronic disturbance can occur by reason of factors such as anthropogenic climate change. Either way, external forces cause disturbance to the flora and fauna that constitute the community at any point in time and any particular location. The dynamic nature of communities and their constituent species makes it impossible to define exhaustively all species that comprise the community at any instant in time and in any place”: B J Preston and P Adam, “Describing and listing threatened ecological communities under the Threatened Species Conservation Act 1995 (NSW): Part 1 – the assemblage of species in a particular area” (2004) 21 EPLJ 250 at 257.
28 The Scientific Committee’s descriptions of the communities in the Final Determinations note that each community, in common with probably all communities in New South Wales now, have been disturbed to some extent by humans. The anthropogenic disturbances include fire, grazing, flooding and land clearing. The species composition of a site is influenced by its disturbance history (para 2 of the descriptions of Swamp Sclerophyll Forest, Subtropical Coastal Floodplain Forest and River-Flat Eucalypt Forest communities). Any floristic description of the communities must take into account these effects.
29 The Scientific Committee’s descriptions also note that the species composition of the communities will change over time in response to natural events such as flooding or significant rainfall (para 2 of the Swamp Sclerophyll Forest, Subtropical Coastal Floodplain Forest and River-Flat Eucalypt Forest communities).
30 Fifthly, the Scientific Committee states in the Final Determinations that a floristic description of the community must take into account the differing sizes of the sites on which the community occurs. Species composition is influenced by the size of the site. A floristic description of the community necessarily must aggregate species found across all sites, even though the full suite of species so described will not occur on each and every site (para 2 of the descriptions of Swamp Sclerophyll Forest, Subtropical Coastal Floodplain Forest and River-Flat Eucalypt Forest communities).
31 Sixthly, ecological communities will often intergrade with other ecological communities. In areas of transition between one community and another species which are part of each community may occur: VAW (Kurri Kurri) Pty Ltd v Scientific Committee (2003) 58 NSWLR 631 at 672 [233]. These three communities are a case in point. The Scientific Committee’s descriptions in the Final Determinations note that the communities adjoin and intergrade with other communities, including the three endangered ecological communities in this case. The descriptions of the Swamp Sclerophyll Forest, Subtropical Coastal Floodplain Forest and River-Flat Eucalypt Forest communities note that these communities “form mosaics with other floodplain communities and treeless wetlands” (para 1 of each of the descriptions). The descriptions of each of the communities also note that each community “may adjoin or intergrade with several other endangered ecological communities, which collectively cover all remaining vegetation on the coastal floodplains of New South Wales” (para 7). The descriptions note that as physiographic and edaphic factors change, one community may intergrade with and be replaced by another community. The boundaries between the communities are dynamic and shift in response to changes in abiotic factors. The consequence is that there will be “intermediate assemblages in transitional habitats” (para 7 of each of the descriptions).
32 The floristic descriptions of each of these communities must account for this intergrading between communities. The result is, of course, a sharing of species in transitional habitats.
33 The Scientific Committee’s approach has been to describe the communities, firstly, by reference to characteristic species or species of high fidelity to the community. These characteristic species are found in para 1 of each of the descriptions in the Final Determinations. The Scientific Committee notes, for each community, that the total species list of the community is considerably larger than the list of characteristic species, that many species on the list of characteristic species may be present at one or two sites or in low abundance, that species composition of sites will vary according to various physiographic, edaphic and anthropogenic influences, and that at any one time above ground individuals of some species may be absent but may be represented below ground in the soil seedbanks or as dormant structures. As a consequence, care must be taken in requiring too great a percentage presence of the species listed as characteristic species on any one site.
34 Next, the Scientific Committee has provided guidance in the descriptions by referring to dominant life forms of the community. Paragraph 4 of each of the Scientific Committee’s descriptions of the communities identify the most widespread and abundant dominant trees as well as less abundant or dominant trees at some sites, small trees and shrubs that may be present in the understorey and groundcover species (see para 4 of each of the descriptions).
35 As with the list of characteristic species the Scientific Committee has been careful to qualify its description of the species present in the canopy, understorey and groundcover. The descriptions note that certain trees can be at low abundance or may be locally dominant at few sites. The understorey composition of the structure may be influenced by grazing and fire history, changes to hydrology and soil salinity disturbances (see para 4 of each of the descriptions). The number and relative abundance of species will change with time since fire, flooding or significant rainfall (para 2 of each of the descriptions).
36 Another means of floristic description by which the Scientific Committee has identified each of the communities is by reference to vegetation communities identified in various vegetation surveys and mapping studies. One of these vegetation survey and mapping studies was the Vegetation Survey, Classification and Mapping for the Lower Hunter and Central Coast Region, conducted by the NSW National Parks and Wildlife Service in 2000 as part of the Lower Hunter and Central Coast Regional Environment Management Strategy (“LHCCREMS”). Thus, for example, the Swamp Sclerophyll Forest community is identified by the Scientific Committee in the description in the Final Determination as including, in the lower Hunter district, “Swamp Mahogany-Paperbark Swamp Forest (Map Unit 37), Riparian Melaleuca Swamp Woodland (Map Unit 42) and Melaleuca Scrub (Map Unit 42a)” in LHCCREMS (para 8 of the description of the Swamp Sclerophyll Forest community).
37 The River-Flat Eucalypt Forest community is identified by the Scientific Committee in the description in the Final Determination to include, in the lower Hunter Valley, the “Redgum Roughbarked Apple Swamp Forest” (Map Unit 38) in LHCCREMS (para 8 of the description of the River-Flat Eucalypt Forest community).
Locational descriptors of the communities
38 The other key means of describing the communities is by locational descriptors. As I have noted, the Scientific Committee in the Final Determinations describes the location of each community by reference to the bioregions in which they occur. Within each bioregion, the Scientific Committee identifies the local government areas in which the communities are known to occur (para 3 of each description). Of relevance in this case is the local government area of Port Stephens. Each of the Swamp Sclerophyll Forest, Subtropical Coastal Floodplain Forest and River-Flat Eucalypt Forest communities is known to occur in the local government area of Port Stephens (para 3 of each of the descriptions).
39 More specifically, the Scientific Committee identifies the locations on which each of the communities occurs by reference to edaphic and physiographic factors.
40 In relation to edaphic factors, the Scientific Committee identifies that the Swamp Sclerophyll Forest community is associated with “humic clay loams and sandy loams” (para 1 of the description), the Subtropical Coastal Floodplain Forest community is associated with “clay-loams and sandy loams” (para 1 of the description) and the River-Flat Eucalypt Forest community is associated with “silts, clay-loams and sandy loams” (para 1 of the description).
42 The Scientific Committee in each of the descriptions gives a generalised description of what it meant by the term “floodplains”. The Scientific Committee states in each description that:41 In relation to physiographic factors, the Scientific Committee identifies the landforms with which each of the communities is associated. The Swamp Sclerophyll Forest community is identified as being on “waterlogged or periodically inundated alluvial flats and drainage lines associated with coastal floodplains” (para 1 of the description). The Subtropical Coastal Floodplain Forest and the River-Flat Eucalypt Forest communities are each identified as being “on periodically inundated alluvial flats, drainage lines and river terraces associated with coastal floodplains” (para 1 of each of the description).
- “Floodplains are level landform patterns on which there may be active erosion and aggradation by channelled and overbank stream flow with an average recurrence interval of 100 years or less.”(para 1 of each of the descriptions).
43 This description of floodplains is stated by the Scientific Committee to be adapted from “Speight 1990”, a reference to a chapter by J G Speight in R C McDonald, R F Isbell, J G Speight, J Walker and M S Hopkins (eds), Australian Soil and Land Survey , 2nd ed, Inkata Press, Melbourne, 1990, pp 9-57. The reference was tendered in evidence. It shows that Speight defined floodplains in a different way, notably as being characterised by “frequently active” erosion and aggradation, rather than merely “active” erosion and aggradation as in the Scientific Committee’s description, where “frequently active” refers to the channel or overbank stream flow that has an average recurrence interval of 50 years or less, rather than that of 100 years or less used by the Scientific Committee in its description. For this reason, the Speight reference cannot be used as the guide for determining whether a particular site is on or associated with a floodplain.
44 An important point to note about the Scientific Committee’s description for each community is that it does not limit the location of the community to occurring “on coastal floodplains”, but extends the location of the community to identified landforms such as alluvial flats, drainage lines and river terraces, that are “associated with coastal floodplains”. The concept of “associated with” extends the location of the communities beyond the coastal floodplains. This is corroborated by the subsequent identification of the varying elevations at which the communities may occur. Thus, for Subtropical Coastal Floodplain Forest and River-Flat Eucalypt Forest communities, are identified as occurring on localised river-flats up to 250m above sea level. Clearly, this is far removed from the coastal floodplain.
45 As I have earlier noted, the Scientific Committee in the Final Determinations has identified the community therein described as including other vegetation communities that have been identified in vegetation surveys and mapping studies including the LHCCREMS. The consequence is that the Scientific Committee has, by this means of incorporation by reference, identified the locations on which the community occurs to include the locations on which the incorporated vegetation communities occur. The examples I have given earlier are, in the lower Hunter Valley, the vegetation community identified as Riparian Melaleuca Swamp Woodland (Map Unit 42) and the Redgum Roughbarked Apple Swamp Forest (Map Unit 38). Each of these vegetation communities have been mapped in the LHCCREMS. The locations at which these communities are mapped to occur are therefore incorporated by reference to be locations on which the Swamp Sclerophyll Forest community (in the case of Map Unit 42) and River-Flat Eucalypt Forest community (in the case of Map Unit 38) are identified to occur.
Other descriptors of the communities
46 In addition to the principal descriptions of the communities by reference to floristic and locational descriptors, the Scientific Committee uses other supplementary descriptors. These include ecological or biotic factors: see, for example, paras 2 and 5 of each description.
47 The issues between the parties relate to the interpretation of the descriptions of each community in the Final Determinations of the Scientific Committee and the application of these descriptions to the site in this case. Specifically, the issues between the parties are:The debate between the parties
(b) whether the site meets the floristic descriptors for one or more of the communities.
(a) whether the site meets the locational descriptors for one or more of the communities and specifically whether the site is located on or is associated with a coastal floodplain; and
48 The Council submits that the area identified by one of the witnesses, Dr Andrew Smith, on Figure 10 of his report (Exhibit 3) comprises a combination of the three ecological communities, Swamp Sclerophyll Forest, Subtropical Floodplain Forest and River-Flat Eucalypt Forest. Figure 10 is an aerial photograph on which Dr Smith has superimposed three coloured areas, of which two are relevant being the area coloured mauve and the area coloured green. Dr Smith has also marked the quadrats in which vegetation surveys were undertaken. The Council submits that the mauve coloured area is dominated by the Swamp Sclerophyll Forest community and the green coloured area is dominated by both the Swamp Sclerophyll Forest and River-Flat Eucalypt Forest communities. The Subtropical Coastal Floodplain Forest occurs over both the mauve and green coloured areas. The Council submits that the overlapping and intergrading of each of the three communities on the areas coloured mauve and green is expressly recognised by the Scientific Committee in each of the descriptions of the communities.
49 The applicant submits that the mauve and green coloured areas identified by Dr Smith and marked on Figure 10 of Exhibit 3 do not satisfy the Scientific Committee’s descriptions of any of the three communities. The applicant submits the site is not on the landforms identified in the descriptions of the communities and in particular is not on a coastal floodplain. Furthermore, the applicant submits that the floristic composition of the vegetation on the site does not satisfy the floristic descriptors in the Scientific Committee’s descriptions of any of the three communities.
The evidence
50 The Court had the advantage of undertaking, on 8 November 2006, a comprehensive view of the site and the control sites in the company of the legal and other representatives of the parties and the parties’ experts. The Court had the written and oral evidence of Dr Pam Hazelton, a soil scientist called by the Council, and Dr Christopher Gippel, a geomorphologist called by the applicant, Dr Andrew Smith and Dr Anne Clements, an ecologist and botanist respectively called by the Council and Dr David Robertson and Mr John Travers, both ecologists called by the applicant. In addition, a number of scientific studies were tendered.
Locational descriptors
51 In determining if any one or more of the three communities occur on the site, I need only focus on that part of the site on which the Council contends one or more of the communities occur. This is the part containing the mauve and green coloured areas identified by Dr Smith on Figure 10 of Exhibit 3.
52 The Scientific Committee’s Final Determinations for each of the Swamp Sclerophyll Forest, Subtropical Coastal Floodplain Forest and River-Flat Eucalypt Forest communities specify three locational descriptors: the edaphic (soil) requirement, the landform requirement and the required association of the landforms with coastal floodplains.
Edaphic requirement
53 The areas coloured mauve and green on Figure 10 of Exhibit 3 meet the edaphic requirement in the Final Determinations of being associated with clay loams and sandy loams (in para 1 of each description).
54 Dr Hazelton excavated, analysed and described the soils in the areas. Dr Hazelton gave oral evidence that the soil pits were located within the quadrats surveyed by Dr Clements, including quadrats 1-6 which are in the areas coloured mauve and green. The soils included bands of sandy clays, clay silts, silty loams, clay loams, clay sands and sandy clay loams. These soils are characteristic of Quaternary alluvium.
55 Further, the 1:250,000 geological map for the area containing the site identifies part of the areas (towards the north eastern boundary of the site) as supporting Quaternary alluvium. This Quaternary alluvium extends continuously from the site along the watercourse in a southerly direction, across the Pacific Highway and towards Grahamstown Lake. The distribution of the Quaternary alluvium provides a good indication of the extent of the coastal floodplain.
56 The 1:100,000 soil landscape map of the Newcastle mapsheet identifies the site as falling within the Ten Mile Road soil landscape but close to the boundary of the Nungra soil landscape. The Ten Mile Road soil landscape is a colluvial soil landscape while the Nungra soil landscape is an alluvial soil landscape. The Nungra soil landscape is described as being “associated with Quaternary alluvium and deep silty footslope deposits recorded from surrounding hills and overlaying carboniferous rock strata” (L Matthei, Soil Landscapes of 1:100,000 Newcastle Map Sheet , Department of Land and Water Conservation, 1995).
57 As Dr Smith explains, an alluvial landscape is one in which soils are deposited by water and are typically present in layers including layers of fine silts and water sorted particles of different sizes in different layers. Colluvial landscapes are ones in which soils have developed from rock (lithic substrate) in situ or by being deposited by gravity. Colluvial soils typically do not show water sorted layering and typically do not have a podsolic profile and a large gravel content with increasing proximity to bedrock.
58 Dr Hazelton’s soil sampling and analysis has established that the soils in the areas meet the description of alluvial not colluvial soils. Dr Hazelton concludes that the soils are those described in the Nungra soil landscape which, in this location, could be seen as an included soil landscape in the Ten Mile Road soil landscape. An included soil landscape is a small area of soil landscape within a predominate landscape. Dr Hazelton concludes that the site has not been mapped as an included Nungra soil landscape because soil landscape units of less than 40 hectares are generally not mapped. Dr Smith corroborates Dr Hazelton’s evidence on this point.
59 The Scientific Committee, in a letter to the Council on 12 October 2005, notes that “mapping of soils is scale-dependent, and that small occurrences of shallow alluvial soil may be expected to occur within areas mapped as having lithic substrates”. This too corroborates Dr Hazelton’s evidence.
60 I accept both Dr Hazelton and Dr Smith’s evidence that the soils in the areas are alluvial not colluvial and that the areas are properly to be classified as being of the Nungra soil landscape.
61 The most recent geological mapping is by A Troedson and T R Hashimoto as part of the New South Wales Coastal Quaternary Geology Data Package in 2005. That geological mapping does not show the Quaternary alluvium extending into the site as had the earlier 1:250,000 geological map. However, this geological mapping was done after the works to the Pacific Highway and the Balickera canal unlike the earlier geological mapping which preceded such works. Further, there is no evidence that specific geological surveys were done on the site so as to complete the recent mapping. In contrast, Dr Hazelton has carried out soil surveys which establish the presence of alluvial soils on the site.
Landform requirement
62 The areas coloured mauve and green occur on landforms of the type identified in the Scientific Committee’s descriptions of each of the communities. The areas are aptly described as containing alluvial flats and drainage lines.
63 As I have noted, Dr Hazelton found alluvial soils in these areas. Further, she found that the subsoils in the areas were mottled indicating water logging. Dr Hazelton stated that the alluvial soils in the areas have been formed by sediments deposited by streams and an alluvial plain has developed. Dr Hazelton’s oral evidence was that the floodplain of Nine Mile Creek (to the north east of the site) extended to the site, at least to the spot height of 21m shown on the topographical map (this spot height is located uphill of the mauve and green coloured areas and to the west of quadrat 1 and to the north of quadrat 6).
64 Dr Smith corroborates Dr Hazelton’s evidence that the soils of the areas are alluvial in nature consistent with fluvial and overbank deposits.
65 Dr Smith gave further evidence of flooding, waterlogging and periodic inundation of the areas on the site. Dr Smith stated that he and other consultants had observed flooding and inundation of the areas. (I should interpolate here that inundation was evident in parts of the areas on the day the Court undertook the view). Dr Smith notes that the vegetation in the areas includes many species characteristic of swamps, wetlands and inundated flats including three species of paperbark ( Melaleuca decora , M. linariifolia and M. styphelioides ) and the swamp sedge (G ahnia clarkei ). Emergent old growth Redgum and Melaleuca decora trees are consistent with the site having been periodically inundated for a long period of time (hundreds of years). Dr Smith notes that holes of the freshwater crayfish or yabbie ( Cherax spp) are widespread across the low lying areas. This crustacean needs permanent water or periodic inundation for breeding. Dr Smith notes that there is a gully through the areas. This gully has a defined drainage area in its upper reaches but becomes less defined downstream where flat swampy areas occur and the main channel diverts into a number of smaller drainage channels and ponds.
66 Dr Smith also gave evidence of the low lying, flat nature of the site consistent with it being an alluvial flat on a coastal plain. The geological map of the site shows that Quaternary alluvium extends north from the lower Hunter River coastal floodplain into the north east corner of the site, including part of the areas coloured mauve and green. Swamps are shown consistent with a coastal floodplain. The Karuah 1:25,000 topographic map for the site shows that all of the mauve coloured area and most of the green coloured area is below 30m. A spot height of 21m (at a location just uphill of the areas coloured mauve and green, and to the west of quadrat 1 and north of quadrat 6) shows that much of the area is very low lying and flat. A distance of 400m separates this spot height and the 20m contour which occurs just at the entrance to the site. This reveals a slope of about 1.3%. This is a sufficiently low slope to make the description of an alluvial flat apposite.
67 Collectively, Dr Smith’s evidence establishes that the areas on the site meet the descriptions of containing “waterlogged or periodically inundated alluvial flats and drainage lines” (para 1 of description of Swamp Sclerophyll Forest community) and “periodically inundated alluvial flats, drainage lines…” (para 1 of descriptions of Subtropical Coastal Floodplain Forest and River-Flat Eucalypt Forest communities).
68 Dr Robertson originally accepted that areas on the site around the creeks [which correspond with the mauve and green coloured areas] did satisfy the locational descriptor for the Swamp Sclerophyll Forest community of being “associated with humic clay loams and sandy loams, on waterlogged or periodically inundated alluvial flats and drainage lines associated with coastal floodplains” (Species Impact Statement, April 2006 at p 6.2).
69 Although Dr Gippel remained steadfast in his opinion that the areas on the site could not be classified as a floodplain, he ultimately conceded in cross examination that the soils on the site have the characteristics of soils of an alluvial floodplain, there were drainage lines on the site, there was active erosion within relevant areas of the site, there were aggradations by channelled and overbank stream flow and that overbank stream flow occurs with an average recurrence interval of 100 years or less. These correspond with the factors in the Scientific Committee’s description of floodplains in the Final Determinations.
Association with coastal floodplains
70 The landforms of alluvial flats and drainage lines, which the areas coloured mauve and green contain, are “associated with coastal floodplains”. The applicant sought to establish that the areas on the site could not be described as being on a coastal floodplain. The evidence of Dr Gippel, Dr Roberston and Mr Travers had this as its central thesis. However, the evidence missed the mark.
71 The definition of coastal floodplain posited by Dr Gippel, and embraced by Dr Robertson and Mr Travers, did not accord with the meaning of that term in the Scientific Committee’s Final Determinations for each of the communities. Dr Gippel, Dr Robertson and Mr Travers trawled through the geomorphological scientific literature and dictionaries in an endeavour to define what is a coastal floodplain and then to demonstrate that the areas on the site did not meet this definition of a coastal floodplain. This endeavour by the applicant’s experts was fruitless because the relevant enquiry could only ever be to ascertain the meaning of the term “associated with coastal floodplains” as used by the Scientific Committee in its descriptions of each of the communities in the Final Determinations.
72 An “endangered ecological community” is defined in s 4 of the Threatened Species Conservation Act as meaning an endangered ecological community specified in Schedule 1 of the Act. Part 3 of Schedule 1 of the Act specifies the listed endangered ecological communities to date, including the three of relevance in this case, adding after each the words “(as described in the Final Determination of the Scientific Committee to list the ecological community)”. Hence, the enquiry was required to be directed to the description of the Scientific Committee in each of the Final Determinations to list each community.
73 Focusing on the particular concept of a floodplain, the enquiry was required to be directed to the Scientific Committee’s intended meaning of floodplain in each of the descriptions of the communities in the Final Determinations. The Scientific Committee’s intended meaning can be gleaned from a number of indicators.
74 First, the Scientific Committee in each Final Determination defines “floodplains” as “level landform patterns on which there may be active erosion and aggradation by channelled and overbank stream flow with an average recurrence interval of 100 years or less” (para 1 of each description). As I have earlier noted, the Scientific Committee states that this definition has been adapted from a reference by Speight. However, it is different to Speight’s definition, in the ways I have earlier explained. It is wrong in principle to substitute for the Scientific Committee’s definition, Speight’s definition itself or to seek to qualify in any way the Scientific Committee’s definition by reference to Speight’s work. Dr Gippel, Dr Robertson and Mr Travers’ attempts to do just this were therefore misguided.
75 Secondly, the Scientific Committee does not just rest in its explanation of what it intended to mean by its use of the term floodplain on the definition it provides. The Scientific Committee expands that definition and hence what it intended to mean by the term floodplain by reference to particular landforms that might be “associated” with coastal floodplains.
76 Dr Gippel sought to restrict the meaning of the term “associated with” to make it synonymous with “on”. Thus, he expressed the view that a landform such as a drainage line could only ever be “associated with” a coastal floodplain if the drainage line was on the coastal floodplain. I reject Dr Gippel’s construction.
77 The Scientific Committee in the Final Determinations describes each community by reference to its association with specified edaphic conditions and its location on specified landforms. The landforms specified are alluvial flats (that might be either waterlogged or periodically inundated) and drainage lines. The Scientific Committee narrows the class of alluvial flats and drainage lines to those that are “associated with” coastal floodplains. However, the Scientific Committee chose not to narrow the class further by specifying that the landforms of alluvial flats and drainage lines be “on” or “be part of” the coastal floodplains. Use of the preposition “on” would have demanded that the landforms be in a position of immediate proximity to the coastal floodplains while use of the phrase “be part of” would have demanded that the landforms be constituent elements of the coastal floodplains. The Scientific Committee chose not to so restrict the connection between the landforms and the coastal floodplains but instead used the phrase “associated with” thereby signifying a wider connection.
78 The relation by which the landforms might be connected with the coastal floodplains can vary but may include a relation of physical proximity, hydrological connection or ecological interrelationship.
79 Landforms might be connected by a relation of physical proximity. Landforms on or that are part of the coastal floodplain obviously have such a relation. But landforms which are separate from the coastal floodplains still could have a relation of physical proximity. At their closest, they could adjoin (abut or be in contact with) coastal floodplains or, slightly further removed, they could be adjacent (lying near or close) to coastal floodplains. But again the Scientific Committee did not limit the relation between the landforms and the coastal floodplains by these words but allowed a greater latitude of relation by employing the phrase “associated with”. As a general rule, however, the greater the distance becomes between the landforms and the coastal floodplains, the weaker the physical connection becomes. Perhaps the elevation parameter (up to 50m for the Swamp Sclerophyll Forest community and up to 250m for the Subtropical Coastal Floodplain Forest and River-Flat Eucalypt Forest communities) may set an outer limit.
80 Landforms might have a direct hydrological connection. A site containing a discrete alluvial flat or drainage line with a fluvial connection to the coastal floodplain, such as where the drainage line might have onto the floodplain. Waters on the floodplain may in times of flood back up the drainage line or onto the alluvial flat causing inundation. A groundwater connection may be yet another example.
81 Landforms may have an ecological relationship with the coastal floodplain. There may be a relationship between the vegetation and soils of the floodplain and those of the relevant landform such as an alluvial flat or a drainage line. Fingers of alluvial soils may extend from the floodplain up drainage lines and into alluvial flats and the vegetation may follow resulting in the same vegetation communities on the floodplain and the alluvial flats and drainage lines. Provided there is a means of linkage (such as vectors for pollen, seed and fruit transportation and corridors for wildlife) vegetation communities can straddle physical obstructions to form discontinuous but linked communities.
82 Dr Robertson accepted in oral evidence that there could be discrete and discontinuous locations of the community. He prepared an illustrative sketch showing different locations of floodplains on different order watercourses. He gave as an example a floodplain on a small upper catchment creek at higher elevation (Perennial Creek near Grafton).
83 Dr Smith referred to a reference cited by the Scientific Committee in each of the Final Determinations of D A Keith, “Ocean shores to desert dunes: the native vegetation of New South Wales and the ACT”, NSW Department of Conservation, Sydney, 2004 that stated that “the best remnants of this vegetation class [coastal floodplain wetlands] are now found not on the open plains but further up valleys on small flats amid undulating terrain that mostly supports grassy woodlands. In these areas fingers of alluvium extend up intermittent creek lines and carry distinctive forest of C asuarina glauca as well as various Melaleuca (paperbark) species up to 20m tall”.
84 The fact that the Scientific Committee intended that areas with the relevant landforms can be associated with coastal floodplains, notwithstanding that they might be separated from and/or discontinuous with coastal floodplains, is also evident from the Scientific Committee’s identification for the Subtropical Coastal Floodplain Forest and River-Flat Eucalypt Forest that they may occur on “localised” River-Flats that may occur at an elevation high above the coastal floodplain (up to 250m above sea level).
85 As I have noted earlier, the Scientific Committee has specified in the Final Determinations that the communities include other specific vegetation communities identified in other vegetation surveys and mapping. One such vegetation community is Riparian Melaleuca Swamp Woodland (Map Unit 42) identified and mapped in the LHCCREMS. The Final Determination for the Swamp Sclerophyll Forest community identifies the MU42 community to be included within the Swamp Sclerophyll Forest community. The LHCCREMS mapping of the distribution of the MU42 community shows that it comprises disjunct patches of habitat along drainage lines several kilometres distant from Grahamstown Lake or other alluvial floodplains. Some of these drainage lines are not on alluvial soil landscapes or Quaternary floodplain alluvium, but extend up valleys on intermittent creeks draining ultimately into Grahamstown Lake. Notwithstanding the locations of the MU42 community, the Scientific Committee has incorporated that community into the Swamp Sclerophyll Forest community. This reveals that the Scientific Committee did not intend that the Swamp Sclerophyll Forest community must occur “on” coastal floodplains or on sites that abut or are continuous with coastal floodplains.
86 I note that the above construction of the locational descriptors in the Final Determinations was also reached by the Scientific Committee. The Scientific Committee in a letter to the Council dated 12 October 2005, observed that it did not construe the description of Swamp Sclerophyll Forest in the Final Determination as stipulating “that all stands of the community must be continuous with coastal floodplains, only that the drainage lines are associated with coastal floodplains. Thus, a discrete alluvial flat or drainage line would be associated with a coastal floodplain if the drainage line flowed onto the floodplain and the site was in proximity to the floodplain, irrespective of whether the assemblage was continuous throughout its occurrence along the drainage line. In the context of the entire NSW coastline to which the Determination applies, flats separated from major floodplains by distances of a few hundred metres would also be consistent with the intent of the Determination”.
87 Insofar as the decision of Commissioner Bly in CBD Prestige Holdings Pty Ltd v Lake Macquarie City Council [2005] NSWLEC 367 (12 July 2005) paras 45-47 held to the contrary of the construction of the Final Determination for the Swamp Sclerophyll Forest community that I have explained, I am of the opinion that it was wrongly decided and should not be followed.
88 Hence, the evidence of Dr Gippel, embraced by Dr Roberston and Mr Travers, that the areas coloured mauve and green on the site were not “on” a coastal floodplain did not and could not establish that the areas were not “associated with” a coastal floodplain.
89 In this case, the areas of the site have the necessary association with the identified soils (clay loams and sandy loams) and occur on the identified landforms of waterlogged or periodically inundated alluvial flats and drainage lines. Furthermore, these identified landforms are “associated with” a coastal floodplain. As I have noted, on the north eastern corner of the site, the underlying geology is that of Quaternary alluvium. Quaternary alluvium is associated with a floodplain. That Quaternary alluvium continues down drainage lines and creeks to the Grahamstown Lake.
90 The areas on the site coloured mauve and green are associated with this floodplain. These areas contain alluvial soils, which have been deposited by fluvial action. The alluvial soils are, in fact, continuous with the Quaternary alluvium in the north east corner of the site and down the water courses towards the Grahamstown Lake. The drainage line and the drainage across the site have a fluvial connection to the floodplain.
91 For these reasons, the areas coloured mauve and green on the site meet each of the locational descriptors of each of the three communities.
Floristic descriptors
92 The vegetation in the areas coloured mauve and green on Figure 10 of Exhibit 3 meet the floristic descriptors in the Scientific Committee’s Final Determinations for each of the Swamp Sclerophyll Forest, Subtropical Coastal Floodplain Forest and River-Flat Eucalypt Forest communities. There are five sets of reasons.
93 The areas contain a significant number of the flora species listed as characteristic species in the descriptions of the community. There have been, over the years, numerous vegetation surveys of the site, including by the current experts for the parties. When the data of these surveys are aggregated, the total number and percentage of characteristic species of the communities recorded on the site, as calculated by Dr Smith, is as follows:Characteristic species
| Community | Number of Species | Percentage of Species |
| River-Flat Eucalypt Forest | 42 | 55 |
| Swamp Sclerophyll Forest | 29 | 52 |
| Sub-tropical Coastal Floodplain Forest | 39 | 48 |
94 As Dr Smith states, these numbers and percentages are very high considering the widespread geographical distribution of these communities.
Floodplain species
95 The areas contain a number of the species which can be considered indicators of wet, low lying conditions. These include most species of the paperbarks ( Melaleuca nodosa , M. decora , M. linariifolia and M. styphelioides ) and the sedges ( Gahnia clarkei and Carex longebrachiata ). The survey data shows these plant species are collectively significantly more abundant in survey sites on the floodplains, flats and drainage lines on the subject site than they are in the foot slopes away from drainage lines.
96 The areas contain a material number and percentage of the species referred to in paragraph 4 of each description of the community as being dominant. The descriptions of each of the three communities describe plant species as being typically widespread common dominants (mainly trees), locally common (mainly shrubs) or occasional. Dr Smith calculated the percentage of plant species in six quadrats (Quadrats 1 to 6) located in the mauve and green coloured areas in Figure 10 of Exhibit 3 that were described as widespread common dominants and locally common for each of the three communities. The results are as follows:Dominant species
| Dominants | SSF | SCFF | RFEF |
| Widespread common dominants | 0% | 66% | 17% |
| Locally common | 60% | 40% | 74% |
| Average | 30% | 50% | 46% |
97 Dr Smith concludes from this analysis that the vegetation in the areas could be classified as either Swamp Sclerophyll Forest or River-Flat Eucalypt Forest in terms of its dominance by locally common species (60-74%) of species but it is best described as Subtropical Coastal Floodplain Forest in terms of dominance by both widespread common dominants and locally common species (50% of dominant common species combined).
98 Dr Roberston and Mr Travers placed particular emphasis on the absence in the quadrats data of the two trees stated in paragraph 4 of the description of the Swamp Sclerophyll Forest community to be “the most widespread and abundant dominant trees”, namely, Eucalyptus robusta (Swamp mahogany) and Melaleuca quinquenervia (Paperbark). However, as I have noted earlier in the discussion of the Scientific Committee’s descriptions of the communities, the communities are described, necessarily, at a high level of generality. Not every site needs to or even can have every listed species present, including those listed as the most widespread and abundant dominant trees. Floristic composition varies across the distributional range of the communities, in response to latitude and elevation, climatic conditions, localised, edaphic and physiographic factors and the disturbance history including land clearing and fire. The absence of the two trees from the areas on the site is a factor that must be viewed in the overall context of all of the locational and floristic descriptors of the community in the Final Determination. As I have noted, the vegetation on the site does include a significant number and percentages of the characteristic species (29% and 52% respectively) listed in paragraph 1 of the description of the communities and includes 60% of the locally common species listed in paragraph 4 of the description. The vegetation meets the structural/floristic description of having “an open to dense tree layer of eucalypts and paperbarks” (para 4 of the description).
Similarity with known site of EEC
99 The vegetation in the areas accords with the vegetation communities described and mapped by LHCCREMS as being vegetation communities included by the Scientific Committee within the three communities.
100 Dr Smith undertook detailed analysis of two control sites mapped as the MU42 community by NPWS in the LHCCREMS. The MU42 community is one of the vegetation communities identified by the Scientific Committee as comprising Swamp Sclerophyll Forest community (para 8 of the description of the Swamp Sclerophyll Forest community). Dr Smith compared the data from the vegetation surveys on the two control sites with the data from vegetation surveys in quadrats on the subject site. The flora survey data for each quadrat was converted to a six point Braun-Blanquet cover abundance scale. Quadrats were classified according to plant species cover abundance using an agglomerative, hierarchical classification. This method provides a statistical measure of the similarity between sites in terms of the species (assemblage) composition. Agglomerative classification works by progressively joining together those site which are most similar in terms of their plant species (assemblage) composition. Thus, sites which are similar are grouped together and sites that are different are not joined until last and are separated by long linkage distances. The longer the linkage distance, the greater the difference between groups or plots.
101 Dr Smith concluded that the result of this phytosociological analysis was that, in terms of dominant tree and shrub species, the vegetation community in the areas of the subject site is essentially indistinguishable from the vegetation community mapped as MU42.
102 Both Mr Travers and Dr Robertson sought to challenge Dr Smith’s conclusion in this regard. Mr Travers did not undertake a similar phytosociological analysis. Instead, he undertook what he said was “a multi-variate analysis of quantitative field survey data” but in fact was a simple comparison of the species data collected within each quadrat on the subject site as well as on the control sites with the list of positive diagnostic plant species provided by the NPWS in the LHCCREMS. Mr Travers found that, when comparing the percentage of the total number of positive diagnostic species for each mapping unit, quadrats 1, 4 and 6 (all in the mauve coloured area) were most similar to Redgum Roughbarked Apple Swamp Woodland community (MU38). Quadrat 2 (also in the mauve coloured area) contained an equal percentage of the total number of positive diagnostic species for both the MU38 community and the Seaham Spotted Gum Ironbark Forest community (MU16). Quadrats 3 and 5 (on the outer edges of the green coloured area) were most similar to the MU16 community.
103 Mr Travers concluded from his analysis that the vegetation in the areas coloured mauve and green on Figure 10 of Exhibit 3 is not one of the three floodplain endangered ecological communities. However, Mr Travers’ conclusion is flawed.
104 First, Mr Travers’ comparison is with the wrong floristic descriptors. The essential inquiry in this case is whether the vegetation in the areas in question on the site meets the floristic descriptors in the Scientific Committee’s Final Determinations for the three candidate communities. That inquiry cannot be answered by examining which vegetation community or communities surveyed, mapped and described by some other body in some other document best describes the vegetation in the areas in question on the site.
105 A conclusion that the vegetation on the site corresponds with a vegetation community described elsewhere is uninformative unless that vegetation community has been incorporated expressly by reference by the Scientific Committee in its Final Determinations of the endangered ecological communities. This is the case with the vegetation communities described in the LHCCREMS as Riparian Melaleuca Swamp Woodland (Map Unit 42) and Redgum Roughbarked Apple Swamp Forest (Map Unit 38) incorporated by reference in the Final Determinations for the Swamp Sclerophyll Forest and River-Flat Eucalypt Forest communities respectively. A conclusion that the vegetation on the site meets the descriptions of those communities would be informative because the Final Determinations specify that such communities are included within the endangered ecological communities.
106 However, a conclusion that the vegetation on the site meets the descriptions of some other vegetation community identified by the LHCCREMS but not incorporated by reference in the Final Determinations for the endangered ecological communities is uninformative. The vegetation could still meet the floristic and locational descriptors for the endangered ecological communities in the Final Determinations, notwithstanding that it meets the descriptions of some other vegetation community. This is especially the case where the endangered ecological community is described in the Final Determination at a high level of generality. Like the matryoshka (the set of nesting Russian dolls), more specific communities can nest within a general community: see B J Preston and P Adam, “Describing and listing threatened ecological communities under the Threatened Species Conservation Act 1995 (NSW): Part 1 – the assemblage of species and the particular area” (2004) 21 EPLJ 250 at 252-253.
107 If comparison is to be made with the description of other vegetation communities, it needs to be done by reference to the whole description, not just selective parts. Mr Travers’ comparison is with only part of the description of vegetation communities in the LHCCREMS, being the list of positive diagnostic plant species. Mr Travers does not consider other parts of the description of those vegetation communities, including the full narrative description, the vegetation structure or the listed plant species which occur within the community but are described as uninformative (often because they have low fidelity to that community and occur in a number of communities).
108 In fact, Mr Travers’ analysis, rather than establishing that the vegetation in the areas on the site is not part of an endangered ecological community, establishes the opposite conclusion. The Redgum Roughbarked Apple Swamp Forest community (Map Unit 38) is listed in paragraph 8 of the description of the River-Flat Eucalypt Forest community as being included within that community. This is one of the three endangered ecological communities. On Mr Travers’ analysis, the vegetation in quadrats 1, 2, 4 and 6 (comprising the core mauve area) best correspond with the MU38 community and hence is included within the River-Flat Eucalypt Forest endangered ecological community.
109 I note that Mr Travers concluded in his report in chief (Figure 4) that the vegetation recorded in quadrats 1, 2 and 6 was part of the endangered ecological community (depicted by a red circle and “EEC”).
110 Mr Travers’ conclusion that the vegetation in quadrats 3 and 5 (on the outer edges of the green area) is most similar to the MU16 community ignores the fundamental fact of the presence of Melaleucas in the survey data for those quadrats. Quadrat 3 records the presence of Melaleuca decora , M. linariifolia , and M. nodosa . Quadrat 5 records Melaleuca nodosa . Dr Robertson in the Species Impact Statement dated April 2006, identified the vegetation communities in the location of quadrats 3 and 5 as having a paperbark understorey.
111 However, the description and diagnostic plant species of the MU16 community is completely inapt for the locations of and vegetation recorded in quadrats 3 and 5. MU16 is described as “a dry open forest with a grassy understorey”. It occurs on “Carboniferous sediments”. It is found on “the dry slopes and ridges”. None of these descriptions is applicable to quadrats 3 and 5 which are on alluvial soils in low lying, periodically inundated areas. The floristic description of the MU16 community does not refer to the presence of any Melaleuca species. Dr Robertson conceded in cross-examination that a paperbark scrub does not fall within the MU16 community.
112 The quantitative analysis of Mr Travers, whilst providing some useful information, is not as reliable as the phytosociological analysis by Dr Smith. As Dr Smith noted, Mr Travers’ method was merely a simply count of the number of so-called indicator species in different mapped communities. It did not take account of the abundance of the indicator species. It is a less reliable method of assemblage identification than the agglomerative, hierarchical classification used in Dr Smith’s study which considered the relative abundance of plant species and not just their presence and absence.
113 Dr Smith re-analysed Mr Travers’ data using an agglomerative, hierarchical classification. This re-analysis showed that the vegetation in quadrats 1 to 6 inclusive (being in the mauve and green areas) form a paperbark dominated assemblage on the periodically inundated alluvial flat areas. This assemblage is consistent with the descriptions of the three communities and is indistinguishable from the two control sites identified by LHCCREMS as the MU42 community and hence are within the Swamp Sclerophyll Forest community.
114 Dr Robertson challenged Dr Smith’s conclusion that the vegetation in the areas on the site was essentially indistinguishable from the vegetation community mapped as MU42 on a number of grounds.
115 One was that the LHCCREMS mapping did not show the site as having the MU42 community but rather as other vegetation communities. Whilst this is true, the vegetation mapping is scale and survey dependent. There is no evidence that flora surveys were undertaken on the site as part of the LHCCREMS in order to reach the conclusion of what vegetation community should be mapped on the site. In contrast, there have been extensive vegetation surveys of the site undertaken as part of the development application and appeal process. None of the data from these surveys was available to LHCCREMS when mapping the vegetation of the Lower Hunter and Central Coast Region. Greater weight must be given to these specific site surveys and the analyses of the survey data than the mapping by LHCCREMS. Dr Smith analysed all the survey data and concluded that the MU42 community provides “an ideal mapped community” for the locational descriptors in the Final Determinations and the vegetation has a considerable number and percentage of diagnostic species for the MU42 community.
116 Another ground of challenge by Dr Robertson was that the control sites used by Dr Smith were not in fact the MU42 community. Critical in this regard was said to be the absence from the survey data for the control sites of two key species, Eucalyptus robusta (Swamp mahogany) and Melaleuca sieberi . There are a number of responses.
117 First, one of these species, Eucalyptus robusta , was in fact present within metres of although just outside the quadrat boundaries, and hence was part of the vegetation community of which the quadrat vegetation was a part.
118 Secondly, the absence of Melaleuca sieberi is not determinative. The description in LHCCREMS of MU42 identifies the community’s structural form to vary from woodland to scrub. Indeed, the name of the community differs accordingly: MU42 Riparian Melaleuca Swamp Woodland where the structural form is woodland and MU42a Melaleuca Scrub where the structural form is a scrub. The description specifically notes that “where delineated as scrub from airphoto interpretation (MU42a) Melaleuca sieberi is generally the canopy species with an open low forest-woodland structure. Where woodland occurs (MU42) Eucalyptus robusta is often found as part of this community on alluvial flats…”. The control sites used by Dr Smith have the structural form of a woodland and not a scrub. As noted, Eucalyptus robusta was present in the immediate vicinity of the quadrats at the control sites. Hence, the absence of Melaleuca sieberi is unsurprising.
119 Thirdly, the proper classification of the vegetation on the control sites must involve consideration of the whole description of the MU42 community, and not just the canopy label. The full narrative description, the vegetation structure and the full list of diagnostic plant species all need to be considered. When this is done, as Dr Smith establishes, the vegetation on the control sites is properly to be classified as within the MU42 community.
120 Fourthly, as I have noted a number of times above, not all species need to be or can be found on each and every site. The absence of one species, even an identified canopy species, is not determinative.
Final Determinations cover the field
121 As I have noted earlier, each of the Final Determinations evinces an intention that they collectively should “cover the field” for all native vegetation remaining on coastal floodplains in NSW. Paragraph 7 of the Final Determinations for each community expressly states that the endangered ecological communities “collectively cover all remaining native vegetation on the coastal floodplains of New South Wales” and that the Final Determinations for the endangered ecological communities on the coastal floodplains of NSW “collectively encompass the full range of intermediate assemblages in transitional habitats”.
122 In circumstances where I have found that the areas of the site meet the locational descriptors of being associated with coastal floodplains, the consequence of the Scientific Committee’s stated intention to “cover the field” is that the remaining native vegetation of these areas necessarily falls within one or more of the endangered ecological communities on the coastal floodplain of NSW listed by the Scientific Committee. The reductionist approach of Dr Robertson and Mr Travers ignored this clear intention of the Scientific Committee.
123 For these reasons, the areas coloured mauve and green in Figure 10 of Exhibit 3 contain vegetation meeting the floristic descriptors of each of the Swamp Sclerophyll Forest, River-Flat Eucalypt Forest and Subtropical Coastal Floodplain Forest communities.
Conclusion
125 Accordingly, the answers to the preliminary questions are:124 The areas coloured mauve and green in Figure 10 of Exhibit 3 meet both the locational and floristic descriptors in the Scientific Committee’s Final Determinations for each of the three endangered ecological communities. Because of the terms of the Final Determinations, it is not necessary to specify a single community. Each of the communities co-exist and intergrade with each other on this site.
(a) Yes
(b)(i) Swamp Sclerophyll Forest on coastal floodplains on the NSW North Coast, Sydney Basin and South East Corner bioregions, River-Flat Eucalypt Forest on coastal floodplains on the NSW North Coast, Sydney Basin and South East Corner bioregions and Subtropical Coastal Floodplain Forest of the NSW North Coast bioregion endangered ecological communities co-exist on the site.
(b)(ii) The three communities are located within the areas shown as mauve and green on Figure 10 of Exhibit 3.
19/02/2007 - Details of the counsel and representing solicitors were incorrectly cited with regard to who they acted for. The parties details have been switched over to the correct party/counsel. - Paragraph(s) coverpage - legal representatives
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