NSW Land and Housing Corporation v Campbelltown City Council - [2002] NSWLEC 18

Reported Decision: 126 LGERA 348

Land and Environment Court

of New South Wales

CITATION: NSW Land and Housing Corporation v Campbelltown City Council [2002] NSWLEC 18

PARTIES:
APPLICANT:
NSW Land and Housing Corporation
RESPONDENT:
Campbelltown City Council

FILE NUMBER(S): 10491 of 2001

CORAM: Bignold J

KEY ISSUES: Development Application :- Proposed residential subdivision-Existence of Threatened Species and ecological communities-validity of SIS. Evaluation of the Merits of the proposed development.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 5A, s 79B s 79C
Threatened Species Conservation Act 1995 s 110, s 111
Land and Environment Court Act 1979, s 39(6)

CASES CITED: Bell v Minister for Urban Affairs and Planning (1997) 95 LGERA 86;
Guthega Developments Pty Ltd v Minister Administering the National Parks and Wildlife Act 1974 (1986) 7NSWLR 353;
Helman v Byron Shire Council (1995) 87 LGERA 349;
Integral Energy v Blue Mountains City Council (unreported 12 November 1998);
Leatch v National Parks and Wildlife Service (1993) 81 LGERA 270;
Michel Projects Pty Ltd v Randwick Council (1982) 46 LGRA 410;
Mobil Oil Australia v Baulkham Hills Shire Council (No 2) (1971) 28 LGRA;
Prineas v Forestry Commission of New South Wales (1983) 49 LGRA 402;
Scaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21;
Timbara Protection Inc v Ross Mining NL (1999) 102 LGERA 52

DATES OF HEARING: 27-31 August 2001 and4 September 2001

DATE OF JUDGMENT:
02/19/2002

LEGAL REPRESENTATIVES:

APPLICANT:
Mr J Robson, Barrister
SOLICITORS
Mallesons Stephen Jaques
RESPONDENT:
Mr D Wilson, Barriste
SOLICITORS
Marsdens

JUDGMENT:

IN THE LAND AND

Matter No. 10491 of 2001

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

19 February 2002

NSW LAND AND HOUSING CORPORATION

Applicant

CAMPBELLTOWN CITY COUNCIL

Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. This is an appeal pursuant to the Environmental Planning and Assessment Act 1979 s 97 (the EP&A Act) against the deemed determination of the Council refusing development consent to an application to subdivide land comprising lot 7034 Deposited Plan 1018242 and Part lot 8178 Deposited Plan 881519 at Kellerman Avenue, St Helens Park (the development site) into 135 suburban residential lots and four public reserve lots and one residue lot (the proposed development). The development site comprises an area of some 30 hectares of which some 12 hectares will be utilised in the proposed residential subdivision, some 14 hectares will become public reserve and some 3.4 hectares will become a residue lot (with a potential for future residential development).

2. The development application which was supported by a Species Impact Statement (SIS) was publicly exhibited in April and May 2001. Four written submissions by way of objection were received as a result of the public notification process.

3. The current development application had been preceded by an earlier development application made to the Council in August 1998 in respect of the development site proposing a subdivision creating 199 suburban residential lots and two public reserve lots. The Council’s consideration of that earlier application led it to request the submission of an SIS having regard to the existence on the development site of endangered ecological communities. This request was met by the Applicant submitting to the Council in December 1998 an SIS. Thereupon, the Council sought additional information from the Applicant which was provided to the Council in June 2000. The Council, on 19 September 2000, resolved to refer the development application to the Minister seeking his approval to refuse consent for a number of stated grounds concerned with the perceived significant adverse impact of the proposed development upon two nominated endangered ecological communities and one endangered species said to be found on the development site, namely (i) The Cumberland Plain Woodland; (ii) the Shale Sandstone Transitional Forest; and (iii) the Large Cumberland Land Snail.

4. This reference to the Minister was made by the Council as required by the EP&A Act, Part 5A (“Development by the Crown”) the provisions of which contain detailed procedures for the ultimate determination of a development application made by the Crown.

5. However, the reference did not produce any final decision pursuant to the provisions of the EP&A Act, Part 5A, apparently because the Minister received advice that the Applicant proposed to amend the development application and to re-submit it to the Council.

6. The Applicant’s current development application represents that foreshadowed amended application. However, it is to be noted that in respect of this current application, the procedures of the EP&A Act, Part 5A have not been invoked. Rather, the Applicant has exercised the statutory right of appeal to this Court against the Council’s deemed refusal of the application (vide the EP&A Act, s 82(1)) and the appeal has been conducted upon the parties’ common assumption that this Court, by virtue of the Land and Environment Court Act 1979, s 39(6), has the jurisdiction and power to determine the development application, without being bound, as would be the Council, by s 116C of the EP&A Act, which forbids the consent authority from either refusing consent or imposing conditions on a development application made by the Crown without the written approval of the Minister. This assumption is entirely consistent with the decision of Talbot J in Integral Energy v Blue Mountains City Council (unreported 12 November 1998) dealing with the EP&A Act, s 91A being the legislative antecedent to s 116C.

7. On the hearing of the appeal, the following issues which were included in the Council’s Statement of Issues (Exhibit A) were pressed by the Council:

1. The proposed development will have an unacceptable and unreasonable impact upon threatened species and endangered ecological communities and their habitats, in particular:
(a) the koala;
(b) the large bentwing bat;
(c) the eastern falsistrelle;
(d) the greater broad nosed bat;
(e) the Cumberland land snail;
(f) Cumberland plain woodland; and
(g) Shale sandstone transition forest.

2. The measures to mitigate the adverse impact of the development upon threatened species and endangered ecological communities and their habitats are inadequate.

4. The lack of any long term management plan for the proposed public reserve and bushland areas is unacceptable in circumstances where the threatened species or endangered ecological communities present are likely to come under significant pressure from adjoining residential activities.

8. It is to be noted that each of these issues concern aspects of the SIS and in particular, “the environmental impacts of the proposed development upon the natural environment”: see the EP&A Act, s 79C(1)(b).

9. By way of amplification, it should also be noted that in raising Issue 3, the Council is putting in issue the legal sufficiency and hence the validity of the SIS (in addition to any deficiency relevant to the consideration of the planning merits). Such a course is clearly open to a consent authority in the context of a class 1 proceeding: see Helman v Byron Shire Council (1995) 87 LGERA 349 and Bell v Minister for Urban Affairs and Planning (1997) 95 LGERA 86.

10. Notwithstanding the Applicant’s objection, I granted leave to the Council to raise the question of the legal validity of the SIS on the grounds asserted in the Council’s filed Statement of Issues as they had been particularised (Exhibit 2). It was agreed between the parties that this question could not conveniently be determined in advance of the planning merits in that there was a considerable overlap in the evidence relevant to both the question of the validity of the SIS and the question of the planning merits of the appeal. The hearing of the appeal proceeded accordingly.

11. Moreover, it was conceded by the Council that but for the direct and indirect operation of the Threatened Species Conservation Act 1995 (TSC Act), there would have been no opposition from the Council to the proposed development.

12. For its part, the Applicant emphasised the necessity for the Court to exercise its discretionary planning judgment by reference to all of the statutory criteria enumerated in the EP&A Act, s 79C(1) which were relevant to the proposed development, which criteria were not confined to the environmental or ecological impacts of the proposed development. In particular, considerable reliance was laid upon the planning and development history of the creation of the neighbourhood of St Helens Park, and the place in that creation of the development site and its development.
B. THE PLANNING HISTORY AND CONTEXT OF THE DEVELOPMENT SITE

13. This subject is well documented in the Statement of Evidence of Mr Gardner Browne, a Consultant Town Planner and Architect (Exhibit 7) the relevant extracts from which I am content to adopt:

The subject site is within the St Helens Park neighbourhood at the southern extremity of the Campbelltown urban area. The urban structure of southern Campbelltown was established by Interim Development Order No. 29 introduced in May 1980. IDO No 29 was amended by LEP 120 in May 1993 which applied to the St Helens Park neighbourhood. This amendment related only to the map, which included the major road layout and which altered and refined some zone boundary changes, including the location and shape of the school and community centre zone. These were moved from the northern part of the site to the present location further south on the subject site. The zone boundaries of LEP 120 conform with the layout of DCP No 65, effective from 4 June 1993. IDO No 29 extended beyond the area of LEP 120 to provide for a road reservation for the Georges River Parkway adjacent to and east of the eastern boundary of the (site) IDO No 28 provides for a Regional Open Space Zone east again from the Parkway reserve and extending to the Georges River. This arrangement is shown at

Figure 1

Under IDO 29 St Helens Park was one of 4 planned neighbourhoods in southern Campbelltown, arranged around the Rosemeadow District Centre. The district centre included a commercial centre and a high school. The district centre was located beside Appin Road which formed a north/south spine arterial road through the area.

There have been a number of other LEP amendments to IDO No 29 within the district but not in respect of the site. As with LEP 120, these amendments refined but essentially implemented the structure introduced with IDO 29. Figure 1 shows the generalized zones for the southern part of Campbelltown.

The St Helens Park neighbourhood is arranged around the primary school and community centre and a proposed small commercial centre. Southern Campbelltown is served by Appin Road, a north/south access-denied arterial road. Kellerman Drive is a local distributor loop road off Appin Road serving St Helens Park and, when completed, it will provide a direct link to the District Centre. Completion of this route awaits construction of a residential subdivision for which development consent has been granted. Figure 2 shows how Kellerman Drive will link with Appin Road.

The total area of the St Helens Park neighbourhood is about 165ha. Open space and a drainage reserve make up about 22.5ha of the neighbourhood and the local school and centre make up about 4ha. The balance left for residential purposes and roads is about 137.5ha of which the 2C zoning on the subject site contributes about 20.3 ha or 15%.

Being at the extreme southeastern edge of the Campbelltown urban area, the area around the subject site is comparatively isolated from the major urban services. The subject site will be the last site to be developed at St Helens Park, will complete the planned neighbourhood and represents an important component in the total developed area of the neighbourhood. It is especially important as it is located beside the school and community centre and future shops, providing for a substantial increase in the number of dwellings within walking distance of the local centre and school.

The Council’s s.94 Contributions Plan No 2, Planning District No 6 applies to the Rosemeadow District and projects a lot/dwelling yield of 1625 for the St Helens Park Neighbourhood in setting per lot contributions to fund the provision for open space improvements and the community centre. The site was expected to provide about 240 lots and 15% of these contributions.

Again, water and sewerage infrastructure is in place and contributions for the site would amount to 15% of the total contributions. The Water Board has advised that the current water charge is $801 per lot and the sewer charge $1,186 per lot. For say, 240 lots this represents an expectation of contributions of about $477,000 from the site.

14. Copies of the maps referred to in the extract as “Figures 1 and 2” are annexed hereto and marked with the letters “A” and “B” respectively.

C. THE PROPOSED DEVELOPMENT

15. The proposed development will create 135 residential lots (of sizes ranging between 500 to 700 m2) and four public reserve lots (having an aggregated area of 13.94 hectares) and 1 residue lot having an area of 3.4 hectares on the eastern boundary of the development site adjoining the proposed Georges River Parkway.

16. The proposed subdivision layout is shown on the map referred to as Figure 3 in Mr Browne’s Statement (a copy of which is annexed hereto and marked “C”).
D. THE RELEVANT STATUTORY PLANNING REGIME

17. The statutory regime relevant to the adjudication of the Issues in dispute is contained in the EP&A Act as it was amended by the TSC Act when that latter Act was enacted in 1995. (Those amendments replaced earlier embryonic provisions for the protection of fauna that had been introduced into the EP&A Act by the Endangered Fauna (Interim Protection Act 1991 (Act No 66)).

18. The amendments to the EP&A Act made by the TSC Act are contained in Schedule 5 to the latter Act. It will be necessary to examine these amendments in some detail. But before doing so, it is necessary to note the effect of the TSC Act, the stated objects of which (as expressed in s 3) are as follows:
(a) to conserve biological diversity and promote ecologically sustainable development, and
(b) to prevent the extinction and promote the recovery of threatened species, populations and ecological communities, and
(c) to protect the critical habitat of those threatened species, populations and ecological communities that are endangered, and
(d) to eliminate or manage certain processes that threaten the survival or evolutionary development of threatened species, populations and ecological communities, and
(e) to ensure that the impact of any action affecting threatened species, populations and ecological communities is properly assessed, and
(f) to encourage the conservation of threatened species, populations and ecological communities by the adoption of measures involving co-operative management.

19. Many of the terms employed in the stated objects of the Act are defined in s 4(1) of the Act eg “biological diversity”, “ecologically sustainable development”, “threatened species”, “threatened species, populations and biological communities”.

20. Part 2 of the TSC Act contains provisions for the “listing” (by being listed in Schedules 1, 2 or 3 to the Act) of threatened species, populations and ecological communities and key threatening processes.

21. Responsibility for listing is vested in the Scientific Committee constituted by Part 8 of the Act with the statutory functions enumerated in s 128(2). Listing may be in respect of “endangered”, “threatened” or “vulnerable” species etc. Sections 10 to 12 (inclusive) of the TSC Act specify eligibility for listing as “endangered species”, “endangered populations” and “endangered ecological communities” respectively and s 14 specifies eligibility for listing as “vulnerable species” and s 15 specifies eligibility for listing as a “key threatening processes”. A common feature of each of these specified eligibilities is the formation of the requisite “opinion of the Scientific Committee”. Division 3 of Part 2 of the Act prescribes the procedure for “listing” which involves a preliminary determination which is publicly notified with an invitation for public submissions and a final determination by the Scientific Committee after consideration of written submissions. “Listing” status is only achieved upon publication in the Government Gazette of the Scientific Committee’s final determination.

22. The TSC Act, Part 3 is concerned with “critical habitat” of an “endangered” species, population or ecological community. By s 38 the Director-General has responsibility for identifying in consultation with the Scientific Committee, the critical habitat of endangered species etc. By s 47 the Minister is empowered, after considering a recommendation from the Director General to declare critical habitat of endangered species etc.

23. The TSC Act, Part 4 provides for the preparation and implementation of a “recovery plan” for each endangered species etc as soon as possible after it is listed in Schedule 1 “to promote the recovery of the species, population or ecological community to a position of viability in nature”: s 56(1).

24. Again, it is the Director-General who is responsible for the preparation of recovery plans with the Minister having the power to approve of a recovery plan. Implementation of an approved recovery plan is the responsibility of the Ministers and public authorities having the particular responsibility imposed on them by the recovery plan.

25. Part 5 of the TSC Act provides for the preparation and implementation of a “threat abatement plan” for each “key threatening process to manage the threatening process so as to abate, ameliorate or eliminate its adverse effects on threatened species….” etc: vide s 74(1). These provisions are similar (in terms of (i) the responsibility of the Director General for preparing the plan, (ii) the power of the Minister to approve the plan; and (iii) the responsibility of relevant Ministers and public authorities to implement the plan) to the provisions of Part 4 relating to “recovery plans”.

26. Part 6 provides for a licensing system whereby the Director General may grant a licence authorising a person to take action that is likely to result in (i) harm to a threatened species etc; (b) picking of plants being threatened species etc, (c) damage to critical habitat; or (d) damage to habitat of a threatened species etc: vide s 91(1).

27. In discharging his licensing power the Director General is required to determine whether the proposed action is “likely to significantly affect threatened species…etc” (s 94(1)) and where he determines that the proposed action is likely to significantly affect threatened species…etc he must notify the applicant that “if the application is to proceed, a species impact statement prepared in accordance with Division 2 must be provided”: s 95(1).

28. The Part includes (i) detailed provisions for public notification of an application for licence accompanied by a species impact statement with the opportunity for written submissions to be made (s 96); (ii) a statement of relevant factors that the Director General must take into account in considering such an application (s 97); and (iii) an appeal right to this Court in favour of the applicant or any person who made a submission in respect of the licence application against the decision of the Director General.

29. Division 2 of Part 6 is headed “Species Impact Statements” and includes the following provisions (which are relevant to the present case):

Content of species impact statement

(2) A species impact statement must include the following information as to threatened species and populations:

(3) A species impact statement must include the following information as to ecological communities:

(a) a general description of the ecological community present in the area that is the subject of the action and in any area that is likely to be affected by the action,

(c) a full description of the type, location, size and condition of the habitat of the ecological community and details of the distribution and condition of similar habitats in the region,

(d) a full assessment of the likely effect of the action on the ecological community, including, if possible, the quantitative effect of local populations in the cumulative effect in the region,

(e) a description of any feasible alternatives to the action that are likely to be of lesser effect and the reasons justifying the carrying out of the action in the manner proposed, having regard to the biophysical, economic and social considerations and the principles of ecologically sustainable development,

(f) a full description and justification of the measures proposed to mitigate any adverse effect of the action on the ecological community, including a compilation (in a single section of the statement) of those measures,

(g) a list of any approvals that must be obtained under any other Act or law before the action may be lawfully carried out, including details of the conditions of any existing approvals that are relevant to the ecological community.

(4) A species impact statement must include details of the qualifications and experience in threatened species conservation of the person preparing the statement and of any other person who has conducted research or investigations relied on in preparing the statement.

(5) The requirements of subsections (2) and (3) in relation to information concerning the State-wide conservation status of any species or population, or any ecological community, are taken to be satisfied by the information in that regard supplied to the principal author of the species impact statement by the National Parks and wildlife Service, which information that Service is by this subsection authorised and required to provide.

Director-General’s requirements

Environmental Planning and Assessment Act 1979, the applicant for development consent or the proponent of the activity) must request from the Director-General and must, in preparing the species impact statement, comply with any requirements notified to the person by the Director-General concerning the form and content of the statement.

(2) The Director-General must notify any requirements under this section within 28 days after having been requested to provide them.

(3) Despite the other provisions of this Division, the Director-General may, having regard to the circumstances of a particular case, limit or modify (or limit and modify) the matters to be included in a species impact statement in such manner as may be specified by the Director-General in the particular case.

(4) Despite anything in this Act or the Environmental Planning and Assessment Act 1979, the Director-General may, having regard to the circumstances of a particular case, dispense with the requirement for a species impact statement in the particular case if the Director-General is satisfied that the impact of the activity concerned will be trivial or negligible.

30. The TSC Act, Part 7 provides for other conservation measures to conserve threatened species etc eg (i) the Director General may issue a stop order (s 114) and (ii) the Director General may enter into a joint management agreement with a public authority for “the management, control, regulation or restriction of an action that is jeopardising the survival of a threatened species” etc (s 121).

31. The TSC Act, Part 8 establishes the Scientific Committee and confers functions upon it. I have already referred to its principal responsibility for the listing of endangered and vulnerable species, populations and ecological communities.

32. The TSC Act, Part 9 provides for the preparation by the Director General of a Biological Diversity Strategy containing (i) proposals for “ensuring the survival and evolutionary development in nature of all species etc”; and (ii) strategies for ecologically sustainable development including the “integration of biological diversity conservation and natural resources management” (s 140(2)(a) and (b)).

33. The TSC Act, Part 10 provides for the civil and criminal enforcement of breaches of the Act (s 147 and s 151) and establishes a Parliamentary Committee to review the Act “to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives” (s 157).

34. Part 10 amends and repeals nominated Acts (s 152 to 155).

35. It is against this background of my overview of the scope and operation of the TSC Act that I come to consider the amendments that were made by that Act to the EP&A Act. It is to be noted that the TSC Act does not directly bear upon the proposed development or the required adjudication on the present appeal, it is only via the amendments made to the EPA Act that the TSC Act has an indirect bearing upon the case.

36. These amendments are contained in Schedule 5 to the TSC Act. Globally considered, the amendments are of obvious importance. For example, the Law Book Company’s Planning and Development Service for NSW states the following at Par E90/1:

Threatened Species Conservation Act 1995 and the planning process

Unlike the Endangered Fauna (Interim Protection) Act 1991, as was replaced by the Threatened Species Conservation Act 1995 (TSC Act), the TSC Act is based on integrating threatened species considerations into the planning process.

The licensing regime of former legislation was replaced by concurrence and consultation and plants and endangered, vulnerable and presumed extinct species are included, as well as animals. Section 5 covers fish or marine plants.

A key feature of the threatened species conservation legislation is the Eight Point Test contained in s 5A, which a decision-making authority must consider before planning decisions are made. The Test must be considered when making decisions under ss 78A, 79C and 112 of the EP&A Act. If the application of the Test indicates that a significant effect is likely then the consent or determining authority must prepare a Species Impact Statement (according to the requirements of the Director-General of the New South Wales National Parks and Wildlife Service) which is then provided to the National Parks and Wildlife Service to enable them to decide on whether to issue concurrence or not for the proposal.

37. The amendments to the EP&A Act can be briefly summarised as follows:

(i) definitions contained in the TSC Act of key terms employed by that Act were imported into the definitions contained in the EP&A Act, s 4(1).

(ii) The express objects of the EP&A Act were expanded to include in s 5(a)(vi) which provided

The objects of the Act are:

(a) to encourage:.

………

(vi) the protection of the environment

including the protection and conservation of native animals and plants, including threatened species, populations and ecological communities, and their habitats.

was inserted in the following terms:

5A Significant effect on threatened species, populations or ecological communities, or their habitats

For the purposes of this Act and, in particular, in the administration of sections 77, 90 and 112, the following factors must be taken into account in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats:

(a) in the case of a threatened species, whether the life cycle of the species is likely to be disrupted such that a viable local population of the species is likely to be placed at risk of extinction,
(b) in the case of an endangered population, whether the life cycle of the species that constitutes the endangered population is likely to be disrupted such that the viability of the population is likely to be significantly compromised,
(c) in relation to the regional distribution of the habitat of a threatened species, population or ecological community, whether a significant area of known habitat is to be modified or removed,
(d) whether an area of known habitat is likely to become isolated from currently interconnecting or proximate areas of habitat for a threatened species, population or ecological community,
(e) whether critical habitat will be affected,
(f) whether a threatened species, population or ecological community, or their habitats, are adequately represented in conservation reserved (or other similar protected areas) in the region,
(g) whether the development or activity proposed is of a class of development or activity that is recognised as a threatening process,
(h) whether any threatened species, population or ecological community is at the limit of its known distribution

(e1) protecting and conserving native animals and plants, including threatened species, populations and ecological communities, and their habitats.

(v) Section 34A was inserted into Part 3 (dealing with the making of environmental planning instruments) to require consultation with the Director General of the National Parks and Wildlife Service by agencies initiating the preparation of environmental studies and/or draft environmental planning instruments “if critical habitat or threatened species, populations or ecological communities or their habitats, will or may be affected by” the draft study or draft planning instrument.

(d1) 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, be accompanied by a species impact statement prepared in accordance with Division 2 of Part 6 of the Threatened Species Conservation Act 1995.

(vii) Sections 77A to 77C were inserted into Part 4 (Environmental Planning Control) to require the concurrence of the Director General of National Parks and Wildlife as a condition precedent to the grant of development consent for development “on land that is, or is part of, critical habitat” or “is likely to significantly affect a threatened species, population or ecological community, or its habitat”

77C Matters to be considered by Director-General of National Parks and Wildlife as concurrence authority

In deciding whether or not concurrence should be granted under section 77A, the Director-General of National Parks and Wildlife (or the Minister administering the Threatened Species Conservation Act 1995, if that Minister acts under that section) must take the following matters into consideration:

Protection of the Environment Administration Act 1991),

(viii) The following paragraphs were inserted into s 90(1) (Matters for consideration in determining a development application):

(c2) the effect of that development on critical habitat,

(c3) whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats,

(c4) any relevant recovery plan or threat abatement plan,

(c5) the effect of that development on any other protected fauna or protected native plants within the meaning of the National Parks and Wildlife Act 1974,

(ix) Provisions were inserted in Part 5 (Environmental Assessment) requiring

an activity, that is or part of, critical habitat, or is likely to significantly affect threatened species, populations, or ecological communities, or their habitats

(ii) the concurrence of the Director General of the National Parks and Wildlife to the carrying out of such an activity.

38. The foregoing amendments to the EP&A Act made by the TSC Act in 1995 are substantially in force today, except that the amendments to Part 4 were repealed and re-enacted by the Environmental Planning and Assessment Amendment Act 1997 (Act No 152) which, inter alia, repealed Part 4 and replaced it by Parts 4, 4A, 4B and 4C.

39. The re-enacted requirement for a development application to be accompanied by a species impact statement is now contained in s78A(8)(b) (in terms identical to the repealed s 77(3)(d1)) and the re-enacted requirements for the concurrence of the Director General are now contained in s 79B(3) to (7) (in terms identical to the repealed S 77A, 77B and 77C).

40. One important aspect of the amendments made by Act No 152 of 1997 (which is relevant to the present case) is that in the repeal of s 90 and its replacement by s 79C(1), there is no re-enactment of s 90(1)(c2), (c3), (c4), and (c5). These specified considerations, together with several related ones (eg s 90(1), (b), (c)) have now been replaced by the following paragraph contained in s 79C(1)—
(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

41. These changes expose a textual problem caused by the consequential amendments to s 5A made by Act No 157 of 1997 in that by omitting from that section the references to sections 77 and 90 and substituting therefor the respective references to S 78A and 79C(1) the expression “whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habits”, though appearing in s 78A simply does not appear in s 79C(1).

42. However, I think the problem is more textual than substantive, inasmuch as that statutory question, though not expressed in s 79C(1), is implicit in the consideration of “the likely impacts of that development, including environmental impacts on the natural environment”. If this be the correct analysis, s 5A still has work to do in respect of “the administration of s 79C(1)” but that work may not exhaust or define the extent of the statutory consideration of “the impact of the development, including environmental impacts on both the natural and built environments” required by s 79C(1)(b). As will hereafter appear, this emerges as a crucial issue in the evaluation of the competing expert ecological opinions adduced at the hearing.

43. It is against the foregoing legislative background that the legal issue raised by the Council contending that the SIS is legally deficient, and hence invalid, must be adjudicated upon.

44. This issue should be considered in advance of any consideration of the planning merits of the case (although the Council relies in part, upon the same alleged deficiencies in the SIS, in opposing the proposed development on its merits).
E. THE VALIDITY OF THE SIS

45. The bases for the Council’s allegation of invalidity of the SIS are stated and particularised in its Statement of Issues of which Issue 3 asserts seven particular deficiencies. These deficiencies are asserted by Dr Mills in his Statement of Evidence (Exhibit E).

46. Dr Mills had been retained by the Council to review the earlier SIS that had been submitted to the Council in December 1999 and to review the current SISs. In his written reports to the Council, he had been trenchantly critical of both SISs. This same criticism is reflected in his Statement of Evidence (Exhibit E).

47. Mr Philip Conacher, the person principally responsible for the preparation of both SISs robustly rejected these criticisms in his Statement of Evidence in Reply (Exhibit 11), as did Mr Dominic Fanning, Consultant Ecologist, in his Statement of Evidence in Reply (Exhibit 6). Mr Fanning had not been involved in the preparation of the SISs, but was retained by the Applicant to give evidence in the proceedings. He has considerable experience in the preparation and reviewing of SISs under the TSC Act.

48. Although it is necessary to examine each of the particular allegations of “inadequacy” of the SIS, as will be seen most of the alleged inadequacies are embraced in the allegation that the Director-General’s Requirements were not properly addressed.
(i.) Failure to properly address cll 4.1, 5.2, 5.5 and 7.1 of the Director General’s Requirements

49. The Director General’s requirements for the current SIS are contained in the letter dated 3 November 2000 from the Acting Manager Threatened Species Unit of the National Parks and Wildlife Service to the Applicant (a copy of which appears as Appendix 1 to the SIS). That letter contains 10 A4 typescript pages. The letter enumerates a number of matters specified in TSC Act, s 110 which the SIS “need not address” (see s 111(3)) of the TSC Act). Thereafter, the Director General’s Requirements are specified by reference to the matters enumerated in the TSC Act, s 110. The requirements that are alleged to have not been properly addressed are expressed as Requirements 4.1 (this is included in Dr Mills’ evidence though not particularised in Council’s Issue 3), 5.2, 5.5 and 7.1 which were stated in the following terms:

4.1 Requirement to survey

A fauna and flora survey is to be conducted in the study area. Targeted surveys shall be conducted for all subject species determined in accordance with Section 3 above. Previous surveys and assessments may be used to assist in addressing this requirement. Species of taxonomic uncertainty shall be confirmed by a recognised authority such as the Australian Museum or National Herbarium at the Royal Botanic Gardens, Sydney.

5.2 Discussion of local and regional abundance

5.2.1 Discussion of other known local populations

A discussion of other known populations in the locality shall be provided. The long term security of other habitats shall be examined as part of this discussion. The relative significance of the subject site for threatened species or endangered population in the locality shall be discussed.

5.2.2 Discussion of habitat utilisation

An estimate of the number of individuals utilising the area and how these individuals use the area (eg residents, transients, adults, juveniles, nesting, foraging) and discussion of the significance of these individuals to the viability of the threatened species or endangered population in the locality.

5.5 Description of feasible alternatives

Where a Statement of Environmental Effects, Environmental Impact Statement or Review of Environmental Factors deals with these matters, the SIS may refer to the relevant section of the SEE, EIS or REF.

7 Ameliorative measures

7.1 Description of ameliorative measures

Consideration shall be given to developing long term management strategies to protect areas within the study area which are of particular importance for the threatened species or endangered populations likely to be affected. This may include proposals to restore or improve habitat on site where possible.

Details regarding the security of areas designated for conservation purposes are to be included. This should outline the land tenure and zoning of reserved areas, management responsibilities and any potential cumulative impacts from proposed actions or developments.

7.1.2 Compensatory strategies

Where significant modification of the proposal to minimise impacts on threatened species or endangered communities is not possible then compensatory strategies should be considered. These may include other offsite or local area proposals that contribute to long term conservation of the threatened species, population or endangered ecological community.

Where such proposals involve other lands, or where involvement of community groups is envisaged in such proposals, such groups are to be consulted and proposals should contain evidence of support from these stakeholders and relevant land managers.

Compensatory benefits likely to result from such measures proposed for alternative sites are to be discussed and evaluated along with a discussion of mechanisms of how they might best occur.

7.1.3 Ongoing monitoring

Any proposed pre-construction monitoring plans or on-going monitoring of the effectiveness of the mitigation measures shall be outlined in detail, including the objectives of the monitoring program. Method of monitoring, reporting framework, duration and frequency. Generally, ameliorative strategies that have not been proved effective should be undertaken under experimental design conditions and appropriately monitored.

50. Dr Mills’ criticism of the SIS’s response to Requirement 4.1 is that the targeted surveys undertaken on the development site and surrounding land were “clearly inadequate” (i) inasmuch as the SIS reported the presence of the endangered species, Cumberland Land Snail, (Meridolum corneovirens) only on a part of the development site that is not to be developed, whereas it occurs across the whole site and (ii) inasmuch as little information was obtained from the surveys on the importance of the site for three threatened species of bats ((i) the large Bentwing bat; (ii) the eastern falsistrelle; and (iii) the greater broad nosed bat, which were all recorded on the site.

51. Dr Mills’ criticism of the SIS’s response to Requirement 5.2 is expressed in the following passages at p 13 and p 14 from his Statement of Evidence (Exhibit E):

The SIS has failed to discuss most of these issues in detail. One of the SIS’s most glaring shortcomings is its failure to identify other populations of threatened species and communities in the locality, and assess their importance. At best, only passing reference has been made to other populations, no surveys have been undertaken to establish their significance and no maps have been provided to show where they are located in relation to the subject site. Without this information, it is quite impossible to meet the requirement of Section 110(2)(d) of the TSC Act with respect to threatened species and Section 110(3)(c) with respect to threatened communities.

Examples of some of the basic questions that must be addressed and which the SIS fails to consider include: Where are the other stands of Cumberland Plain Woodland? What condition are they in? What tenure are they under and how secure are they? Similarly, where are the other populations of the threatened species, such as the Cumberland Land Snail? Is the population on this site a significant population in the locality? Because this information is lacking, the SIS does not confidently establish the relative importance of this site for threatened species and endangered ecological communities. Thus, the foundations of the assessments and conclusions contained in the SIS are flawed. The requirements of the Director-General of NPWS and Section 110 of the TSC Act are not properly met.

In regard to 5.2.2 Discussion of Habitat utilisation, the SIS does not provide the required information on the populations of the five (5) species of threatened species known to occur on the development site. The SIS provides almost no information on the number of individuals of these species present, nor their status as resident, etc., as requested.

52. Dr Mills’ criticism of the SIS’s response to Requirement 5.5 was that instead of “dismissing in a single paragraph”, the “no development option” or the option of “developing only an existing cleared area of some 2 ha in the north-western corner of the development site”, the SIS “should have at least considered in detail and with costs and benefits” these two options.

53. The SIS’s consideration of the “no development option” is contained in the following passage at p 45:

The

for the site is not considered a feasible alternative in relation to social and economic issues as this area is the final stage of the St Helens Park project by Landcom and all of the infrastructure, public amenities, open space, public transport, roads ad Section 94 contributions have been modelled, and in many cases implemented with this area being calculated as part of the development area. The longer term viability of these services would be at risk of inefficiency due to decreased demand resulting form less persons using these facilities. Alternatively refunding of already paid contributions may place un-necessary financial strain on Councils existing financial resources.

54. Dr Mills’ criticisms of the SIS’s response to Requirement 7.1 are threefold namely—

(i) No plan of management was prepared for the proposed public reserve lots provided in the proposed subdivision;

(ii) No compensatory strategies are considered; and

(iii) No monitoring programme is proposed.

55. Dr Mills’ criticisms of the SIS are supported by the evidence of Ms Clark (whose Statement of Evidence was Exhibit C) whose field work at the development site on 21 and 25 July 2001 had revealed the presence of the Cumberland Plain Land Snail “much more extensively across the development site” than was revealed in the SIS. Ms Clark expressed extreme scepticism of the statement in the SIS that 38 person hours had been spent searching for the snail spread over 14 separate site visits and the snail was reported on only two occasions in areas not proposed to be developed.

56. Dr Mills’ criticisms of the SIS are also supported by the evidence of Dr Close (whose Statement of evidence was Exhibit D) concerning koalas and the impact of the proposed development on koalas and their habitat.

57. The conclusion expressed at p 12 of Dr Close’s Statement is as follows:

The authors of the SIS have demonstrated an inadequate knowledge of the local koala populations and an inadequate assessment of the quality of the habitat on the subject site and the study area. Their assessment, therefore, of the impacts of the development on the koala population is based on faulty information and should be disregarded. I have demonstrated, in contrast, that the local koala population will be adversely affected by the proposal.

58. In his Statement of Evidence and Statement in Reply, Mr Conacher (Exhibits 9 and 11) rebuts Dr Mills’ particular criticisms of the SIS by making the following responses—

(i) Requirement 4.1

4. DGR 4 requires surveys for threatened species and endangered ecological communities identified as subject species. The Requirements of DGR 4 were followed and appropriately documented in the SIS.

In relation to survey methodology the survey methods utilised were appropriate and adequate and followed accepted industry standards. Threatened species and endangered ecological communities were identified through survey as being present and several species were determined to be likely to be affected, even though they were not found on the site, due to the presence of suitable habitat and local records of these species on the various databases accessed in the preparation of the SIS.

known populations, local and regional abundance and security of habitats is provided by using available information. Dr Mills (page 13) has identified that the SIS failed to ….identify other populations of threatened species and communities in the locality,….. no surveys have been undertaken to establish their significance and no maps have been provided to show where they are located in relation to the subject site. The type of surveys and maps identified by Dr Mills have not been requested to be provided or undertaken by the Director General. There are no requirements to survey to determine other known populations. Known populations are considered to be those populations already known to be present. If survey were required to determine if they are present then it would be a requirement to discuss unknown populations.

10. In relation to the Cumberland Land Snail the SIS identified that this species was found on the site as a resident breeding population. It was located in the eastern parts of the site and more recent surveys by

also confirmed its presence in the Cumberland Plain Woodland vegetation areas of the site. These surveys also confirmed its presence to the north, south and east of the site and in the areas previously identified as potential habitat. Further checks of recent NPWS and Australian Museum database records identified more locations of this species than were known when the SIS was being compiled. These more recent records indicate that this species occurs more commonly in the locality than was known at the time of preparing the SIS.

Based on this updated information the statement incorporated in the SIS (Appendix III page 46) that…

can now be confirmed through finding specimens of the Cumberland Land Snail in these areas. The SIS identified that this

. Therefore I cannot agree with Dr Mills statement (page 8) that the….

These additional surveys confirmed my previous assessment that the Cumberland Land Snail was likely to be present in other areas on and adjoining the site due to the presence of suitable habitat.

As identified in the various air photos and Table E. 1 accompanying the SIS the extent of possible habitat removal (12 hectares) is not considered significant in relation to the many thousands of hectares of suitable foraging habitat in the local and regional areas.

The amelioration measures proposed particular hollow tree assessment prior to removal, and retention of large areas of habitat within areas not proposed for development are identified as measures which are appropriate to ensure that populations of these species are not significantly affected by the proposed development.

Alternative development options were outlined in the Planning Report and previous development applications for the site. The Species Impact Statement identifies that the proposal has been modified through a reduction in total numbers of allotments, reduction in area to be developed and extension of areas proposed to be provided as open space reserves. A

was identified but considered not feasible due to social and economic issues.

The measures proposed to mitigate the adverse impacts on threatened species and endangered ecological communities are identified in DGR 7.1 (pages 58-51) of the Species Impact Statement and include but are not limited to:

- fencing of adjoining undeveloped land

- ecologically sustainable bush fire management

- soil erosion and sediment control

- storm water management measures

- habitat retention in proposed open space areas

- Site Management Plans for construction stages

- Environmental Management Plans for open space areas

- Hollow tree assessments prior to clearing

- Erection of hollows and nest boxes in open space areas.

I believe that these mitigative measures are adequate and sufficient. It is an accepted procedure in large scale residential development projects to implement similar mitigation measures.

59. Mr Fanning in his Statement in Reply (Exhibit 6) rejects Dr Mill’s criticisms of the “gross inadequacies” in the SIS, and opines that “the SIS satisfies both the statutory requirements of the TSC Act, s 109, s 110 and s 111 and the requirements of the Director-General”. He further opines that the SIS “has involved the conduct of appropriate and comprehensive field investigations which generally exceed the accepted standards for SIS on an industry wide basis” and “has been prepared generally to the standards currently adopted by the industry in respect of addressing the matters raised both in the TSC Act and the Director-General’s Requirements”. His Statement in Reply then proceeds to express opinions on the Surveys conducted in the course of the SIS preparation for koalas, microchiropteran bats and the Cumberland Plain Land Snail.

60. The SIS is a document comprising several hundred pages (Exhibit B). In the “Executive Summary”, the following threatened species are identified “as likely to be affected to some degree by the proposed development”:

Common Bentwing-bat

Greater Broad-Nosed Bat

Eastern false Pipistrelle

Cumberland Land Snail

61. The last mentioned species is listed as “endangered” and the others are listed as “vulnerable”.

62. The Executive Summary identifies the following additional species (all listed as vulnerable) to be potentially present on the site:

Red-crowned Toadlet

Glossy black cockatoo

Bush Stone-curlew

Squirrel Glider

63. Thereafter, the Executive Summary continues as follows:

Two endangered ecological communities, Cumberland Plain Woodland and Shale Sandstone Transition Forest have been identified on the subject site. A detailed assessment in relation to each of these endangered ecological communities has been undertaken.

The development proposal has been extensively altered to accommodate threatened species issues. In addition significant mitigation measures have been adopted.

The principal ameliorative measure proposed has been through the successive modifications to the initial subdivision layout which has resulted in increased areas of open space and areas of habitat and decreased areas of residential subdivision.

Mitigative measures proposed to reduce the overall impacts of the proposed development on fauna, flora and habitats include:

§ Decreased areas of development compared to the previous proposals;

§ Erection of a chain wire fence along the eastern boundary of the proposed subdivision extending to the north and south to exclude pedestrians, vehicles and dogs from open space and undeveloped bushland areas. Secured gates will be provided to allow access for emergency vehicles such as fire brigade vehicles.

§ Implementation of ecologically sustainable bushfire hazard management plans for the adjoining bushland areas;

§ Implementation of soil erosion and sediment control measures and procedures during the clearing and construction stages in accordance with Councils current policy;

§ Incorporation of stormwater management measures such as gross pollutant traps, nutrient filter areas, constructed wetlands, stormwater detention basins and energy dissipaters to control the volume, velocity and quality of stormwater runoff;

§ Fencing of open space and undeveloped areas by appropriate chain wire and secured gate to exclude vehicle, pedestrian and day access;

§ Retention of areas of habitat within the identified drainage lines and open space reserves;

§ Preparation of Site Management Plans for each construction stage to detail the location and extent of environmental protection ensures for each stage of the development;

§ Preparation of Environmental Management Plans for the open space areas, drainage reserves and conservation areas;

§ Implementation of a hollow tree assessment procedure during the clearing stages of development to reduce direct impacts to hollow dependant threatened fauna.

Following detailed ecological surveys, impact assessment proposal modification it is concluded that the proposed development, in combination with the proposed ameliorative measures, can provide a sustainable outcome for native threatened flora and fauna species and endangered ecological communities.

Table E1 provides a summary of the potential impacts and proposed ameliorative measures for threatened species and endangered ecological communities.

64. Table E/1 includes the following content with respect to each of the five threatened species and two ecological communities identified to be present on the site:

TABLE E1
SUMMARY OF THREATENED SPECIES/ENDANGERED ECOLOGICAL
COMMUNITIES LIKELY/POTENTIALLY TO BE AFFECTED

COMMON NAMEPOTENTIAL IMPACTPROPOSED MITIGATIVE/AMELIORATIVE MEASURECOMMENTS

Koala Phascolarctos cinereusLoss of 12 ha of foraging habitat. Restriction of habitat area through removal of outer edge of habitat. Predation by domestic animals.Retention of primary habitat area to the north as open space.
Reduction in developed area to retain secondary habitat.
Reduction in developed area to limit edge disturbances.
Fencing of undeveloped eastern area to exclude dogs, people and vehicles.Potential Impacts significantly reduced due to layout adjustments and ameliorative measures.
No significant impact on local population of Koalas expected.

Common Bentwing-bat
Miniopterus schreibersiiLoss of 12 ha of foraging habitat.
Restriction of habitat area through removal of outer edge of habitat.Reduction in developed area to retain habitat.
Reduction in developed area to limit edge disturbances.
Fencing of undeveloped eastern area to exclude dogs, people and vehicles.Potential Impacts significantly reduced due to layout adjustments and ameliorative measures.
No significant impact on local population of this species expected.

Greater broad-nosed Bat
Scoteanax rueppelliiLoss of 12 ha of foraging habitat.
Restriction of habitat area through removal of outer edge of habitat.Reduction in developed area to retain habitat.
Reduction in developed area to limit edge disturbances.
Fencing of undeveloped eastern area to exclude dogs, people and vehicles.
Implementation of hollow tree assessment procedure during the clearing stages of development to reduce impacts on hollow dependant fauna.Potential Impacts significantly reduced due to layout adjustments and ameliorative measures.
No significant impact on local population of this species expected.

Eastern False Pipstrelle
Falsistrellus tasmaniensisLoss of 12 ha of foraging habitat area through removal of outer edge of habitat.Reduction in developed area to retain habitat.
Reduction in developed area to limit edge disturbances.
Fencing of undeveloped eastern area to exclude dogs, people and vehicles.
Implementation of hollow tree assessment procedure during the clearing stages of development to reduce impacts on hollow dependant fauna.Potential Impacts significantly reduced due to layout adjustments and ameliorative measures.
No significant impact on local population of this species expected.

Cumberland Land Snail
Meriodolum corneovirensLoss of 12 ha of habitat. Restriction of habitat area through removal of outer edge of habitat.Retention of primary habitat area to east in residual allotment and reserve. Reduction in developed area to retain habitat.
Reduction in developed area to limit edge disturbances.
Fencing of undeveloped eastern area to exclude dogs, people and vehicles.
Implementation of ecologically sustainable bushfire hazard management plans.Potential Impacts significantly reduced due to located snails being retained in residue allotment and reserve and ameliorative measures.
No significant impact on local population of Cumberland Land Snail expected.

Cumberland Plain woodlandLoss of 2.8 ha of CPW. Potential for further degradation of remaining CPW on site due to increased edge to interior ratio and the creation of new edges.0.9 ha of Cumberland Plain Woodland to be retained in reserve.
Reduction in developed area to retain part of this community.Potential impacts significantly reduced due to layout adjustments and ameliorative measures.
The limited extent and location of the CPW on the site indicates that this community is not a locally significant example of CPW.

Shale Sandstone Transition ForestLoss of 8.2 ha of SSTF. Potential for further degradation of remaining SSTF on site due to increased edge to interior ratio and the creation of new edges.12.4 ha of SSTF to be retained on the site within the residual allotment and reserved areas.Potential Impacts significantly reduced due to layout adjustments and ameliorative measures.

65. Appendix 111 to the SIS (comprising 53 pages) contains the assessment of threatened species likely to be affected by the proposed development. It separately deals with each species.

66. By way of example, pp 45 to 49 consider the Cumberland Land Snail.

67. In response to the Director General’s Requirement 5.1, (“threatened species likely to be affected and the nature of the impact” ) Appendix III states (at p 45):

The Cumberland Land Snail (Meridolum corneovirens) is considered to be an affected species according to the criteria applied in DGR 5.1 and Table 7 of the SIS.

The subject site contains areas of habitat for the Cumberland Land Snail. While the species was detected within the subject, these records were located outside the area proposed for development. It is considered that the development may have some effects on suitable habitat but the main areas of known habitat (ie areas to the east of the current proposed development area) have been excluded from the proposed development area.

68. In response to the Director General’s Requirement 5.2 (estimating the local and regional abundance of the species) Appendix III states (at p 46):

The current records of

are spread from Picton in the south to Maraylya in the north. The most easterly record is at Prospect and several records near Mulgoa form the western limit of current known

populations (NSW NPWS 2000a). Records for the Cumberland Land Snail exist throughout vegetated and undeveloped areas of the Cumberland Plain.

In the local area, Meridolum corneovirens has previously been located at one site to the north east of the Holsworthy Military Area (NSW NPWS 2000a). While the low number of records indicate that this species is likely to be rare in the local area, no assessment has been made of the local abundance of this species.

§ Other known populations in the locality

The Cumberland Land Snail was found within the subject site and study area. Records for the Cumberland Land Snail exist throughout vegetated and undeveloped areas of the Cumberland Plain.

§ Long term security of other habitats

Whilst the Cumberland Land snail is found in similar numbers outside of the area proposed to be developed (Table 8), this area is within the proposed Georges River Parkway. As such, the Cumberland Land Snail population in the vicinity of the site may not be secure. However, it is likely that this species occurs in similar vegetation types to the north-east and south-east of the site in areas subject to conservation.

§ Relative significance of the subject site in the locality

The good condition of habitat and the absence of other records within vegetated areas in the locality combined with the distribution of the Cumberland Land Snail across the study area (Table E1), indicates that this population is locally significant.

69. Appendix IV of the SIS (comprising 15 pages) contains an assessment of the two endangered ecological Communities found to exist on the development site (namely, (i) the Cumberland Plain Woodland and (ii) the State Sandstone Transition Forest).

70. As I have earlier mentioned, the other alleged inadequacies in the SIS, particularised in par (b) to par (g) inclusive of Issue 3 raised by the Council, essentially relate to, or are encompassed by, the allegations of the failure of the SIS to address Requirements 4,1, 5.2, 5.5 and 7.1 of the Director General.

71. In these circumstances, it is not necessary to consider each allegation in detail or the evidence of Dr Mills in support of the allegations or the rebuttal of Dr Mills’ opinions found in the evidence of Mr Conacher and Mr Fanning.

72. The allegations of inadequacies in the SIS and the supporting and contradicting expert opinions have, I believe, been adequately expounded to enable me to adjudicate upon the Council’s legal assertion that the content of the SIS is deficient to such an extent, and is of such a nature, as to produce the result of legal invalidity of the SIS.

73. The parties, in their competing contentions on this issue, are not in dispute upon the relevant legal test to determine the validity of the SIS, namely that for an SIS to be valid, there must be substantial compliance with the relevant requirements of the EP&A Act (and the TSC Act) including those in respect of the content of the SIS. The present case is only concerned with the content of the SIS.

74. The test of substantial compliance with the relevant statutory requirements has been long established in respect of environmental impact statements required to be prepared under the EP&A Act: see Prineas v Forestry Commission of New South Wales (1983) 49 LGRA 402; Guthega Developments Pty Ltd v Minister Administering the National Parks and Wildlife Act 1974 (1986) 7NSWLR 353; Scaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21. The same principle has been applied in respect of the requirements for a valid fauna impact statement: see Leatch v National Parks and Wildlife Service (1993) 81 LGERA 270; and Helman v Byron Shire Council. In Timbara Protection Inc v Ross Mining NL (1999) 102 LGERA 52, a case involving the current requirements of the EP&A Act in respect of a SIS the Court of Appeal held (at 71) that the legislation under consideration by the Court of Appeal in Helman was not relevantly distinguishable from the current EP&A Act.

75. Earlier in this judgment in Timbara, the Chief Justice had said at 66:

It can readily be seen that a species impact statement, when required, plays a critical role in the quality of the decision-making process, by ensuring that detailed information is available to primary decision-makers in a systematic and ordered way.

76. In my judgment, and notwithstanding the criticisms made of the content (or lack of content) of the SIS by Dr Mills and other experts retained by the Council, the content of the SIS did relevantly substantially comply with the statutory requirements contained in the TSC Act, s 110 and s 111. In so concluding, I hasten to add that I am not thereby rejecting the criticisms of the SIS made by Dr Mills and other experts retained by the Council. Indeed, those same criticisms will need to be considered when evaluating the proposed development on the planning merits. However, essentially I would regard those criticisms to be criticisms of (i) methodology employed in the SIS (eg in what the fauna surveys did and did not do); and (ii) of the assessments made by the SIS of relevant impacts of the proposed development on threatened species and ecological communities. Of course, relevant surveys and assessments are of the very essence of an SIS and it is always open to a party to challenge or criticise the survey methods and assessments contained in an SIS. Although it may reasonably be expected that such challenges will generally be directed to the merits of the survey methodology and the soundness of the assessments, there may be cases where there is the challenge to validity of an SIS, based upon the content (or lack of content), as occurred in Bell v Minister for Urban Affairs and Planning where the environmental impact statement did not contain material which the Regulation under the EP&A Act required to be included.

77. My analysis and findings of fact in the present case is that there has been no material omission from the required content of the SIS such as would establish invalidity, and that properly understood, the criticisms made of the SIS are criticisms going to the merits, both of the survey methodology and the relevant assessment of impact.

78. Accordingly, for all of the foregoing reasons, I would reject the Council’s attack upon the validity of the SIS while reserving the question of whether the Council’s criticisms of the SIS, may legitimately influence my planning evaluation of the proposed development as required by s 79C(1) (and especially par (b) thereof) of the EP&A Act.

79. This conclusion makes it strictly unnecessary for me to consider the Applicant’s “fall back” submission based upon Mr Fanning’s opinion (Statement of Evidence Exhibit 5) that an SIS was not required in respect of the proposed development. Mr Fanning’s opinion was based upon the result of his undertaking an assessment of the proposed development in accordance with the eight factors enumerated in the EP&A Act, s 5A, that result having yielded his opinion that the proposed development was “not likely to impose a significant effect on any of the threatened species of endangered ecological communities recorded on the development site”.

80. In undertaking that assessment, Mr Fanning relied upon the content of the SIS “as well as” his experience with the relevant species and ecological communities “elsewhere and in the locality” (p 3 of Exhibit 5).

81. I do not think that Mr Fanning’s opinion should be accepted. This is because it is not only extremely belated (in the sense that over the past two years the Applicant has submitted two separate SISs in support of different development proposals for the development site) but because it essentially repudiates all that has gone before in the preparation of the SISs and their submission to the Council (including the seeking of the Director General’s requirements issued pursuant to the TSC Act, s 111). Until its belated emergence, the parties have for a very long time accepted the common position that an SIS should accompany the development application. The belated emergence of Mr Fanning’s opinion should not disturb that settled position.

82. In these circumstances, I do not think it necessary to delve deeply into the merits of Mr Fanning’s assessment. However, one significant matter should be noted which obviously and essentially in my judgment, undermines his assessment. This is his reliance upon what the SIS had revealed about the presence on the development site of the Cumberland Land Snail as appears in his conclusion in respect of factor (a) in Section 5A when he says:

The known occurrences and sub-populations of the Cumberland Land Snail on the subject site are located in areas that have been excluded from development activities. Consequently, there is no evidence that

of this species will be even adversely affected, and it cannot be regarded as likely that

of this species would be placed

as a result of the proposed development.

83. Since the evidence of Dr Mills and Ms Clarke clearly establishes the widespread existence throughout the development site of the Cumberland Land Snail, Mr Fanning’s reliance upon the SIS findings to support his conclusion that a “viable local population” will not be adversely affected is as flawed as those findings were erroneous.

84. Accordingly, I would reject Mr Fanning’s opinion that an SIS is not required in the present case and in my ensuing planning evaluation of the proposed development as required by the EP&A Act, s 79C(1), I proceed upon the basis that the development application was accompanied by an SIS as required by the EP&A Act, s 78A(8)(b).
F. THE PLANNING EVALUATION REQUIRED BY S 79C(1) OF THE EP&A ACT

85. The EP&A Act, s 79C(1) is in the following terms:

(1) Matters for consideration—general

In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application;

(a) the provisions of:

(i) any environmental planning instrument, and

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

86. As noted earlier, all the Issues raised by the Council concern the impact of the proposed development on threatened species and ecological communities. These matters are principally relevant in terms of par (b) of s 79C(1) (“the environmental impact on the natural environment”).

87. In addition to seeking to make its case in rebuttal of the Council’s case, the Applicant, through the evidence of Mr Neil Ingham, a Consultant Planner (Statement of Evidence Exhibit 4) and of Mr Frank Shepherd, Landcom’s Developer Manager for the local government areas of Wollongong, Camden and Campbelltown, (Statement of Evidence Exhibit 8), has raised the issue of the “public interest” in ensuring the implementation of what is the last chapter in the planning history of the creation of the suburb of St Helens Park, and of the public interest in Landcom, as a State instrumentality with responsibility to undertake residential land subdivision, being able to supply land to the local market (which is targeted towards the affordable end of the market aimed at first and second home buyers) which is currently depleted of available land stock. This evidence is not challenged by the Council.

88. Thus, the planning evaluation required by s 79C(1) in the present case involves the Court firstly in adjudicating upon the disputed issue concerning the impact of the proposed development on the natural environment (s 79C(1)(b)) and determining whether there is any relevant impact, and if so, the nature and scale and seriousness of it, and then weighing that result in the scales with the matters of public interest that have been raised by the Applicant (and not challenged by the Council) in coming to the required discretionary planning judgment either to grant development consent subject to appropriate conditions (the Applicant’s case) or to refuse development consent to the Applicant’s development application (the Council’s case).

89. Since all of the issues raised by the Council are relevant to the consideration of the environmental impacts of the proposed development on the natural environment which is required to be undertaken pursuant to s 79C(1)(b), I think that it is possible to consider them concurrently, recognising that Issues 2, 3 and 4 are in truth ancillary and subordinate to the principal issue raised by the Council, namely Issue 1.

90. In respect of Issue 1 (whether the proposal will have an unacceptable and unreasonable impact upon the threatened species and ecological communities found to exist on the development site), there is direct and complete conflict in the competing expert opinions of the Council’s witnesses on the one hand and the Applicant’s witnesses on the other, as those opinions are recorded in their respective Statements of Evidence.

91. During the course of the hearing, and because of the plethora of expert evidence, I directed that the experts confer with a view to reporting matters of agreement and matters in dispute between the experts. This process yielded the admission into evidence of three documents (Exhibits O, R and 12) which comprehensively express the results of the conferencing between the competing experts.

92. Exhibit O identified the following points of agreement between the ecologists:

1. The boundary of the Cumberland Plain Woodland in the development area is approximately on the line shown on the map in the evidence of K Mills. Boundaries of vegetation communities are generally not abrupt.
2. The shale-sandstone transition forest on the development site is adjusted accordingly.
3. (a) There are Koala food trees on the development site and on the Landcom land generally.
(b) The development site and the Landcom land may be part of a home-range of one or more koalas.
(c) Evidence of the Koala, in the form of scats, has been located on the residue lot.
(d) Although scratches on smooth-barked eucalypts are not definitive evidence of koala presence, one would expect these in a koala breeding area.
(e) There is a breeding female in the gully of spring creek to the north of the development site.
(f) There have been no observations of Koalas on the development site.

4. (a) The distribution of the Cumberland Land Snail on the Landcom land is generally as shown on the maps in the reports by Conacher, Clark and Mills see attached plan marked “

”.

B”.

5. Given all of the evidence, the development site is unlikely to be significant for the Squirrel Glider.

(Copies of the plans “A” and “B” referred to in par 4 are annexed hereto and marked “D” and “E” respectively.)

93. Exhibit R is a document which records (i) facts agreed between the ecologists and (ii) the essential opinions of each of the experts on matters in dispute in respect of each of the five threatened species and the two endangered ecological communities. This is a very helpful document in that it encapsulates the essential areas of dispute in the competing expert opinions. It provides as follows:

MERIDOLUM CORNEOVIRENS

Facts prepared by Ms Stephanie Clark

(those with

next to them are agreed facts)

large form is not identified in the TSC Act as a separate entity .

Based on genetic data from my PhD, the area is likely to contain more than one population (deme) and that these overlap each other to some degree and therefore help maintain the genetic and morphological diversity' present at the site.

As the site contains a continuous link from Cumberland Plain Woodland to the sandstone forest with a transition area in between is the area where Meridolum corneovirens and the sandstone

species are likely to interact and it is possible that the site may support a very narrow hybrid zone between the two species.

Opinion of Ms Stephanie Clark

Given the Cumberland Plain Woodland portion of the population present on site has already in the last three years undergone a substantial reduction in size (due to clearing for housing), the current proposal only continues with this reduction and if allowed to proceed will result in the virtual elimination of the Cumberland Plain Woodland component of the population.

The proposal will also significantly reduce the area of interface between the Cumberland Plain Woodland portion of the population and the shale sandstone transition forest portion of the population.

Opinion of D Fanning

1 Assessment pursuant to section 5A of the EP&A Act - no

because:

viable local population on the site is not likely to be placed at risk of extinction (as agreed by Ms S Clark in evidence);

2 Section 5A of the EP&A Act provides the relevant test for the significance or otherwise of potential impacts on the threatened species.
3 Appropriate measures can be implemented (as agreed between the experts) to mitigate the impacts of the proposed development.

Opinion of P A Conacher

It is my opinion that the population of Cumberland Land Snail will not be significantly affected by the proposed development for the following reasons:

Based on these it is my opinion that the proposed development is not likely to result in a significant effect on a viable local population or habitat or the Cumberland Land Snail.

ENDANGERED ECOLOGICAL COMMUNITIES
(Cumberland Plain Woodland and Shale Sandstone Transition Forest)

Agreed Facts

Opinion of K Mills
I believe that the development site contains significant areas of CPW and SSTF and should be preserved because of the following:

Opinion of P A Conacher - Shale Sandstone Transition Forest
My opinion that the proposed development will not result in a significant impact on areas of Shale Sandstone Transition Forest is based on the following reasons:

Opinion of P A Conacher - Cumberland Plain Woodland
My opinion that the proposed development will not result in a significant impact on areas of Cumberland Plain Woodland is based on the following reasons:

Opinion of F D Fanning
Basis for my opinions:

· The relevant area for consideration is the region. The extent of the vegetation in the local government area is not relevant because:

118. Finally, there is to be discerned in the relevant statutory regime for environmental impact assessment contained in the EP&A Act a well established pattern which distinguishes between (i) the threshold duty to consider whether the preparation of an environmental impact statement or an SIS is required to support a proposed action where the duty is enlivened where the proposed action is “likely to significantly affect” the environment or threatened species etc (see ss 112(1) and s 78A(8)(b)) and (ii) the duty to evaluate the environmental impact, as an integral aspect of the ultimate decision-making function in respect of such a proposed activity or action or development (see s 112(4) and s 79C(1)(b)) where the discharge of that duty requires an assessment not of the “likely significant impact” of the proposed activity or action but of its “environmental impact”.

119. In respect of the “threshold” duty, it is well established by decisions of this Court and of the Court of Appeal that the word “likely” means “a real chance or possibility” and not “more probably than not”. Doubtless because the threshold test is very readily enlivened by the criterion of “likelihood” of environmental impact, the statutory criterion is balanced by the qualification that the impact must also be a “significant” impact. Thus, it is in the compound expression “likely to significantly affect or impact the environment” that the relevant threshold duty is propounded.

120. This position is to be contrasted with the absence of both words “likely” and “significant” in the formulation by the EP&A Act of the duty to evaluate the environmental impact of a proposed activity or development. Just as the word “likely” (with its established meaning in environmental law) is obviously not appropriate to the evaluation on the balance of probabilities, of the “environmental impact” of the proposed activity or development, which evaluation is a vital and integral part of the ultimate decision-making function, whether or not a proposed activity or development should be approved, so it is apparent that the Legislature has deliberately omitted qualifying words like “significant” from the statutory duty to evaluate “environmental impact”, preferring instead to leave the evaluation and its weight to the ultimate discretionary judgment of the “consent authority” under the EP&A Act, Part 4 or the “determining authority” (and Minister) under the EP&A Act, Part 5.

121. Accordingly, for all the foregoing reasons, I am of the opinion that the formulation of the issue contained in Issue 1 in the Council’s Statement of Issues, namely whether the proposed development would have an unacceptable and unreasonable impact on threatened species or ecological communities, is relevant to the evaluation required by s 79C(1)(b) and that the opinions of the Council’s expert witnesses, which adopt and address that particular formulation of the Issue, are likewise relevant. A corollary conclusion must be that the more narrow focus of Mr Fanning’s opinions is less relevant, because it does not cover the whole field of relevant enquiry.

122. Accordingly, I am of the opinion that the special features of the development site noted by Ms Clark (eg the extremely unusual collocation in a continuum of Cumberland Plain Woodland, Shale Sandstone Transitional Forest and Sandstone Forest) supporting different forms of the Cumberland Land Snail are relevant to the consideration of the “environmental impact” of the proposed development on “the natural environment” required by the EP&A Act, s 79C(1)(b) notwithstanding the fact that the TSC Act does not apparently recognise the grouping or linkage of those ecological communities and does not apparently recognise more than the single species of Cumberland Land Snail that has been listed under that Act.

123. It is for this reason that my acceptance of Ms Clark’s opinions concerning the “virtual elimination of the Cumberland Plain Woodland component of the population” and the significant reduction of the interface between the Cumberland Plain Woodland portion of the Snail population and the Sandstone Transition Forest portion of the Snail population is, relevant to my evaluation of the environmental impact of the proposal.

124. On the basis of my acceptance of Ms Clark’s evidence, I find that proposed development will involve an adverse impact upon the existence on the development site of the endangered Cumberland Land Snail, and that that adverse impact (principally by virtue of the clearance of the 12 ha proposed to be subdivided, including virtually all of the Cumberland Plain Woodland) will not be sufficiently mitigated or ameliorated by the proposed mitigation measures. I include in my consideration of mitigation measures, the proposed translocation of the snail population in existence on the development site as proposed by the experts’ agreement in Exhibit 12. However, this proposal only emerged as a result of the conference of experts and it too bears the hallmarks of ad-hocery , and has not itself, been factored into the SIS process or the assessment component of the SIS. This does not of course disqualify it from evaluation as part of the overall mitigative measures, but the degree of confidence in, and acceptability of, the proposed translocation, leaves me unpersuaded. Ms Clark was less than enthusiastic about the proposal for translocation of the snail.
(ii.) The Endangered Ecological Communities—(1) Cumberland Plain Woodland and State Sandstone Transition Forest

125. In preferring Dr Mills’ opinions to the competing opinions of Mr Conacher and Mr Fanning, I find that the development site contains significant areas of both ecological communities of very good quality, in a locality which is not well endowed with such communities. These communities would be adversely affected by the proposed development which would involve the loss of 4.1 ha of the existing 5 ha of Cumberland Plain Woodland and the loss of about 6 ha of the existing 22 ha State Sandstone Transition Forest. (As earlier noted, the loss of virtually all of the Cumberland Plain Woodland site also has adverse consequences for the endangered Cumberland Land Snail.)

126. In so finding, I do not find that these adverse impacts will be adequately ameliorated or mitigated by the proposed mitigation measures.
(iii.) The Vulnerable Species—The Koala

127. Here, in preferring Dr Close’s opinions to those of Mr Fanning, I find that the development site, if undeveloped, is likely to become in the future, part of a wider area (Dr Close’s defined “Study Area”) for breeding koalas.

128. I also find that the proposed development will adversely affect the capacity of the Study area to function as a koala breeding area by virtue of the direct consequences of the proposed development (ie the loss of food trees etc) and the indirect consequences of that development (eg predator increase, vandalism etc).

129. I do not find these adverse impacts will be adequately ameliorated or compensated by the proposed mitigation measures.
(iv.) The Vulnerable Species—Bats (i) Large Bentwing-Bat (ii) Eastern Falsistrelle and (iii) Greater Broad-nosed Bat

130. It is common ground that the proposed development will remove 12 ha of foraging habitat relevant to each of these three species which were recorded in the SIS surveys on, or immediately adjacent to, the development site.

131. The Council, through the testimony of Dr Mills, does not assert that this impact is necessarily unacceptably adverse. Rather, it relies upon his opinion that the surveys undertaken in the SIS process were inadequate and incomplete and hence not an ultimately reliable base upon which to form the necessary assessment.

132. In these circumstances, whereas I am prepared to accept the opinions of Mr Conacher and Mr Fanning of the probably limited adverse environmental impact of the proposed development on the three vulnerable bat species, I nonetheless do so with some misgiving, in view of Dr Mill’s criticism of the surveys undertaken in the SIS process. However, these misgivings are not so substantial and the environmental risks are not so significant, as to justify any application of the precautionary principle in making relevant findings.

133. In making all of the aforesaid findings of the environmental impacts of the proposed development on the natural environment, I have taken into consideration the proposed ameliorative measures as detailed in the SIS (at p 48 to 50), together with the agreement reached between the experts concerning the Environmental Management Plan (Exhibit 12).

134. Whereas I accept that the proposed ameliorative measures are designed and intended to minimise impacts of the proposed development on those parts of the development site that are to be dedicated as public reserves and on other neighbouring vegetated lands potentially affected by the proposed development, I do not consider that these ameliorative measures are adequate in terms of mitigating or compensating the direct impacts upon the endangered Cumberland Land Snail and the two endangered ecological communities and to a lesser extent, upon the vulnerable koala.

135. One key aspect of the ameliorative measures emphasised in the SIS should, I think, be commented upon in particular. This measure is described at p 49 as follows:

The principal ameliorative measure proposed has been through the successive modifications to the initial subdivision layout which has resulted in increased areas of open space and areas of habitat.

136. The present development proposal creates considerably few residential lots (135) than did the 1998 and 1999 development proposals (199 and 189 lots respectively). However, unlike the earlier proposals, the present proposal involves the creation of the residue lot (3.4 ha in area) alongside the reservation of the proposed Georges River Parkway, preserving the future potential development of that lot depending upon the outcome and implementation of the Georges River Parkway proposal (which has existed as a proposal for the past 20 years).

137. Even after making allowance for the proposed residue lot, it remains the case that the proposed development creates significantly fewer residential lots and conversely creates significantly more open space (aggregated area of 13.94 ha) than did either of the two earlier proposals.

138. However, to put this last mentioned matter into true perspective, it needs to be noted that of the total area to be included in public reserve lots, approximately 50 per cent of the aggregated area of 13.94 ha is zoned for open space in terms of the relevant local environmental plans and approximately 20 per cent is zoned “rural”. It follows, by deduction, that some 4 ha of the development site that are zoned for residential development are not being so developed, and instead are being included in the proposed public reserve lands. Accordingly, it is 4 ha and not the total amount of 13.94 ha of the proposed public reserve lands that can fairly be regarded as constituting an ameliorative or compensatory measure for the proposed development. This represents not an insignificant foregoing of development potential by the Applicant in deference to conservation demands.
(v.) The public interest in the completion of planning history for the creation of the St Helens Park Suburb

139. The suburb of St Helens Park contains an overall area of some 164 ha, 70 per cent of which was owned and developed by the Applicant. (This calculation includes the development site comprising 30 ha which is the last remaining precinct to be developed by the Applicant.) Indeed, the development site is the remaining residentially zoned land in the suburb that has either not been developed or not received development consent for development. (Most of the suburb has already been developed as have been the neighbouring suburbs.)

140. Mr Ingham expressed the opinion that it was important for planning reasons, that “a reasonable area” of development site be developed. He considered that the proposed open space provision in the subdivision (which was well in excess of the requirement for open space under the relevant zoning) “was an appropriate response to the identified flora and fauna constraints”.

141. Mr Ingham noted that since the s 94 Contributions Plan for the St Helens Park neighbourhood contemplated 1625 dwellings the proposed development comprised nearly 15 per cent of that total number.

142. Mr Ingham considered the proposed development would contribute to the viability of the “district centre” in the sense that it would create and complete demand for the available community services eg the nearby primary school and community centre and the proposed small retail centre. Conversely, if the development site were not developed, the viability of these existing and proposed facilities and services would be prejudiced.

143. Pointing out that the planning or new urban areas is a long term exercise (in the present case, the planning history can be traced back to 1973 Campbelltown, Camden and Appin Structure Plan) Mr Ingham expressed the following opinion:

To arrive at a point where the urban area is almost complete and then to cut off the last section, is to ensure that the planning vision is never realised and the community is thereby diminished in its integration, relationships to services and facilities and the use and significance of community facilities and shops.

144. Mr Ingham further opined that where essential urban infrastructure had been provided (as in the present case), there is a waste of public resources where the contemplated residential development does not take place, producing a result which was repugnant to the majority (6 out of 8) of the express objects stated in the EP&A Act, s 5.

145. Mr Ingham summed up his opinion in these somewhat extravagant words:

The St Helens Park community requires completion unless there is some momentous overriding issue which requires the objects of the Act to be overwhelmed by flora and fauna issues.

146. According to the evidence of Dr Frank Shepherd, Landcom has been developing in the southern section of the suburb of St Helens Park since 1984, having developed and released since that time, 653 residential lots.

147. In addition to drawing attention to some of the matters emphasised by Mr Ingham, Mr Shepherd gave the following evidence concerning the land market in which Landcom traditionally operates:

This land production is targeted towards the

end of the southwestern market and is aimed at first and second home buyers. If this proposal fails, the current land shortage in the southwestern market will be exacerbated. In this event, the reduced supply will inevitably lead to increased land prices in this area. The higher prices will eliminate some entry level purchasers from the market in this area. As this area is among the lowest priced in the Sydney region, this will mean that some purchasers may be removed from the market altogether.

There have been no major land releases in the southwest for some years, which further threatens land supply for the entry level market. The rest of Sydney is also experiencing similar shortages, which puts further pressures on areas such as St Helens Park.

148. As I have earlier noted, the Council has not challenged the evidence of Mr Ingham and Mr Shepherd. Nor has it proffered any evidence in rebuttal.

149. Accordingly, I accept the evidence, which is obviously relevant under a number of the statutory considerations enumerated in s 79C(1)—see especially par (a), par (c), and par(e). Additionally, the evidence is relevant to the beneficial “social” and “economic” impacts in the locality—see par (b).

150. The position is now reached where I must now make a discretionary planning evaluation or judgment based upon my relevant findings in terms of relevant matters under s 79C(1).

151. As earlier noted and found, the Council’s case is entirely based upon the environmental impact of the proposal on the natural environment.

152. This was the sole matter that was keenly in contest at the hearing and the Council has been successful in securing my finding that the proposal will involve adverse environmental impacts (though it has failed in its case seeking to establish the legal invalidity of the SIS).

153. Although the Applicant has failed on that keenly contested issue, it relies upon its uncontested case that a decision preventing the proposed development of the development site would be contrary to the public interest, attested by the long planning history for the development of the St Helens Park suburb (and the neighbouring suburbs) and the fact that that development is now complete save for the development of the development site, that public funds may be wasted by the non-utilisation of available urban infrastructure and that there may be adverse social and economic impacts in the locality (including the affordable housing market) if the proposed development is denied.

154. How are these disparate competing considerations to be resolved in the present case? Ultimately there is, of course, only one way and that is via the exercise of the discretionary planning evaluation or judgment that is required by the EP&A Act, s 79C(1) to be made.

155. In contending for refusal of development consent based upon a finding of relevant adverse environmental impact of the proposal on the natural environment, the Council’s case is essentially that the issue of adverse environmental impact is more important than the other relevant aspects of s 79C(1) relied upon by the Applicant in the present case, because the planning history and development of the St Helens Park suburb has been unavoidably interrupted or intercepted by the injection into the EP&A Act, of the necessity to consider the environmental impact of a development proposal on threatened species populations or ecological communities that have been listed under the TSC Act.

156. Historical planning decisions (such as the relevant planning history of the St Helens Park suburb and neighbouring suburbs dating back to the rezoning in 1980, which in turn was a development of the 1973 Structure Plan), were not immunised from the impact of the changes to the EP&A Act made by the TSC Act. In a fundamental sense, the planning history of the development site achieves no more in a planning sense under the EP&A Act than to zone the land as being capable of being developed by a permissible form of residential development. But the appropriate zoning is no more than an indication of the permissibility of development; it is no guarantee that in the exercise of a discretionary planning judgment required to be made under the EP&A Act, S 79C(1) in respect of any development application to carry out permissible development that consent will be forthcoming. This is but to state established planning orthodoxy cf Mobil Oil Australia v Baulkham Hills Shire Council (No 2) (1971) 28 LGRA 374 at 379.

157. This is not to suggest that s 79C(1) provides any indication of weighting of relevant factors in favour of one factor over others etc. Nonetheless, it should be noted as a general proposition that environmental impact has always been an important statutory consideration under the EP&A Act, the enactment of which signalled a radical change to the previous law concerning town and country planning. Just as s 79C(1) does not provide any system of weighting of relevant factors nor does s 5 (containing the express objects of the EP&A Act) express any suggestion or implication of any hierarchy in the expressed objects.

158. It was, no doubt, because of this well established fundamental feature of the EP&A Act that in the present case various expert witnesses have expressed relative opinions—eg Mr Fanning, in his Statement in Chief (Exhibit 5) considered that the proposal as it affected the Endangered Land Snail “is regarded as an appropriate balance between the conservation requirements of the species and the achievement of a reasonable development outcome”: p 9—and Mr Ingham considered that the site should be developed “unless there is some momentous overriding issue which requires that the objects of the Act be overwhelmed by flora and fauna issues. (Mr Ingham’s Statement appears to have overlooked that the objects of the Act also include the encouragement of—(i) “the proper management, development and conservation of natural resources” (par (a)(1)); (ii) the protection of the environment, including the protection of threatened species etc (par (a) (vi); and (iii) ecologically sustainable development (par (a)(vii)).

159. Similarly, Dr Mills in his Statement in Chief concluded with the following words (which provide a counterpoise for Mr Ingham’s finale):

It is hard to imagine a more important site for the conservation of threatened species and ecological communities in the Campbelltown region. If a site such as this can be developed, what hope is there for other important, but less significant sites in the region?

160. As the Chief Justice noted at p 68 in Timbara, the impact of a proposed development on threatened species etc is “one of many considerations to be taken into account”. But the weight to be given to relevant factors (represented by my relevant findings) is, of course, a matter entirely left to the decision-maker in the exercise of the required discretionary planning evaluation or judgment.

161. Obviously, the significance of relevant considerations, including the weight to be attributed to them, is of the essence in the discretionary judgment required by s 79C(1) in any case. In the present case, I do attribute significant weight to the adverse environmental impacts on the natural environment that I have found to be involved with the proposed development, particularly in respect of the endangered species and the endangered ecological communities.

162. The weight to be given to the relevant factors which operate in favour of the Applicant is somewhat more difficult to attribute, partly because the matters raised in the Applicant’s case were not challenged but partly because they were not amply demonstrated. For example, though it is easy enough to appreciate that the proposed development will have desirable social and economic impacts in the locality along the lines adumbrated by Mr Ingham and Mr Shepherd, it is not so easy to appreciate the nature and extent of any negative social and economic impacts if the proposed development does not materialise.

163. Those negative effects would no doubt have been expounded, or at least elucidated, if the development application had been referred to the Director-General, as required by the EP&A Act, s 79B(3) in which event, the Director-General would have been required by s 79B(5) to consider inter alia—
(b) the principles of ecologically sustainable development….; and
(c) the likely social and economic consequences of granting or not granting concurrence.

164. However, the development application was not referred to the Director-General and the Court is not only deprived of knowing whether the Director-General would have granted or not granted concurrence, but has not had the benefit of any detailed analysis of these particular statutory matters which, prima facie would appear to be very relevant to the present case. (This lack is akin to, but more serious than, the absence of discussion in the SIS of feasible alternatives to the proposed development.)

165. Ultimately, in the exercise of discretionary planning evaluation or judgment, I have concluded that development consent should be refused to the present development application. My reasons for so concluding can be summarised as follows:

(i) My findings of adverse environmental impact of the proposal on the natural environment outweigh my findings of the adverse consequences to the public interest that may be caused by refusal of development consent;

(ii) Refusal of the present development application does not of itself, mean that the development site may not be appropriately developed in the future;

(iii) Any such future development would no doubt depend, inter alia, upon proper assessment of environmental impact, in a manner that produces a more satisfactory outcome than did the SIS (in combination with the belated radical change in knowledge of the extent of the existence of the Endangered Land Snail) in the present case.

(iv) The expectations of the EP&A Act requiring participation by the Director General in his concurrence role under s 79B in a case where the development application is supported by an SIS should not be lightly ignored or bypassed by invoking the Court’s undoubted power conferred by the LEC Act, s 39(6) to determine a development appeal notwithstanding the fact that the requisite concurrence has not been granted. Though the Court is vested with relevant power, in the exercise of its discretion, the Court would not normally disadvantage its adjudicative function by allowing itself to be deprived of the benefit of the Director-General’s concurrence role, particularly in the highly specialised area involving the TSC Act where the Director-General is vested with foundational statutory powers and duties: cf Michel Projects Pty ltd v Randwick Council (1982) 46 LGRA 410. To the extent that the Applicant invited me to draw a Jones v Dunkel inference from the fact that no reference had been made to the Director-General pursuant to s 79B(3), the submission, in my opinion, is misconceived, since it is the Applicant, and not the Council, who is seeking the grant of development consent from the Court, without the Director-General’s concurrence being granted or his role even being explored.

(v) The prospect of postponing the question of whether the development site may in the future, be appropriately residentially developed is not inconsistent with the Applicant’s intention of creating the residue lot, recognising that the development potential thereof, is caught up with the future implementation of the Georges River Parkway proposal.

G. CONCLUSIONS AND ORDERS

166. For all the foregoing reasons, I have decided that the development application must be refused.

167. Accordingly, I make the following orders—
1. Appeal dismissed.
2. Development consent refused.
3. Exhibits be returned.
4. No order as to costs.

CITATION:	NSW Land and Housing Corporation v Campbelltown City Council [2002] NSWLEC 18
PARTIES:	APPLICANT: NSW Land and Housing Corporation RESPONDENT: Campbelltown City Council
FILE NUMBER(S):	10491 of 2001
CORAM:	Bignold J
KEY ISSUES:	Development Application :- Proposed residential subdivision-Existence of Threatened Species and ecological communities-validity of SIS. Evaluation of the Merits of the proposed development.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 5A, s 79B s 79C Threatened Species Conservation Act 1995 s 110, s 111 Land and Environment Court Act 1979, s 39(6)
CASES CITED:	Bell v Minister for Urban Affairs and Planning (1997) 95 LGERA 86; Guthega Developments Pty Ltd v Minister Administering the National Parks and Wildlife Act 1974 (1986) 7NSWLR 353; Helman v Byron Shire Council (1995) 87 LGERA 349; Integral Energy v Blue Mountains City Council (unreported 12 November 1998); Leatch v National Parks and Wildlife Service (1993) 81 LGERA 270; Michel Projects Pty Ltd v Randwick Council (1982) 46 LGRA 410; Mobil Oil Australia v Baulkham Hills Shire Council (No 2) (1971) 28 LGRA; Prineas v Forestry Commission of New South Wales (1983) 49 LGRA 402; Scaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21; Timbara Protection Inc v Ross Mining NL (1999) 102 LGERA 52
DATES OF HEARING:	27-31 August 2001 and4 September 2001
DATE OF JUDGMENT:	02/19/2002
LEGAL REPRESENTATIVES:	APPLICANT: Mr J Robson, Barrister SOLICITORS Mallesons Stephen Jaques RESPONDENT: Mr D Wilson, Barriste SOLICITORS Marsdens