Oshlack v Richmond River Shire Council

[1993] NSWLEC 210

Land and Environment Court

of New South Wales

CITATION:	OSHLACK v. RICHMOND RIVER COUNCIL [1993] NSWLEC 210 (22 December 1993) [1993] NSWLEC 3
PARTIES:	OSHLACK v. RICHMOND RIVER COUNCIL
FILE NUMBER(S):	40090 of 1993
CORAM:	Stein J
KEY ISSUES:	:- Development consent - validity - subdivision - habitat for endangered fauna - likely to significantly affect the environment of endangered fauna - need for Fauna Impact Statement - construction of development consent - conditions of consent - delegation of decision-making power - acting under dictation - whether failure to take relevant considerations into account - reasonableness of decision
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, ss4A, 77(3)(d1), 90(1)(c2), 90(1)(s) and 112 Environmental Planning and Assessment Regulation 1980, clause 41A(c) and (d) National Parks and Wildlife Act 1974, s120
CASES CITED:	Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24; Iron Gates Developments Pty Limited v Richmond-Evans Environmental Soc. Inc., Unreported, 12 June 1992, Court of Appeal; Parramatta City Council v Hale (1983) 47 LGRA 319 at 346; Bohun v. Commissioner for Main Roads (Unreported, Land and Environment Court, 11 December 1987); Auburn Municipal Council v Szabo (1971) 67 LGRA 427 at 433; Shell v Parramatta City Council (1972) 27 LGRA 102 at 102; Stebbins v Lismore City Council (1988) 64 LGRA 132 at 135-136; Halglide Pty Limited v PT Limited (1990) 71 LGRA 215 at 218-219; Baulkham Hills Shire Council v Hall, Unreported, 29 June 1990, Land and Environment Court); Mison v Randwick Municipal Council (1991) 73 LGRA 349 at 352; Fawcett Properties v Buckingham County Council [1961] AC 636 at 678; Scott v Wollongong City Council (1992) 75 LGRA 112 at 119; Marnal Pty. Limited v Cessnock City Council (1989) 68 LGRA 135; Jarasius v Forestry Commission of N.S.W. (1990) 71 LGRA 79; Bailey v Forestry Commission of N.S.W. (1989) 67 LGRA 200; Drummoyne Municipal Council v Maritime Services Board 1991 72 LGRA 186; ; Bentham v Kiama Municipal Council (1986) 59 LGRA 94 Leichhardt Municipal Council v Maritime Services Board 1985) 57 LGRA 169.; Leatch v Director-General National Parks and Wildlife Unreported, Land and Environment Court, 23 November 1993
DATES OF HEARING:	1 and 2 December 1993 Written submissions 9 December 1993 (Applicant) " " 16 December 1993 (Respondents)
DATE OF JUDGMENT:	12/22/1993
LEGAL REPRESENTATIVES:	Applicant - Mr S J Brockwell Respondent 1 - Ms S Winters Respondent 2 - Mr M L Brabazon

JUDGMENT:

The applicant, Mr Al Oshlack, seeks a declaration that a development consent granted on 16 March 1993 by Richmond River Council to the second respondent, Iron Gates Developments Pty Limited, is void.

The development consent relates to land at Evans Head described as Portions 276 and 277 of the Parish of Riley ("the land"). This land, together with adjoining Portions 163 and 164 (also owned by the second respondent), is commonly known as "Iron Gates". The development is a subdivision of part of the land into 110 residential allotments, with reserves for active open space and environmental protection. It is referred to as "Stage 1" in the development of the Iron Gates site. The land is partially covered by an area of littoral rainforest and a SEPP 14 designated wetland, respectively to the south and north-east of Portion 277. The site is considered habitat for endangered fauna listed in Schedule 12 of the National Parks and Wildlife Act 1974, in particular the koala.

The applicant attacks the validity of the consent on two principal grounds:-

. The Council failed to have regard to the factors listed in s4A of the Environmental Planning and Assessment Act 1979 (the EPA Act ) and failed to require a Fauna Impact Statement (FIS) under s77(3)(d1) because it unreasonably concluded that the development was not likely to significantly affect the environment of endangered fauna.

. Under ss90(1)(c2) and 90(1)(s) of the EPA Act the Council failed to give proper consideration to the factors listed under s4A of the Act and to clause 41A(c) and (d) of the Environmental Planning and Assessment Regulation 1980 (the Regulation). Therefore, the conclusion that there was unlikely to be a significant effect on the environment of endangered fauna was not one which was reasonably open to the Council.

Section 77(3)(d1) of the Environmental Planning and Assessment Act requires that where an application is in respect of a development which is likely to significantly affect the environment of endangered fauna it must be accompanied by an FIS in accordance with s92D of the National Parks and Wildlife Act . Section 90(1)(c2) of the EPA Act requires consideration of whether there is likely to be a significant effect on the environment of endangered fauna. Both provisions are referable to s4A, which provides as follows:-

"For the purpose of sections 77, 90 and 112, in deciding whether there is likely to be a significant effect on the environment of endangered fauna the following factors must be taken into account:

(a) the extent of modification or removal of habitat, in relation to the same habitat type in the locality;

(b) the sensitivity of the species of fauna to removal or modification of its habitat;

(c) the time required to regenerate critical habitat, namely, the whole or any part of the habitat which is essential for the survival of that species of fauna;

(d) the effect on the ability of the fauna population to recover, including interactions between the subject land and adjacent habitat that may influence the population beyond the area proposed for development or activities:

(e) any proposal to ameliorate the impact;

(f) whether the land is currently being assessed for wilderness by the Director of National Parks and Wildlife under the Wilderness Act 1987;

(g) any adverse effect on the survival of that species of endangered fauna or of populations of that fauna."

Section 90(1)(s) of the EPA Act requires consideration of "any other prescribed matter". Of relevance to the present determination are matters prescribed under clause 41A(c) and (d) of the Regulation:-

"(c) the effect of the development on any protected fauna within the meaning of section 98 of the National Parks and Wildlife Act 1974 or endangered fauna within the meaning of that Act and the habitat of any such protected or endangered fauna;

(d) the means to be employed to protect fauna or habitat referred to in paragraph (c) from harm, or to mitigate the harm, if harm is likely to be caused to the fauna or a population of the fauna or their habitat by the development;"

It should be noted at the outset that the nature of the present proceedings before the Court is one of judicial review and not review of a decision on its merits. In reviewing the lawfulness of the decision it is not the function of the Court to substitute its own opinion for that of the decision-maker. As the High Court observed in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24, a court must be vigilant not to exceed its supervisory role by reviewing an administrative decision on its merits. The question for the Court is not whether it agrees with the decision of the Council, but rather the lawfulness of the decision.

Background

The Iron Gates site, comprising approximately 100ha, is situated around 1km west of the township of Evans Head and lies on the northern banks of the Evans River. The site and the Evans Head township are bounded to the east by the South Pacific Ocean, to the north by the Broadwater National Park and to the south by the Bundjalung National Park. The Richmond River Local Environmental Plan No 3, published in the Government Gazette on 9 December 1983, zoned the majority of the Iron Gates site for residential purposes, with open space set aside on the lower lying coastal flats on the western periphery of the property.

In August 1988 a development application was made for the construction of an access road over Crown land linking the Iron Gates site with the Evans Head township. This was in conjunction with a development application for the subdivision of all 4 portions of the Iron Gates property (Portions 163, 164, 276 and 277) into 610 residential allotments. Development consent for the subdivision was granted by Council on 20 October 1988, with consent to the road granted on 19 July 1990. However, as a result of the decision of the Land and Environment Court, upheld in the Court of Appeal, the original development consent for subdivision was held to have lapsed (see Iron Gates Developments Pty Limited v Richmond-Evans Environmental Soc. Inc ., Unreported, 12 June 1992, Court of Appeal). In the appeal Iron Gates Developments sought to argue that the development had commenced relying upon certain engineering works undertaken by it. These works consisted of substantial clearing of the site. However, Handley JA found the "engineering work" which was relied upon by the appellant to save its consent from lapsing was "prohibited and illegal and the persons offending against that prohibition were guilty of offences against the Act [ Environmental Planning and Assessment Act ] for the purposes of s125(1)" (see page 5).

As a result of the Court of Appeal decision it was necessary for Iron Gates Developments to prepare a new proposal. Accordingly, it lodged the subject development application for the subdivision of part of Portions 276 and 277 into 110 residential allotments. The Iron Gates site is now zoned 2(v) - Village, pursuant to the provisions of the Richmond River Local Environmental Plan 1992 gazetted on 31 December 1992. Within the 2(v) zone the development is permissible with consent.

Delegation and acting under dictation

At this point it is convenient to canvass two submissions of Mr Brockwell, appearing on behalf of the applicant. It is alleged, firstly, that the Council failed to properly exercise its discretion by delegating its decision-making power to the second respondent's consultant, Countrywide Ecological Service Pty Limited, in particular, its principal Dr Leong Lim (paragraph 11 Further Amended Points of Claim). In support of this submission Mr Brockwell points to the following passage from the Minutes of the Council Meeting on 16 February 1993:-

"RESOLVED that Iron Gates Developments Pty. Ltd. be asked to consider the seven points [s4A of the Act] raised by the National Parks and Wildlife Service and if the Company is not able to meet the requirements of any of those points it be required to prepare and submit to Council a Fauna Impact Statement before further consideration will be given to the application."

Second, it is argued that the Council failed to properly exercise its decision-making power by acting under dictation in its adoption of the conclusion of a report by Countrywide Ecological Services that there was not likely to be a significant effect on the environment of endangered fauna (paragraph 18). In this regard the notation of 16 March 1993 made by a Council officer on the development application, upon the granting of consent to the development by the Council, is relied on, (see also p20 Ex A, item 15). It reads thus:-

"Resolution to adopt Dr. Leong Lim's report and conclusion that there will not be a significant effect."

In my opinion the applicant's submissions on delegation and dictation fail for want of a factual basis. Without more evidence, no such inferences can be drawn from the material referred to above. It is trite to state that a Council may rely on the inquiry, advice and recommendations of its officers ( Parramatta City Council v Hale (1983) 47 LGRA 319 at 346). Equally a decision-maker may also rely on the recommendations of a consultant employed by it, see Bohun v. Commissioner for Main Roads (Unreported, Land and Environment Court, 11 December 1987). Should reliance on a consultant employed by the developer be a breach of duty? I see no reason why a decision-maker should not be able to take into consideration a consultant's report submitted by a developer. Indeed, it happens all the time. However, it is for the Council to determine what weight it places upon such a report.

Without further evidence, such as bias, bad faith or improper motive, it is difficult to perceive how any inference could be drawn from the documents relied on which would lead to the conclusion that the Council failed itself to take the required matters into consideration or delegated its decision to the second respondent's consultant. Moreover, there is no evidence that in "adopting" Dr Lim's conclusion, the Council was acting under the developer's dictation. There is just no material before the Court that suggests that the Council abdicated its discretionary judgment in the face of external authority, namely the second respondent's expert.

The Consent

In the applicant's case, the following Further Amended Points of Claim (filed 25 October 1993), inter alia, are relied on:-

"19A. The first respondent [the Council] failed to impose appropriate conditions on the grant of consent to the Development.

19B. The first respondent failed to consider the Development as part of a larger development encompassing the entire areas of portions 163, 164, 276 and 277 Parish of Riley in the Richmond River Shire which is the whole of the land known as "Iron Gates".

19C. The first respondent failed to consider the effects of the Development on portions 163 and 164 and the remaining parts of portions 276 and 277 not subject of the Development.

19D. The first respondent failed to consider the effects of the Development in the context of the realisation of the ultimate objective of the Development namely residential development and all its ancillary characteristics."

In relation to the claim in paragraph 19A an issue arose during the hearing regarding the proper construction of the development consent. As the issue had not been foreshadowed in the Points of Claim or Defence, I gave leave at the close of the hearing for the applicant to serve written submissions on the issue by 9 December 1993 and the respondents to reply by 16 December 1993. The question arose in relation to condition 1 of the development consent, which is as follows:-

"Development of the site shall be carried out generally in accordance with the documentation lodged by Walker & Newton (including reports by Outline Planning Consultants and Dr Leong Lim), subject to such modifications required to comply with conditions set out hereafter."

The documents referred to in this condition are:-

1. The development application from Walker & Newton dated 1 September 1992.

2. Report accompanying the development application, Iron Gates Development Evans Head , by Walker & Newton Pty Limited dated 7 September 1992.

3. Conservation and Development Plan of Management - Portions 163, 164, 276 and 277 Parish of Riley, Shire of Richmond, `Iron Gates', Evans Head, New South Wales by Outline Planning Consultants Pty Limited dated June 1992.

4. Fauna Study and Impact Assessment of Iron Gates Evans Head New South Wales - Portions 163, 164, 276 and 277 Parish of Riley, County of Richmond, Richmond River Shire, with particular reference to the Development of Portions 276 and 277 by Dr Leong Lim of Countrywide Ecological Service dated October 1992.

5. Fauna Study and Impact Assessment of Iron Gates Evans Head New South Wale s - Portions 163, 164, 276 and 277 Parish of Riley, County of Richmond, Richmond River Shire, with particular reference to the Development of Portions 276 and 277 by Dr Leong Lim of Countrywide Ecological Service dated February 1993.

Included in document 5, Dr Lim's report dated February 1993, are 10 proposals to ameliorate the impact of the development (pp17-18 of Ex A item 12). The conclusion of Dr Lim (accepted by the Council upon granting development consent) that the proposed development is unlikely to significantly affect any endangered fauna, is premised upon the proposed ameliorative measures being implemented (see Dr Lim's conclusions and recommendations at pp21-22). Consequently the question of whether these ameliorative proposals form part of the development consent becomes one of some importance. According to the applicant, without these proposals there is by implication a likely significant impact on the environment of endangered fauna and an FIS is required. The applicant submits that the recommended ameliorative measures do not form part of the conditions of consent. Alternatively, he submits that the conditions are void because they are inconsistent with the development application, or are uncertain and lack particularity and finality.

In determining what a Council has approved "one primarily looks at the document constituting the approval, and construes it": Hope J in Auburn Municipal Council v Szabo (1971) 67 LGRA 427 at 433. It is also accepted that the terms of another document may be incorporated either expressly or by necessary implication, but not otherwise: Szabo (see also Shell v Parramatta City Council (1972) 27 LGRA 102 at 102; Stebbins v Lismore City Council (1988) 64 LGRA 132 at 135-136; Halglide Pty Limited v PT Limited (1990) 71 LGRA 215 at 218-219 and Baulkham Hills Shire Council v Hall , Unreported, 29 June 1990, Land and Environment Court). Indeed, it is not unusual for conditions of consent to incorporate a document such as an Environmental Impact Statement or a series of plans or drawings.

In the present case, it is clear that the documents referred to in Condition 1 have been expressly incorporated into the consent, although it might be seen to be unwise and undesirable for councils to incorporate the recommendations and measures of a report into conditions of consent in this manner. To do so may lead to a condition being declared void or the whole consent failing if the condition is not severable. Problems may also arise with enforcement. Nonetheless, it is apparent that the documents and the recommended ameliorative measures of Dr Lim form part of the development consent.

The ameliorative proposals

The question remains whether the ameliorative proposals are sufficiently certain to form part of the conditions of development consent. The applicant points to an initial ambiguity in relation to the proposals. Condition 1 refers to both the October 1992 and February 1993 reports of Dr Lim, each of which contain a list of ameliorative measures. The reports are substantially the same, however, the list of ameliorative proposals differ slightly. Added to the later report (pp 17-18 Ex A item 12) are the first and ninth proposals in the list and the words "under a tree preservation order" have been added to the fifth proposal in the list. I reject the applicant's submission that an ambiguity arises. I agree with Ms Winters for the first respondent that, applying commonsense it is clear that the February 1993 report is an update of the October 1992 report. As such, it is to the February 1993 report that regard would be more likely to be had in relation to the ameliorative proposals.

The ameliorative proposals contained in the February 1993 Report are as follows:-

"Proposals to ameliorate the impact of this proposed development include:-

1. Limiting development to the southern half of Portions 276 and 277.

2. Preservation of remnant Littoral Rainforest with adequate buffer against any further disturbance. The extent of this area be accurately surveyed, marked and corded off at all times during the construction phase.

3. Formulating a conservation plan for the preservation and regeneration of this area. This should include weed control and the prevention of future weed infestation on this site.

4. Roads be kept to a minimum width and where possible through traffic be prevented by cul-de-sacs. This should limit the vehicle speed and movements to slow local traffic.

5. Maximum retention of trees is proposed where possible. All trees above 3.0m in height should be considered for retention under a tree preservation order.

6. A tree corridor be dedicated between the remnant Rainforest (marked "A") and the forested area on Crown Land to the north. This corridor should include where possible a 50m core strip supplemented by shoulders to 100m. A complete structural integrity of the forest be maintained in the corridor core and minimum disturbance be accorded the shoulders. Structural habitat components should include the upper canopy, middle storey shrubs, undergrowth, litter layer and tree hollows.

7. The design of the drainage system should take into account the impact runoffs from the development will have on Wetland on Portion 467. The natural drainage should be preserved as much as possible and avoidance of direct discharge into the wetland would be desirable.

8. Retaining a 50m riparian corridor along the Evans River.

9. Other than that already mentioned above, proposals to ameliorate the impact of the proposed development include preserving in Portions 163 and 164, the Forest Red and Scribbly Gum stands, and the remnant and regenerating Littoral Rainforest areas (Fig. 4) as well as preserving tree corridors joining these areas to the forest on Crown land to the north of the subject site (see Fig. 3).

10. A conservation agreement under s69 of the National Parks and Wildlife Act be considered for the whole or part of the Iron Gates site subject to the findings of the FIS for Portions 164 and 163."

[The numbers have been added for clarity].

These proposals take the form of recommendations and their language, for the most part, is prospective. However, this does not of itself render them void for uncertainty. In Mison v Randwick Municipal Council (1991) 73 LGRA 349 at 352, Priestly JA stated that "what are finality and certainty for consent purposes must be judged by a substance approach rather than the strict kind of approach which requires absolute precision", see also Fawcett Properties v Buckingham County Council [1961] AC 636 at 678. With this approach in mind it is necessary to consider each ameliorative proposal.

With regard to No. 1 the applicant submits that it is directly inconsistent with the development plan annexed to Dr Lim's February 1993 report (Ex. A item 12, fig 6). This depicts a faint outline of a subdivision pattern in the northern half of Portions 276 and 277 and is described as "Future Development". Mr Brockwell argues that this "unresolved ambiguity" leaves the determination uncertain. While the incorporation of this recommendation as a condition of consent may have implications for future development of the site, so that it might be thought to conflict with aspirations of the developer, the proposal is sufficiently certain. No relevant ambiguity arises upon its terms. According to the recommendation of Dr Lim, to ensure the impact on the environment of endangered fauna is not significant, limiting development of the site to the current proposal in what is approximately the southern half of Portions 276 and 277, is required.

Ameliorative recommendation 2 is in clear terms and the buffer has been adopted in the plan of subdivision accompanying the development application (this is the same plan as contained in Dr Lim's report as fig 6). The need for an accurate survey does not deprive the recommendation of certainty or finality.

In relation to the third recommendation, Mr Brockwell submits that apart from the requirement that the conservation plan include weed control, the scope of the plan is not sufficiently delineated to be certain. I do not agree. That parts of the area, such as a wetland or littoral rainforest, may require specific conservation measures, does not lead to a conclusion that the recommendation is void for uncertainty. One could not expect the detail of such a conservation plan to be spelled out in a condition. The final details will, of perforce, need to be settled at a later date.

The fourth provision has been attacked for lack of particularity as to what is a "minimum width" and for being advisory in nature. In this regard the second sentence in the proposal is merely providing a reason. While the minimum width could be particularised in terms of metres, the import of the provision has been reflected in the plan and the `Conservation and Development Plan of Management', also incorporated into the consent, provides specific details on the envisaged widths of roads (see p49 of the plan). In the light of this material I am of the opinion that "minimum" is sufficient particularisation for the condition to be enforceable and certain.

However, the applicant submits that the fourth provision leaves open for later decision an aspect of the development, i.e., the precise width of the roads and the use of cul-de-sacs. Where a consent has been granted in such terms a question may arise whether the consent is final : Mison v Randwick Municipal Council at 354. If a consent leaves for later decision an important aspect of the development and the decision on that aspect could alter the proposed development in a fundamental respect, the consent cannot be regarded as final. In Scott v Wollongong City Council (1992) 75 LGRA 112 at 119, Samuels JA held that conditions which can be described as `ancillary to the core purpose' of a development application "which leave final details to be settled, should be approached with [a] degree of flexibility" (see also the recent amendment to the Environmental Planning and Assessment Act , s91(3A), which is a legislative embodiment of the principle). In my view recommendation 4 is a condition of this nature and not void for want of finality. The future determination of the minimum road widths and the prevention, where possible, of through traffic will not alter the development "in a fundamental respect".

Similar principles apply to the fifth recommendation. While the final detail of these matters is left open, the condition is ancillary to the core purpose and will not alter the development in a fundamental respect. Consideration of a tree preservation order (TPO) is strictly a matter for the Council to determine and need not be encompassed by the development consent. However, this does not prohibit the inclusion of such a condition, the first sentence thereof is clearly referable to the developer. The Council will be able to promulgate a TPO at the development and/or building application stage of the erection of dwellings on the allotments. Indeed, the report of the Principal Planning Officer (Mr McMahon) to Council envisages that a TPO will be prepared for the Iron Gates site (p15, Ex A, item 15).

In relation to the sixth recommendation, the applicant's principal contention is that the provision has not been fully reflected in the development plan. The corridor is claimed to be less than 90m wide for most of its length and the width of the connection with the littoral rainforest is said to be less than 40m wide at that point. It is, however, difficult to judge from the plan itself because of its size. Nonetheless, if there be an inconsistency after scaling off, then in my opinion the ameliorative condition prevails and, to the extent of any discrepancy, supersedes and amends the plan. The condition is sufficiently certain and final. While the precise widths are left open they are sufficiently particularised. Importantly, the dedication of the tree corridor itself has not been left open for later determination.

According to Mr Brockwell, the seventh proposal is advisory in its tenor and may require the complete rearrangement of the proposed road and subdivision pattern. He relies on the dicta of Priestley JA in Mison that a condition which leaves open the " possibility that development carried out in accordance with the consent and the condition will be significantly different from the development for which the application was made" is void for lack of finality. It is not apparent to me that this condition could lead to the development being "significantly different" (see Scott v Wollongong City Council at p119). Applying the test in Scott v Wollongong I am of the opinion that the condition is sufficiently final and certain.

No real objection can be taken to recommendation 8 which appears to be reflected in the plan accompanying the development application. The ninth recommendation has also been challenged on grounds of finality and certainty. Although, as I have already found, the recommendation forms part of the development consent, it is difficult to see how it can form a condition of the consent. It relates to land which is not the subject of the development application and is merely advisory for the future.

The tenth proposal of Dr Lim suggests a conservation agreement under s69 of the National Parks and Wildlife Act be considered subject to the findings of an FIS for Portions 163 and 164. It is assumed that Dr Lim meant a Conservation Agreement between the Minister for the Environment and the landowner pursuant to s69B of the Act. However, the suggestion is entirely prospective and advisory and relates to Portions not included in the development application. Although part of the development consent I do not think that it can be sustained as a meaningful condition. Apart from the ninth and tenth recommendations, I am not convinced that the proposals in Dr Lim's report are relevantly uncertain and invalid.

Failure to take relevant matters into consideration

According to the applicant the respondent Council failed to consider the matters prescribed in s4A of the Act and clause 41A(c) and (d) of the Regulation. Indeed, apart from unreasonableness, this is the applicant's principal argument. The submission relates to paragraphs 11, 18, 19 and 19A to 19D of the Further Amended Points of Claim.

In assessing this submission it is necessary to determine what the Council had before it when granting consent to the development. According to the affidavit of Mr McMahon, the Council's Engineer/Planning Officer (sworn 15 November 1993), and his further evidence in chief, the following information was before Council for consideration on 16 March 1993:-

1. The late correspondence was received and read to the meeting, namely, the letters received by Council from the National Parks and Wildlife Service on 15 March 1993 and from Dr Lim on 16 March 1993 (Ex A items 13 and 14). Copies were provided to Councillors

2. The Principal Planning Officer's report on the development application, consisting of 63 pages. This report included consideration of ss90(1) matters and appended pages 12 to 22 of Dr Lim's February 1993 report. The report was circulated to Council members before the meeting (Ex A item 15).

3. Planning staff placed on an overhead projector the substance of the 7 points in s4A of the Environmental Planning and Assessment Act . Council staff were on hand to answer any questions.

Also available to Councillors were the documents listed earlier in this judgment, i.e., the documents incorporated by Condition 1 of the consent.

For convenience I will deal with each of the applicant's submissions in turn. In relation to paragraph 19A, had the evidence established, for example, a failure of the Council to include proposals to ameliorate the impact of the development on endangered fauna, an inference might be available that the Council had failed to adequately consider s4A(e). However, it is clear from the evidence that material on ameliorative proposals was before the Council in the form of Dr Lim's reports, particularly the February 1993 document. The question of the adequacy or appropriateness of the conditions of consent and the incorporation of Dr Lim's report is one of weight or reasonableness to which I will return.

In considering the development of Portions 276 and 277 it is appropriate, and required by s4A(d), to have regard to the impact of the development on adjacent habitat of endangered fauna. However, I do not think the Council is required to consider the development as part of the future development of the entire Iron Gates site, as this was not the development proposal before the Council. Indeed, without some reasonably specific proposal this would be impossible. The impact, including the cumulative impact of further development of the Iron Gates site, will need to be considered by Council at the time any such development application is made and it is difficult to see how this could meaningfully be done at any earlier point in time.

The applicant's contention in paragraph 19C would appear to be unsustainable on the evidence. According to material before the Council most of the koalas are thought to occupy the southern portion of Portion 163 and the current proposal is designed to exclude development of any known or potential prime koala habitat, such as the rainforest area in Portions 277 and 276 (Dr Lim's February 1993 report). While the fauna impact assessment in Part 4.0 of Dr Lim's report is limited to Portions 276 and 277, the document relates to the entire Iron Gates site, as does the Conservation and Development Plan of Management (Ex. A item 3).

In relation to paragraph 19D, I am also of the opinion that there was material before the Council on the effects of the ultimate objective of the development, namely residential development and its ancillary characteristics (see p19 of Dr Lim's report, Ex.A item 12 and pages 40-50 of the Conservation and Development Plan of Management, Ex. A item 3). The impact of roads, domestic pets, drainage and pools etc. is considered (in reports to Council) and indeed, the Council specifically conditioned the consent in relation to some of these matters.

The applicant's submission that the Council failed to have regard to clause 41A(c) and (d) of the Regulation (paragraph 19) also needs to be addressed. While no explicit reference to this clause has been made, the consideration of matters prescribed under it is little different to the consideration required under s4A of the Act. Failure to expressly advert to a matter does not necessarily establish that it was not adverted to, Marnal Pty. Limited v Cessnock City Council (1989) 68 LGRA 135. Accordingly, the applicant has not satisfied the Court that the Council failed to take these matters into consideration.

Unreasonableness

This leads to the main thrust of the applicant's case, whether the Council's decision that the development was not likely to significantly affect the environment of endangered fauna and no FIS was required, was so unreasonable that no reasonable decision-maker could have reached this conclusion.

Before this issue can be approached some examination of the legislative provisions may be useful. Sections 4A, 77(3)(d1) and 90(1)(c2) adopt a phrase similar to that used in s112 of the Act - `likely to significantly affect'. The main difference between the regime set up under ss4A, 77(3)(d1) and 90(1)(c2) and under s112 is the former is restricted to the environment of endangered fauna. The applicant submits that in the present case guidance may be sought from the judicial interpretation of this phrase in relation to s112. Ms Winters and Mr Brabazon (by adopting Ms Winter's submissions) accept that such guidance can be sought. I agree with the applicant's submission.

A body of law has developed in relation to the interpretation of Part 5 of the Act and the meaning of "likely" and "significantly": Jarasius v Forestry Commission of N.S.W. (1990) 71 LGRA 79; Bailey v Forestry Commission of N.S.W. (1989) 67 LGRA 200; Drummoyne Municipal Council v Maritime Services Board 1991 72 LGRA 186; Bentham v Kiama Municipal Council (1986) 59 LGRA 94 and Leichhardt Municipal Council v Maritime Services Board 1985) 57 LGRA 169. In the context of Part 5 "likely" has been held to mean a "real chance or possibility" and "significantly" to mean "important", "notable", "weighty" or "more than ordinary": Jarasius . I see no reason why these constructions should not be imported into the similarly worded provisions of ss4A, 77(3)(d1) and 90(1)(c2). The same statute is involved and similar approaches are dictated, see also Leatch v Director-General National Parks and Wildlife , Unreported, Land and Environment Court, 23 November 1993.

Since 1984 the Court has also developed a body of authority relating to challenges to decisions on judicial review. A number of these authorities are collected and discussed by me in an article "Relationship of Tribunals to the Decision-Maker : Deference to Agency Expertise" - Administrative Tribunals : Taking Stock , Centre for International and Public Law ANU 1992 p44. The Court has consistently stated that it will decline to vitiate a decision, even if it disagrees with it, if it is satisfied that the decision was one which was reasonably open to the decision-maker: Bentham ; Bailey . Turning to the evidence, then, the question is whether the decision was one which was reasonably open to the Council.

The evidence called by the parties was essentially that of 2 fauna experts - Mr Stephen Phillips, Manager, Environment Division of the Australian Koala Foundation and Dr Leong Lim. This evidence, in relation to the koala, its habitat, behaviour and the assessment of the site, was detailed and complex. I have given it careful consideration and will make reference only to some aspects thereof.

Mr Phillips called by the applicant, is qualified in zoology and ecology. He has over 20 years of management and research experience with koalas (in particular) and over 10 years experience with State government conservation agencies. In his opinion, the documents submitted to Council have significantly understated the importance of the Iron Gates site for koalas. According to his knowledge and inspection of the site he suspects there may be as many as 4 or 5 koalas ranging over Portions 276 and 277 and in his assessment the Iron Gates site has a population of between 10 to 15 animals. Mr Phillips concludes his report by saying:-

"....the Iron Gates koala colony is a fundamental component of a small isolated population of approximately 30 to 40 animals in the Evans Head area. I am of the opinion that the Iron Gates site in general constitutes critical habitat for this population as a whole and that the ability of the population to remain viable as a result of activities proposed by this development will be severely compromised."

Dr Lim, called by the developer, is an ecologist with extensive experience in endangered fauna, primarily the yellow-footed rock wallaby. In preparation of his assessment of the site he undertook 4 nights of spotlighting for endangered fauna. He observed 4 koalas on the Iron Gates site during this time, one of which was seen on the land the subject of the development application. This koala was found in the north west edge of littoral rainforest (on Portion 277), an area not to be developed for housing. Dr Lim maintains that the modification of the subject land will not significantly affect the environment of the koala.

There was an essential theoretical difference between the experts. Mr Phillips believes koalas are territorial and Dr Lim does not. In this respect Mr Phillips is advocating a fairly new perception of koala behaviour, while Dr Lim's opinion accords with what has been to date a more accepted and mainstream view. This theoretical difference has a substantial effect on each expert's assessment of the impact of the development upon koalas. Mr Phillips believes koalas display a high degree of fidelity to particular "home ranges" and individual trees. Dr Lim disagrees. Consequently Mr Phillips argues further assessment of feeding patterns and ranging behaviour is needed before the impact of the development and the utility of ameliorative measures can be adequately assessed. He is therefore unable to agree with Dr Lim's conclusion that the environment of the species is not likely to be significantly affected.

The letter from the National Parks and Wildlife Service, dated 15 March 1993, is also critical of Dr Lim's assessment of endangered fauna on the site and considered it not unreasonable for the Council to require an FIS to be undertaken (Ex A item 13). Dr Lim's letter, dated 16 March 1993, provides a counter point to these criticisms. Both of these documents were before the Council when it made its decision.

I have reached the conclusion, upon close consideration of the evidence, that the decision taken by the Council was one which was reasonably open to it to make. This conclusion does not mean that the Court necessarily agrees with the decision. Indeed, the Court expresses no opinion. However, the particular circumstances required a difficult factual assessment to be made by Council and the fact that minds might differ and conclude otherwise than did the Council is no reason to vitiate its decision: Bentham at 98. The weight to be attached to the material before the Council was a matter for it. It had no obligation to seek out further opinions from other experts. It advertised the development thereby allowing the opportunity for public participation. I think it was reasonably open to Council to accept Dr Lim's assessment that the development would not be likely to significantly affect the environment of endangered fauna if ameliorative measures (such as he suggested) were taken. Accordingly, it was open to the Council to conclude that an FIS was not required.

While one could be critical of the manner in which Council incorporated Dr Lim's ameliorative proposals, instead of imposing specific conditions of consent, this does not render the decision relevantly unreasonable. Neither does the absence of express conditions on the control of domestic animals and the use of "koala friendly" fences (as suggested by Dr Lim and Ex. A item 3 p50). These controls are important to the medium to long-term survival of koalas (see the evidence of Dr Lim). However, the Council may impose such controls at the development and/or building application stage for individual dwellings.

However, this finding does not necessarily end the matter of whether an FIS is required for the development. There may still be a need for an FIS under s120 of the National Parks and Wildlife Act , indeed, this was strongly recommended by the National Parks and Wildlife Service in its letter to Council, dated 19 January 1993 (Ex. A item 6). It is also clear that an FIS will definitely be required should any of the balance of the Iron Gates site seek to be developed. This is the opinion of Dr Lim (p4 Ex. A item 13) and confirmed by the developer and its counsel (p5 Ex. A item 2).

As a result of the preceding analysis of the applicant's case, his challenge to the validity of the development consent must fail. Accordingly, the application is dismissed. The exhibits may be returned.