Land and Environment Court New South Wales

• Medium Neutral Citation: Davis v Gosford City Council [2012] NSWLEC 62
• Hearing dates: 08/03/2012; 09/03/2012
• Decision date: 27 March 2012
• Jurisdiction: Class 4
• Before: Lloyd AJ

Decision

1. A declaration that the development application lodged by the applicants with the respondent on 26 July 2011 and numbered by the respondent 40918/2011 was not required to be accompanied by a species impact statement prepared in accordance with Division 2 of Part 6 of the Threatened Species Conservation Act 1995 (NSW).

2. A declaration that the development application was made on 26 July 2011.

3. A declaration that the decision of the respondent to reject the development application under cl 51(2)(b) of the Environmental Planning & Assessment Regulation 2000 (NSW) made on 28 July 2011 was null, void and of no effect.

4. A declaration that the decision of the respondent to adhere to its decision of 28 July 2011 made on 5 September 2011 - the s 82B review - was null, void and of no effect.

5. An order that the decision of the respondent made on 28 July 2011 be set aside.

6. An order that the decision of the respondent made on 5 September 2011 be set aside.

7. An order that the respondent pay the applicants' costs of the proceedings.

• Catchwords: DEVELOPMENT APPLICATION - whether to be accompanied by a species impact statement
• Legislation Cited: Environmental Planning & Assessment Act 1979, ss 5A, 78A(8); Environmental Planning and Assessment Regulation 2000, cl 51(2)(b); Threatened Species Conservation Act 1995, Div 2, Pt 6; Uniform Civil Procedure Rules 2005, r 42.1
• Cases Cited: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72; Timbarra Protection Coalition Inc v Ross Mining NL (1999) 102 LGERA 52
• Category: Principal judgment
• Parties: Raymond Davis (First Applicant); Suzanne Davis (Second Applicant); Gosford City Council (Respondent)
• Representation: AM Pickles (Applicants); MC Fraser (Respondent); Michael Flaherty (Applicants); PJ Donnellan & Co (Respondent)
• File Number(s): 40820 of 2011

Judgment

1 The applicants are the owners of land known as 168 Somersby Falls Road, Somersby, which is within an area known as Somersby Industrial Park. On 26 July 2011 they lodged a development application with Gosford City Council for "an integrated resource recovery facility" on the land. The proposed development is Designated Development and was accompanied by an environmental impact statement which included a Flora and Fauna Assessment Report. That report concluded that the development was on land that is not, nor is it part of, critical habitat, nor was it likely to significantly affect threatened species, populations or ecological communities, or their habitats.

2 Nevertheless, on 28 July 2011 the Council rejected the development application as being invalid on the ground that a species impact statement was required: s 78A (8)(b) Environmental Planning & Assessment Act 1979; cl 51(2)(b) Environmental Planning and Assessment Regulation 2000.

3 The applicants' subsequent request for a review of the Council's decision was again rejected and the decision was confirmed.

4 The applicants now come to the Court seeking a declaration that their development application was not required to be accompanied by a species impact statement, that a development application was made on 26 July 2011 and that the decisions of the Council to the contrary should be set aside.

5 The Council says that the development application is required to be accompanied by a species impact statement because of s 78A(8)(b) of the Act. That subsection relevantly states that a development application must be accompanied by:

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.

6 The question of whether a species impact statement is required in any particular case is a jurisdictional fact: Timbarra Protection Coalition Inc v Ross Mining NL (1999) 102 LGERA 52. Accordingly, the Court must now decide for itself whether, as a fact, the application is in respect of land which is, or is part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats.

7 To this end the Court has as evidence the Flora and Fauna Assessment Report which was annexed to the environmental impact statement, prepared by an ecological consultant, Mr FD Fanning, together with the additional written and oral evidence of Mr Fanning, and the written and oral evidence of the Council's expert witness, Mr GJ Chestnut.

8 The inquiry engages s 5A of the Act, which lists seven factors to be taken into account in determining the question that the Court now has to answer (also known as "the seven-part test"). That section relevantly states:

(1) For the purposes of this Act and, in particular, in the administration of sections 78A, 79B, 79C, 111 and 112, the following must be taken into account in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats:

(a) each of the factors listed in subsection (2),

(b) any assessment guidelines.

(2) The following factors must be taken into account in making a determination under this section:

(a) in the case of a threatened species, whether the action proposed is likely to have an adverse effect on the life cycle of the species such that a viable local population of the species is likely to be placed at risk of extinction,

(b) in the case of an endangered population, whether the action proposed is likely to have an adverse effect on the life cycle of the species that constitutes the endangered population such that a viable local population of the species is likely to be placed at risk of extinction,

(c) in the case of an endangered ecological community or critically endangered ecological community, whether the action proposed:

(i) is likely to have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction, or

(ii) is likely to substantially and adversely modify the composition of the ecological community such that its local occurrence is likely to be placed at risk of extinction,

(d) in relation to the habitat of a threatened species, population or ecological community:

(i) the extent to which habitat is likely to be removed or modified as a result of the action proposed, and

(ii) whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed action, and

(iii) the importance of the habitat to be removed, modified, fragmented or isolated to the long-term survival of the species, population or ecological community in the locality,

(e) whether the action proposed is likely to have an adverse effect on critical habitat (either directly or indirectly),

(f) whether the action proposed is consistent with the objectives or actions of a recovery plan or threat abatement plan,

(g) whether the action proposed constitutes or is part of a key threatening process or is likely to result in the operation of, or increase the impact of, a key threatening process.

9 The evidence has focussed on two threatened species that are said to be affected: Hibbertia procumbens - commonly known as Spreading Guinea Flower - and the Eastern Pygmy possum. The two species are threatened species - not a population or an ecological community. The parties' respective expert witnesses agree that, of the seven factors in s 5A(2) of the Act, those listed in s 5A(2)(b), (c), (e) and (f) are not relevant in the circumstances of the present case.

10 The Department of Planning has issued assessment guidelines, as referred to in S 5A(1)(b). A relevant principle in the guidelines states:

Proposed measures that mitigate, improve or compensate for the action, development or activity should not be considered in determining the degree of the effect on threatened species, populations or ecological communities, unless the measure has been used successfully for that species in a similar situation.

11 Mr Fanning prepared the Flora and Fauna Assessment Report under s 5A of the Act following extensive surveys. The report forms an appendix to the environmental impact statement, in which he concludes that the development is not likely to have a significant effect on the threatened species or their habitats and a species impact statement is not required. Mr Fanning further developed his opinions in his affidavit and his oral evidence. Mr Chestnut did not conduct an assessment under s 5A himself and his evidence is largely a critique of Mr Fanning's work so as to come to the opposite conclusion.

12 After examining Mr Fanning's report, together with his additional written and oral evidence, and Mr Chestnut's written and oral evidence, I have come to the view that the proposed development is not likely to significantly affect either of the two threatened species or their habitats. It follows that a species impact statement was not required to accompany the development application. The council's rejection of that application was in error and is void. The application was duly made and remains to be considered and determined on its merits. I have come to this view for the following reasons.

13 Mr Chestnut does not dispute Mr Fanning's statements that the proposed development is not on land that has been identified as critical habitat for any threatened species, population or ecological communities, it is not on land that includes any threatened populations and it is not on land that contains any threatened ecological communities.

14 It is convenient to consider the effect of the proposed development on each of the threatened species separately.

Hibbertia procumbens

15 Also known by its common name of the Spreading Guinea Flower, Hibbertia procumbens is a prostrate spreading shrub which, according to Mr Fanning, has been recorded extensively across the Gosford and adjoining local government areas and in the Hawkesbury sandstone environment. Moreover, Mr Fanning's uncontested evidence is that the species is fairly resistant to disturbance, being relatively common in areas burnt in the 2005 bushfires, and has been observed in grazed paddocks and in a long-established Christmas tree farm which was devoid of all native upper stratum vegetation.

16 The subject land, 168 Somersby Falls Road, has an area of 11.097 ha. The proposed development will occupy only some 4.05 ha in the south-western section of the land, representing about 36.5% of the site area. In 2008 the number of specimens of Hibbertia procumbens on the site was 396, of which 88 were within the area to be developed. According to Mr Fanning's undisputed evidence, the sub-population of Hibbertia procumbens which is located, in part, on the subject site extends well beyond the site boundaries, including onto adjoining lands to the north, north-west and east, numbering 591 specimens within the local population (being generally on the subject and adjoining lands). That is, less than 20% of the local population of the species is within the area to be developed.

17 In January 2012 Mr Fanning and his associate undertook a "directed meander" through the subject site and adjoining lands to the north and north-west, and concluded from those observations that the total numbers of the plant are now greater than in 2008, albeit in approximately the same distribution pattern.

18 The species also occurs at various other locations throughout the Somersby Industrial Park as well as outside the Somersby Industrial Park. Within the Industrial Park itself the species is protected by a number of management zones identified in the Somersby Plan of Management. One such management zone is over the northern portion of the subject site, and will be partly affected by the proposed development. (The Plan of Management has no statutory force but must be taken into consideration in the determination of any development application. It is otherwise irrelevant to the question that I have to determine in these proceedings, namely: is the development likely to significantly affect the particular threatened species?)

19 According to Mr Fanning, nothing is known about the life cycle of Hibbertia procumbens in the scientific literature, but it appears to be pollinated by small native ants, flies, bees and wasps. Mr Fanning states:

Based on the mobility of these pollinators, and the known and potential distribution of habitat for the Spreading Guinea Flower adjoining the subject site, it is inconceivable that there would not be cross-pollination between individuals within the subject site and individuals located on the adjoining lands to the immediate north and east, with genetic interchange (direct or indirect) for up to at least 250 to 500 metres from the southern, northern or eastern boundaries of the subject site.

20 Mr Chestnut's critique of Mr Fanning's work includes a reference to the guidelines referred to in s 5A(1)(b) and in particular the guideline noted at [10] above. In his view the submitted information has not adequately demonstrated that the purported mitigation and improvement measures - which he describes as "bush regeneration in the remaining area at the cost of reducing the already reduced habitat are of the local populations" - have been successfully used for the species in similar situations. In his view the assessment undertaken in all aspects of the seven-part test is not adequate to fully address the question of significance, and what he refers to as "the poor discussion of the importance of the habitat" as required under s 5A(2)(d)(iii) has not been adequately addressed. As I understood his evidence, it is that the impact of the development is not only likely to be significant, but it will be significant because it will result in a net loss of core habitat that the species occupies.

21 Mr Chestnut relies on the plan of management and the fact that part of the management zone for Hibbertia procumbens identified in the plan of management will be encroached upon by the development.

22 According to Mr Chestnut:

Nothing Mr Fanning says concerns the common sense conclusion that the destruction of 1.4 ha of the management zone is likely to significantly affect the viability of the local population of Hibbertia procumbens ...

23 Mr Fanning, however, has undertaken more work since the plan of management was prepared and found that the habitat of the species is more extensive than when the plan of management was prepared. The management zones were based on now out-dated information which is superseded by the more recent studies.

24 Despite Mr Chestnut's careful and considered criticisms of Mr Fanning's assessment, I am inclined to prefer the latter's views. In his affidavit Mr Fanning sets out the many reports and studies, both regional and sub-regional, which he had read for the purpose of his investigations, noting that the Somersby Industrial Park (including the subject site) has been intensively investigated over the past fourteen years. Mr Fanning also personally attended the subject site on a number of occasions in carrying out supplementary flora and fauna investigations. Mr Chestnut, however, did not and, as noted at [11] above, has not carried out an investigation under s 5A himself.

25 In considering the relevant matters that must be taken into account, I thus accept the opinion of Mr Fanning that the "local population" of Hibbertia procumbens is not confined to the subject land, but is distributed more widely. The subject land contains only part of the local population and the portion of the subject land to be developed comprises a relatively small part of the local population. Having regard to the considerations under sub-s 54(2)(a), I accept Mr Fanning's opinion that the species is fairly resilient to disturbance, noted at [15] above, that the species is otherwise widely distributed in the area and that disturbance to less than 20% of the local population is not likely to expose a viable local population to a risk of extinction.

26 In relation to the extent of habitat removal, the importance of the habitat to be removed, and its effect on the long-term survival of the species (sub-s (2)(d)), I again prefer the opinions of Mr Fanning and for the reasons noted above. I have noted that less than 20% of the local population will be affected by the proposed development, but I also note that the majority of habitat for the species occurs in the northern and eastern parts of the subject site and will not be disturbed by the action proposed. Moreover, since the action proposed is to be located in the south-western part of the subject site, it will not result in any area of habitat becoming fragmented or isolated from other areas of habitat of this species, noting that the importance of the habitat to be removed is less that that which exists on other parts of the site and its removal is unlikely to affect the long-term survival of the species.

27 As to factor (g) in sub-s 5A(2), I accept that whilst the action proposed will involve the operation of a key threatening process, being the clearing of native vegetation, the impact of that action is likely to be marginal having regard to the location within the site of the proposed development and the distribution of the species elsewhere in the site and on the adjoining land.

28 Finally, as to Mr Chestnut's criticism noted at [20] above, I note that Mr Fanning in taking into account the assessment guidelines did not rely upon the proposed mitigation measures to reach his conclusions. I thus conclude that the proposed development is not likely to significantly affect the threatened species Hibbertia procumbens.

The Eastern Pygmy possum

29 In relation to this species I am again inclined to accept the views of Mr Fanning, despite the carefully considered contrary opinion of Mr Chestnut, and largely but not solely for the same reasons mentioned at [11] above. In particular I have regard to Mr Fanning's relatively extensive investigations of the site and its surrounds.

30 According to Mr Fanning, the Eastern Pygmy possum is found in habitats from rainforest through sclerophyll forest and woodland to tall heath. Habitat for the Eastern Pygmy possum on the subject site includes a variety of shrub and heath plant communities, as well as areas of open woodland with a moderately dense shrub and/or heath understorey. The possum was recorded on the subject site and on the adjacent land to the south-east in 2003 and 2005, but has not been seen there since.

31 On the subject site the potential habitat for the Eastern Pygmy possum is predominantly within the southern half of the site and along the eastern and northern boundaries. The adjoining land to the east and north-east and north also supports suitable habitat. The central western part of the site, which is within the area to be developed, does not support habitat for this species. Habitat corridors to the north, east and south of the subject site remain.

32 In relation to s 5A(2)(a) of the Act, I agree with Mr Fanning that, whilst the proposed development will remove much of the prime quality habitat from the south-western corner of the site, a substantial area of suitable habitat will be retained on the subject site and on adjoining land, and most of these areas are affected by management zones under the Plan of Management for the Somersby Industrial Park. The area of habitat that will be lost represents a very small proportion of the total extent of contiguous habitat (of approximately 53 hectares) which is available to any local population of the Eastern Pygmy possum. I thus concur in Mr Fanning's conclusion that, notwithstanding the loss of some prime habitat for the local population, that population is not likely to be placed at a risk of extinction.

33 Again, according to Mr Fanning (and it is not disputed by Mr Chestnut), if there is no endangered population of the Eastern Pygmy possum, neither is the Eastern Pygmy possum an endangered ecological community within the meaning of s 5A(2)(b) and (c).

34 As to factor (d) in s 5A(2), which relates to habitat removal, it is clear that the proposed development will involve the removal of an area of habitat. However, a substantial area of suitable habitat will be retained, both in the eastern part of the site and on the adjoining land to the north, east and south. The uncontested evidence shows that the area to be lost represents a very small proportion of the total extent of continuous habitat of some 53 hectares that is available to the local population of the Eastern Pygmy possum; and existing habitat corridors will not be disrupted by the proposed development. I thus accept Mr Fanning's opinion that since the proposed development area is at the periphery of the habitat for the possum the proposed development will not result in its habitat becoming fragmented or isolated from other areas of habitat.

35 In view of my findings above, I accept the opinion of Mr Fanning that the area of habitat to be removed by the proposed development is not of importance to the long-term survival of the species in the locality, particularly since the majority of its habitat for any local population is to be retained and the potential movement corridors of the species are unlikely to be affected.

36 The only other relevant consideration is factor (g) in s 5A(2) of the Act, namely, whether the action proposed constitutes or is part of a key threatening process or is likely to result in the operation of, or increase the impact of, a key threatening process. The clearing of native vegetation is listed as a key threatening process under the Threatened Species Conservation Act. However, since the area to be cleared will involve only a limited area on the periphery of the habitat, the imposition of the key threatening process will be marginal. This fact, coupled with the express intention to retain habitat on the rest of the site, together with habitat in the adjoining lands, leads to the conclusion that there is not likely to be a significant effect on the species or its habitat.

37 Mr Chestnut, on the other hand, states that any erosion of significant habitat for the Eastern Pygmy possum would in his opinion have a significant adverse effect on the long-term survival of the species in the locality. It is an opinion that I am unable to share. There is no doubt that any removal of habitat would have an effect. But the question of whether it is likely to have a significant effect depends on a range of factors and not on the mere fact that there will be some removal of habitat. The range of factors are those set out in s 5A(2) of the Act and which factors must be considered in answering the question. It is in considering the loss of habitat against those factors that are determinative of whether the impact is likely to have a significant effect on species or its habitat. In the present case, having performed that exercise, I am able to reach the conclusion that any such impact, which is admitted, is not likely to be significant.

Conclusion

38 Having concluded that the proposed development is not likely to significantly affect either of the two threatened species Hibbertia procumbens and the Eastern Pygmy possum, it follows that the development application did not have to be accompanied by a species impact statement. The Council's rejection of the application is null and void and the development application which was made on 26 July 2011 remains to be considered on its merits.

39 The applicants by their amended summons seek an order for costs. The principles applying to the proper exercise of the discretionary power to order costs usually requires an order that the successful party's costs be paid by the unsuccessful party: Oshlack v Richmond River Council [1998] HCA 11, 193 CLR 72 at [65] - [67]; r 42.1, UCPR 2005.

40 The traditional exception to the principle focuses on the conduct of the successful party which may disentitle it to the beneficial exercise of the discretion: Oshlack, at [69]. In the present case the successful parties sought a review of the Council's original decision to reject the development application before commencing the proceedings. There is otherwise nothing which would disentitle them to the benefit of an order for costs.

Orders

41 It is appropriate to make the following declarations and orders:

1. A declaration that the development application lodged by the applicants with the respondent on 26 July 2011 and numbered by the respondent 40918/2011 was not required to be accompanied by a species impact statement prepared in accordance with Division 2 of Part 6 of the Threatened Species Conservation Act 1995 (NSW).

2. A declaration that the development application was made on 26 July 2011.

3. A declaration that the decision of the respondent to reject the development application under cl 51(2)(b) of the Environmental Planning & Assessment Regulation 2000 (NSW) made on 28 July 2011 was null, void and of no effect.

4. A declaration that the decision of the respondent to adhere to its decision of 28 July 2011 made on 5 September 2011 - the s 82B review - was null, void and of no effect.

5. An order that the decision of the respondent made on 28 July 2011 be set aside.

6. An order that the decision of the respondent made on 5 September 2011 be set aside.

7. An order that the respondent pay the applicants' costs of the proceedings.

8. The exhibits may be returned.

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Decision last updated: 28 March 2012