Plumb v Penrith City Council

[2002] NSWLEC 223

Land and Environment Court

of New South Wales

CITATION:

Plumb v Penrith City Council and Anor [2002] NSWLEC 223

PARTIES:

APPLICANT
Plumb

RESPONDENTS
Penrith City Council and Anor

FILE NUMBER(S):

(4)0393 of 2002

CORAM:

Pearlman J

KEY ISSUES:

Judicial Review :- development application - educational establishment - whether species impact statement required - endangered ecological community - Cumberland Plain Woodland - jurisdictional fact - opinion evidence - whether ecological community exists on site - whether development likely to significantly affect ecological community - application of the eight part test

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s 4(1), s 5A, s 78A(8)(b)
Environmental Planning and Assessment Regulation 2000 cl 5, cl 87, cl 88
National Parks and Wildlife Act 1974 div 1B of pt 4
Sydney Regional Environmental Plan No 30 - St Marys cl 20(1)(a), cl 37
Threatened Species Conservation Act 1995 s 4(1), s 6(3), s 12, s 15, pt 3 sch 1

CASES CITED:

Carstens v Pittwater Council (1999) 111 LGERA 1;
Corporation of the City of Enfield v Development Assessment Commission and Anor (1999) 199 CLR 135;
Helman v Byron Shire Council and Anor (1995) 87 LGERA 349;
Masterbuilt Pty Ltd v Hornsby Shire Council [2002] NSWLEC 170;
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55

DATES OF HEARING:

22/10/2002; 23/10/2002; 24/10/2002

DATE OF JUDGMENT:

12/02/2002

LEGAL REPRESENTATIVES:

APPLICANT
Mr C D Norton (Barrister)
SOLICITORS
Woolf Associates

FIRST RESPONDENT
Mr J A Ayling SC
SOLICITORS
Phillips Fox

SECOND RESPONDENT
Mr B J Preston SC
SOLICITORS
Makinson & d'Apice

JUDGMENT:

(4)0393 of 2002

Pearlman J

2 December 2002

NOEL PLUMB

Applicant
v

PENRITH CITY COUNCIL

First Respondent

THE TRUSTEES OF THE ROMAN CATHOLIC

CHURCH FOR THE DIOCESE OF PARRAMATTA

Second Respondent

Judgment

Introduction

1 The applicant, Mr Noel Plumb, challenges the validity of a development consent granted by the first respondent, Penrith City Council, to the second respondent, the Trustees of the Roman Catholic Church for the Diocese of Parramatta.

2 The development for which consent was given is an educational establishment, being the construction of a high school (Xavier College) upon part of lot 2 in DP 803832, at Ninth Avenue, Llandilo (“the school site”). The school site, which comprises about 6 hectares, is located at the north-western corner of a much larger area of land commonly known as “the ADI site”.

3 The applicant claims that the development application (which led to the grant of development consent) was made in respect of development likely to significantly affect Cumberland Plain Woodland (“CPW”), a threatened ecological community. The applicant claims, as a consequence, that the development application was required to have been accompanied by a species impact statement, that it was required to be publicly exhibited, and that the concurrence of the Director-General of National Parks and Wildlife was required.

4 It is common ground that none of these steps were taken. The issue is whether they were required to be taken. That issue raises the two questions which were in dispute between the parties, namely:

(1) Is CPW present on the school site?

(2) If so, was the development application made in respect of a development likely to significantly affect CPW?

5 The applicant seeks a declaration that the development consent is void and a consequent injunction restraining the second respondent from carrying out development of the school site as an educational establishment without an operative development consent.

The statutory context

6 The statutory context in which the applicant’s challenge is made is as follows.

7 Section 78A(8) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) relevantly provides as follows:

(8) A development application must be accompanied by:
(a) …
(b) if the application is in respect of development on land that is, or is a part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats – a species impact statement prepared in accordance with Division 2 of Part 6 of the Threatened Species Conservation Act 1995.

8 I will use the words “threatened species” to refer to the whole of the formulation “threatened species, populations or ecological communities, or their habitats”.

9 Section 79B(3) of the EP&A Act provides that development consent cannot be granted for development that is likely to significantly affect threatened species without the concurrence of the Director-General.

10 Section 5A specifies certain factors that, for the purposes of the EP&A Act, and, in particular, for the administration of s 78A (amongst other sections), must be taken into account in deciding whether there is likely to be a significant affect on threatened species. Those factors are commonly known as “the eight part test”, and I will refer later in more detail to the application of that test.

11 The Environmental Planning and Assessment Regulation 2000 (“the Regulation”) is also relevant. Clause 5(1)(c) defines development referred to in s 78A(8)(b) of the EP&A Act as “threatened species development”, and cl 5 (2) provides that threatened species development is referred to, for the purposes of the Regulation, as “other advertised development”. The requirements of the Regulation relating to “other advertised development” are set out in div 7 of pt 6. In particular, cls 87 and 88 require written notice of the development application to be given to adjoining owners and interested public authorities, and such notice to be published in a local newspaper.

12 Section 4(1) of the EP&A Act relevantly provides that the expression “threatened ecological community” has the same meaning as in the Threatened Species Conservation Act 1995 (“the TSC Act”). Section 4(1) of the TSC Act relevantly defines “threatened ecological community” as an ecological community specified in either sch 1 or sch 2 of the TSC Act. CPW is specified as an endangered ecological community in pt 3 of sch 1 of the TSC Act in the following terms:

Cumberland Plain Woodland (as described in the final determination of the Scientific Committee to list the ecological community).

13 Section 6(3) of the TSC Act makes provision for the listing of endangered ecological communities in pt 3 of sch 1 to the TSC Act. Section 12 prescribes the eligibility for the listing of an ecological community as follows:

12 An ecological community is eligible to be listed as an endangered ecological community if, in the opinion of the Scientific Committee:
(a) it is likely to become extinct in nature in New South Wales unless the circumstances and factors threatening its survival or evolutionary development cease to operate, or
(b) it might already be extinct.

14 The final determination of the Scientific Committee in relation to CPW was gazetted on 13 July 1997 (“the CPW final determination”).

The proper approach

15 Each of the parties proceeded on the basis that the determination of whether the proposed development is likely to significantly affect CPW is a jurisdictional fact, that is, an essential condition or essential preliminary to the exercise of the power of the council to determine the development application by the grant or refusal of development consent. Indeed, there could hardly be any doubt that this case involves a jurisdictional fact, given the decision of the Court of Appeal in Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55. That case involved substantially the same issue as arises in this case – see par 34 – and the Court of Appeal held that, on the proper construction of the statute, the issue was one of jurisdictional fact (par 94).

16 A consequence of the determination being a jurisdictional fact is that the Court is obliged to decide the jurisdictional fact for itself (Timbarra at par 94) and evidence is admissible as to the existence or non-existence of the jurisdictional fact (Timbarra at par 36). But this case throws into stark relief the consequential difficulty involved. A decision as to whether or not a development is likely to significantly affect threatened species can never truly be an objective fact – it must always be a matter of opinion. That is because it involves “likelihood”, that is, the future possibility of the occurrence of an event, and, as to that, it depends upon expert scientific opinion. In this case, as I shall presently outline, the expert opinion is divided. All five experts who gave evidence are eminent in their field, and yet two consider that the development is likely to significantly affect CPW and three consider that it is not.

17 As was pointed out in the majority decision of the High Court in Corporation of the City of Enfield v Development Assessment Commission and Anor (1999) 199 CLR 135 at par 28, “[t]he term ‘jurisdictional fact’ (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion”. That formulation, and the difficulty I have outlined which flows from treating the determination of likely significant affect as a jurisdictional fact, might appear to throw some doubt on the correctness of the decision in Timbarra. Apart from the problem of opinion, not fact, it is to be noted that, as regards s 78A(8)(b), the determination of likely significant affect does not directly enliven the power of the council to grant consent to a development. Rather, the consequence of such a determination is to require that a species impact statement accompany the development application. In other words, it is not the species impact statement itself that enlivens the power of the council to grant consent, it is a valid development application, and, if threatened species are likely to be significantly affected, then a species impact statement is required for the validity of the development application.

18 However, in Timbarra, Spigelman CJ, with whom Mason P and Meagher JA agreed, held that the determination of whether or not a statutory formulation was a jurisdictional fact turns upon the proper construction of the statute. In undertaking the task of construction, Spigelman CJ recognised the matters I have set out above in the following passages:

The authorities suggest that an important, and usually determinative, indication of parliamentary intention, is whether the relevant factual reference occurs in the statutory formulation of a power to be exercised by the primary decision-maker or, in some other way, necessarily arises in the course of the consideration by that decision-maker of the exercise of such a power. Such a factual reference is unlikely to be a jurisdictional fact. The conclusion is likely to be different if the factual reference is preliminary or ancillary to the exercise of a statutory power. (par 44)

A factual reference in a statutory formulation relating to the instigation of a statutory decision-making process, is more likely, in my opinion, by reason of its extrinsic nature, to turn on an objective fact, than is a factual reference arising in, or in relation to, the conduct of the decision-making process itself. (par 50).

19 In holding that, on the proper construction of the statute, the determination of likely significant affect was a jurisdictional fact, his Honour noted, amongst other things, “… the purpose of a species impact statement in the legislative scheme …” (par 81). Plainly, the determination of likely significant affect relates to the instigation of the statutory decision-making process. It is part of the features which characterise the development application as valid, and such a valid development application triggers the decision-making process.

20 Similarly, Spigelman CJ recognised the difficulty of “opinion” as contrasted with “fact”. At pars 88 - 90 he said:

One of the considerations put forward against a conclusion that the factual reference is jurisdictional fact, is that the obligation to prepare a species impact statement is triggered by a formulation requiring the exercise of a broad judgment on a matter of potentially significant disputation. The list of species so described is determined by the content of Schedule 1 and Schedule 2 of the Act. However, whether a development is ‘likely to significantly affect’ such a species, is not so determinate.

The fact that a matter of judgment of this character is involved does suggest that it is less likely to be intended by parliament to be an objective fact, because it is, characteristically, a matter upon which reasonable minds may differ. Nevertheless, the proper construction of the statute may be that parliament did so intend …

In the present case, the primary decision-maker either has, or has ready access to, a relevant body of expertise and experience. However, the court in which proceedings are taken also has considerable experience, particularly in its class 1 jurisdiction, of making judgments of this character.

21 Both Mr Ayling SC, who appeared for the council, and Mr Preston SC, who appeared for the second respondent, referred to the difficulties I have outlined in their respective submissions, but neither of them submitted anything other than that a jurisdictional fact was involved. The analysis I have undertaken supports this view, and, being bound by the decision in Timbarra, I propose to proceed to determine the jurisdictional fact despite the evidentiary difficulties involved in so doing.

22 Four other matters of approach must be mentioned. They are as follows:

(1) The jurisdictional fact calls for a determination of “likely” and “significant”. In referring to s 77(3)(d1) (the predecessor of s 78A(8)(b)) in Oshlack v Richmond River Council (1993) 82 LGERA 222, Stein J (as he then was) made the following statement as p 233 (omitting citations):

A body of law has developed in relation to the interpretation of Pt 5 of the Act and the meaning of “likely” and “significantly” … In the context of Pt 5 “likely” has been held to mean a “real chance or possibility” and “significantly” to mean “important”, “notable”, “weighty” or “more than ordinary”: … 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 …

I agree, with respect, with that proposition and I approach the Court’s task accordingly.

(2) There is also a question of deference to the decision of the council on the jurisdictional fact issue. It was submitted by Mr Ayling that, although the Court must determine for itself the existence or otherwise of the jurisdictional fact, some weight should be given to the decision of the council. In support of this proposition, Mr Ayling relied upon the following passage from the judgment of the majority of the High Court in City of Enfield v Development Assessment Commission at par 47:

The weight to be given to the opinion of the tribunal in a particular case will depend upon the circumstances. These will include such matters as the field in which the tribunal operates, the criteria for the appointment of its members, the materials upon which it acts in exercising its functions and the extent to which its decisions are supported by disclosed processes of reasoning.

There was no issue that the council, in determining the development application, turned its mind to and determined that the development would not be likely to have a significant affect on CPW. Having regard to the cited passage, I think it appropriate to place some weight on the decision of the council. But that weight will not, in this case, be determinative because, as I point out in par 30, the council was in possession of a flora assessment from AMBS which concluded that CPW did not occur on the school site. For the reasons I set out in pars 24 – 32, I have concluded, on the evidence now adduced, that it does. Accordingly, the evidence before the council and the evidence before the Court is not in all significant respects substantially the same (see City of Enfield v Development Assessment Commission at pars 48 – 49) and it follows that lesser weight must be attributed to the council’s decision.

(3) There was some difference of opinion in the submissions of counsel for the parties as to the time at which the determination of the jurisdictional fact should be made. Mr Norton, appearing for the applicant, submitted that the relevant time is the time between the date of lodgement of the development application and the date of determination of it, and Mr Ayling conceded as much. However, Mr Preston submitted that the relevant time was the time of determination of the development application.

In my opinion, s 78A itself provides the answer. Section 78A(1) permits a person to apply to a consent authority for consent to carry out development. The following subsections of s 78A prescribe the features and requirements of a development application. One of those is provided for in s 78A(8) – namely, that a development application must be accompanied by a species impact statement if the development is likely to significantly affect threatened species. Furthermore, s 78A(9) provides that the regulations may specify “… other things that are required to be submitted with a development application”. The inescapable conclusion is that the inquiry stipulated by s 78A(8) must be made at the time the development application is made, since the determination governs one of the requirements for the making of a development application.

And, as I have pointed out in par 19, the jurisdictional fact relates to the instigation of the statutory decision-making process. It underpins the making a valid development application, and therefore triggers the whole assessment process generally. It also triggers the need for concurrence of the Director-General, and a requirement for public notice of the development application hinges upon the relevant inquiry. These matters support a conclusion that the time for determination of likely significant affect is when the development application is made (cf Helman v Byron Shire Council and Anor (1995) 87 LGERA 349 at 358 – 360).

(4) Another aspect, which was raised by Mr Preston, is an awkwardness in the language of s 78A(8)(b). It states the relevant inquiry as being “… 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 …”. The difficulty lies in the emphasised words, and arises from the repetition of the word “is”. What is to be considered in determining the likelihood of significant affect on threatened species? In my opinion, applying a purposive construction of the section, s 78A(8)(b) has a twofold inquiry. First, a species impact statement will be required if the development application is in respect of development on land that is, or is part of, critical habitat. Secondly, it will also be required if the development application is in respect of development that is likely to significantly affect threatened species. As a matter of common sense, it cannot be the “land” which is likely to significantly affect threatened species. After all, threatened species nearly always live on land. The practical approach is to treat s 78A(8)(b) as referring, in reference to the second inquiry, to the affect of the “development” rather than “the land”. The conclusion is also supported by cl 5(1)(c) of the Regulation. It identifies “development referred to in section 78A(8)(b)” as being “other advertised development”. The reference is to “development” rather than the “land” or “the application”. It suggests that the emphasis is upon the “development” and that lends support to the conclusion that the inquiry in s 78A(8)(b) is in respect of, on the one hand, development on land that is, or is part of, critical habitat, and, on the other hand, development that is likely to significantly affect threatened species. In this case, only the latter inquiry is relevant – there is no suggestion that the school site is, or is part of, critical habitat.

23 Bearing all these matters in mind, I turn to consider the two questions in dispute.

Is CPW found on the school site?

24 It is patently obvious that, if CPW is not found on the school site or in its surroundings, then it must follow that the inquiry stipulated by s 78A(8)(b) is not required – the development application could not have been in respect of development that is likely to significantly affect CPW as a threatened ecological community.

25 However, the evidence establishes that CPW is to be found on the school site. The only point at issue in the expert evidence is whether CPW occurs over the whole of the school site, or only on part of it. The weight of evidence establishes that CPW occurs over the whole of the school site and I so find. The expert evidence on the issue may be briefly summarised as follows.

26 Ms T A James, who is a botanist/ecologist, gave evidence for the applicant. She had visited the school site incidentally on previous occasions (in the course of studies unconnected with the present development application), but on 24 September 2002, she inspected the whole of the school site for the purpose of giving evidence in these proceedings. Whilst recognising the limitations arising from the degradation of the school site (having been mown and slashed over a long period, and having been grazed by kangaroos), Ms James was able to discern the nature of the vegetation on the school site. She concluded as follows:

(i) The vegetation on the school site is consistent with CPW as described by the Scientific Committee, by reason of the characteristic assemblage of plants occurring on shale soils;

(ii) CPW occurs over all vegetated parts of the school site, although there is a more disturbed area in the south-east corner, with a higher proportion of exotic plants;

(iii) The vegetation at the school site meets the criteria listed in the CPW final determination;

(iv) CPW is native to the school site, and existed on the school site during the development application process.

27 Mr M D Doherty, a botanist/ecologist, also gave evidence for the applicant. He inspected the ADI site in 1996 and the school site in September 2002, the latter visit being for the purpose of furnishing his opinion for these proceedings. His conclusion was that CPW is to be found on the school site, and existed there at the time the development application was lodged and at the time development consent was granted. In par 16 of his affidavit of 27 September 2002, he stated as follows:

In relation to the criteria in the CPW determination: (a) the soil on the site is derived from shale; b) the species recorded and observed on the Site are consistent with the list recorded for CPW; c) the structure, although very sparse, is still woodland; d) the understorey is grassy and contains components of native species which in my opinion would be sufficient to re-establish the characteristic native understorey, once intensive management by slashing, mowing and grazing has been removed; e) if such management pressures were lifted, it is my opinion that a more natural structure would eventuate, given existing and potential regeneration.

28 Dr S J Ambrose, an ecologist who gave evidence for the council, conducted the most extensive survey of the vegetation on the school site for the purpose of these proceedings. He visited the school site on two occasions, and traversed most of it on foot. He conducted his survey by establishing 35 quadrats (20m x 20m) across the site. He examined the vegetation communities on the school site by reference to the structures and diagnostic characteristics for the vegetation communities of CPW and of Shale/Sandstone Transition Forest (SSTF). In cl 64 of his affidavit sworn on 10 October 2002, he relevantly expressed his conclusion as follows:

64.1 In my view, the vegetation remnant on the subject site does not have a high proportion of diagnostic species of CPW or SSTF, probably because of its degraded nature. However, in my opinion, the dominant tree species and the open nature of the vegetation layers on the subject site and surrounding areas resemble CPW more than SSTF …

64.2 Therefore, it is my opinion that the vegetation community on the subject site is Cumberland Plain Woodland.

29 Dr D Robertson is an ecologist who gave evidence for the second respondent. He also traversed the site and established six quadrats (20 m x 20 m) to record the vegetation species. Unlike the evidence of the other experts to whom I have referred, Dr Robertson’s evidence was that CPW occurs only on approximately 0.81ha of the school site, principally near the southern boundary. He considered that Shale/Gravel Transition Forest covers approximately 2.68 ha of the school site, and that exotic vegetation covers approximately 2.61 ha.

30 A flora and fauna assessment of the school site was carried out by AMBS Consulting in December 2000 for the purpose of the development application, and it was an annexure to the statement of environmental effects which accompanied the development application. The conclusion in that assessment (at p 3) was that CPW occurs within the ADI site but “does not occur on or adjacent” to the school site. However, that opinion was subsequently revised by Mr D S Thomas, who was the botanist/ecologist engaged in the preparation of the AMBS assessment. Upon review of the evidence about the soil characteristics of the school site as being derived from shale on the Cumberland Plain (provided by Mr S W Leake, a soil scientist which in turn was based on a soil profile prepared by Ms N L Burrows, a horticultural consultant) and the evidence of Ms James, Mr Thomas came to the following conclusion in par 13 of his affidavit sworn on 10 October 2002:

Owing to the absence of small tree and shrub strata and the difficulty in identifying ground cover species because of the effects of drought and grazing/slashing, it was not possible to confirm conclusively the existence of CPW on the Site, nor the exact extent of it. Despite this, it appears that modified CPW does occur in some parts of the Site.

31 There are three other surveys to which reference should be made. They are, first, the native vegetation map of the Cumberland Plain prepared by the National Parks and Wildlife Service in 2000 (“NPWS 2000”), secondly, the map of the natural vegetation of the Penrith area prepared by D H Benson in 1992 (“Benson 1992”), and, thirdly, the flora assessment prepared for the Australian Heritage Commission in 1999 by Ian Perkins Consultancy Services (“the Perkins report”). None of these surveys identified CPW as occurring on the school site. However, I do not treat them as displacing the conclusion I have come to on the evidence I have summarised, namely, that CPW occurs on the whole of the school site. That is because none of these surveys were focussed directly on the school site, and each of them is expressed to be subject to limitations (NPWS 2000 at p 11 - 12, Benson 1992 at p 545, and the Perkins report at p 8).

32 Some criticism was directed to Ms James because she was the botanist who assisted in the preparation of the Perkins report, which, as I have said, did not identify CPW as occurring on the school site. Ms James explained the reason why she now so identified CPW. She said that she had now focussed directly and in detail upon the school site, that the Perkins report did not do so and was, in any event, subject to express limitations.

The likelihood of significant affect

The proposed development

33 The first step in the inquiry is to consider the nature of the proposed development upon the school site. This is because, as I noted in par 22(4), the inquiry is whether or not the development is likely to significantly affect threatened species.

34 What is the proposed is the staged construction of buildings and works, and the use of those buildings and works for the purpose of a high school. It is intended that there will be 13 separate buildings and parking for 93 cars. There will also be two asphalt sports courts and a large sports field along the eastern boundary.

35 The footprint of the buildings and related development will cover most of the school site (Mr Doherty’s estimation was that it would cover three-quarters of the school site). It is intended that an area in the southern part of the school site will be set aside for regeneration of existing indigenous grasses and groundcover. Furthermore, certain areas in the southern and western parts of the school site are denoted on the landscape plan as “site protection areas”, and these appear to represent areas to which construction access is to be denied. Lastly, the development is to be set back 15 metres from its frontage to Ninth Avenue in order to preserve grevillea junipera subsp, junipera, a threatened species, where it currently occurs on the school site.

The application of the eight part test

36 As I explained in par 10, s 5A of the EP&A Act requires specified factors to be taken into account in deciding whether there is likely to be a significant affect on threatened species. It is important, in my opinion, to recognise that the eight part test simply lists factors which must be “taken into account”. Positive answers to one or more of the eight factors does not mandate an affirmative answer to the question of whether there is likely to be a significant affect on threatened species (see Masterbuilt Pty Ltd v Hornsby Shire Council [2002] NSWLEC 170) nor is a negative answer to the question required if only one of the eight factors carries an affirmative answer (see Carstens v Pittwater Council (1999) 111 LGERA 1 at par 61).

37 Furthermore, the critical question is whether there is likely to be a significant affect on threatened species, as s 78A(8)(b) requires. The application of the eight part test mandated by s 5A is but part of the inquiry which that question poses. It is not the only inquiry – there may be facts and circumstances relevant to that inquiry which are not specifically contained in any of the factors in the eight part test. Hence, in dealing with the application of the eight part test, I have not confined my consideration solely to each test, but have taken into account other facts and circumstances which are relevant in this case.

38 In addition, it is important to bear in mind that s 78A(8)(b) contemplates “significant” affect. It is not simply any likely affect which will require an affirmative answer to the inquiry – it must be significant. And it is to the significance of affect that the eight part test is directed.

39 In this case, only four of the factors set out in s 5A, being those specified in pars (c), (d), (f) and (g), are directly applicable. Paragraphs (a) and (b) do not relate to a threatened ecological community. Paragraph (e) relates to critical habitat, but no critical habitat has been declared under the TSC Act in relation to CPW. Paragraph (h) relates to whether any threatened species is at the limit of its known distribution, and there is no dispute among the experts that the CPW community in question is not at that limit.

40 I turn then to take into account the relevant factors having regard to the expert evidence adduced in relation to each of them, and to deal, as I do so, with any other facts and circumstances relevant to the determination of whether the development on the school site is likely to have a significant affect on CPW.

41 Paragraph (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:

In my opinion, this paragraph requires an evaluation of “a significant area”, not specifically in its own right, but “in relation to the regional distribution of the habitat” of a threatened species. The significance, in that comparative sense, might lie in the size of the area compared to the area of regional distribution, and it might, independently or in addition, lie in the conservation value of the area compared to the conservation value of the regional distribution of the habitat.

42 I should interpolate here that Mr Preston dwelt at some length in his submissions on the proper construction of the words “known habitat”, especially in view of the fact that par (c) uses the word “habitat” twice. I think he is correct in his submission that the words mean the habitat as known and described by the Scientific Committee in its final determination in relation to the particular threatened species. In this case, nothing much turns on this question, and I have been content to regard the “known habitat” of CPW in terms of the description in the CPW final determination.

43 As to area, Ms James’ opinion was that approximately 7 hectares of CPW will be modified or removed. That area would comprise the whole of the school site of 6 hectares, and an additional one hectare outside the perimeter of the school site, the latter resulting from “edge effects”, that is, indirect impact from isolation or increased inputs of water and nutrients. The 7 hectares are, in Ms James’s opinion, significant by reason of being part of a larger remnant on the ADI site that is identified as a core biodiversity area for CPW, and because these hectares comprise a large remnant in their own right.

44 I do not accept that the modification or removal of up to 7 hectares of CPW will be significant compared to the regional distribution of the habitat of CPW. As some of the expert witnesses noted, NPWS 2000 indicated that about 26,724 hectares of CPW occur on the Cumberland Plain, representing about 21% of CPW that existed before European settlement. Both Dr Ambrose and Dr Robertson calculated that the an area of up to 7 hectares represents only 0.026% of the area of CPW that remains on the Cumberland Plain. Furthermore, an area of 629 hectares of CPW on the ADI site is to be located within a proposed regional park (see par 55), and Dr Ambrose pointed out that the area of that proposed regional park is about 105 times as large as the school site.

45 However, the evidence is equivocal in relation to the conservation value of the area of the school site and consequently in relation to whether a significant area of known habitat is to be modified or removed. As Dr Ambrose, Dr Robertson and Mr Thomas each pointed out, the school site is highly modified and degraded. Ms James recognised this, but she considered that the school site had good regeneration potential. Her opinion was that CPW at the school site is at a seral stage, and that sufficient diversity of native CPW species exists to allow recovery of the community to a near natural state if mowing, slashing and grazing are controlled. And in cross-examination, Dr Ambrose conceded that the school site had regeneration potential which could increase species richness and diversity.

46 A plank in Mr Norton’s argument that the school site was a significant area of CPW habitat was based on its regeneration potential. He claimed that, since the existence of CPW has now been recognised on the school site, further slashing, mowing and similar activities will not be able to continue in the absence of appropriate environmental impact assessment under pt 4 or pt 5 of the EP&A Act, or under the National Parks and Wildlife Act 1974 (“the NPW Act”), or under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). However, Mr Ayling submitted that little weight should be placed on the regeneration potential of the school site in the absence of evidence as to whether that potential is likely to be realised.

47 I accept the evidence that CPW on the school site has a potential to regenerate but I consider that this potential, taken on its own, is insufficient to conclude that a significant area of known habitat is to be removed or modified when compared to the regional distribution of CPW.

48 There is also a question of loss of biodiversity. Ms James thought that there were at least six regionally vulnerable species recorded on the school site that had not been recorded elsewhere on the ADI site. Dr Ambrose took issue with the number six, but conceded that there were three such regionally vulnerable species, and that, if the development on the school site was carried out, it would be possible, but unlikely (given the lack of complete surveys of the ADI site) that these three species might be lost entirely from the ADI site. However, both Mr Ayling and Mr Preston submitted, I think correctly, that the focus is not upon individual species, but upon the community of vegetation which comprises CPW as described in the CPW final determination. The question is whether a significant area of known habitat of the community is to be modified or removed, in relation to the regional distribution of the habitat of that community. The loss of three individual species (accepting that would occur, contrary to Dr Ambrose’s opinion) would not require an affirmative answer to the factor specified in par (c).

49 Mr Doherty’s evidence is also relevant to the issue of conservation value. His opinion was that the modification or removal of any area whatsoever of CPW would be significant. He said that all remaining patches of CPW assume significance where the vegetation type is greatly reduced and highly fragmented, whether the significance is related to existing value for flora or the potential to obtain such value via natural or assisted regeneration processes. Mr Ayling and Mr Preston each submitted, in effect, that Mr Doherty’s opinion was unrealistic. I think that submission is correct. If accepted, it would render the eight part test otiose because the question posed by s 78A(8)(b) would always be answered in the affirmative. Any development that modified or removed any area of threatened species habitat would have to be regarded as likely to have a significant affect, no matter what degree of modification or removal was involved. This does not accord with the question posed by s 78A(8)(b) nor with the eight part test.

50 Having regard to all these matters, I find that, in relation to the regional distribution of the habitat of CPW, no significant area of known habitat is to be modified or removed.

51 Paragraph (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:

The school site is located in the north-western corner of the ADI site. Its northern boundary fronts Ninth Avenue. It adjoins the ADI site on its southern and eastern boundaries. To the west is a triangular parcel of land comprising a densely wooded area of CPW.

52 The experts focussed primarily on the likelihood of isolation of the triangular area of CPW. Ms James was of the opinion that the triangular area was likely to become partially isolated because its existing contiguity eastward into the school site will be lost. Mr Doherty was of an almost identical opinion. He thought that partial isolation of the triangular area would occur on the east, although it would not be totally isolated on the south. However, Dr Ambrose’s analysis was that the triangular area would have a 450 m wide interface with the rest of the ADI site over its southern boundary, wide enough to allow sufficient movement of animals and plant materials, so that there would be no isolation. Dr Robertson thought that there would be a slight reduction of connectivity, but not to the extent that would result in isolation of currently interconnecting or proximate areas of habitat. Mr Thomas was of the same opinion because of the location of the school site at the edge of the ADI site.

53 This evidence does not support a finding within the terms of par (d). The triangular area of CPW habitat to the west of the school site is not likely to become isolated from currently interconnecting or proximate areas of CPW habitat.

54 Paragraph (f): whether a threatened species, population or ecological community, or their habitats, are adequately represented in conservation reserves (or other similar protected areas) in the region:

All experts agreed that CPW is not adequately represented in conservation reserves or similar protected areas. However, a factor to be taken into account here is the impact of the proposed regional park.

55 There are several relevant matters to note about the proposed regional park:

(1) The ADI site (including the school site) comprises land that is covered by Sydney Regional Environmental Plan No 30 – St Marys (“SREP 30”). Part 6 of SREP 30 provides for the zoning of the land which is subject to its provisions as indicated on the zoning map. Indicated upon the zoning map is a large parcel of land within the ADI site which is zoned “Regional Park”. (This parcel does not include the school site, which, instead, is shown on the zoning map as being zoned “Urban”);

(2) Clause 37(1)(a) of SREP 30 provides that one of the objectives of the Regional Park zone is to identify land that is to be or is reserved or dedicated under the NPW Act. Division 1B of pt 4 of the NPW Act deals with regional parks. Section 47O relevantly provides that the Minister may, by notice published in the gazette, reserve, as a regional park, certain land described in the notice “for the purpose of public recreation and enjoyment”. Part 5 of the NPW Act provides for plans of management. Relevantly, ss 72(1A) and (1B) provide for plans of management for a regional park, and s 75A provides for the adoption of a plan of management after prescribed public notice has been given.

(3) In July 2001, the Department of Urban Affairs and Planning (as it was then called) released a document entitled “St Marys Environmental Planning Strategy 2000” (“the Strategy”). In section 4.2 it set out a planning approach, which is expressed to involve the establishment of a regional park of 630 hectares within which many parts of the ADI site having medium to high biodiversity will be included. It stated that no development other than appropriate park-related uses may occur within it. Furthermore, it noted that the regional park will provide for the conservation of endangered ecological communities, including CPW. It also provided, in section 4.3, for performance objectives, amongst which is the objective of minimising adverse impacts on the vegetation habitats within the regional park resulting from the development of areas zoned urban.

56 No land within the ADI site has yet been reserved or dedicated under the NPW Act. The position accordingly is that, although land within the ADI site is zoned Regional Park under SREP 30, and although the planning objective outlined in the Strategy is to establish a regional park for the conservation of endangered ecological communities, land has not yet been reserved or dedicated as a regional park and no plan of management has been notified or adopted.

57 Dr Ambrose, Dr Robertson and Mr Thomas placed some emphasis on the protection of CPW to be afforded by the proposed regional park, but they each did so under the assumption that the regional park would be established and would protect CPW. For example, Dr Ambrose pointed out that the total area of CPW occurring in the ADI site is about 830 hectares, and the proposed regional park will include about 629 hectares of that total within it. His view was that CPW would be protected in the proposed regional park in an area large, contiguous and more viable than smaller fragmented parts.

58 However, Ms James stated that such parks “are not strictly conservation reserves and protection is not assured”. In his submissions, Mr Norton pointed to the fact that, absent the formal reservation of the regional park and a draft or adopted plan of management indicating what activities will be authorised within it, no inference can be drawn as to the degree of conservation it will provide.

59 In my opinion, it would be unrealistic to ignore the proposal for a regional park. SREP 30 zones land for the purpose of a regional park. One of the objectives of that zoning is “… to conserve and enhance the range and variety of ecological communities … within the area” (cl 37(1)(b)). Development for the purpose of any land use authorised by or under the NPW Act is permissible without consent, and any other development is prohibited (cl 37(2)). Furthermore, the Strategy, although without binding legal effect, has clearly indicated the current planning policy in respect of the proposed regional park. An area of land within the ADI site is likely to be formally reserved as a regional park, and it will, if established, contain within it a large area of CPW. Although a regional park so reserved under the NPW Act is not a conservation reserve established under that Act, par (f) of the eight part test refers to “similar protected areas” and it is reasonable to infer that CPW within the proposed regional park will receive some protection simply by virtue of being included in an area reserved, as s 47O provides, for the purpose of public recreation and enjoyment. For these reasons, I conclude that the proposal for a regional park is a factor to be taken into account in the determination of whether the development is likely to significantly affect CPW and it leads to a conclusion that, although CPW is not presently adequately reserved or protected, a large area of it is likely to become so.

60 Paragraph (g): whether the development or activity proposed is of a class of development or activity that is recognised as a threatening process:

There are a number of issues relating to par (g). First, it raises a question as to what is constituted by “the development” in this case. I have earlier described what is proposed (see pars 33 - 35), which is the construction and use of an educational establishment. So described, the development cannot be a class of development which is recognised as a threatening process, bearing in mind the definition of “threatening process” in s 4(1) of the TSC Act, where it is defined as meaning “… a process that threatens, or may have the capability to threaten, the survival or evolutionary development of species, populations or ecological communities”.

61 But on the other hand the carrying out of the development so described will necessarily involve the clearing of native vegetation on the majority of the school site. The question then arises as to whether “the development proposed” is to be taken to mean the clearing of vegetation on the school site. I am prepared, for present purposes, to so regard it.

62 That leads to another issue. Under s 15 of the TSC Act, a threatening process may be listed as a “key threatening process”, if, in the opinion of the Scientific Committee, it adversely affects two or more threatened species. On 21 September 2001, the following was listed as a key threatening process, namely, “clearing of native vegetation (as defined and described in the final determination of the Scientific Committee to list the key threatening process)”. Appendix 1 of the final determination (“the threatening process final determination”) lists CPW as one of the two or more threatened species affected by the key threatening process. The threatening process final determination defines “clearing” as follows:

“Clearing” is defined as the destruction of a sufficient proportion of one or more strata (layers) within a stand or stands of native vegetation so as to result in the loss, or long term modification, of the structure, composition and ecological function of stand or stands …

63 Furthermore, in the CPW final determination, the following relevant passages appear in pars 8 and 9:

8. Although some areas (of CPW) occur within conservation reserves, this in itself is not sufficient to ensure the long term conservation of the Community unless the factors threatening the integrity and survival of the Community are ameliorated.

9. Threats to the survival of the community include clearance … for housing and other developments …

64 Ms James and Dr Ambrose did not approach this issue correctly. Each of them made reference to the key threatening process that had been described, not in the threatening process final determination, but in the preliminary determination, where it was described differently. However, Mr Doherty, Dr Robertson and Mr Thomas correctly referred to the threatening process final determination, but did not directly address the definition of “clearing”. Nevertheless, Dr Robertson made three points – first, that the vegetation is presently highly modified, secondly that relatively large areas of CPW will be located within the regional park, and thirdly, that bushland regeneration in the southern part of the school site will reinstate some of the original features of CPW. Mr Thomas compared each of the examples of the impacts of clearing of native vegetation listed in the threatening process final determination, and concluded that the clearing of CPW on the school site would not be likely to result in significant impact.

65 My conclusion is that the development, insofar as it involves clearing of CPW on the school site, is, strictly speaking, of a class of development that is recognised as a threatening process, but, on the evidence available in this case and having regard to the definition quoted in par 60, the development is not likely to threaten or have the capability to threaten the survival or evolutionary development of CPW.

Conclusion

66 Having regard to the matters set out above, I have concluded that the development proposed for the school site is not likely to have a significant affect on CPW. It follows that a species impact statement was not required, and the other procedural steps outlined above were also not required.

67 Hence, the applicant must fail in its challenge.

68 No submissions were put in relation to costs, and it is appropriate to reserve my decision in relation to them.

Orders

(1) The application is dismissed.

(2) I reserve the question of costs.

(3) The exhibits may be returned.