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Land and Environment Court
New South Wales
Case Name: Ryan v Northern Regional Planning Panel (No 4)
Medium Neutral Citation: [2020] NSWLEC 55
Hearing Date(s): 10-17 February 2020
Date of Orders: 14 May 2020
Decision Date: 14 May 2020
Jurisdiction: Class 4
Before: Pain J
Decision: See [309]-[310] of judgment
Catchwords:
CIVIL ENFORCEMENT– residential development likely to have significant impact on threatened species – requirement for species impact statement with development application – no species impact statement provided with development application – development consent invalid CIVIL ENFORCEMENT – breach of Heritage Act 1977 arising from excavation of potential relic – exculpating circumstances CIVIL ENFORCEMENT – earthworks and roadworks authorised under construction certificate not inconsistent with development consent
Legislation Cited:
Biodiversity Conservation Act 2016Coroners Act 2009 Pt 5Environmental Planning and Assessment Act 1979 ss 4.15, 4.16, 5A, 6.32, 9.45, 9.46, 78AEnvironmental Planning and Assessment Regulation 2000 reg 145Heritage Act 1977 ss 4, 4A, 139, 153, 154Land and Environment Court Act 1979 ss 25A, 25B, 25C, 25ELismore Local Environmental Plan 2012 (Amendment No 13) Sch 1National Parks and Wildlife Act 1974Public Health Regulation 2012Threatened Species Conservation Act 1995 ss 3, 4, 8, 94A, Pt 6 Div 2 (ss 109-113), Sch 2 Pt 1, Sch 3
Cases Cited:
ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67Aldous v Greater Taree City Council (2009) 167 LGERA 13; [2009] NSWLEC 17BT Goldsmith Planning Services Pty Limited v Blacktown City Council [2005] NSWLEC 210Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (2017) 226 LGERA 54; [2017] NSWCA 263Burwood Council v Ralan Burwood Pty Ltd and Others (No. 3) (2014) 206 LGERA 40; [2014] NSWCA 404,Carstens v Pittwater Council (1999) 111 LGERA 1; [1999] NSWLEC 249Coffs Harbour City Council v Arrawarra Beach Pty Ltd (2006) 148 LGERA 11; [2006] NSWLEC 365Corowa v Geographe Point Pty Ltd
(2007) 154 LGERA 117; [2007] NSWLEC 121Dasreef Pty Limited v Hawchar (2011) 243 CLR 588; [2011] HCA 21Friends of Tumblebee Inc v ATB Morton Pty Ltd (No 2) (2016) 215 LGERA 157; [2016] NSWLEC 16Gold and Copper Resources Pty Limited v Hon Chris Hartcher MP, Minister for Resources and Energy, Special Minister (No 2) [2014] NSWLEC 30Jones v Dunkel (1959) 101 CLR 298Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited (2010) 210 LGERA 126; [2010] NSWLEC 48Oshlack v Richmond River Council (1993) 82 LGERA 222Smyth v Nambucca Shire Council (1999) 105 LGERA 65; [1999] NSWLEC 226Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
Category: Principal judgment
Parties:
Michael Ryan (Applicant)Northern Regional Planning Panel (First Respondent)Lismore City Council (Second Respondent)Winten (No 12) Pty Ltd (Third Respondent)W A Sexton (Fourth Respondent)Glorbill Pty Ltd (Fifth Respondent)
Representation:
COUNSEL:M Hall SC (Applicant)Submitting
appearance (First Respondent)Submitting appearance (Second Respondent)Richard Beasley SC and Janet McKelvey (Third Respondent)Submitting appearance (Fourth Respondent)Submitting appearance (Fifth Respondent) SOLICITORS:A Oshlack, agent (Applicant)Department of Planning (First Respondent)McCartney Young Lawyers (Second Respondent)Dentons (Third to Fifth Respondents)
File Number(s): 19/6908
JUDGMENT1 The Applicant is a Bundjalung elder living in North Lismore. He has
commenced civil enforcement proceedings challenging a decision to approve a
subdivision on part of the North Lismore Plateau by the First Respondent the
Northern Regional Planning Panel, (the Panel), on 17 October 2018 and a
construction certificate (CC) issued by Lismore City Council (the Council) the
Second Respondent inter alia. All respondents have filed submitting
appearances apart from the Third Respondent Winten (No 12) Pty Ltd (Winten)
the developer.
2 The three issues the focus of the “Third Further Amended Summons” are
(i) whether a species impact statement (SIS) was required to be lodged before
determination by the Panel; (ii) whether a breach of the Heritage Act 1977
occurred when the potential for a relic existing, being a suspected gravesite,
was dug up without an excavation permit; and (iii) whether the Civil Works CC
14.2017.270.1 for earthworks and work on a road is invalid and void because
no development consent for the work had been given.
3 The relief sought in the Third Further Amended Summons is:
1 A declaration that the [sic] s 78A(8) of the Environmental Planning and Assessment Act 1979 applied for a purported Development Application (“the DA”) on land described as Lot 2 DP 1214953 and Lot 3 DP 808657, Dunoon Road (“the land”) by reason of the existence of threatened species including:
a. A viable local population of Carterornis leucotis (also known as White-eared Monarchs), defined as a threatened species under Schedule 1 of the Biodiversity Conservation Act 2016; and
b. A viable local population of Nyctophilus bifax (also known as Eastern LongEarred [sic] Bats), defined as a threatened species under Schedule 1 of the Biodiversity Conservation Act 2016.
2 By virtue of order 1, a declaration that Development Consent 2017/270 granted on 17 October 2018 by the First Respondent to the 2nd, 3rd, 4th and 5th Respondents (“the Consent”) was invalidly made, void and of no effect as the DA when lodged failed to comply with s 78A(8) of the Environmental Planning and Assessment Act 1979,
2A A declaration that Construction Certificate CC 14.2017.270.1 granted on the 12th February 2019 by the Second Respondent to the Third Respondent (“the Construction Certificate”) is invalid and thereby void and of no effect.
3 A declaration that the Third, Fourth and Fifth Respondents have breached or will cause to be breached either jointly or severally:
a. section 139 of the Heritage Act 1977,
b. or alternatively section 86 of the National Parks and Wildlife Act 1974. [NOT PRESSED]
4 A declaration that the third respondent in undertaking activity purportedly in reliance on the consent or construction certificate is unapproved development without consent.
5 Further to pleadings 1, 2, 2A, 3 and 4 above an order requiring the Second, Third, Fourth and Fifth Respondents to reinstate the land to any extent necessary in accordance with section 9.46(2)(c) of the Environmental Planning and Assessment Act 1979 and s 154(1)&(2) of the Heritage Act 1977.
6 An order restraining the second, third, fourth and fifth respondents their partners, employees, agents, contractors and servants from undertaking any work that seeks reliance on the consent and/or construction certificate.
4 Additional relief is sought in the event that the Heritage Act breach is
established as contained in the “Terms of Relief in Relation to the Grave
Destruction Issue” (MFI 2). A breach of the National Parks and Wildlife Act
1974 (NPW Act) concerning harm to Aboriginal remains is no longer pressed
directly in these proceedings but will be mentioned in the context of the relief
sought in MFI 2 if that becomes relevant.
Legislation
5 The parties agree on which versions of the Environmental Planning and
Assessment Act 1979 (EPA Act) and Environmental Planning and Assessment
Regulation 2000 (EPA Regulation) apply at the relevant key dates so that it is
unnecessary to consider detailed transitional provisions. At the time
development application (DA) no 5.2017.270.1 (2017/270) was lodged on 24
August 2017, ss 5A and 78A of the EPA Act were then in force which referred
in turn to the Threatened Species Conservation Act 1995 (TSC Act) (now
repealed). The suspected gravesite was excavated on 12 January 2018. It is
noted that prayer 1 of the Third Further Amended Summons above refers to
the Biodiversity Conservation Act 2016, but the reference should be to the TSC
Act given the timing. Development consent was granted by the Panel on 17
October 2018. The proceedings commenced on 8 January 2019. The CC was
issued on 12 February 2019.
Environmental Planning and Assessment Act 1979
6 Relevant sections of the EPA Act as at 24 August 2017 (date of lodgement of
DA) provided:
Part 1 Preliminary
…
5A Significant effect on threatened species, populations or ecological communities, or their habitats
(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,
…
(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,
…
(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.
(3) In this section:
assessment guidelines means assessment guidelines issued and in force under section 94A of the Threatened Species Conservation Act 1995 or, subject to section 5C, section 220ZZA of the Fisheries Management Act 1994.
key threatening process has the same meaning as in the Threatened Species Conservation Act 1995 or, subject to section 5C, Part 7A of the Fisheries Management Act 1994.
…
Part 4 Development assessment
…
Division 2 The procedures for development that needs consent
…
78A Application
(1) A person may, subject to the regulations, apply to a consent authority for consent to carry out development.
…
(8) A development application (other than an application in respect of State significant development) must be accompanied by:
…
(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.
7 Sections 4.16 of the EPA Act (current) as at 12 February 2019 (date CC
issued) provided:
Part 4 Development assessment and consent
…
Division 4.3 Development that needs consent (except complying development)
4.16 Determination
(1) General A consent authority is to determine a development application by:
(a) granting consent to the application, either unconditionally or subject to conditions, or
(b) refusing consent to the application.
…
(12) Effect of issuing construction certificate If a consent authority or an accredited certifier issues a construction certificate, the construction certificate and any approved plans and specifications issued with respect to that
construction certificate, together with any variations to the construction certificate or plans and specifications that are effected in accordance with this Act or the regulations, are taken to form part of the relevant development consent (other than for the purposes of section 4.55).
…
8 Sections 9.45 and 9.46 of the EPA Act (current) provide:
Part 9 Implementation and enforcement
…
Division 9.5 Civil enforcement proceedings
…
9.45 Restraint etc of breaches of this Act
(1) Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach.
(2) Proceedings under this section may be brought by a person on his or her own behalf or on behalf of himself or herself and on behalf of other persons (with their consent), or a body corporate or unincorporated (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings.
(3) Any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings.
(4) (Repealed)
9.46 Orders of the Court
(1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.
(2) Without limiting the powers of the Court under subsection (1), an order made under that subsection may—
(a) where the breach of this Act comprises a use of any building, work or land—restrain that use,
(b) where the breach of this Act comprises the erection of a building or the carrying out of a work—require the demolition or removal of that building or work, or
(c) where the breach of this Act has the effect of altering the condition or state of any building, work or land—require the reinstatement, so far as is practicable, of that building, work or land to the condition or state the building, work or land was in immediately before the breach was committed.
(3) Where a breach of this Act would not have been committed but for the failure to obtain a consent under Part 4, the Court, upon application being made by the defendant, may—
(a) adjourn the proceedings to enable a development application to be made under Part 4 to obtain that consent, and
(b) in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned.
(4) The functions of the Court under this Division are in addition to and not in derogation from any other functions of the Court.
(5) Nothing in this section affects the provisions of Division 3 of Part 3 of the Land and Environment Court Act 1979.
9 The Applicant accepts that it cannot avail itself of s 6.32 of the EPA Act given
that it came into effect on 1 December 2019 replacing reg 145(2) of the EPA
Regulation.
Division 6.8 Miscellaneous
6.32 Validity of certificates under this Part
Without limiting the powers of the Court under section 9.46 (1), the Court may by order under that section declare that a certificate under this Part (other than an occupation certificate) is invalid if:
(a) proceedings for the order are brought within 3 months after the issue of the certificate, and
(b) the plans and specifications or standards of building work or subdivision work specified in the certificate are not consistent with the development consent for the building work or subdivision work.
10 Accordingly reg 145 (2) of the EPA Regulation applies to the CC.
Environmental Planning and Assessment Regulation 2000
11 Regulation 145 of the EPA Regulation as at 12 February 2019 (date CC
issued) provided:
Part 8 Certification of development
…
Division 2 Construction certificates
…
145 Compliance with development consent and Building Code of Australia
(1) A certifying authority must not issue a construction certificate for building work unless:
(a1) the plans and specifications for the building include such matters as each relevant BASIX certificate requires, and
(a) the design and construction of the building (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 140) are not inconsistent with the development consent, and
(b) the proposed building (not being a temporary building) will comply with the relevant requirements of the Building Code of Australia (as in force at the time the application for the construction certificate was made).
(2) A certifying authority must not issue a construction certificate for subdivision work unless the design and construction of the work (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 140) are not inconsistent with the development consent.
(3) Subclause (1) (b) does not apply to the extent to which an exemption is in force under clause 187 or 188, subject to the terms of any condition or requirement referred to in clause 187 (6) or 188 (4).
Lismore Local Environmental Plan 2012
12 The Land Use Table of the Lismore Local Environmental Plan 2012 provided:
Zone E2 Environmental Conservation
1 Objectives of zone
To protect, manage and restore areas of high ecological, scientific, cultural or aesthetic values.
• To prevent development that could destroy, damage or otherwise have an adverse effect on those values.C
• To retain areas of unique natural vegetation, particularly rainforest remnants and ecologically endangered communities.
2 Permitted without consent
Environmental protection works
3 Permitted with consent
Boat launching ramps; Building identification signs; Business identification signs; Environmental facilities; Extensive agriculture; Flood mitigation works; Jetties; Oyster aquaculture Research stations; Roads; Water recreation structures
4 Prohibited
Business premises; Hotel or motel accommodation; Industries; Multi dwelling housing; Pond-based aquaculture; Recreation facilities (major); Residential flat buildings; Restricted premises; Retail premises; Seniors housing; Service stations; Tank-based aquaculture; Warehouse or distribution centres; Any other development not specified in item 2 or 3
Zone E3 Environmental Management
1 Objectives of zone
• To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values.
• To provide for a limited range of development that does not have an adverse effect on those values.
• To encourage the retention of wildlife habitats and associated vegetation and wildlife corridors.
2 Permitted without consent
Environmental protection works; Extensive agriculture; Home occupations
3 Permitted with consent
Bed and breakfast accommodation; Boat launching ramps; Building identification signs; Business identification signs; Camping grounds; Caravan parks; Cellar door premises; Community facilities; Dairies (pasture-based); Dwelling houses; Eco-tourist facilities; Emergency services facilities; Environmental facilities; Farm buildings; Farm stay accommodation; Flood mitigation works; Home-based child care; Home businesses; Home industries; Information and education facilities; Jetties; Kiosks; Neighbourhood shops; Oyster aquaculture; Pond-based aquaculture; Recreation areas; Research stations; Roads; Roadside stalls; Tank-based aquaculture; Water recreation structures
4 Prohibited
Industries; Multi dwelling housing; Residential flat buildings; Retail premises; Seniors housing; Service stations; Warehouse or distribution centres; Any other development not specified in item 2 or 3
Threatened Species Conservation Act 1995
13 Relevant sections of the repealed TSC Act as between 18 August 2017 to 24
August 2017 provided:
Part 1 Preliminary
…
3 Objects of Act
The objects of this Act are as follows:
(a) to conserve biological diversity and promote ecologically sustainable development, and
(b) to prevent the extinction and promote the recovery of threatened species, populations and ecological communities, and
(c) to protect the critical habitat of those threatened species, populations and ecological communities that are endangered, and
(d) to eliminate or manage certain processes that threaten the survival or evolutionary development of threatened species, populations and ecological communities, and
(e) to ensure that the impact of any action affecting threatened species, populations and ecological communities is properly assessed, and
(f) to encourage the conservation of threatened species, populations and ecological communities by the adoption of measures involving co-operative management.
4 Definitions
(1) In this Act:
habitat means an area or areas occupied, or periodically or occasionally occupied, by a species, population or ecological community and includes any biotic or abiotic component.
…
key threatening process means a threatening process specified in Schedule 3.
…
threatened species means a species specified in Part 1 or 4 of Schedule 1, Part 1 of Schedule 1A or Part 1 of Schedule 2.
...
vulnerable species means a species specified in Part 1 of Schedule 2.
…
8 Schedule 3 list of key threatening processes
Schedule 3 contains a list of key threatening processes for the purposes of this Act.
Part 6 Licensing
…
Division 1 Grant of licences
…
94A Assessment guidelines
(1) The Minister may, by order published in the Gazette, issue guidelines (assessment guidelines) relating to the determination of whether an action is likely to significantly affect threatened species, populations or ecological communities, or their habitats.
(2) An order under this section (including any order that amends, revokes or replaces such an order) may be made only with the concurrence of the Minister for Planning.
…
Schedule 3 Key threatening processes (Section 8)
Aggressive exclusion of birds from woodland and forest habitat by abundant Noisy Miners, Manorina melanocephala (Latham, 1802)
…
Anthropogenic Climate Change
Bushrock removal (as described in the final determination of the Scientific Committee to list the threatening process)
Clearing of native vegetation (as defined and described in the final determination of the Scientific Committee to list the key threatening process)
…
Invasion and establishment of exotic vines and scramblers
…
Invasion, establishment and spread of Lantana (Lantana camara L. sens. lat)
Invasion of native plant communities by African Olive Olea europaea subsp. cuspidata (Wall. ex G. Don) Cif.
Invasion of native plant communities by Chrysanthemoides monilifera
Invasion of native plant communities by exotic perennial grasses
…
Loss and degradation of native plant and animal habitat by invasion of escaped garden plants, including aquatic plants
Loss of hollow-bearing trees
…
Predation by the Feral Cat Felis catus (Linnaeus, 1758)
…
Removal of dead wood and dead trees
Land and Environment Court Act 1979
14 Relevant sections of the Land and Environment Court Act 1979 (LEC Act)
provide:
Part 3 Jurisdiction of the Court
…
Division 3 Orders of conditional validity for certain development consents
25A Application of Division
(1) This Division applies to—
…
(b) a development consent granted, or purporting to be granted, under the Environmental Planning and Assessment Act 1979—
(i) by any other consent authority, and
(ii) in respect of a development application made on or after the commencement of this subsection.
(2) This Division extends to invalidity arising from any steps preliminary to the granting of a development consent to which this Division applies, whether those steps were taken, or should have been taken, by the Minister or any other consent authority, or by any other person or body.
(3) In particular, this Division extends to invalidity arising from non-compliance with requirements declared to be mandatory requirements under section 102 of the Environmental Planning and Assessment Act 1979.
(4) A reference in this Division to the Minister is a reference to the Minister responsible for the administration of the Environmental Planning and Assessment Act 1979.
…
25C Orders for validity of development consents
(1) On application by the Minister or any other consent authority for an order under this subsection on the grounds that the terms specified under section 25B have been substantially complied with and that it is not proposed that the relevant development consent be regranted with alterations, the Court may make an order—
(a) declaring that the terms have been substantially complied with, and
(b) declaring that the consent is valid, and
(c) revoking the order of suspension.
(2) On application by the Minister or any other consent authority for an order under this subsection on the ground that the terms specified under section 25B have been substantially complied with and that the development consent has been regranted with alterations as referred to in section 103 of the Environmental Planning and Assessment Act 1979, the Court may make an order—
(a) declaring that the terms have been complied with, and
(b) declaring that the development consent has been validly regranted, and
(c) declaring that the suspended development consent has been revoked, and
(d) revoking the order of suspension.
…
25E Duty of Court
It is the duty of the Court to consider making an order under this Division instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part.
Heritage Act 1977
15 Relevant sections of the Heritage Act as at 12 January 2018 provided:
Part 1 Preliminary
…
4 Definitions
(1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires:
…
relic means any deposit, artefact, object or material evidence that:
(a) relates to the settlement of the area that comprises New South Wales, not being Aboriginal settlement, and
(b) is of State or local heritage significance.
…
4A Heritage significance
(1) In this Act:
…
local heritage significance, in relation to a place, building, work, relic, moveable object or precinct, means significance to an area in relation to the historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value of the item.
…
Part 6 Other measures for the conservation of the environmental heritage
…
Division 9 Protection of certain relics
…
139 Excavation permit required in certain circumstances
(1) A person must not disturb or excavate any land knowing or having reasonable cause to suspect that the disturbance or excavation will or is likely to result in a relic being discovered, exposed, moved, damaged or destroyed unless the disturbance or excavation is carried out in accordance with an excavation permit.
(2) A person must not disturb or excavate any land on which the person has discovered or exposed a relic except in accordance with an excavation permit.
…
Part 7 Implementation and enforcement
…
Division 2 Orders of the Court
…
153 Restraint etc of breaches of this Act
(1) Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been infringed by or as a consequence of that breach.
(2) Proceedings brought under subsection (1) shall be brought in accordance with the rules of Court.
154 Order of the Court
(1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.
(2) Without limiting the powers of the Court under subsection (1), an order made under that subsection may:
(a) where the breach of this Act comprises a use of a building or work or of land—restrain that use, or
(b) where the breach of this Act comprises the erection of a building or the carrying out of a work—require the demolition or removal of the building or work, or
(c) where the breach of this Act has the effect of altering the appearance of a building or work or the state of land—require the restoration of the building or work or the reinstatement, so far as is practicable, of the land to the condition the building, work or land was in immediately before the breach was committed, or
(d) where the breach of this Act comprises the demolition of the whole or part of a building—require the rebuilding of the building, as it was immediately before the breach was committed, in accordance with plans and specifications approved by the Heritage Council.
(3) (Repealed)
Statement of Agreed Facts
16 An agreed statement of facts (SOAF) relied on by the parties states:
The development consent
1. The proceedings concern a development consent for the subdivision of land at Lismore, being part of the area known as the North Lismore Plateau.
2. Development application 17/270 (the Development Application) was lodged with Lismore City Council (the Second Respondent) on 24 August 2017. The development application was lodged by Planners North, being the consultant planning firm retained by the Third, Fourth and Fifth Respondents.
3. The Development Application, as assessed by the Second Respondent, included:
(a) A flora and fauna assessment prepared by Peter Parker. The assessment was updated during the course of assessment of the development application and submitted in final form prior to determination of the development application on 30 July 2018.
(b) An engineering report and civil plans prepared by TGM Group and Planit Consulting. The report and plans were updated during the course of assessment of the development application and submitted in final form prior to determination of the development application on 21 September 2018.
4. The Development Application did not include a species impact statement.
5. The decision to grant development consent subject to conditions was made by the Northern Regional Planning Panel (the First Respondent) on 17 October 2018, following assessment of the Development Application by the Second Respondent.
6. The Notice of Determination of the Development Application was issued by the Second Respondent on 24 October 2018, being Development Consent 5.2017.270.1 (the Consent).
7. The Consent granted development consent to development on the following lots (together, the Land):
(a) Lot 2 DP 1214953 and Lot 3 DP 808657 - owned by Glorbill Pty Ltd (the Fifth Respondent)
(b) Lot 1 DP 367581, Lot 12 DP 844585 and Lot 1 DP 772627 - owned by the Second Respondent
8. The Consent approved residential subdivision of the Land across two “precincts” (precincts 1 and 2) plus a local centre allotment, open space and areas for environmental management.
9. The Consent also includes a concept approval only of 43 residential lots in precinct 3.
10. The Consent also includes approval on the lots owned by the Second Respondent for the purposes of emergency fire access.
11. The development approved by the Consent is depicted in the plan attached and marked “A” [attach “Ultimate Overall Proposal Plan” 14 Feb 2018117312-30B1] [omitted by parties]
12. The Third Respondent is the proponent of the development application and intends to develop the Land in accordance with the Consent.
The other parties
13. The Applicant, Michael Ryan, is a traditional owner of the land, a member of the Widjaba/Wiyabal clan within the Bundjalung nation, and a Bundjalung elder.
14. At the time of lodging the Development Application the Fourth Respondent was the owner or one of the owners of Lot 2 in DP1044983, and consented to the lodging of the Development Application. The Fourth Respondent is the sole director of the Fifth Respondent.
15. The Fifth Respondent is the owner of Lot 2, DP1214953 and Lot 3 DP 8088657.
The planning proposal
16. The Development Application was made following a rezoning of the Land in 2015 from RU1 Primary Production.
17. The Land was rezoned R1 General Residential, E2 Environmental Conservation and E3 Environmental Management. A small portion in the south-east was zoned B1 Neighbourhood Centre. A portion of the Land was retained as RU1 Primary Production.
18. Ecological studies were carried out in the course of the planning proposal the subject of the rezoning. These studies were referred to by Peter Parker in the flora and fauna assessment submitted with the Development Application.
The construction certificate
19. Subsequent to the Consent being issued, the Third Respondent, through its consultant engineering firm, Planit Consulting, made an application for a civil works construction certificate reliant on the Consent. The application was for bulk earthworks in precinct 1 and precinct 2.
20. Civil Works Construction Certificate 14.2017.270.1 (the Construction Certificate) was issued by the Second Respondent on 12 February 2019.
21. The Construction Certificate provides for excavation of a “borrow pit” in precinct 2 and the use of excavated material for the purposes of fill in precinct 1.
22. The works the subject of the Construction Certificate are in the course of being carried out by the Third Respondent's contractors. These works are subject to undertakings given by the Third Respondent to the Court in the course of interlocutory proceedings determined by Justice Moore on 2 December 2019.
The suspected grave
23. Consultants for the Third Respondent, Everick Heritage Consultants, undertook a site inspection of the Land on 30 November 2016 prior to submission of the Development Application. This inspection identified a suspected grave within the area of precinct 2.
24. On 18 January 2017, Richard Yelf of Georadar carried out a ground penetrative survey of the suspected grave. The report of Mr Yelf concluded as follows:
... it is our interpretation that this grave-like feature near the ridge line on the Winten Property Group site on the North Lismore Plateau represents the probable burial of two persons. They appear to be the graves of early settlers inferred to be from the 1850- 1890 period.
The interpreted burial on the north western side of the inferred grave appears to be an adult of full stature, and the adjacent burial appears to be more diminutive and possible represents a female, or a large (teenage) child.
25. In November 2017, Everick Heritage Consultants published a report in response to the findings of Mr Yelf and concluded that the site could have high archaeological potential because of the suspected grave. This report made two alternative recommendations.
26. On 12 January 2018 Tony Lowe of Casey & Lowe Archaeology & Heritage were retained by the Third Respondent to further investigate the suspected grave. Physical works were carried out at the location of the suspected grave. Mr Lowe provided a report to the Third Respondent in which he concluded there was no evidence that the suspected grave was a grave.
27. The Third Respondent did not obtain an excavation permit under the Heritage Act 1977 [or an Aboriginal heritage impact permit under the National Parks & Wildlife Act – not pressed].
Threatened species
28. The Eastern Long-eared Bat, nyctophifus bifax, has been detected on the Land. It is a threatened species within the meaning of the Threatened Species Conservation Act 1995.
29. The White-eared Monarch, Carterornis leucotis, has been detected on the Land. It is a threatened species within the meaning of the Threatened Species Conservation Act 1995.
17 The planning proposal referred to in pars 16-18 of the SOAF for the North
Lismore Plateau was approved in 2015. It provided for the rezoning of rural
land in three areas, the northern, central and southern sections, to R1
Residential, E2 Environmental Conservation and E3 Environmental
Management. The precise area of rezoned land on the North Lismore Plateau
is unclear in the evidence. A reference to 225 hectares appears in the evidence
as does 334 hectares. The land the subject of the development consent (the
Land) is located in the central section of the wider rezoned area of the North
Lismore Plateau.
18 The Land relevant to those proceedings (see par 7 of SOAF) is described in
the Statement of Environmental Effects (SEE) as 70.95 hectares (Lot 2 DP
1214953), 8.091 hectares (Lot 3 DP 808657), excluding roads. Lot 2 and Lot 3
are divided into Precincts 1, 2 and 3 for the purpose of the subdivision. For
clarity, references to the Land mean Precincts 1, 2 and 3.
19 The development is described in the development consent as follows:
Subdivision of land to create a total of 433 residential allotments, a commercial allotment, open space and areas for environmental management. The proposed development will be undertaken as follows:
• Precinct 1: total of 95 residential allotments, local centre allotment, open space and provision for environmental management;
• Precinct 2: total of 295 residential allotments, open space and areas for environmental management;
• Precinct 3: staged development consent sought in accordance with Section 83B of the EP&A Act for the creation of 43 residential allotments. Concept approval is sought for Precinct 3 and this area will be the subject of a further development application.
20 On the map below the Land is outlined in red and some of the wider rezoned
area on the North Lismore Plateau is indicated by a dashed yellow line. The
development footprint is shown in black hatching. The Land is between two
roads, Dunoon Road on the east boundary and Booerie Creek Road on the
west boundary.
21 Precinct 1 is on the eastern side of the Land. It is mostly covered by the
development footprint. Small patches of vegetation, including a patch of forest
red gum grassy open forest, fall within the development footprint and will be
cleared. There are no areas of E2 or E3 zoned land in Precinct 1. Dunoon
Road runs along the eastern boundary of Precinct 1.
22 Precinct 2 is the largest precinct, located centrally between Precincts 1 and 3.
The western side of Precinct 2 is zoned R1, and is mostly covered by the
development footprint. The vegetation types that fall within the development
footprint on Precinct 2 that will be cleared are low closed forest to tall closed
shrubland dominated by privet and camphor laurel, camphor laurel closed
forest, and forest red gum grassy open forest. The remainder of Precinct 2 is
zoned either E2 or E3 (largely), and includes various vegetation types that will
be retained including low closed forest to tall closed shrubland dominated by
privet and camphor laurel and hoop pine yellow tulipwood dry rainforest. The
vegetation that will be retained on Precinct 2 includes a large band of E3 zoned
forest that runs from north to south along the eastern edge of Precinct 2. This
band of E3 zoned forest is interrupted by the development footprint where a
road is to be developed between Precincts 1 and 2.
23 Precinct 3 is the smallest precinct, located on the western side of the Land.
Precinct 3 contains land zoned E2, E3 and R1. The vegetation on Precinct 3
consists of low closed forest to tall closed shrubland dominated by privet and
camphor laurel with shrub layer of desmodium acanthocladum (thorny pea).
The development footprint has not been mapped on Precinct 3 as only concept
approval has been granted. It is therefore unclear what vegetation will be
cleared and what will be retained if development proceeds on Precinct 3.
Booerie Creek Road runs along the western boundary of Precinct 3.
Evidence
24 The Applicant tendered: “Determination and Statement of Reasons” by the
Northern Regional Planning Panel dated 17 October 2018 (development
consent) (Ex A); evidence book (Ex B); a five volume tender bundle (Ex C);
four A4 drone photographs of the Land (Ex D); an email from Richard Yelf
(Georadar Research Pty Ltd (Georadar)) to Tim Robins (Everick Heritage
Consultants (Everick)) attaching a report on GPR survey dated 20 January
2017 (Ex E); emails between Tim Robins (Everick) and Tony Lowe (Casey &
Lowe) about a suspected early settlers gravesite in North Lismore between 28
January 2018 and 14 February 2018 (Ex F); a letter from Office of Environment
and Heritage (OEH) to Lismore City Council providing input on DA 2017/270
dated 31 October 2017 (Ex G); “White-eared Monarch profile” from NSW
Department of Planning, Industry and Environment website and “White-eared
Monarch profile” by Higgins et al, 2006 (Ex H); “Constraints Mapping of North
Lismore Plateau” by Warren and Associates (Ex J); and photo of track on the
Land (Ex K).
25 Winten tendered: eight A3 versions of figures from the Robertson report (Ex 1);
“Threatened species assessment guidelines” (TSCA Guidelines) (Ex 2); article
“Roost selection by the North Queensland long-eared bat Nyctophilus bifax in
littoral rainforest in the Iluka World Heritage Area, New South Wales” by
Lunney et al (Ex 3); and A3 internal access road plans approved by Lismore
Council on 14 April 2016 (Ex 4).
Summary of affidavits
26 The Applicant read four affidavits. The affidavit of Mr Michael Ryan signed 27
February 2019 described his opinion that the cultural heritage assessment
report prepared by Everick in August 2017 failed in many respects to comply
with relevant guidelines, particularly when it dealt with matters concerning the
destruction of a gravesite which ground penetrating radar (GPR) had identified
as containing two bodies. Mr Ryan stated that the development as approved
would cause irreparable damage to this significant site.
27 The affidavit of Mr Patrick Michael Speeding, an elder of the Bundjalung Nation
and a member of the Bundjalung Elders Council, affirmed 28 October 2019
described the sacredness of the North Lismore Plateau for his community and
noted his objection to the development.
28 The affidavit of Ms Marie Anne Delbridge, an elder of the Bundjalung people
and a member of the Bundjalung Elders Council, affirmed 28 October 2019
described the sacredness of the North Lismore Plateau for her community. Ms
Delbridge objected to the development noting the presence of burials, sacred
trees and women sites on the Land that may be desecrated or destroyed.
29 The affidavit of Mr Lewis Walker, a member of the Many Rivers people of the
Wahlabul, Wherabul, Whirabul clans within the Bundjalung Nation, affirmed 22
October 2019 deposed to his support of the Applicant, recognised traditional
owner of sacred totems Burninj and Namahl (echidna and goanna) and
described his duty to prevent the threats facing his people if destruction or
desecration of these totems come about.
30 The Applicant also sought to read part of the affidavit of Ms Vanessa Walsh
solicitor for Winten sworn 27 November 2019, objected to by Winten on the
basis of lack of relevance. Only par 14 and Annexure B were read.
Species impact statement groundThreatened species assessment guidelines
31 Under s 5A(3)(a) of the EPA Act any assessment guidelines 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.
“Assessment guidelines” mean assessment guidelines issued and in force
under s 94A of the TSC Act. The parties tendered the TSCA Guidelines dated
August 2007 relied on by the ecologists in their evidence as the relevant
guideline for the purposes of the TSC Act.
32 Extracts of the TSCA Guidelines (Ex 2) state:
Introduction
…
The Threatened Species Conservation Amendment Act 2002 revised the factors that need to be considered when assessing whether an action, development or activity is likely to significantly affect threatened species, populations or ecological communities, or their habitats, previously known as the “8-part test”. The changes affect s 5A EP&A Act, s 94 Threatened Species Conservation Act 1995 (TSC Act) and s 220ZZ Fisheries Management Act 1994 (FM Act).
These revised factors of assessment maintain the earlier intent of the legislation but focus particularly on likely impacts to the local rather than the regional environment. The reason for the shift to a local focus is that the long-term loss of biodiversity at all levels arises mainly from the accumulation of losses and depletions of populations at a local level. This is the broad principle underpinning the TSC Act, state and federal biodiversity strategies, and international agreements.
…
Assessment guidelines
Section 94A of the TSC Act and s. 220ZZA of the FM Act provides that the Minister for Climate Change, Environment and Water and the Minister for Primary Industries, with the concurrence of the Minister for Planning, may prepare assessment guidelines to assist in the interpretation and application of the factors of assessment.
These guidelines have been prepared to help applicants/proponents of a development or activity with interpreting and applying the factors of assessment. The aim of the guidelines is to help ensure that a consistent and systematic approach is taken when determining whether an action, development or activity is likely to significantly affect threatened species, populations or ecological communities, or their habitats either directly or indirectly.
Making determinations requires technical expertise, and knowledge of species and their habitats. The guidelines assume that those undertaking an assessment of significance have sufficient knowledge and experience to do so.
These guidelines clarify the specific terminology of the relevant legislation and provide clear interpretations of the factors of assessment. Further guidance, including examples and case studies will be provided in a supplementary document.
The assessment of significance should not be considered a “pass or fail” test but a system allowing applicants/proponents to undertake a qualitative analysis of the likely impacts, and ultimately, whether further assessment
needs to be undertaken through a species impact statement. All factors must be considered and an overall conclusion must be drawn from all factors in combination. Where there is reasonable doubt regarding the likely impacts, or where detailed information is not available, a species impact statement should be prepared. Other issues not specifically addressed by the factors of assessment should be included and discussed in the broader impact assessment process, for example, in a review of environmental factors or an
environmental impact statement.
…
Terminology
…
Subject site means the area directly affected by the proposal.
Study area means the subject site and any additional areas which are likely to be affected by the proposal, either directly or indirectly. The study area should extend as far as is necessary to take all potential impacts into account.
Direct impacts are those that directly affect the habitat and individuals. They include, but are not limited to, death through predation, trampling, poisoning of the animal/plant itself and the removal of suitable habitat. When applying each factor, consideration must be given to all of the likely direct impacts of the proposed activity or development.
Indirect impacts occur when project-related activities affect species, populations or ecological communities in a manner other than direct loss. Indirect impacts can include loss of individuals through starvation, exposure, predation by domestic and/or feral animals, loss of breeding opportunities, loss of shade/shelter, deleterious hydrological changes, increased soil salinity, erosion, inhibition of nitrogen fixation, weed invasion, fertiliser drift, or increased human activity within or directly adjacent to sensitive habitat areas. As with direct impacts, consideration must be given, when applying each factor, to all of the likely indirect impacts of the proposed activity or development.
The factors of assessment
(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.
…
Life cycle: the series or stages of reproduction, growth, development, ageing and death of an organism.
Viable: the capacity to successfully complete each stage of the life cycle under normal conditions.
Local population: the population that occurs in the study area. The assessment of the local population may be extended to include individuals beyond the study area if it can be clearly demonstrated that contiguous or interconnecting parts of the population continue beyond the study area, according to the following definitions.
…
• The local population of resident fauna species comprises those individuals known or likely to occur in the study area, as well as any individuals occurring in adjoining areas (contiguous or otherwise) that are known or likely to utilise habitats in the study area.
…
Risk of extinction: the likelihood that the local population will become extinct either in the short-term or in the long-term as a result of direct or indirect impacts on the viability of that population
Application
The key assessment is risk of extinction of the local population. The risk of extinction will increase if any factor operates to reduce population size or reproduction success. The components of the life cycle of a species are dependent on its habitat and affected by threats to the species. The removal or modification of habitat or changes to the nature of important periodic disturbances such as fire or flood may affect the survival of that species. Therefore, it is important that the applicant/proponent not only has an understanding of the species’ life cycle, but also an understanding of the way in which a species makes use of its habitat, the way this may change at particular times or in certain seasonal conditions, and whether the life cycle is dependent on a particular disturbance.
…
(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
Interpretation of key terms used in this factor
Habitat: the area occupied, or periodically or occasionally occupied, by any threatened species, population or ecological community and includes all the different aspects (both biotic and abiotic) used by species during the different stages of their life cycles.
Extent: the physical area removed and/or to the compositional components of the habitat and the degree to which each is affected.
Importance: related to the stages of the species' life cycles and how reproductive success may be affected.
Locality: the same meaning as ascribed to local population of a species or local occurrence of an ecological community.
Application
When applying this factor, consideration must be given to all short-and long-term impacts (direct and indirect) on habitat which are likely to support
threatened species, populations and ecological communities regardless of whether the habitat occurs on the subject site. This applies to both occupied and unoccupied habitat because the recovery of threatened species, populations and ecological communities relies on them having access to suitable habitat to move into as numbers increase.
The extent to which habitat is likely to be removed or modified should be determined by estimating the total area of habitat to be directly and indirectly impacted by the proposed development, activity or action. This may be an estimation of the surface area of land to be affected, and/or in some cases the number of key habitat components to be affected.
When deciding whether an area of habitat is likely to become fragmented or isolated from other areas of habitat, it is necessary to identify and assess the patterns and extent of habitat connectivity. The affected habitat may form part of a habitat corridor, cul-de-sac or an isolated area. Recent Landsat imagery, aerial photographs, vegetation maps, topographic maps and data obtained from on-ground investigations are useful information sources for assessing this. The dispersal and genetic exchange mechanisms of individual species should be considered. For example, will the isolation of habitat for threatened species, populations or ecological communities that are currently connected or near to each other adversely affect the maintenance of gene flow and the ability to sustain viable populations. It should also be noted that isolation can occur through a variety of habitat modifications and is not confined to the clearing of vegetation.
When assessing the importance of the habitat likely to be removed, modified, fragmented or isolated in the locality, a quantitative and qualitative approach should be adopted as follows:
• an assessment of the area and quality of habitat of the threatened species, population or ecological community that occurs within the locality from recent Landsat imagery, vegetation mapping, topographic maps, air photos and in some cases data obtained from on-ground investigations
• an estimate of the area and quality that the habitat of the study area represents in relation to the area and quality of that habitat within the locality
• an assessment of the role of the habitat to be affected in sustaining habitat connectivity in the locality an assessment of the ecological integrity of the habitat to be affected in the study area, in relation to the ecological integrity, tenure and security of the habitat which will remain both in the study area and in the locality.
…
(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
Context
This factor refers only to those key threatening processes (KTPs) listed in Schedule 3 of the TSC Act and Schedule 6 of the FM Act. …
…
Application
In addition to deciding whether the action/activity constitutes a KTP, consideration must also be given to whether the proposal is likely to exacerbate a KTP. Species listed in the determination as being “at risk” warrant particular considerations if these species are known or likely to occur within the study area of the development or activity.
Making an assessment of significance
…
All factors should be considered as well as any other information deemed relevant to the assessment. The assessment of significance should not be used as a substitute for a species impact statement. Application of the precautionary principle requires that a lack of scientific certainty about the potential impacts of an action does not itself justify a decision that the action is not likely to have a significant impact. If information is not available to conclusively determine that there will not be a significant impact on a threatened species, population or ecological community, or its habitat, then it should be assumed that a significant impact is likely and a species impact statement should be prepared.
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.
In many cases where complex mitigating, ameliorative or compensatory measures are required, such as translocation, bush restoration or purchase of land, further assessment through the species impact statement process is likely to be required.
In determining the nature and magnitude of an impact, it is important to consider matter such as:
• pre-construction, construction and occupation/maintenance phases
• all on-site and off-site impacts, including location, installation, operation and maintenance of auxillary infrastructure and fire management zones
• all direct and indirect impacts
• the frequency and duration of each known or likely impact/action
• the total impact which can be attributed to that action over the entire geographic area affected, and over time
• the sensitivity of the receiving environment
• the degree of confidence with which the impacts of the action are known and understood.
Recovery and threat abatement plans, priorities action statements, threatened species profiles and other fact sheets prepared by DECC and DPI may provide further guidance on whether an action or activity is likely to be significant.
Ecological Evidence
33 As part of the development assessment process, ecological studies were
carried out by Greenloaning Biostudies Pty Ltd (Greenloaning) in 2012 and by
Peter Parker in 2018. Greenloaning prepared an ecological assessment in April
2012 and supplementary report in June 2012, based on an ecological
constraints analysis undertaken by Warren and Associates in 2011. The
Greenloaning assessment report included a seven-part test of significance for
species detected during field surveys, including the eastern long-eared bat.
Greenloaning concluded that the proposed development was unlikely to have a
significant impact on the eastern long-eared bat.
34 A flora and fauna assessment was prepared by Mr Parker in July 2018 (Parker
report), updated during the course of assessment for the DA and submitted in
final form on 30 July 2018. Mr Parker undertook the seven-part test of
significance under s 5A of the EPA Act for various threatened species on the
North Lismore Plateau, concluding that the development would have a
negligible impact on the eastern long-eared bat as no roosting sites or potential
habitat would be impacted, and no impact on the white-eared monarch as the
dry rainforest would be conserved and enhanced.
35 A landscape schematic design report dated 18 August 2017 was prepared by
RPS Group for the DA. The Landscape Masterplan included in that report
showed planned landscaping across the Land, including areas of revegetation
in Precincts 1 and 2 where removal of weed species and regenerative planting
would be carried out. Local park nodes were indicated on the map including in
areas marked on the Landscape Masterplan for revegetation where lookout
shelters, park furniture, lighting, pedestrian pathway, signage and amenity
landscaping would be developed. One of these local park nodes is located in
the band of E3 zoned vegetation to be retained on Precinct 2, as described
above in [22].
36 A SEE prepared in August 2017 for the DA proposed various ameliorative
measures regarding biodiversity and vegetation on the development site. The
SEE contained a “Statement of Commitments” which included a commitment to
enter into a voluntary planning agreement to ensure the biodiversity
certification of Precinct 3 for which concept approval was being sought. In the
course of analysing environmental interactions applicable to the proposed
development, the SEE stated that compensatory planting of over 2,000 forest
red gums would occur following grant of development consent. A site planning
objective was “to protect and enhance the biodiversity of the North Lismore
Plateau and surrounding areas”. To meet that objective, a vegetation
management plan was proposed, specifically with the aim of achieving the
conservation of threatened species and the progressive rehabilitation of the
endemic vegetation communities in conservation lands zoned E2 and E3.
Lunney et al report on eastern long-eared bat
37 In a report titled “Roost selection by the North Queensland long-eared bat
Nyctophilus Bifax in littoral rainforest in the Iluka World Heritage Area, New
South Wales” by Lunney et al published in 1995 (Ex 3), the authors described
their study of the North Queensland long-eared bat in the Iluka Nature Reserve
in 1988 and 1989. The ecologists agreed this is the eastern long-eared bat.
The report records the capture of 20 bats in November 1988 and 32 bats in
May 1989. The roost structures of these bats occurred predominantly in
foliage, tree hollows and shallow depressions on trunks and limbs, as well as in
epiphytes and between strangler figs. In the month of November, the bats
regularly changed their diurnal roosts, whereas in May there was a lower rate
of daily roost changes. The greatest distance recorded between consecutive
roosts was 262 metres. The distance from trap site to roost between shed
transmitters and the last known diurnal roost ranged from 18 to 513 metres.
38 Lunney et al concluded that the North Queensland long-eared bat selects a
variety of roosts, most commonly in foliage and tree hollows. The bats did not
move large distances, suggesting that the species meets all its needs within
the Iluka littoral rainforest and does not depend on adjacent woodland for
roosts or food.
Higgins et al report on white-eared monarch
39 In “White-eared Monarch profile” by Higgins et al published in 2006 (Ex H), the
authors identified that the bird is often observed in ecotones between dense
and more open vegetation, including edges of rainforest and elsewhere where
breaks in canopy allow sunlight to reach the ground. It is also often recorded in
regrowth rainforest that is 20-30 years old. The bird has been recorded in
various ecosystems including open eucalyptus forest, coastal rainforest,
mangroves and paperbark swamps.
40 The white-eared monarch is usually seen singly or in twos, and sometimes in
small groups or in mixed species flocks. The white-eared monarch is active
when foraging but is often difficult to observe as it mainly forages in canopy of
rainforest and occurs less often at lower levels of the rainforest. It is
inconspicuous and arboreal making it difficult to observe. According to the
“White-eared Monarch profile” from the NSW Department of Planning, Industry
and Environment website attached to Higgins et al, the white-eared monarch is
easily disturbed by the presence of people.
Reports of Mr David Milledge
41 Mr David Milledge expert ecologist relied on by the Applicant prepared three
reports. According to his curriculum vitae (CV), Mr Milledge is a fauna ecologist
residing in far north-eastern NSW and Director of Landmark Ecological
Services Pty Ltd. Mr Milledge holds a Master of Resource Science from the
University of New England and has 50 years’ experience as an ecologist
specialising in forest and woodland ecosystems, concentrating on endangered
vertebrate species. His employment history and experience includes, inter alia,
employment as a scientific technical officer and as a consultant wildlife
ecologist and then director of Landmark Ecological Services Pty Ltd from 1995-
2004 and again from 2008-present. A 20-page list of publications and reports
attached to his CV shows extensive published reports on a range of species
and ecological topics from 1964-2019 as well as contributions to books and
journals on the Australian environment, ecology and avifauna since 1976.
42 Mr Milledge’s first report dated 18 March 2019 reviewed Mr Parker’s 2018
seven-part test of significance under s 5A of the EPA Act for micro-bat species
on the North Lismore Plateau. Mr Milledge found that Mr Parker’s seven-part
test was inadequate and that a SIS should have been prepared. No further
reference to this report is required.
43 Mr Milledge’s second report dated 9 October 2019 detailed a brief field
inspection conducted on 6 June 2019 of potential threatened micro-bat roosting
and breeding habitat and other threatened fauna species in Precinct 2. Mr
Milledge traversed Precinct 2 on foot to locate trees likely to provide micro-bat
roosting and breeding habitat. The inspection focussed on a stand of forest red
gums and surrounding regenerating dry rainforest in western Precinct 2.
Eleven forest red gums were measured and inspected for visible hollows that
may have provided roosting or breeding habitat. Mr Milledge concluded that
Precinct 2 contained potential roosting and breeding sites for the eastern long-
eared bat. As the habitat fell within an area proposed to be cleared for
development, Mr Milledge concluded that the potential for significant effect
under s 5A of the EPA Act should be examined. In arriving at this conclusion
Mr Milledge took into account both the proposed clearing of roost and maternity
site habitat and potential high-quality foraging habitat on the Land and the
potential loss of roost and breeding sites in dry rainforest and other vegetation
adjoining the site because of noise, light and other disturbance from residential
development.
44 Mr Milledge’s third report dated 10 November 2019 reported on a two-night
survey targeting threatened micro-bat species and other threatened fauna
species in Precinct 2 and assessed impacts of the proposed residential
subdivision on threatened fauna values. Mr Milledge set four two-bank harp
traps at separate locations within potential micro-bat flyways. Two eastern
long-eared bats were captured in harp traps between 15 and 17 October 2018
in Precinct 2.
45 Mr Milledge also undertook opportunistic observations of other vertebrate
species and rainforest habitats. A white-eared monarch was observed and
photographed foraging and calling in a stand of regenerating dry rainforest in
the south-western section of Precinct 2 on 16 October 2019. The bird stayed in
that regenerating dry rainforest stand all day, calling and hover-pecking
through tree foliage. Its behaviour suggested it was breeding in the vicinity.
46 Discussion of the eastern long-eared bat included:
Based on the Lunney et al. (1995) findings, the trapping results of this survey (Table 2) indicate that the regenerating dry rainforest, together with the small area of dry rainforest around harp trap sites HT1 and HT3 (Fig. 2) provide important roosting habitat for the local population of the Eastern Long-eared Bat. This is evinced by the presence of rainforest trees with dense foliage and carrying numerous vines, together with dead trees with hollows and crevices
plus emergent Forest Red Gums containing a number of hollows (as demonstrated by Milledge 2019b). Again, based on the results of Lunney et al. (1995), this habitat is highly likely to provide maternity roosts for the local population of the Eastern Long-eared Bat.
47 Discussion of the white-eared monarch included:
4.2.2 White-eared Monarch The insectivorous White-eared Monarch is predominantly a lowland rainforest specialist in far north-eastern NSW where it is confined to the coastal plain and foothills from the Clarence River to the Queensland border. It is scarce and sparsely distributed in this area, occurring most commonly on edges of rainforest, particularly drier associations and vine scrubs and often in regrowth (regenerating) forests (Higgins et al. 2006, CSIRO Division of Wildlife and Ecology 1996, Holmes 1987, Morris etal.1981)
The site appears to support at least one breeding pair of White-eared Monarchs, recorded in the western section of Precinct 2 (Fig. 1). Although Peter Parker does not indicate where this species was recorded in Precinct 2 or 1 (Fig. 7, Peter Parker 2018), suitable habitat elsewhere in the site and adjoining habitat on the North Lismore Plateau may support an additional one or two pairs of White-eared Monarchs, based on a breeding home range of approximately 10 to 15 ha (D. Milledge unpubl. data for Byron LGA).
48 Mr Milledge carried out a seven-part test of significance under s 5A of the EPA
Act for both the eastern long-eared bat and white-eared monarch. These
assessments focussed on the impact of clearing 6.7 hectares of habitat (30 per
cent of total potential breeding habitat) on Precinct 2.
49 Considering s 5A(2)(a) (adverse impact on life cycle) and s 5A(2)(d) (impact on
habitat), Mr Milledge found for the white-eared monarch that:
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,
the record(s) of Peter Parker (2018) and the results of this survey (s.4.2.2 above) suggest that a viable population of the White-eared Monarch is likely to occur on the North Lismore Plateau. Although this population may only comprise one to three pairs, the clearing of 6.7 ha of likely breeding habitat (dry and regenerating dry rainforest) for the proposal (Fig 3) and 30% of the total potential breeding habitat in the site (8.11 ha [corrected to 6.7 ha] of a total 23 ha, Fig. 3) must be considered as placing the viability of the local population at risk of extinction.
50 Considering s 5A(2)(g) (KTPs), Mr Milledge found two key threatening
processes (KTPs) relevant to the white-eared monarch were likely to operate
or increase as a result of the proposed development. Those KTPs were
aggressive exclusion of birds from woodland and forest habitat by abundant
noisy miners and anthropogenic climate change.
51 Mr Milledge found similarly for the eastern long-eared bat. Considering s 5A(2)
(a) and (d) he concluded that the clearing of 6.7 hectares of habitat on
Precinct 2 placed the viable population of eastern long-eared bats at risk of
extinction. He also found that the likely modification of remaining areas of
habitat for bushfire asset protection zones (APZs) and the detrimental edge
effects from proximity to residential development would further add to the risk
of extinction of the eastern long-eared bat on the North Lismore Plateau.
52 Mr Milledge found that s 5A(2)(g) applied to the eastern long-eared bat. Four
KTPs were relevant to the eastern long-eared bat as a result of the proposed
development. They were anthropogenic climate change, loss of hollow-bearing
trees, removal of dead wood and trees and predation by feral cats.
53 Mr Milledge concluded that under s 5A of the EPA Act, the proposed
development in Precinct 2 was likely to have a significant effect on both the
eastern long-eared bat and white-eared monarch.
Report of Dr David Robertson dated 27 December 2019
54 Dr Robertson, ecologist, relied on by Winten, prepared one report dated 27
December 2019. According to his CV, Dr Robertson, Director of Cumberland
Ecology, is a senior ecologist with more than 30 years’ experience in ecological
survey, impact assessment and research. Dr Robertson holds a Bachelor of
Science, Ecology, and Doctor of Philosophy, Ecology, from the University of
Melbourne. His CV includes a list of extensive experience as an expert witness
in the NSW Supreme Court, Queensland Planning and Environment Court, and
NSW Land and Environment Court (in Classes 1, 3, 4 and 5 proceedings). A
list of several publications is included in his CV published from 1983-1995, as
well as peer reviews conducted by Cumberland Ecology from 2009-2019.
55 Dr Robertson described the “subject site” (Precincts 1, 2 and 3) as being
located generally between Dunoon Road and Booerie Creek Road, in the
locality known as North Lismore Plateau. The report methodology consisted of
a literature review and desktop analysis, GIS mapping and database analysis,
and a field survey carried out between 8-10 October 2019. The literature
review examined the 2012 Greenloaning report and the 2018 Parker report,
drawing the conclusion that it was appropriate to reassess the significance of
impacts of the approved development footprint on the eastern long-eared bat
and the white-eared monarch.
56 Dr Robertson relied on the Parker report and a “Vegetation Clearing Report
and Tree Protection Plan” prepared by Planit Consulting (Planit) in February
2019 to say that future conservation management within “conservation lands”
identified by the Parker report and Planit (2019) would limit and offset the
adverse impacts on the two subject species. Dr Robertson said that the Parker
report relied on “conservation zoning” of forest remnants and regrowth to E2
and E3 zoned land on the North Lismore Plateau to say that areas of dry
rainforest would be “conserved and enhanced”. The conservation areas
identified by Planit were those areas zoned E2 and E3 on the Land where it
said restoration and wildlife planting would occur at the conclusion of
construction works.
57 Dr Robertson introduced his assessments of significance as follows (figures
omitted):
…
131. The habit on the subject site, plus forested habitats elsewhere on the plateau are mapped and shown in Figure 5. What should be noted from this mapping is that the approved development will clear only a small proportion of the North Lismore Plateau. Based upon the Cumberland Ecology mapping and GIS measurements, the proposed development will clear ~ 12 ha of about 112 ha of forest and regrowth forest across the wider area of the rezoning (including Winton [sic] and other land). Approximately 77 ha is zoned for conservation within E2 or E3 land within the rezoned land. The balance of forest remains in other zonings and is in no immediate danger from clearing.
132. It is understood that the Stage 3 development has not been approved and will be subject to separate impact assessments and offsetting under the current Biodiversity Conservation Act 2016. Forest and regrowth habitats on this area will be subject to the impact assessment rules that apply under that legislation, which may result in more forest and tree hollows being conserved than is currently indicted by draft plans. In any case, the Stage 3 assessments are yet to take place and will be independent of the current approval.
133. Tree hollows are of relevance as habitat for bats including the Eastern Long-eared Bat, which frequently roosts in hollows. For this reason, they have been mapped and counted across the Winton [sic] land by Cumberland Ecology. Figure 5 provides a map of trees with hollows detected in recent surveys for Cumberland Ecology. On current estimates there are about 59 trees with hollows on site at a density of about 1.74 hollow trees per ha of forest/regrowth. Of these, about 34 or 57% will be removed for the approved development and the remainder retained. However, as per the total forest and regrowth areas in the rezoning area, there are trees with hollows in the contiguous vegetation in the remainder of the rezoning area and these should be taken into consideration when completing assessments of significance.
134. Across the wider rezoning area, assuming a similar density of trees with hollows there would be a further 64 hollow trees. Therefore, the impact of approved forest clearance for the Winton [sic] site, which would clear 34 trees with hollows, should be seen in the wider context, with close to 100 trees with hollows remaining.
135. It should also be considered that the E2/E3 areas of the rezoned land will be permitted to regenerate and as trees age, further hollows can be expected to form in the long term.
Assessment of white-eared monarch
58 Regarding the white-eared monarch, Dr Robertson noted one BioNet Atlas
record of the bird within the subject site and the additional record by Mr
Milledge. The BioNet Atlas record was in Precinct 3.
59 Considering s 5A(2)(a), Dr Robertson found that a viable population of white-
eared monarchs may exist on or around the subject site as there were two
records of the species. The population was unlikely to be placed at risk of
extinction because the approved development would only clear a minority of
habitat on site in the context of the wider rezoned area. While 12 hectares of
forest and regrowth was estimated to be cleared by the development, only 8.7
hectares (corrected to 6.7 hectares by Winten in oral submissions) of this was
rainforest, the vegetation preferred by the white-eared monarch. Dr Robertson
made the following further points concerning the potential impact of the
proposed development on the white-eared monarch: areas of high value
vegetation that are favourable foraging and roosting habitat would be
maintained; large expanses of weedy regrowth that represent habitat for the
white-eared monarch would only be selectively cleared or enhanced through
ongoing management; much of the perimeter of the subject site was on land
greater than 18 degree slope meaning boundary vegetation would be retained;
and 77 hectares of forest would be retained in the wider rezoned area.
60 Considering s 5A(2)(d), Dr Robertson found the extent to which habitat is likely
to be removed or modified was minimal compared to areas retained on site and
within the wider rezoned area. Fragmentation or isolation of habitat was
unlikely because the areas of rainforest suitable for habitat were already mostly
isolated habitats and clearing would not result in further fragmentation. Rather,
connectivity would be improved through the enhancement and management of
low closed forest and tall closed shrubland. The habitat removed would be
unlikely to be of long-term importance to the survival of the species as there
was only one record of the species from the locality. (Note: whilst reference is
made here to only one record of the white-eared monarch, Dr Robertson
acknowledged elsewhere in his evidence that there are two records of the
species, see above in [58] and below in [85]). Areas of rainforest in the general
locality of the subject site would provide additional foraging and nesting sites
such that the long-term survival of the species would not be jeopardised.
61 Considering s 5A(2)(g), Dr Robertson listed seven KTPs relevant to the white-
eared monarch the proposed development could contribute to. They were bush
rock removal, clearing of native vegetation, invasion and establishment of
exotic vines and scramblers, invasion, establishment and spread of Lantana,
invasion of native plant communities by exotic perennial grasses, loss of
hollow-bearing trees, and removal of dead wood and dead trees.
62 Dr Robertson concluded that the proposed development would result in the
removal of limited potential habitat for the white-eared monarch, but that the
majority of known and potential habitat on site, and in the wider rezoned area,
would be retained and conserved. No significant impact was likely on the white-
eared monarch as a result of the proposed development.
Assessment of eastern long-eared bat
63 Turning to the eastern long-eared bat, Dr Robertson noted that suitable
roosting and breeding habitat existed on the subject site for the eastern long-
eared bat. The species was detected by Greenloaning at two locations in the
wider rezoned area, and more recently by Mr Milledge within the area
proposed for clearing and twice by Cumberland Ecology both in the area
proposed for clearing and in the area proposed for conservation (by reference
to Figure 6, see below in [71]).
64 Dr Robertson found that the majority of suitable habitat for the eastern long-
eared bat was to be conserved on the subject site and within the wider rezoned
area. He estimated that of 59 trees with hollows on site, 34 or 52 per cent
would be removed for the approved development. Trees with hollows were also
present in contiguous vegetation in the wider rezoned area. Dr Robertson
stated that such vegetation should be taken into consideration when
completing assessments of significance.
65 Considering s 5A(2)(a), Dr Robertson found that the proposed development
was not likely to place a viable local population of the eastern long-eared bat at
risk of extinction as the majority of potential habitat would be retained on the
subject site and wider study area, and the bat is highly mobile with a wide
foraging range beyond the subject site.
66 Considering s 5A(2)(d), Dr Robertson found that the habitat values located on
the subject site were replicated in the more extensive areas to be retained,
including best quality rainforest remnants. Dr Robertson identified the following
habitat features within the development footprint that would be removed: seven
large forest red gums; 25 dead stags containing hollows; 11 camphor laurel
trees with hollows; 17 areas of rock outcrops containing crevices and caves;
and four other rainforest trees with hollows. The habitat was previously
fragmented and no substantial further fragmentation or isolation was expected
as a result of the proposed development. Rather, retention and enhancement
of rainforest on the subject site would form corridors between areas of better
quality habitat. Proposed vegetation modification and thinning would not
reduce the availability of foods for the eastern long-eared bat as much of the
vegetation on the subject site would be retained, providing a suitable habitat for
a variety of insect species to survive. The species has a large foraging range
meaning it would utilise other sites beyond the subject site for foraging. Dr
Robertson found that the habitat provided on the subject site was not important
for the long-term survival of the eastern long-eared bat.
67 Considering s 5A(2)(g), Dr Robertson listed seven KTPs relevant to the eastern
long-eared bat the proposed development could constitute or contribute to.
They were: clearing of native vegetation; invasion, establishment and spread of
Lantana; invasion of native plant communities by exotic perennial grasses;
invasion of native plant communities by African Olive; loss and degradation of
native plant and animal habitat by invasion of escaped garden plants including
aquatic plants; invasion of native plant communities by chrysanthemoides
monilifera; and removal of dead wood and dead trees.
68 Dr Robertson concluded that the proposed development would result in the
removal of limited potential habitat but that the majority of known and potential
habitat on site, and in the wider rezoned area, would be retained and
conserved. No significant impact was likely on the eastern long-eared bat as a
result of the proposed development.
69 Dr Robertson finally concluded that the rezoning of areas of the North Lismore
Plateau to E2 and E3 zoned land, including areas of highest conservation
values, was intended to provide for broad areas of conservation including the
areas of highest conservation values for flora and fauna by Warren and
Associates (2011) and Greenloaning (2012). The rezoning was intended to
provide for a conservation outcome that avoided significant detrimental impact
on threatened flora and fauna. The likely benefits arising from such rezoning
for conservation purposes were not adequately factored into Mr Milledge’s
reports. Although the proposed development would result in some habitat
clearance on the subject site, it would also entail retention of the majority of
remnant and regenerating forest. No SIS was required to support the DA
submitted to Lismore Council.
70 Annexed to Dr Robertson’s report were Figures 1-8 (also reproduced as
Appendix F of the ecologists’ joint report and tendered by Winten in A3 version
(Ex 1)).
71 Figure 1 is an aerial photo of the wider rezoned area taken in 2019 with the
Land outlined in red and the wider rezoned area outlined in yellow dashes.
Figure 2 is an aerial photo of the wider rezoned area taken in 2009 with the
Land outlined in red and the wider rezoned area outlined in yellow dashes.
Figure 3 is an aerial photograph overlayed with the zoning of the wider rezoned
area, showing that the Land contains areas zoned R1 General Residential, E2
and E3. Figure 4 shows the location of surveys carried out by Cumberland
Ecology. Figure 5 is a vegetation map prepared by Cumberland Ecology
showing the location of hollow-bearing trees on the Land as well as the location
of different types of rainforests and grasslands that occur on the Land. Figure 6
maps four sightings of the eastern long-eared bat (two within the boundaries of
the Land recorded by Cumberland Ecology in 2019 and two outside the Land
recorded by Greenloaning in 2012). Two sightings of the white-eared monarch
are mapped, both occurring within the boundaries of the Land, one taken from
a record in the BioNet Atlas and the other sighted by Mr Milledge in 2019.
Figure 7 shows the development footprint in black hatching overlayed on the
vegetation map (Figure 5). Figure 8 shows the broad forest cover within the
wider rezoned area, showing where forest with E2/E3 zoning, forest approved
to be cleared, and forest within B1/R1/RU1 zoning are each located in the
wider rezoned area.
Joint Report of the ecologists
72 Mr Milledge and Dr Robertson prepared a joint report dated 29 January 2020.
Annexed to the joint report were Mr Milledge’s CV (Appendix A),
Dr Robertson’s CV (Appendix B), additional evidence prepared by Mr Milledge
(Appendix C), additional evidence comprising updated assessments of
significance for the two subject species prepared by Dr Robertson
(Appendix D), data supplied by Dentons in January 2020 including
photographs, harp trap data, echolocation data and bat call analysis (Appendix
E), and Figures 1-8 reproduced from Dr Robertson’s original report (Appendix
F).
73 The key areas of agreement in the joint report were firstly, that the Parker
report relied heavily on the report by Greenloaning, particularly with respect to
micro-bats, and that Mr Parker did not conduct any additional targeted fauna
studies other than surveys for the presence of koalas to support his
investigations; and secondly, that the Parker report contained omissions with
respect to the assessment of impacts on both the white-eared monarch and the
eastern long-eared bat and either misquoted or overlooked the details
contained within the report by Greenloaning.
74 The key area of disagreement continued to be whether a SIS was required for
the development proposal in Precincts 1 and 2. The experts also disagreed
about the validity of Dr Robertson’s assessments of significance.
75 On whether a SIS was needed, Mr Milledge confirmed his view that the
development would remove approximately one third of suitable habitat for the
species and modify remaining habitat through imposition of APZs (requiring
reduction of the tree canopy by 15 per cent) and high level direct human
disturbance from adjoining high density residential development, and cause the
operation of a number of KTPs. Contrary to Dr Robertson’s view, E2 and E3
zoning is incompatible with the conservation of sensitive threatened species
such as the white-eared monarch and eastern long-eared bat and it is invalid to
depend on E2 and E3 zoned lands elsewhere on the North Lismore Plateau as
mitigating the impacts of development as this zoning does not provide secure
areas managed in perpetuity for conservation. Other uses are permitted on E2
and E3 zoned land.
76 Mr Milledge considered there is an absence of targeted fauna surveys for the
site. The Greenloaning report was not such a survey and was deficient in its
methodology and conclusions. It recommended further survey work which was
undertaken only in relation to koalas in the Parker report.
77 Mr Milledge considered Dr Robertson’s knowledge and experience of both
subject species deficient which contributed to a flawed assessment of the
potential impacts of the development on the species and his erroneous finding
that a SIS was not needed. Dr Robertson’s report demonstrated a lack of
understanding of the essential habitat requirements and behavioural
characteristics of the species by:
Making claims about the type of rainforest on the North Lismore plateau that represents the highest quality habitat in the subject site for the bird and the bat which are not supported by published scientific literature and within which no known records of the two species on the North Lismore Plateau exist.
Suggesting that the white-eared monarch is a hollow-nester, when it builds an open cup-nest, and consequently would be unlikely to benefit from the installation of nest boxes.
Failing to consider that the white-eared monarch is easily disturbed by the presence of people and will desert nests under construction at the slightest disturbance.
Claiming that the eastern long-eared bat is a highly mobile species with a large foraging range, often flying great distances overnight, when a scientific study of the species demonstrated that it did not move large distances between roosts and met all it needs within a relatively small patch of rainforest.
Failing to recognise the likelihood that several KTPs are likely to operate as a result of the development, specifically adversely affecting the subject species.
78 In his additional evidence (Appendix C of the joint report), Mr Milledge
reiterated that E2 and E3 zones outside the subject site cannot be considered
adequate or suitable for mitigating impacts of the development on the white-
eared monarch and eastern long-eared bat. This is because the habitat values
for the bat and bird in these areas have not been established (including
whether any large, hollow-bearing trees are present) and the E2 and E3 zones
do not constitute offsets or secure areas managed for these species in
perpetuity.
79 E2 and E3 zones within the subject site also cannot be considered suitable for
mitigating impacts from the development on the white-eared monarch and
eastern long-eared bat for the same reason that they do not constitute
protection for the species in perpetuity. Further, the E3 zone will be directly
impacted by the implementation of APZs meaning tree canopy cover will be
reduced to less than 15 per cent, both zones will be indirectly impacted by
human disturbance, noise, exposure to bright lights and predation by domestic
animals and the E2 and E3 zones may be subject to permissible uses that will
adversely impact the species including roads and agriculture which are
permitted with consent.
80 On whether a SIS was needed Dr Robertson maintained in the joint report that
the impacts of habitat clearing would be offset by future conservation
management. The majority of remnant and regenerating forest on the subject
site would be retained. Significant areas of known habitat for the two subject
species would not be cleared.
81 Dr Robertson agreed that there is potential for indirect impacts from the
residential development and associated roads but that such impacts would not
be significant and were already considered by Greenloaning who made
recommendations for future active management of forest to be retained and
conserved on the North Lismore Plateau.
82 Dr Robertson also undertook updated assessments of significance for the
white-eared monarch and eastern long-eared bat (Appendix D of the joint
report). For the white-eared monarch, Dr Robertson’s key findings under
ss 5A(2)(a) and (d) were the same as in his primary report (above in [59]-[60]).
The key difference was that under 5A(2)(g), Dr Robertson included two KTPs
relevant to the white-eared monarch in addition to those in his primary report
(above in [61]): aggressive exclusion of birds from woodland and forest habitat
by abundant noisy miners and anthropogenic climate change. His conclusion
that no significant impact is likely remained the same as in his initial
assessment of significance (above in [62]).
83 Regarding the eastern long-eared bat, Dr Robertson provided additional
comments on Lunney et al (Ex 3). Winten’s plan to remove weeds and restore
the rainforest would benefit the species as, according to Lunney et al, intact
rainforest canopy is important for the eastern long-eared bat. The eastern long-
eared bat is mobile. Little data exists about how far the eastern long-eared bat
travels while foraging. Lunney et al recorded it travelling up to 262 metres
between consecutive roosts. Dr Robertson said it is likely the eastern long-
eared bat travels hundreds of metres foraging. Nothing on this species has
been recorded in the last 25 years to corroborate the findings by Lunney et al.
84 As with the bird, Dr Robertson’s key findings in his updated assessment of the
eastern long-eared bat under ss 5A(2)(a) and (d) were the same as in his
primary report (above in [65]-[66]). Under s 5A(2)(g), Dr Robertson included
three additional KTPs to those listed in his primary report (above in [67]): loss
of hollow-bearing trees, anthropogenic climate change and predation by feral
cats. The conclusion that no significant impact is likely remained the same as
in his first assessment of significance in his primary report (above in [68]).
Cross-examination
85 Considering the white-eared monarch, Dr Robertson was cross-examined in
relation to his opinion that there is a population of the white-eared monarch
within the forests and woodlands on the North Lismore Plateau but considered
that two records over a number of years on the Land is low. He agreed it was a
cryptic species and that he had not carried out surveys specifically targeting
that species such as bird call recordings or call back monitoring. If he had
wished to establish whether or not the bird was on the Land he agreed that
was a natural step to take. As a bird which prefers rainforest or forested areas
it can be difficult to spot by simply walking around. Dr Robertson agreed the
bird is usually seen singly or in twos according to Higgins et al and is difficult to
observe. He did not conduct and is not aware that anyone else has conducted
a targeted survey on the site.
86 Mr Milledge agreed and stated that his and Mr Parker’s sightings were
opportunistic. In Mr Milledge’s view it is a difficult species to observe. Its call is
often confused with other bird species as it is not particularly obvious. Mr
Milledge is familiar with it because he lived for 17 years on the edge of a
rainforest which that species of bird inhabited. He initially noticed the bird on
the Land from its call.
87 The two sightings (Parker/Milledge) identified on Fig 6 prepared by Dr
Robertson (as part of his primary report and then reproduced in the joint report
and in A3 version as Ex 1) were on the edge of regrowth forest with extensive
exotic understorey, Dr Robertson agreed. He considered that little-known
species frequently choose areas that have not been identified as their preferred
taste. There are denser areas of forest close to where the bird was sighted in
Precinct 3. Dr Robertson agreed that these sightings suggest that the bird is
using the lower quality regrowth forests as a foraging area. Dr Robertson
agreed that his hierarchy of rainforest quality was based on floristic content
rather than suitability as habitat for either of the relevant species.
88 Mr Milledge considered that, as the white-eared monarch is an edge species
which does not penetrate into large intact areas of rainforest, identifying higher
floristic quality habitat on the site as best habitat is an incorrect approach.
89 In relation to the E2 and E3 zones on the Land, Dr Robertson did not assume
these would be fenced to prevent human or domestic animal ingress. He
understood there would be walking trails and access trails in this area.
90 Part of Dr Robertson’s reasoning in the assessment of significance included his
review of the rezoning studies. Virtually all the forest regrowth had been set
aside in E2 and E3 zones. Habitat or potential habitat for both species
continues to the north and south of the subject land. He reasoned there would
be future development, that being the whole purpose of the rezoning. The
approval of the DA maintains and improves the E2 and E3 zones on the Land.
According to Dr Robertson, the approval of the Precincts 1 and 2 development
required that the E2/E3 zoned land be not only maintained but improved in the
future through conservation measures designed to remove weeds and to
promote growth of native species and to maintain connectivity. Dr Robertson
considered the vegetation on the Land was regenerating. Much is disturbed
and was degraded and weed-infested. Dr Robertson assumed that any future
development would have to have a similar type of approval so that there would
be maintenance of the connectivity of habitat. Where a development is the first
cab off the rank in a new area of subdivision, the impacts are assessed having
regard to what exists. Later developments will have regard to what has already
been done if they take place when Winten’s development has been largely
constructed. Dr Robertson also took into account residential zoned land and
rural zoned land and he assumes all these areas will remain of use as
connected forest habitat for birds and bat.
91 Dr Robertson agreed that the provision of nest boxes would not be relevant to
the white-eared monarch. In relation to the availability of tall trees as nesting
sites, Dr Robertson agreed that it could take eight to 10 years for regrowth to
occur. Some of the existing vegetation will benefit from weed removal and will
flourish. If the adjacent farmland and the wider zoned area is considered, a
relatively small area of about 12 hectares will be cleared. A high proportion of
forest regrowth will be retained on site. There will be some clearing and
reduction of actual or potential habitat but in the context of the wider plateau it
will not be particularly significant.
92 Mr Milledge considered there was a high level of uncertainty about the future of
the areas around the Land which Dr Robertson relied upon. A basic ecological
principle is that when individuals of a particular species are displaced from one
area, particularly if they have specialised requirements and are sensitive, they
invariably perish. They don’t simply move from one area to another. If there are
other suitable areas of habitat nearby they would likely be occupied by other
breeding pairs. Dr Robertson agreed that potentially that was the case.
93 In re-examination of Dr Robertson he confirmed he took into account both
sightings of the white-eared monarch when doing the seven-part test. He
agreed that availability of other habitat offsite was a significant reason why he
considered there would not be a significant impact on the bird. He considers
the loss of habitat is in the order of 10 per cent not 30 per cent.
94 Mr Milledge accepted that the objectives of the E2 and E3 zones included the
protection, management and restoration of high environmental value areas and
prevented development that has an adverse impact on those values. He
agreed a number of the permitted uses had no relevance to the subject land.
Part of his consideration of the operation of the E2 and E3 zoning is that it may
not operate effectively in practice.
95 The white-eared monarch is sedentary, meaning it sticks in its home range
according to Mr Milledge. It has a range of 10-15 hectares.
96 Considering the bat, Mr Milledge’s conclusions supported by Lunney et al was
that the small area of dry rainforest around the harp trap sites provides
important roosting habitat for the bat. That is why he criticises Dr Robertson’s
view that the bat is highly mobile. Mr Milledge agreed that there were areas of
dry rainforest to be retained on the site that are suitable for the bat and
adjacent to the site, particularly in the E2 and E3 zones. There are likely to be
hollow-bearing trees closely adjoining the site. Mr Milledge agreed that based
on Lunney et al the bat roosts in foliage as well as hollows in trees.
97 Mr Milledge agreed that at the time the Lunney et al study was done there were
limitations in how bats were surveyed due to the equipment available, for
example, there was no GPS tracking. Small transmitters tracked the bat at
night and in the morning – no movements during the night were recorded (radio
telemetry). The Iluka rainforest is dense rainforest compared to the subject site.
Where the bats were trapped on Precinct 2 did not have those characteristics.
98 Mr Milledge did not agree that his reliance on Lunney et al was misplaced
because the Iluka rainforest met all the needs of the bats studied and did not
depend on adjoining woodland for food or roosts. He identified that some bats
were trapped in woodland adjacent to the Iluka rainforest.
99 Dr Robertson considered that while there is not a lot of information about this
bat, other bats of the same genus have been tracked and studied and can
move up to several kilometres, but he is not suggesting this species does that.
Looking at Figs 6 and 7 of Dr Robertson’s report (Ex 1) showing the wider
rezoned area, Dr Robertson identified areas of vegetation he considered would
be retained as a vegetation corridor adjoining the site. Mr Milledge identified
that Greenloaning harp traps only captured two of the relevant bat species
close to the site.
100 Mr Milledge considered the E2 and E3 zones did not preserve habitat in
perpetuity as these can be rezoned and some development is allowed. He did
not agree there was an error in his approach ecologically in applying the
seven-part test. The TSCA Guidelines require focus on the subject site as the
impact area. Regarding the extent to which habitat offsite should be
considered, Mr Milledge said E2 and E3 zoned land offsite should not be
considered as it will not be maintained in perpetuity. Mr Milledge does not
agree with Dr Robertson in relation to connectivity of habitat as the E2 and E3
zones are not connected across the North Lismore Plateau. The large number
of houses (400) on the Land will interrupt any connectivity of vegetation.
101 Dr Robertson considered it was possible for bats to fly over the houses which
would include homes with planted gardens, meaning it would not be a
completely impassable barrier of a couple of hundred metres. He agreed that
the houses would be a largely alien environment for the bats. He noted that
there are records of eastern long-eared bats in urban areas of Lismore. Dr
Robertson also referred to sites he has visited in Sydney where micro-bats
were able to survive and move around in suburban areas as evidence that
some can live in patches of forest that are adjacent to houses and move across
built-up areas to an extent. He agreed there was no scientific basis for
considering the bat to be an urban creature. He agreed it is a rainforest animal.
He would expect the bat to stick to the forest, that is, it would be light-sensitive
and avoid lights. He agreed the urban development would likely be
uncomfortable for the bat to cross and would reduce the bats’ willingness to
traverse these areas to habitat areas. More than half the habitat is to be
retained on the Land in Precincts 1 and 2, in that 45 per cent of habitat in these
areas will be removed. Dr Robertson was shown the Landscape Masterplan
(above in [35]). When asked whether the provision of park furniture, walking
tracks, public water fountains and other methods of encouraging human
recreation would reduce the value of E3 areas he had considered to be
suitable offset to protect the habitat of the bat and the bird, he said there is
potential for further impact as a result of that, but subject to detailed design and
the location.
102 Dr Robertson considered the species can move along the lengths of forest
retained in the E2/E3 zoned areas and in the forest between the E2 and E3
areas. Dr Robertson considered that while a lot of land immediately outside the
Land is zoned rural, if rezoned in future it would have environmental studies
that would have to have regard to flora and fauna values in connectivity,
referring to Fig 3 (Ex 1).
103 Mr Milledge advised that the identification of bats in Lismore referred to by Dr
Robertson related to sightings in Wilson Nature Reserve and other records are
confused and appear to be locations where bats have been taken into care
rather than reflecting bat habitat.
104 Dr Robertson denied that he had substituted a test of certainty of local
extinction in place of the statutory test of likely to be at risk. He has not
recommended a research project of this bat species which will address the
limitations he identifies in Lunney et al. He rejected the submission that he
engaged in speculation about the characteristics of this bat over the available
published evidence. Dr Robertson agreed that the largest distance recorded by
Lunney et al travelled by a bat was 513 metres which could include foraging
distances, reflecting when a transmitter fell off. He denied he was trying to
explain away the Lunney et al data. He accepted it was the best and most
recent study taken of the behaviour of the bat.
105 Dr Robertson considered the extent of habitat cleared in light of surrounding
areas on the North Lismore Plateau and mitigation measures such as
replanting of native species and removal of weeds. His analysis of areas to be
retained commenced with the Greenloaning report based on the work of
Warren and Associates as to what should be retained and what land is suitable
for clearance. An important part of his reasoning is that the areas identified in
the earlier studies carried out by Warren and Associates/Greenloaning as
having the highest ecological value were generally retained in E2 and E3
zones as recommended. Dr Robertson accepted that some high conservation
areas mapped in the draft Warren and Associates report have not been zoned
E2 or E3. In relation to Precinct 3 as presently indicated by way of a concept
plan some of the high conservation land is to be cleared and some kept in an
APZ on the western side of Precinct 3. An area of high conservation value land
identified as APZ will require thinning and will not retain its high conservation
value. The Warren and Associates constraints map with overlay of Precincts 1
and 2 was tendered by the Applicant (Ex J).
106 Dr Robertson agreed that any tree survey work was undertaken after the road
between Precincts 1 and 2 had been cleared of some trees as part of being
constructed and widened and would not therefore have been included in the
survey of hollow-bearing trees. Mr Milledge stated that 11 hollow-bearing trees
had been removed as identified in the GeoLink report referred to in par 14 of
Ms Walsh’s affidavit.
Whether species impact statement required
107 At issue is whether the DA was required to be accompanied by a SIS on the
basis that the development was likely to cause a significant effect on the
following threatened species:
(a) white-eared monarch; and
(b) eastern long-eared bat.
If yes, what is the appropriate relief, if any?
108 The “Amended Points of Claim” state that a SIS should have accompanied the
DA as required by s 78A(8)(b) of the EPA Act and referred to a number of
species not all of which are the subject of this case. A flora and fauna
assessment report prepared by Mr Parker (see [34 above]) relied on an
assessment report by Greenloaning accompanied the DA (see [33] above). Mr
Parker concluded that there would not be a significant impact on threatened
species. As outlined below, whether a SIS is required is a matter of
jurisdictional fact which the Court must determine on the basis of the evidence
before it.
Applicant’s submissions
109 The test of whether a SIS is required is that provided by s 78A of the EPA Act.
Section 5A is a guide to the application of that test. Other factors may be
relevant such as cumulative impact of the proposed development: BT
Goldsmith Planning Services Pty Limited v Blacktown City Council [2005]
NSWLEC 210 (BT Goldsmith) at [90]; and Friends of Tumblebee Inc v ATB
Morton Pty Ltd (No 2) (2016) 215 LGERA 157; [2016] NSWLEC 16
(Tumblebee) at [214]-[215]. The likelihood of future development can be a
factor that is considered depending on circumstances: Tumblebee at [56]. The
relevant principles are identified in Tumblebee at [75]-[83]. The TSCA
Guidelines must be considered to the extent they are relevant but these
guidelines are not legislation. The Court is not prevented from reaching a
positive answer to the question stated in s 78A(8) just because the TSCA
Guidelines are not met. The TSCA Guidelines refer to cumulative effects and
the precautionary principle at pp 1, 2 and 12.
110 There is no doubt the white-eared monarch is present on the Land, it having
been observed by Mr Parker in 2015, a record he supplied to the BioNet Atlas,
and observed and photographed by Mr Milledge in 2019. At least two separate
independent sightings would constitute sufficient foundation for finding the
presence of any threatened species. No targeted study of a bird that is difficult
to see has been undertaken by Winten or anyone else (see Higgins et al).
There is a population of the threatened species the white-eared monarch on
the North Lismore Plateau, and it uses the Land at least for foraging, and
probably for breeding. The development is likely, and at the time of approval
was likely, to significantly affect the white-eared monarch and/or its habitat.
Those effects would be produced by some (or some combination of) loss of
habitat through clearance of vegetation; fragmentation of remaining vegetation;
and indirect threats or pressures such as increased human activity and
increased numbers of predatory domestic animals.
111 The proposed amelioration measures based on regenerating or replanting
other areas of bushland have not been shown to have been used successfully
for the same species in other locations, or to be sufficient to offset the impact
on the species and its habitat.
112 A population of eastern long-eared bats is resident on the North Lismore
Plateau and is centred or focussed on the western part of Precinct 2 of the
Land. That species of bat has been found on or near the Land by
Greenloaning, Mr Milledge and Dr Robertson (six sightings in total). The bats
are likely to be relatively narrow or confined in their range of roosting and
foraging sites and unlikely to travel extensively outside of the proposed
development area (Mr Milledge and Lunney et al). Lunney et al represents the
best current evidence of the habits of this bat. To the extent that the evidence
permits any conclusion to be drawn, the Land and the vegetation on it are the
focus or centre of the bat’s local range.
113 The proposed development is and was at the time it was approved, likely to
significantly affect the eastern long-eared bat population or its habitat. Roughly
30 per cent of available breeding habitat will be lost according to Mr Milledge.
Dr Robertson says at least 57 per cent of hollow-bearing trees will be lost (or
34 per cent if you take into account trees elsewhere on the North Lismore
Plateau). That is a significant amount. In Tumblebee, 0.1 per cent loss of
habitat was significant. Hollow-bearing trees are critical to the species as this is
the location where female bats give birth (per Lunney et al), a critical stage in
the life cycle of the species. Newly planted trees will take 50 to 100 years of
growth to provide suitable hollows for the bats according to Mr Milledge.
114 That effect on the bat or its habitat will be brought about by some (or some
combination of) clearing of vegetation suitable for its habitat, fragmentation of
remaining vegetation, and indirect threats such as increased pressure of
human habitation including increased levels of nocturnal light, human
disturbance, and predation by domestic pets. The proposed amelioration
measures based on regenerating or replanting other areas of bushland have
not been shown to be successful for the same species in other locations, or to
be sufficient to offset the impact on the species and its habitat.
115 The Applicant made the following criticisms of Dr Robertson’s evidence. Dr
Robertson did not carry out any targeted survey to seek to identify the white-
eared monarch and was unaware of any such survey on the North Lismore
Plateau having been conducted by anyone else.
116 Dr Robertson’s evidence focussed solely on questions of habitat loss for the
white-eared monarch and only indirectly referred to other KTPs. Further, Dr
Robertson’s approach to the issue of habitat loss was to argue that despite the
anticipated loss of a considerable area of suitable habitat, other available
habitat both within and outside the development area would remain available to
the white-eared monarch. This analysis should be rejected because it ignores
the cumulative effect of past and likely future habitat loss. Further, the
assertion that better quality habitat would be maintained for the white-eared
monarch was misleading because the hierarchy of “best” habitat included in Dr
Robertson’s report was based on its floristic content rather than its suitability
for the white-eared monarch.
117 In claiming that retained areas of habitat would be suitable for the white-eared
monarch in the long term, Dr Robertson did not take into account that the uses
permissible in E2 and E3 zoned land are not exclusively ecological but
encourage human recreation. He also did not account for modification to parts
of retained E2 and E3 zoned land for bushfire APZs. Dr Robertson conceded
that modification for APZs would require thinning of tree cover to 15 per cent
canopy coverage for inner protection zones and 30 per cent canopy coverage
for outer protection zones. Dr Robertson did not substantiate his assumption
that despite these modifications the habitat would remain suitable for the white-
eared monarch. The E2 and E3 zones do not offer long-term protection for the
white-eared monarch according to Mr Milledge.
118 Dr Robertson’s emphasis on the steps proposed for future regeneration on the
subject site did not account for the impact in the shorter term or the time
needed for new plantings to mature to the height which the white-eared
monarch frequents and nests in, typically 17 metres or more above the ground.
Dr Robertson’s initial suggestion that nest boxes would help ameliorate the
loss of suitable nesting trees was incorrect. Dr Robertson accepted in oral
evidence that nest boxes would not help the white-eared monarch because it
makes open nests in tree forks high in the rainforest canopy. Dr Robertson also
accepted that the scattering of basalt boulders and logs of dead trees would
not help the white-eared monarch as it makes no use of either.
119 Dr Robertson did not consider the impact that the development would have on
the ability or willingness of the white-eared monarch to move between pockets
of retained habitat. Dr Robertson’s use of scientific literature was selective. He
cited Higgins et al yet made statements that contradicted it. Dr Robertson did
not approach the task of assessing the white-eared monarch possessing or
seeking to obtain a detailed understanding of this species, its habits, or its
needs.
120 Many of the same criticisms apply to Dr Robertson’s analysis of the eastern
long-eared bat. Dr Robertson’s assertion in [65] above that the eastern long-
eared bat has a wide range and flies long distances was not substantiated.
Lunney et al shows that the eastern long-eared bat has a narrow range. Dr
Robertson did not conduct a tracking survey to substantiate his opposing view.
The evidence gained from harp trap data only supports the conclusion that the
subject site and vegetation on it are the centre of the bat’s local range and that
it should be treated as having a narrow range.
121 Dr Robertson’s emphasis on future planting of new red gums to replace the
number being removed did not consider the short-term impacts of removal or
time needed for new trees to mature and provide suitable hollows. Dr
Robertson’s analysis was that at least 57 per cent of the hollow-bearing trees
on the site would be lost. It is likely that Dr Robertson understated the loss of
hollow-bearing trees as he did not carry out the survey himself and did not
include in the pre-clearance total 11 hollow-bearing trees removed for the
building of the road. If included, the proportion of removal on the site increases
from 57 per cent to 62 per cent.
122 Dr Robertson did not consider the impact that the development would have on
the ability or willingness of the eastern long-eared bat to move between
pockets of retained habitat. This fragmentation is particularly detrimental to the
bat because of its sensitivity to light pollution. Dr Robertson’s suggestion in
cross-examination that these bats are occasionally found in urban or suburban
settings should be given no weight as he accepted that this claim was formed
by analogy to a similar species.
123 Dr Robertson’s CV reveals that his publications focus on botany and fish and
that the real focus of his work is the preparation of evidence for legal
proceedings. Mr Milledge has greater knowledge of the specifics of both
subject species and his evidence should be preferred.
124 Winten’s case that while there will be impact on the Land (or just Precincts 1
and 2) as a number of hollow-bearing trees and 12 hectares will be removed is
acceptable because vegetation will be improved in Precinct 2 and surrounding
areas are yet to develop ignores cumulative impact. The problem is not only for
the next developer of subdivisible land.
125 There is nothing erroneous in Mr Milledge’s approach to the E2, E3 zones off-
site. These were not offered as ameliorative measures as part of the DA such
as off-set land that is set aside.
126 In reply, the meaning of “study area” is not informed by the local population
definition in the TSCA Guidelines. Winten’s construction of the guidelines is
circular. The study area is that which is affected, or is expected to be affected,
by the development. Winten did not point to any impacts of the proposed
development on E2, E3 or RU1 zoned areas elsewhere or anything to suggest
the development would have a direct influence on conditions on those sites.
Winten’s contention that because it is the first developer on the rezoned
plateau areas its impact is discounted by the lack of development on
surrounding land, is not reflective of the scheme of the EPA Act or the TSCA
Guidelines. The statutory provisions ask the Court to look at development on
the Land the subject of the DA and decide whether the application in respect of
development on that land is likely to have a significant impact on threatened
species or their habitats.
Winten’s submissions
127 It is accepted that both the eastern long-eared bat and white-eared monarch
have a presence on the Land. Section 5A(2)(a), (d) and (g) of the EPA Act are
relevantly applicable to the significance assessment and the TSCA Guidelines
(Ex 2) are a mandatory consideration under s 5A(1)(b) when assessing
significance of impacts. The subject site is Precincts 1 and 2 as Precinct 3 was
approved as a concept only.
128 The principles in BT Goldsmith and Tumblebee are accepted. Unlike in BT
Goldsmith the species in issue are mobile fauna. Unlike in Tumblebee the
species are not critically endangered with extremely limited remaining habitat.
Tumblebee is not authority that future development can be taken into account.
129 Mr Milledge’s approach to the study area as required by the TSCA Guidelines
is too narrow given the vegetation on surrounding land. The definition of “study
area” requires additional areas which are likely to be affected by the proposal
to be considered. The local population as defined in s 5A(2)(a) of the TSCA
Guidelines includes (second bullet point) “individuals known or likely to occur in
the study area, and in adjoining areas (contiguous or otherwise)”. Both species
are mobile.
130 In relation to s 5A(2)(d) habitat, extent, importance and locality are all defined.
There is no doubt the local population of both species can exist beyond the
developable footprint. Consequently Mr Milledge too narrowly defines the area
by which significance is to be considered. Mr Milledge ignored the presence of
other habitat trees adjoining the Land in his report but accepted they were
there in cross-examination. Mr Milledge's refusal to consider the physical
attributes of the land in the immediate locality, in particular that vegetation
located in the E2 Environmental Conservation and E3 Environmental
Management zones under the Lismore Local Environmental Plan 2012, is fatal
to his assessment.
131 Mr Milledge confirmed in cross-examination that his assessment was
influenced by the assumption that a consent authority would not maintain the
environment protection objectives of the E2 and E3 zones and these could be
rezoned in the future. This impermissibly considers impacts that do not arise
from the DA but from some other potential future DA. Under ss 5A and 78A of
the EPA Act it is the impacts of the development the subject of the DA that
must be considered in the assessment task required in this case.
132 The E2 and E3 zoned land on the site and off the site are part of the study area
that should be considered. The objects of these zones include environmental
protection. The limited development that can be approved must be consistent
with the objects of the zone. In the E2 zone development must comply with the
objectives of the protection, management and restoration of high ecological
values. In the E3 zone the objectives include the protection, management and
restoration of areas with special ecological value. Any development should not
have an adverse effect on those values. The retention of wildlife habitats and
associated vegetation and wildlife corridors is another objective. These zones
were created as part of the rezoning of the North Lismore Plateau so that the
residential development did not impact on threatened species, as identified in
the planning proposal.
133 Both experts agree there is suitable habitat to be retained on the subject site,
which is in the E2 and E3 zone, and similarly zoned land in the locality. The
assumption must be made that planning approval will be compatible with the
current zonings. One of the purposes of the zoning changes on the North
Lismore Plateau was to preserve habitat whilst rezoning some land for
residential development.
134 Considering the bat, Dr Robertson’s approach to assessment of significant
impact should be accepted whereby areas outside the developable site on the
Land (Precincts 1 and 2) can be considered, particularly the E2 and E3 zones.
The “study area” for the purposes of the TSCA Guidelines was Precincts 1 and
2 and any additional areas likely to be affected by the development proposal,
either directly or indirectly. This is because “study area” is informed by the
definition of “local population” which extends to include individuals in
contiguous or interconnecting parts of habitat. As the species in question are
mobile and can exist beyond the developable footprint, the study area should
extend as far as necessary to take all potential impacts into account. Dr
Robertson properly examined the “study area” and considered all likely impacts
on the eastern long-eared bat and white-eared monarch in the context of the
extent of habitat being cleared in the order of 10 per cent rather than 30 per
cent. Viewed in the proper context, his opinion that there will not be adverse
impact on a viable local population (s 5A(2)(a)) should be accepted.
135 Dr Robertson correctly assessed habitat as required by the TSCA Guidelines in
relation to s 5A(2)(d) as to the quality of habitat within the locality and the study
area and connectivity in the study area (the wider rezoned area) and in the
wider locality. In his five-part assessment in the joint report for the bat (par 175)
he states that the proposed vegetation modification and thinning on the subject
site will not affect food sources being insects for the bat. The species have
large foraging ranges and the subject site is likely to be one of many sites
utilised. Much larger areas of potential habitat exist throughout the locality. He
therefore concludes that the habitat to be removed on the subject site is not
important for the long-term survival of the species in the wider locality. Dr
Robertson’s assessment correctly emphasised the conceivability of
regenerating forest and unlikeliness of significant additional fragmentation of
habitat as a result of the development.
136 Mr Milledge's reliance on the conclusions of the paper prepared by Lunney et
al (Ex 3) as being definitive and absolute about particular roosting habits of the
bat (it does not exclusively roost in tree hollows) and the extent to which they
will travel also demonstrates a lack of rigour in his assessment of significance.
The limitations evident from the methods of recording used as the foundation of
Lunney et al should not be ignored and to ignore them is to overstate likely
impacts on the bat. Dr Robertson’s evidence is consistent with the scientific
evidence, his wider knowledge about this genus of bat and consistent with the
paper prepared by Lunney et al bearing in mind the limitations of the survey,
given the technology available at the time it was done in 1995.
137 In his five-part assessment in the joint report for the bird (pars 86-134), in
relation to s 5A(2)(a), Dr Robertson identifies that there may be a viable
population of the bird on or around the subject site. That population is unlikely
to be placed at risk of extinction because the approved development will only
clear a minority of habitat on site and from the wider rezoned area. Areas of
high value vegetation will be retained, large expanses of weedy regrowth that
represent habitat for the species are to be selectively cleared and/or enhanced
through ongoing management. About 77 hectares of forest will be retained in
the wider rezoned area and more forest adjoins the rezoned area. In relation to
s 5A(2)(d)(i) the limited area of habitat to be cleared will be offset by the
retention of dry rainforest and enhancement of regrowth areas forming
corridors between areas of better-quality habitat. In relation to s 5A(2)(d)(ii)
areas of habitat are unlikely to become significantly fragmented or isolated
from other areas as a result of the development. In relation to s 5A(2)(d)(iii), the
habitat to be removed is limited relative to the areas of vegetation to be
retained and is unlikely to be of long-term importance to the survival of the
species in the locality as there are only limited records of this species in the
locality. Dry rainforest in the wider rezoned area and the general locality
provide additional foraging and nesting sites so that the long-term survival of
the species in the locality would not be jeopardised. Dr Robertson identifies
KTPs for both species.
138 Dr Robertson’s opinions were not undermined in cross-examination and these
should be accepted.
139 Cumulative impact has no relevance to this case. Winten is the first developer
in a newly rezoned area which has set aside areas for conservation of
vegetation in the E2 and E3 zones.
140 On this proper application of s 5A of the EPA Act and the TSCA Guidelines it is
clear that the development would not be likely to have a significant effect on
either species under s 78A of the EPA Act. The SIS ground should be
dismissed.
Consideration of species impact statement ground
141 Under s 9.45 of the EPA Act any person may apply to the Court to seek to
remedy or restrain a breach of that Act. Under s 9.46 if the Court is satisfied
that a breach has been committed or will be if not restrained it may make any
such order as it thinks fit to remedy or restrain the breach.
142 At the time the DA was lodged s 78A(8)(b) of the EPA Act was in force. It
required that a SIS prepared in accordance with Div 2 Pt 6 of the TSC Act
accompany a DA if development on land was likely to significantly affect
threatened species, populations or their habitats. Threatened species is
defined in s 4 of the TSC Act and includes vulnerable species listed in Pt 1 of
Sch 2. The eastern long-eared bat and the white-eared monarch are each
listed as vulnerable species in Pt 1 Sch 2 of the TSC Act. No SIS accompanied
the DA. A flora and fauna assessment prepared by Mr Parker dated August
2017 which was updated on 18 January 2018 was lodged with the DA. It stated
the development was not likely to cause a significant impact on threatened
species.
143 There is no dispute that there is habitat of threatened species on the Land and
that some will be cleared as part of the approved residential subdivision. There
is no real disagreement as to what was physically on the Land when
development consent was granted. The likelihood of significance is to be
determined by reference to the seven-part test (to the extent factors are
relevant) in s 5A of the EPA Act. The ecologists identified that s 5A(2)(a), (d)
and (g) were relevant.
144 There is generally no dispute about the overall principles which apply to the
assessment of significance required by s 78A(8)(b). Following Timbarra
Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999]
NSWCA 8 (Timbarra) cited in numerous other cases referred to in Tumblebee
at [75], whether or not a SIS is required is a question of jurisdictional fact which
the Court must decide for itself on the basis of the evidence before it. If a SIS is
required but does not accompany the DA, development consent cannot be
granted: Timbarra at [94] and [108]; and Newcastle & Hunter Valley
Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty
Limited (2010) 210 LGERA 126; [2010] NSWLEC 48 (Speleological Society) at
[81]. The inquiry must focus on the development as it stood immediately prior
to the determination: Speleological Society at [82] citing Corowa v Geographe
Point Pty Ltd (2007) 154 LGERA 117; [2007] NSWLEC 121 (Corowa) at [50]-
[51]. Ameliorative measures proposed as part of the DA can be considered (not
measures imposed as conditions of development consent); Speleological
Society at [83]. The word “likely” means “a real chance or possibility” not “more
probable than not”: Tumblebee at [79] and the cases cited therein.
“Significantly” means “important”, “notable”, “weighty” or “more than ordinary”:
Oshlack v Richmond River Council (1993) 82 LGERA 222 at 233; Corowa at
[52]; BT Goldsmith at [59]; and Speleological Society at [84].
145 The consideration of relevant factors is not limited only to factors in s 5A(2), the
list not being exhaustive: BT Goldsmith at [12] and Tumblebee at [82]. A
positive answer to any one or more of the relevant factors in s 5A(2) does not
mandate an affirmative answer to the question of whether there is likely to be a
significant effect on threatened species or habitats but also does not preclude a
negative answer: Carstens at [61]; Smyth v Nambucca Shire Council (1999)
105 LGERA 65; [1999] NSWLEC 226 at [12]; also cited in Tumblebee at [81]. A
positive answer to one of the seven-part test factors is sufficient to support a
positive answer to the s 78A(8)(b) enquiry per Carstens v Pittwater Council
(1999) 111 LGERA 1; [1999] NSWLEC 249 (Carstens) at [50]-[51]; and
Tumblebee at [77]. Other relevant factors can include cumulative impacts of a
proposed development: BT Goldsmith at [89]-[90] and Tumblebee at [214]. The
precautionary principle applies at the present stage of determining whether a
SIS is required: BT Goldsmith at [68]-[73]. The precautionary principle was
applied in Tumblebee at [181]-[185].
146 One area of disagreement is whether the potential for future development on
neighbouring land can be considered, the Applicant citing Tumblebee at [56].
At [173] Pepper J did not accept she should take into account proposed
development not yet approved as this was too speculative.
147 Clarification of the area of the subject site and the Land in light of the evidence
is required. Development consent was granted for residential subdivision on
Precincts 1 and 2. Approval for the development of 43 residential lots on
Precinct 3 in concept was also given. While Winten sought to exclude this area
from the subject site on the basis that it would not be developed under this
consent as it required another DA, in my view it should not be ignored entirely.
It was the subject of the DA and was referred to expressly in the grant of
development consent, see [19] above. Vegetation located on the concept plan
for Precinct 3 identified as possibly for retention was referred to by Dr
Robertson in his evidence.
148 The TSCA Guidelines are a mandatory relevant consideration in the
assessment of impact by virtue of s 5A(1)(b) and (3) of the EPA Act, defined as
assessment guidelines issued under s 94A of the TSC Act. They are not
exhaustive so that other relevant matters can also be considered where
appropriate: Tumblebee at [82]. They were considered extensively by the
ecologists in undertaking their assessments of significance.
Section 5A(2)(g) key threatening processes
149 Concerning s 5A(2)(g) (KTPs), there is no dispute that habitat of the two
threatened species the subject of evidence is present on the Land and that
some habitat will be removed by the approved subdivision, a KTP. Mr Milledge
says habitat removal will be in the order of 30 per cent whereas Dr Robertson
says it will be in the order of 10 per cent reflecting their different approaches to
study area, an issue discussed below. In addition numerous KTPs are
identified by Mr Milledge in relation to the bat, totalling four in Sch 3 of the TSC
Act as listed above in [52]. Two were identified by Mr Milledge as likely to be
exacerbated by the subdivision in relation to the bird. Dr Robertson did not
dispute that any of these are relevant. His initial report referred to seven KTPs
relevant to the bird and five relevant to the bat. He expanded on these in the
ecologists’ joint report, adding two KTPs for the bird and three for the bat.
Cumulatively, the ecologists identify nine KTPs likely to be exacerbated in
relation to the white-eared monarch and 11 KTPs likely to be exacerbated in
relation to the eastern long-eared bat.
150 I accept the evidence of the ecologists that, but for a KTP concerning bushrock
removal, KTPs likely to be exacerbated in relation to the white-eared monarch
are: aggressive exclusion of birds from woodland and forest habitat by
abundant Noisy Miners, Manorina melanocephala; anthropogenic climate
change; clearing of native vegetation (as defined and described in the final
determination of the Scientific Committee to list the KTP); invasion and
establishment of exotic vines and scramblers; invasion, establishment and
spread of Lantana (Lantana camara L sens lat); invasion of native plant
communities by exotic perennial grasses; loss of hollow-bearing trees;
predation by the Feral Cat Felis catus (Linnaeus, 1758); and, removal of dead
wood and dead trees.
151 I accept the evidence of the ecologists that the KTPs likely to be exacerbated
in relation to the eastern long-eared bat are: anthropogenic climate change;
clearing of native vegetation (as defined and described in the final
determination of the Scientific Committee to list the KTP); invasion and
establishment of exotic vines and scramblers; invasion of native plant
communities by African Olive Olea europaea subsp cuspidata (Wall ex G. Don)
Cif; invasion of native plant communities by Chrysanthemoides monilifera;
invasion, establishment and spread of Lantana (Lantana camara L sens lat);
invasion of native plant communities by exotic perennial grasses; loss and
degradation of native plant and animal habitat by invasion of escaped garden
plants, including aquatic plants; loss of hollow-bearing trees; predation by the
Feral Cat Felis catus (Linnaeus, 1758); and, removal of dead wood and dead
trees.
152 In the application of subs (g) the TSCA Guidelines state that species listed as
at risk warrant particular consideration. Whether a species is at risk is
determined by reference to the final determination of the NSW Threatened
Species Scientific Committee to list a KTP in Sch 3 of the TSC Act. If the final
determination lists a species particularly at risk of, or adversely affected by, the
operation or exacerbation of that KTP, those species warrant particular
consideration. In the final determination listing “clearing of native vegetation” as
a KTP (“Clearing of native vegetation - key threatening process listing”, NSW
Scientific Committee final determination, 21 September 2001), the white-eared
monarch is listed as a threatened species adversely affected by that KTP. In
the final determination listing “loss of hollow bearing trees” as a KTP, the
eastern long-eared bat is listed as a species that is reliant on tree hollows for
shelter and nests (“Loss of hollow-bearing trees - key threatening process
listing”, NSW Scientific Committee final determination, 5 October 2007). Both
species are at risk from these KTPs.
“Study area” “local population” “locality” application
153 Turning to the matters in s 5A(2)(a) and (d), when BT Goldsmith was
determined in 2005 s 5A(c) (predecessor to s 5A(2)) stated that whether a
significant area of known habitat was to be modified or removed was to be
assessed in relation to the regional distribution. No guidelines for assessment
as referred to in s 94A of the TSC Act were then in place. Section 5A(2)
introduced on 31 October 2005 refers to “viable local population” in subs (a).
Subsection (d) refers to locality which is defined in the TSCA Guidelines by
reference to local population of a species (p 27 of this judgment). The
introduction in the TSCA Guidelines issued in August 2007 refers to the shift to
assessment of significance based on local rather than regional impacts due to
long-term biodiversity loss because of the accumulation of losses and
depletions at a local level (see p 25 of this judgment). The focus on local
impacts was also identified in Tumblebee at [113].
154 Concerning s 5A(2)(a) and (d), one important matter to resolve in determining
whether the proposed development on the Land is likely to have a significant
effect on threatened species, populations or their habitats is the appropriate
approach to the TSCA Guidelines, as informed by the ecological evidence, in
relation to “study area”, “local population” and “locality” in the circumstances of
this case. These terms appear in these subsections and are defined in the
TSCA Guidelines extracted in [32] above. “Subject site” is “the area directly
affected by the proposal”. “Study area” is “the subject site and any additional
areas which are likely to be affected by a proposal, either directly or indirectly.
The study area should extend as far as necessary to take all potential impacts
into account.” “Direct impacts” and “indirect impacts” are also defined. All
impacts identified are adverse. In relation to fauna species the local population
comprises “those individuals known or likely to occur in the study area, as well
as any individuals occurring in adjoining areas (contiguous or otherwise) that
are known or likely to utilise habitats in the study area”. “Locality” has the same
meaning as local population of a species.
155 The TSCA Guidelines are not statutory instruments and precise construction
may not necessarily be required. In this case the definitions are clear on their
terms, give rise to no ambiguity and should be applied.
156 Winten’s argument about the study area, local population and locality is circular
in construction and application. The subject site here is the Land, particularly
Precincts 1 and 2, the location of the proposed development. Study area
means the area likely to be affected by the proposal including the subject site
(affected area) and additional areas affected directly or indirectly, also defined.
The defined impacts are all adverse being direct (kill fauna) and indirect (for
example, predation by domestic or feral animals, loss of breeding
opportunities, loss of shelter, weed invasion, or increased human activity within
or directly adjacent to sensitive habitat areas) which harm or have the potential
to harm threatened fauna.
157 The amelioration of the adverse impact of displacement of threatened species
to other areas of suitable habitat (if they exist, and if the assumption that
individuals will move is correct, an issue I discuss below) is not the kind of
impact engaged by the TSCA Guidelines. Winten’s approach treats offsite
areas which ameliorate the impact of the development the same as offsite
areas which suffer adverse impacts from a proposed development. The former
are not part of a study area, the latter are under the definitions in the TSCA
Guidelines. The fact that a threatened species and/or its habitat may occur
across the North Lismore Plateau does not mean that wider area is the study
area for the purposes of the TSCA Guidelines. The Winten/Dr Robertson
approach is opportunistic and reduces focus on the local, direct and indirect,
adverse impacts of a development on a subject site and its surrounds if
relevant. To the Winten submission that the effect of too narrowly defining the
area by which significance is to be considered overstates the likelihood of
significant impact on the bat and the bird, I consider the opposite occurs with
the Winten approach, namely an understatement of the likelihood of
significance. Such an approach does not accord with the overall tenor of the
TSCA Guidelines which in my view encourage a conservative approach to the
assessment of impact in determining significance. The introduction states that
the assessment of significance is the first step in considering potential impacts.
158 Under the heading “Assessment Guidelines” at p 2 it states:
Where there is reasonable doubt regarding the likely impacts, or where detailed information is not available, a species impact statement should be
prepared. Other issues not specifically addressed by the factors of assessment should be included and discussed in the broader impact assessment process, for example, in a review of environmental factors or an environmental impact statement.
At p 12:
The threatened species assessment of significance should not be considered a “pass or fail” test. Instead, consideration of the factors will inform the decision-making process of the likelihood of significant effect. Where necessary, the process will trigger further assessment in the form of a species impact statement.
All factors should be considered as well as any other information deemed relevant to the assessment. The assessment of significance should not be used as a substitute for a species impact statement. Application of the precautionary principle requires that a lack of scientific certainty about the potential impacts of an action does not itself justify a decision that the action is not likely to have a significant impact. If information is not available to conclusively determine that there will not be a significant impact on a threatened species, population or ecological community, or its habitat, then it should be assumed that a significant impact is likely and a species impact statement should be prepared.
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.
In many cases where complex mitigating, ameliorative or compensatory measures are required, such as translocation, bush restoration or purchase of land, further assessment through the species impact statement process is likely to be required.
159 The study area applying the TSCA Guidelines definition of “impact” in this case
is largely the Land and the immediate areas adjoining it (as considered by Mr
Milledge in [43] above), not the wider rezoned area. The local population of the
bat and bird on and close to the Land must be considered for the purposes of
s 5A(2)(a). That is also the locality for the purpose of s 52A(d).
160 A key difference between the ecologists is their approach to “study area”. Mr
Milledge generally looked at the Land (the subject site) with consideration of
the land immediately adjoining the subject site. Given my finding above on the
application of the TSCA Guidelines, that is correct from a construction
perspective.
161 Dr Robertson looked to the wider rezoned area of the North Lismore Plateau,
including the Land (either 255 or 334 hectares), and other adjoining rural land
to the west of the Land not rezoned in forming his opinions. The ameliorative
impact Dr Robertson relied on to identify the study area was that displaced
individuals, whether bat or bird, would be able to move to land within the
subject site and to adjoining land which had suitable habitat. This included
(i) areas zoned E2 Environmental Conservation and E3 Environmental
Management on the subject site; (ii) areas zoned E2 and E3 beyond the
subject site in the wider rezoned area of the North Lismore Plateau; and (iii)
forested areas in R2 residential zoned areas in the wider rezoned area of the
North Lismore Plateau. In oral evidence Dr Robertson also referred to RU1
rural zoned land adjoining the site to the west (outside the rezoned area the
subject of the planning proposal). According to Dr Robertson 112 hectares of
forested land exists in the wider rezoned area of which 77 hectares are E2 and
E3 zoned land. I do not consider this approach reflects the approach required
by the TSCA Guidelines.
162 Turning to consider the conflicting approaches of the ecologists from a
discipline perspective, there is substantial disagreement between the two
ecologists. To give expert opinion in a court expertise must necessarily be
developed by study, training and experience and any opinion proffered must be
based wholly or substantially on the expert knowledge of a witness: Makita
(Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 at
[85], Dasreef Pty Limited v Hawchar (2011) 243 CLR 588; [2011] HCA 21 at
[37]. Ecology is a very broad discipline with many specialities, reflecting the
great complexity of the interactions of animals with their surroundings, given
the many classes (for example mammals (bats), aves (birds)) in the animal
kingdom, divided further into orders (here chiroptera (bats) and passeriformes
(birds)), families (categories here vespertilionidae (bat) and monarchidae
(bird)), genus (types of bats and birds) and species (the particular bat and
bird). The focus of these proceedings is two entirely different classes of
vertebrate (chordata) animals. While both ecologists have many decades of
working in the broad field of ecology their expertise within that varies. Mr
Milledge’s experience of the genus of bats and birds and of the two particular
species in northern NSW the focus of these proceedings is substantially
greater than Dr Robertson’s as is clear from his CV and the direct experience
he referred to in his oral evidence. I agree with the Applicant’s criticism of Dr
Robertson that, to the extent he has done field work and study to develop his
ecological expertise, it is in relation to fish and botany according to his CV. Dr
Robertson’s CV cites his extensive attendance at various courts as an expert
witness. Citing attendance at court as an expert witness without more detail is
not study, training or experience relevant to the development of ecological
expertise. Dr Robertson did not refer to any relevant study, experience or
training in relation to either genus or species I must consider. I am therefore
likely to accept Mr Milledge’s opinion where there is disagreement between the
ecologists as I found his opinion credible, based on appropriate expertise and
supported by scientific study where available. Mr Milledge’s evidence also
better reflects the requirements of the statutory scheme.
Mobility of species
163 Another fundamental area of difference between the ecologists is the extent to
which they consider these species will move off the Land when development
occurs that impacts on them directly or indirectly, whether through loss of
habitat or impacts of building and then occupation of houses. Dr Robertson
identified no difficulty in the bird and bat doing so because they can fly, and
that approach underpins the Winten case. Mr Milledge stated that from an
ecological perspective displaced individuals rarely move and are likely to die.
Mr Milledge also identified that other individuals of the same species may be
occupying nearby habitat meaning it cannot be assumed to be available for
displaced animals to move into. From an ecological perspective I consider Mr
Milledge is likely to be correct.
164 A related assumption underpinning Dr Robertson’s approach to study area is
that the bat is highly mobile and ranges widely when foraging, meaning it can
and will readily move to other areas of habitat within and off the Land. While I
accept that a bat can move, how far is a matter of fundamental debate between
the ecologists. That the relevant local population is located on the Land or very
near it is reinforced by the six sightings of individuals on the Land and in the
immediate area, as identified by Mr Milledge.
165 The limited survey work undertaken of the bat by Greenloaning using harp
traps did not detect its presence widely across the North Lismore Plateau.
Greenloaning did not place harp traps on the Land. On every occasion that
Cumberland Ecology and Mr Milledge set harp traps bats were trapped. Four
bats were trapped on Precinct 2 where both experts set traps. Mr Milledge set
his traps in the development footprint area. Cumberland Ecology traps were on
the edge of that area and in the E3 zoned land in the south-east of Precinct 2
as shown on Fig 4 (Ex 1).
166 The sightings of the bat on the Land (Milledge/Cumberland Ecology – four
sightings) or very close to it (Greenloaning – two sightings) give rise to the
inference that the species inhabits the Land and very close to it. Mr Milledge’s
opinion that the Land is at the centre of habitat for a local population of the bat
is supported by this data.
167 Mr Milledge’s evidence displays a greater understanding of the habitat and
behaviour of the bat including his consideration of Lunney et al in [46] above,
the only in-depth ecological study presently available about the bat’s behaviour
in northern NSW as Dr Robertson agreed in cross-examination in [104] above.
Winten’s counsel sought to undermine the impact of that study in cross-
examination as outlined above in [97]-[98], suggesting it used old technology
and not the modern GPS tracking which would be used if done today, and took
place in intact rainforest likely to satisfy all the bats’ needs unlike the subject
site. In the absence of any other study, that study should be given weight as Mr
Milledge did in stating that in his opinion the bat does not range widely from
roosting sites when foraging. Dr Robertson’s opinion in his report and in oral
evidence that it did range widely lacks any scientific foundation for this
particular species and is not supported by the limited survey work conducted
on the Land and surrounds. Dr Robertson’s statement in the joint report in [83]
above that no study had been conducted in 25 years to corroborate Lunney at
et al, as if that enabled his otherwise unsupported opinion about the mobility of
the bat to be given weight, was unhelpful evidence. While Winten’s counsel
submitted Dr Robertson’s opinion was supported by other scientific opinion, he
only extracted Lunney et al in the joint report at folios 208-209, while simply
naming another report.
168 Considering whether there is a local population of the white-eared monarch,
two sightings, one on Precinct 2 and one on Precinct 3, are recorded in the
evidence, one by Mr Parker and one opportunistically by Mr Milledge. Mr
Milledge concludes that there is likely to be a breeding pair using the Land and
its vicinity. Dr Robertson agreed that a viable population of white-eared
monarch may exist on or around the subject site as there were two records of
the species (in [59] above). Both ecologists referred to Higgins et al
(summarised above in [39]-[40] and referred to by Mr Milledge in his primary
report in [47] above and by Dr Robertson in cross-examination in [85] above),
which identifies that the bird is easily disturbed. The ecologists agree the bird is
cryptic and Mr Milledge advised in his oral evidence that it is difficult to detect
and is usually first identified by its call which is easily confused with other bird
species, above in [85]. Mr Milledge has extensive experience of the bird having
lived in close proximity to a population for many years, above in [86]. Dr
Robertson had no specific experience of the bird that he identified.
169 The range of the monarch is 10 to 15 hectares according to the undisputed
evidence of Mr Milledge. He described it as sedentary meaning it sticks to its
home range. The study area for the bird must also be considered as Precincts
1 and 2 and the land immediately adjoining.
170 These findings about study area, local population and locality, and mobility
inform the application of s 5A(2)(a) and (d).
Section 5A(2)(d) removal, modification, fragmentation, isolation of habitat
171 Given that loss of habitat is the KTP with the most immediate and greatest
adverse impact on these species, it is appropriate to next consider s 5A(2)(d)
as that will inform consideration of s 5A(2)(a), the risk of extinction of a local
population. Section 5A(2)(d) requires consideration of (i) the extent of habitat
removal or modification; (ii) the likelihood of fragmentation or isolation from
other areas of habitat; and (iii) the importance of the habitat to be removed,
modified, fragmented or isolated to the long-term survival of the species and/or
population in the locality, here Precincts 1 and 2, and 3 to a lesser extent, and
land immediately adjoining the site. An important part of Winten’s case is the
existence of E2 and E3 zoned land on and beyond the Land in the wider
rezoned area. Given my conclusions on locality, E2 and E3 zoned land across
the North Lismore Plateau has no role to play in my analysis.
172 “Habitat” is defined in the TSC Act and also in the TSCA Guidelines, as set out
above. Habitat is occupied whether permanently, periodically or occasionally in
the definition in the TSC Act. The TSCA Guidelines state similarly that habitat
“includes all the different aspects (both biotic and abiotic) used by species
during the different stages of their life cycles”. “Extent” is also defined.
“Importance” relates to the stages of a species’ life cycle and how reproductive
success may be affected. The area of habitat to be cleared and its quality must
be assessed. Dr Robertson identifies that the development proposal removes
up to 12 hectares of habitat of which 6.7 hectares is considered by the
ecologists to be rainforest or regenerating rainforest. Mr Milledge considered
the 6.7 hectares was optimal breeding habitat. The evidence of the ecologists,
particularly Mr Milledge, suggests that the habitat on the Land is occupied on a
permanent basis by the bat, which has a narrow home range and possibly by
the bird as part of its home range of 10 to 15 hectares.
Section 5A(2)(d)(i) extent of removal of habitat
173 The TSCA Guidelines refer to consideration of short and long-term impacts of
habitat removal. The ecologists agree on how much habitat is to be lost. Their
opinion of the impact of that loss varies primarily because of their different
approaches to study area. Their respective conclusions on the application of s
5A(2)(d) are summarised above in [49] and [51] (Mr Milledge) and [60] and [66]
(Dr Robertson). Mr Milledge’s view is that the loss of 6.7 hectares amounts to
loss of 30 per cent of habitat on Precincts 1 and 2. Dr Robertson’s view is that
the loss amounts to approximately 10 per cent of habitat (12 hectares out of
112 hectares of forest in the wider rezoned area) based on the wider area he
considered. Mr Milledge’s opinion is preferred as this better reflects what the
statutory scheme requires, in accordance with my finding above in [154]-[159].
174 The habitat on the Land includes areas potentially used for nesting, an
important part of the life cycle of any species. The bat relies predominantly on
hollow-bearing trees for nesting, not exclusively but substantially according to
Mr Milledge, supported by Lunney et al. Dr Robertson accepted that, while
identifying that nesting also occurred in other locations. The number of hollow-
bearing trees to be removed according to Dr Robertson is 34. This does not
take into account 11 hollow-bearing trees removed as part of clearing along the
haul road between Precincts 1 and 2. Winten submitted this represented 57 per
cent of the hollow-bearing trees on Precincts 1 and 2. Dr Robertson submitted
this fell to 34 per cent if areas elsewhere on the North Lismore Plateau were
taken into account. I have not accepted Dr Robertson’s approach to the study
area above suggesting Mr Milledge’s assessment of the substantial adverse
impact of the loss of hollow-bearing trees should be preferred.
175 Dr Robertson relied on the proposed improvements of vegetation in the E2 and
E3 zones on the Land as part of his overall analysis that the loss of habitat
would not have a significant impact on the white-eared monarch. The detail
available about that regeneration in the Landscape Masterplan and the SEE
prepared for the DA summarised in [35]-[36] above was general. The SEE
referred to planting 2,000 river red gums, above in [36]. Dr Robertson agreed in
cross-examination in [87] above that the improvements to the quality of the
vegetation in the E2 and E3 zones were from a botanical perspective rather
than being an improvement of what the two species preferred. The white-eared
monarch was photographed by Mr Milledge in a camphor laurel, a weed
species, in the area of Precinct 2 to be cleared which is identified as of low
botanical quality in Dr Robertson’s evidence (see Fig 6 of Ex 1). As the
Applicant submitted the key issue is whether the vegetation is suitable habitat
for the bird not whether it is good quality native bush.
176 I should also note that Dr Robertson referred to a “Vegetation Clearing Report
and Tree Protection Plan” prepared by Planit Consulting which identified future
conservation management including a vegetation management plan which was
prepared in February 2019, after development consent was granted in October
2018. I was not taken to that report. As identified in the case law summarised
above, requirements imposed as a result of development consent being
granted are not relevant to consideration of impacts for the purposes of s
78A(8).
177 The benefits of the proposed improvements to vegetation including the
maturing of trees sufficient to provide nesting sites such as hollows for bats
were disputed by Mr Milledge as having any positive impact for a long time. In
relation to red gums Mr Milledge’s evidence was that the provision of suitable
hollows in red gums would occur after 50-100 years. In the meantime the
existing habitat will not be available. Dr Robertson considered in [91] above
that the regeneration of vegetation and weeding of the currently degraded
areas would result in better habitat in an 8-10 year timeframe. No evidence that
this has been or is likely to be effective in maintaining the local population of
either species is provided in the evidence.
178 Further, the TSCA Guidelines state that if bush restoration is proposed further
assessment through the SIS process is likely to be required.
179 As accepted by Dr Robertson in cross-examination in [91] above, the provision
of nesting boxes will not assist the white-eared monarch as it nests high in the
open canopy of mature rainforest trees.
180 Winten, supported by Dr Robertson’s approach, relies on the zoning of land as
E2 and E3. Most of the vegetation to be preserved on the eastern side of
Precinct 2 is zoned E3. The zoning table is set out above in [12]. While the
objectives include the protection, management and restoration of areas with
special ecological values inter alia, a range of development can be consented
to. The zone does not provide the same protection of habitat as an area where
no development is permitted. Focussing on Precinct 2, part of the E3 zoned
land in the south-east will be used for recreation and include walking paths
(see [35] above). As the Applicant submitted the E2 and E3 zoned areas will
not be fenced off from humans and their pets. Part of the vegetated area
identified in the concept plan for Precinct 3 next to houses is earmarked for an
APZ, with consequent substantial loss of tree cover to reduce the canopy to 15
per cent.
181 The extent of removal of important habitat necessitated by the development in
the study area is substantial.
Section 52A(d)(ii) likelihood of fragmentation and isolation from other areas of habitat
182 The area of vegetation proposed to be retained and rehabilitated runs north to
south between Precincts 1 and 2. There may also be retained vegetation on
Precinct 3 the precise form of which is not yet determined. There is vegetation
on the rural land to the west of the site which Dr Robertson relied on as useful
habitat. That vegetation also runs north to south and was referred to by Dr
Robertson as possible future habitat. I note that vegetation identified by Warren
and Associates as of high conservation value on the south-eastern part of
Precinct 3 or nearby is not all retained in E2 or E3 zoned land in the concept
plan for Precinct 3, as can be seen from the high conservation areas identified
by Warren and Associates in the plan in Ex J.
183 Fragmentation of habitat will occur on the Land given the large area of
vegetation to be cleared on the western side of Precinct 2 for animals trying to
move east to west. Winten essentially relies on the Council’s actions in
approving the planning proposal for the North Lismore Plateau for residential
development to include land zoned E2 and E3 within the Land and across the
rezoned area to submit that any fragmentation and loss on the Land will be
ameliorated. The E2 and E3 zoned land running north to south does connect
with similarly zoned land to the north and south which extends across some of
the wider rezoned area. This approach does not accord with my earlier finding
in relation to study area, being the Land and the immediate surrounds, and my
finding that the bat and bird cannot be assumed to move to other areas of
habitat off the Land in the E2 and E3 zones.
Section 5A(2)(d)(iii) importance of habitat
184 There is an overall substantial reduction of important habitat in the study area
as a result of the approved development even taking into account the proposed
improvements to remaining vegetation in the E2 and E3 zoned land. The lost
habitat is likely to be permanently occupied and used at all stages of the bat
and bird’s life cycles. The proposed improvements to vegetation quality
particularly maturing red gum trees will take substantial time to occur from an
ecological perspective, assuming all the measures proposed do take place and
are successful.
Section 5A(2)(a) whether action likely to have adverse effect on life cycle of viable local population
185 Turning to s 5A(2)(a), the subsection requires assessment of 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. Viable means the capacity to successfully complete each
stage of the life cycle under normal conditions. Under the TSCA Guidelines,
the local population of resident fauna comprises those individuals known or
likely to occur in the study area, and individuals occurring in adjoining areas
that are known or likely to utilise habitats in the study area. Risk of extinction is
both short-term and long-term as a result of direct or indirect impacts on the
viability of the population. The risk of extinction increases if any factor reduces
population size or reproduction success. The applicant/proponent must have
an understanding of the species’ life cycle and how it makes use of habitat
including changes in seasonal conditions. The ecologists agree that a viable
local population of the bat and the bird does or may exist on the Land. Dr
Robertson did not expressly use words to that effect when considering the bat.
He appeared to accept that a viable population of the bat exists by stating that
the bat is using the Land for foraging, albeit as part of what he contends is a
much larger foraging range.
186 In considering s 5A(2)(a) an applicant for development must have an
understanding of a species’ life cycle and how a species uses its habitat
according to the TSCA Guidelines. A further issue that clearly arises from the
collective evidence of the ecologists is the lack of any targeted study of both
threatened species the subject of this case to better understand their range
and life cycle. That absence is specifically identified in Mr Milledge’s evidence.
That is an issue that counts against Winten given the requirement in the TSCA
Guidelines extracted in [32] above for an applicant for development to have a
good knowledge of the species in issue.
187 The ecologists formed opposing opinions on whether a viable local population
of either the bird or the bat is likely to be placed at risk of extinction by the
proposed subdivision, driven in large part by their different approaches to study
area, as I have already discussed above. I have found that Mr Milledge’s
approach to the study area is correct and that is the area in which the local
population exists.
188 Considering the eastern long-eared bat, Mr Milledge’s conclusion that the Land
is key habitat for the bat given that the bat has a narrow range of movement is
accepted. Dr Robertson’s opinion that individuals of this species can move
readily and survive is not accepted in the absence of any evidence to support it
and any relevant demonstrated expertise on his part in relation to this bat
species.
189 A further challenge for the bat not already considered is that the subdivision will
introduce a large number of houses on Precincts 1 and 2 where previously the
Land was zoned rural and undeveloped. Housing is also intended on Precinct 3
with the precise location yet to be determined. In Precinct 2 the area of
vegetation currently available as habitat on the western side where most
sightings occurred will be cleared. The cleared area will contain a large number
of houses which must first be built with the necessary construction activity and
then occupied in due course by people and their pets with noise and lights as
would be expected of 295 occupied houses, and roads with streetlights and
cars. Precinct 1 will have 95 occupied houses, and roads with streetlights and
cars. If the 43 houses intended for Precinct 3 are included a total of 433
houses will be built.
190 Once these precincts are developed, if the bats want to move east to west or
vice versa across Precinct 2 they will have to cross the subdivided residential
area on Precinct 2 with 295 occupied houses in order to move from one band
of vegetation running north to south on the eastern side of Precinct 2 to
another band of such vegetation on the western side of Precinct 3 and beyond,
assuming that will exist in the future. Dr Robertson did not identify these
impacts as an insurmountable problem in that he considered the bats could
conceivably cross such areas. The ecologists agree that the bat is a rainforest
dweller and the only credible evidence available is that it has a limited foraging
range. I accept the evidence of Mr Milledge that this developed human
environment will present a very real challenge to the bats. No assumption
should be made that bats would readily attempt to cross or cross at all those
built-up areas. Dr Robertson’s observation in his oral evidence that he was
aware that micro-bats exist in urban areas of Sydney (above in [101]) was
unhelpful and lacked scientific rigour. The same observation applies to his oral
reference to the bat being identified in Lismore given Mr Milledge’s
observations at [103] above concerning the nature of the data which he had
personally reviewed.
191 My acceptance of Mr Milledge’s evidence that the bat has a limited home range
focussed on the Land also means that the existence of other potential habitat
further afield than immediately around the site has little role to play in the
analysis required by subs (a). As identified in the TSCA Guidelines the risk of
extinction is in the short-term and/or the long-term as a result of the direct and
indirect impacts on the viability of the population. The life cycle of a species is
dependent on its habitat inter alia. The removal or modification of habitat may
affect its survival. I consider that Dr Robertson did not correctly approach the
test in s 5A(2)(a) of “likely to be at risk” and did effectively substitute a test of
certainty of extinction.
192 I conclude in accepting Mr Milledge’s opinion that the development with the
consequent loss of habitat particularly, and also other KTPs, is likely to have an
adverse impact on the life cycle of the bat such that the local population of the
bat is likely to be placed at risk of extinction.
193 Considering the white-eared monarch, Mr Milledge concludes that there is
likely to be a breeding pair using the Land and its vicinity. Dr Robertson stated
that a viable population of white-eared monarch may exist on or around the
subject site as there were two records of the species. The bird has a range of
10 to 15 hectares and a third of its habitat will be cleared on Precincts 1 and 2.
194 Both ecologists agree the bird is easily disturbed by human activity. I accept Mr
Milledge’s evidence that its movement and life cycle will be affected by the
introduction of so many occupied houses on Precincts 1 and 2, given the
effects of light, noise and occupied buildings.
195 I conclude in accepting Mr Milledge’s opinion that the development with the
consequent loss of habitat particularly, and also other KTPs, is likely to have an
adverse impact on the life cycle of the bird such that the local population is
likely to be placed at risk of extinction.
Cumulative impact
196 Winten submitted that as the first subdivision development on the North
Lismore Plateau it did not have to consider cumulative impact issues as that
would fall to the next subdivision developer. Such an approach undermines the
TSC Act and TSCA Guidelines and fails to recognise the nature and extent of
the KTPs arising from the development.
197 Loss of habitat is a KTP. Loss of habitat is one of the primary causes why
many species are threatened. Each clearing event represents a further
cumulative loss of habitat of threatened species and must necessarily be
considered in determining whether there is likely to be a significant impact on
threatened species.
Overall conclusion
198 Mr Milledge’s evidence, which I have accepted, establishes that the adverse
impacts identified are likely, meaning a real chance or possibility, to occur and
be significant, meaning more than ordinary. For all the reasons I have given
above in relation to s 5A(2)(a) and (d) and mindful of the large number of KTPs
which will result from the development as referred to in s 5A(2)(g), I consider
the approved development the subject of Development Consent 2017/270 is
likely to have a significant impact on the white-eared monarch and the eastern
long-eared bat. As well as in case law, a precautionary approach to
consideration of whether a SIS is necessary is referred to expressly in the
TSCA Guidelines p 12 extracted above in [158]. Adopting such an approach
further suggests that in considering the risk of extinction from short-term and
long-term impacts on both species, both identified as at risk, a finding of likely
significant impact is warranted.
199 A SIS was required in order to comply with s 78A(8) of the EPA Act when
Development Consent 2017/270 was granted on 17 October 2018 and was not
provided.
200 The issue then arises of whether an order under Pt 3 Div 3 of the LEC Act
ought be made in light of s 25E which imposes a duty on the Court to consider
making an order under this Division instead of declaring a development
consent invalid. Such an order would be made under s 25B(1). Given the
substantive nature of the preparation of a SIS I consider it is difficult to make
orders which essentially carve out only this aspect of the development to
enable consideration separately from any other aspect of the development
process. Relevant considerations were identified in Aldous v Greater Taree
City Council (2009) 167 LGERA 13; [2009] NSWLEC 17 at [97ff]. In Coffs
Harbour City Council v Arrawarra Beach Pty Ltd (2006) 148 LGERA 11; [2006]
NSWLEC 365 at [16] Talbot J considered an order under s 25B of the LEC Act
was not appropriate in a case where there was a failure to lodge a SIS. Winten
accepted an order under s 25B of the LEC Act was not appropriate if I found
that a SIS was required.
201 The Applicant is successful on the SIS ground and a declaration of invalidity of
Development Consent 2017/270 as identified in prayer 2 of the Third Further
Amended Summons will be made. There is no need to also make the
declarations sought in prayers 1 and 3 as I have made appropriate findings in
this judgment. Whether further orders as sought in prayers 5 and 6 need be
pressed will be discussed with the parties.
Breach of the Heritage Act ground
202 The Third Further Amended Summons seeks a declaration that Winten (Third
Respondent), the Fourth Respondent (W A Sexton, the sole director of the Fifth
Respondent) and the Fifth Respondent (Glorbill Pty Ltd, the owner of the Land)
(have breached or will cause to be breached s 139 of the Heritage Act. The
Applicant clarified in oral submissions that a declaration was sought only in
relation to Winten and the Fifth Respondent. Only Winten was the focus of
submissions. The parties addressed the issues of, as at 12 January 2018, had
Winten reasonable cause to suspect that it had discovered or exposed a relic
within the meaning of s 139 of the Heritage Act in the form of the “inferred
grave”? If there was a breach of this provision, what is the appropriate relief, if
any?
203 The Amended Points of Claim largely refer to the evidence outlined below and
do not therefore need to be set out here.
204 The evidence describes the gravesite in various ways (potential gravesite,
suspected gravesite, inferred gravesite). It will be referred to from hereon as
the “inferred gravesite”.
Evidence
205 The DA was lodged on 22 August 2017 by Planners North with a SEE and
several technical reports (TB vol 2 tabs 19 & 20). The “Cultural Heritage
Assessment” dated August 2017 prepared by Everick addressed heritage
issues generally, reviewing the European and Aboriginal heritage significance
of the Land (TB vol 2 tab 20(e)). This assessment identified that the inferred
gravesite was first discovered during a site inspection undertaken by Everick
on 30 November 2016. Everick prepared a “Cultural Heritage Management
Plan” dated August 2017 (CHMP) that outlined methods to manage potential
impacts to Aboriginal cultural heritage arising in the course of the development
(TB vol 2 tab 20(f)).
206 A “Report on GPR Survey at Winten Property Group Site on North Lismore
Plateau, NSW” dated 19 January 2017 was prepared by Georadar with the
results of a GPR survey performed across the inferred gravesite. The
objectives of the GPR survey were to establish if the feature was a human
burial. The investigation was conducted by Dr Richard Yelf on 18 January
2017. The GPR method is a non-destructive and non-invasive geophysical
technique for rapidly imaging the shallow subsurface and producing high-
resolution colour sections in real time.
207 The summary of the report was as follows:
5. SUMMARY
This is a difficult site to interpret the data from due to the very short length of the radar lines. The short lines restrict the ability to contrast the data from within the inferred grave with the undisturbed soil outside the grave.
None-the-less, there appears to be a contrast between the surrounding soil and the A and B soil horizons which appear to be truncated, for example on Figure 13.
There also appears to be disturbed backfill within the inferred grave, for example on Figures 13 and 16.
There do not appear to be clear targets from decomposed human remains. However, due to the variable water table at this site, we would expect the
accelerated decomposition of remains to have occurred and hence potential remains to have been largely obliterated.
The inferred burial appears to have been made directly into the soil, and not in a coffin.
In consideration of these factors, from an examination of the less-than-perfect GPR data, it is our interpretation that this feature represents the burial of two persons. The burial depth is shallow and approximately 1.0 m depth. The interpreted burial on the north western side appears to be an adult of full stature, and the adjacent burial appears to be more diminutive and possible represents a female, or a large (teenage) child.
208 A letter from OEH regarding the DA (Ex G) dated 31 October 2017 provided
recommendations and detailed comments on the proposed residential
subdivision. Regarding the inferred gravesite, it stated:
We note the comments in Section 12.2.1 (Page 18) of the CHMP regarding the potential grave site. The discussion on the grave site notes an intention to carry out further research on the “Potential Grave” to determine its cultural significance. The OEH notes that any invasive investigation not carried out under Chapter 5 of the Coroners Act 2009 will require appropriate authorisation from OEH before being conducted.
209 A “North Lismore Plateau Historic Grave Site: Assessment of Significance”
dated November 2017 was prepared by Everick. The assessment was based
on an investigation conducted through the use of historic images, plans, maps,
records, and other secondary sources, and a physical site inspection of the
inferred gravesite to assess its existing condition and surrounding land uses.
The inferred gravesite was located in the western section of the proposed
development area, close to the southern boundary. The area was vegetated,
adjacent to a large tree, and surrounded by large amounts of historic debris
including old car bodies. Under the proposed development at the time the
assessment was prepared, the inferred gravesite would have been located
beneath a road on the edge of a lot in the south-western corner of the
subdivision.
210 The assessment provided a legislative and planning context to the possible
historic significance of the inferred gravesite. It stated that the Heritage Act is
relevant to historic burials or skeletal remains which have been buried for more
than 50 years. A grave cannot be moved without an excavation permit issued
under s 140 of the Heritage Act. An application must be made to the Heritage
Office before any disturbance, removal or work commences on the site.
Additionally, approval for the exhumation of human remains is required under
the Public Health Regulation 2012. Buried human remains fall within the
definition of a relic in s 4(1) of the Heritage Act as a “deposit, object or material
evidence”.
211 Dr Yelf’s GPR survey results were identified. The heritage significance of the
inferred gravesite was not conclusively determined at the time the Everick
assessment was prepared. The assessment found that there was a high
likelihood that the inferred gravesite holds significance for one or more cultural
groups within the local or State area, depending on the identity of the
individuals buried there.
212 The conclusions and recommendations were as follows:
6.1 Conclusions
The Project will result in impact to the NLP [the North Lismore Plateau] Historic Grave Site, an early- contact period burial (1840-1890) that contains the remains of two individuals. Property ownership of the land surrounding the grave site was able to be traced back to the 1840s. It is unlikely that any of the associated family members were buried there as the grave appears to be more of a “pauper's burial” than a “middle class burial”; the individuals were placed directly in the ground, rather than in a coffin, and the grave was delineated with stones rather than a headstone or iron railing as was traditionally used by early European settlers who were rich enough to purchase land. The heritage significance of the grave is not able to be determined at this stage, but it is highly likely that it will hold significance for one or more cultural groups within the local or state area, depending on the identity of the individuals. The site could have high archaeological potential, should the remains not have been completely obliterated through the action of the variable water table.
6.2 Recommendations
The following recommendations are made:
Recommendation 1: Alteration of the Proposed Project
It is preferable that the proposed Project for the NLP subdivision is altered to avoid impact to the NLP Historic Burial Site, and the site is conserved.
Recommendation 2: Archaeological Excavation Permit
Should the Project proceed as currently proposed, it will disturb the NLP Historic Grave Site. The likelihood of historic archaeological features and/or deposits being present within the grave site is considered to be moderate to high, and may be of local, or state heritage significance. Should the grave site be deemed to be European, the “relics provision” requires that no archaeological relics be disturbed or destroyed without prior consent from the Heritage Council of NSW. Ground disturbance works may only proceed in areas identified as having archaeological potential after first obtaining an Excavation Permit in relation to activities pursuant to section 139 of the Heritage Act 1977 (a “Section 140 permit application”). Additionally, approval
for the exhumation of human remains is required under the Public Health Regulation 2012.
If the remains are identified as Aboriginal, Part 6 (Section 83-91) of the NPW Act contains provisions concerning the ownership and appropriate treatment of Aboriginal relics. It is an offence to disturb or excavate land in order to find a relic, or to move, disturb or take a relic, except in accordance with a valid permit.
If excavation is demonstrated to be a justifiable option, then the burial relocation must be conducted in a sensitive and dignified manner. Controlled excavation and removal should be undertaken by archaeologists and other appropriate specialists, including a historical archaeologist and a physical anthropologist.
213 A report titled “Suspected Early Settlers Grave, North Lismore: Results of
Archaeological Testing” dated 14 March 2018 was prepared by Mr Tony Lowe,
director of Casey & Lowe, and states:
Re: Suspected Early Settlers Grave, North Lismore Results of Archaeological Testing
As you are aware, Casey & Lowe were engaged by Winten Property Group at the request of Lismore Crime Scene Detectives to manage the testing of a suspected “Early Settler's Grave” at a proposed development area in North Lismore. A colleague Dr Denise Donlon, Physical Anthropologist, Sydney University and I were originally contacted by Lismore Crime Scene Detectives who were investigating whether the site was indeed a grave and, if so, whether it was a modern or historic interment. Whether it was connected to crime scene, or was a European or Aboriginal burial was relevant to whether the NSW Police and Coroner need to be involved, or whether appropriate permits from the Office of Environment and Heritage needed to be obtained. An European or Aboriginal grave would also trigger the need for appropriate community and family consultation.
214 Testing of the inferred gravesite occurred on 12 January 2018. Mr Lowe was
accompanied by several officers from Lismore Crime Scene Section. The rocks
from both sides of the centre of the inferred gravesite were removed, beneath
which only a slight indentation was visible. A mud bucket was used to scrape
through the feature in an effort to detect a sign of a rectangular cut that could
indicate the presence of a grave. As no cut was discerned, the machine
excavation continued deeper. The excavator removed topsoil and exposed
thick robust roots spreading horizontally through the feature from the adjacent
tree. The roots were removed to reveal clean and consistent grey clay which
was interpreted as clayey subsoil, a natural strata. There was no sign of
disturbance in the strata. Excavation continued to 1.5 metre depth where the
clay was uniform and showed no sign of disturbance.
215 The interpretation of results was as follows:
• The theory that the feature is a grave is not supported by the results of the testing.
• The identification of human remains, particularly two bodies lying side by side, one being adult and the other an adolescent or female, is not supported by the results of the testing.
• The patterns of soil shown on the scans appear similar on either side of the lines of rocks, implying that the stones may have led to differential moisture content and drying patterns which showed up on the scans.
• The rocks appear to have been relatively recently placed in the area as they were only slightly embedded in the topsoil derived from decaying leaf litter from the adjacent trees.
• The GPR results could not be used to date the feature as an early settler's grave from the pre-1890s.
• The evidence for the timber framework and tarpaulin implies that the feature was covered. This and its proximity to the vehicles strongly suggests that it was constructed by the persons using the area as a shelter.
216 The conclusions were as follows:
• There was no evidence that the feature is a grave.
• It is probably connected to the recent use of the area.
• It probably acted as the base of an elevated shelter.
• There is no evidence that the feature is connected to the nineteenth-century settlement of the area, either European or Aboriginal.
Please contact me should you need any additional details regarding this report.
217 Within its assessment of matters for consideration under s 4.15 of the EPA Act,
the Council’s “Delegated Determination Report” dated 27 September 2018
states:
11.7.8 Grave site on North Lismore Plateau
It is noted that Everick archaeologists reported a possible grave site on the proposed development site on the basis of a configuration of stones which was assumed to be a marking of a historic grave. The police had carriage of the investigation in accordance with the Coroners Act 2009 and engaged experts with archaeological experience in the identification of graves and in the identification of human skeletal remains.
The findings conclusively overturned a suggestion by a ground penetrating radar investigation that burials of two individuals may be present. In fact the ground comprises heavy clay quite unsuited to digging graves in comparison to sandy alluvial soils along the river valley distant from the NLP. It is also noted that NSW Police have legal jurisdiction in the matters of investigating human remains and it is understood that NSW Police arranged for the expert investigators, Tony Lowe and Denise Donlon, who are experienced in such
matters to conduct the grave site investigation. This is detailed in the report documentation provided by Casey & Lowe, Archaeology & Heritage dated 14 March 2018.
218 A plan titled “Earthworks Construction Staging Plan Month 2” dated 1 March
2019 prepared by Planit Consulting identified the inferred gravesite in the
south-western corner of Precinct 2. The inferred gravesite was labelled “site
inspected by Casey & Lowe”. The plan showed that the inferred gravesite was
outside the development site, with residential lots not intruding on the site.
219 The Applicant relied on the evidence of Dr Penny McCardle, forensic
archaeologist and forensic anthropologist. Dr McCardle prepared two reports
on cultural heritage issues dated 11 April 2019 and 16 June 2019. The second
report included a description of a site visit undertaken by Dr McCardle with Mr
Jim Punch (Winten) on 12 June 2019. The reports summarised legislative
requirements and practical processes if suspected graves, human remains, or
unidentified bones are uncovered during assessment or development.
Practically, when a suspected grave or burial is located, the developer should
immediately contact a heritage consultant or local NSW police to commence
investigations of the feature.
220 Dr McCardle summarised the progress of the project and investigations of the
inferred gravesite up to the date of her report. She noted Everick’s conclusion
that rocks as a grave marker was a common practice for both Aboriginal
people and early settlers and that without exhumation of the deceased it was
unlikely further information about the identity of the deceased could be
determined. Dr McCardle found it unusual that Dr Yelf reported information
such as the number of remains, age and antiquity of remains in his GPR
survey report because GPR cannot indicate the age of deceased or antiquity of
a gravesite. The GPR survey did identify anomalies that may be interpreted as
a possible gravesite.
221 Dr McCardle reported that Casey & Lowe were engaged by Winten at the
request of Lismore Crime Scene Section to investigate the inferred gravesite.
Dr McCardle expressed concerns about the methodology used by Casey &
Lowe. Dr McCardle acknowledged that while the Casey & Lowe investigation
followed the correct procedures according to the appropriate legislation, the
report lacked significant detail including depth of spits and soil details such as
pH. Further, the report failed to recognise that a grave outline is not always
evident. Altered methodologies to take this into consideration were not
implemented. Given that there was a known anomaly at one metre below the
surface, the mechanical scraping used by Casey & Lowe should have ceased
10-20 centimetres above the anomaly and all deposits from 10 centimetres
above to 10 centimetres below the identified anomaly should have been sieved
to ensure identification of any remains.
222 On the basis of her site visit, Dr McCardle reported that the possible grave
stones appeared to have once been part of a stone wall next to the inferred
gravesite. This indicated that the feature may not have been a burial, but not
with certainty. Dr McCardle concluded in her report that as anomalies were
identified during the GPR survey, deposits remaining on site should be sieved
to ensure identification of any remains or other items or interest.
223 Dr McCardle also gave oral evidence concerning possible relief measures set
out in “Terms of Relief in relation to the Grave Destruction Issue” (MFI 2). With
amendments suggested by her the measures achieve the greatest degree of
remediation of the inferred gravesite possible. In cross-examination, regarding
the need for OEH permits when police are involved in excavating a suspected
grave, Dr McCardle stated that permits are not necessarily required. Rather, if
a human bone is found, the police will take over the investigation. Once police
are notified, the Forensic Services Group (FSG) complete the excavation,
remove the remains and take them to the Department of Forensic Medicine
where they are investigated, or the FSG can call a forensic anthropologist to
assist in the recovery and make an identification on site. Usually, bones will be
taken to a morgue. Dr McCardle acknowledged that on her understanding the
police were present for the excavation of the inferred gravesite. When a
gravesite has already been excavated, no permits are needed. Concerning the
site visit, Dr McCardle recalled in cross-examination seeing rubbish and car
parts at the site. Dr McCardle denied that the fact that the stones may have
come from the nearby wall meant that the feature was less likely to be a burial
site, stating that she did not know. Dr McCardle confirmed comments made in
her reports that Dr Yelf’s findings were unusual, explaining that GPR results do
not identify human remains, the identity of individuals, or the antiquity or age of
the deceased. In re-examination Dr McCardle was asked about the process for
permitting where there is an identified suspected gravesite that is to be
excavated and replied that unless there is strong evidence that an historic
grave exists the Coroners Act 2009 comes first. If it is unknown what type of
grave exists the police must be notified and they investigate.
Applicant’s submissions
224 Legal analysis of the grave issue should focus on the Heritage Act as the
actions taken by Winten prevented determination of the ethnicity of any human
remains without further forensic investigation. Further investigation may reveal
that the NPW Act applies, but that cannot currently be determined. Section 4 of
the Heritage Act defines a “relic” as including any deposit, artefact, object, or
material evidence that relates to the settlement of the North Lismore Plateau
and that is of local heritage significance. It does not require that the relic be
human remains. “Harm” to an object or relic is defined as including “damage,
despoil, move or alter”. Section 139 of the Heritage Act prohibits harm to relics.
Section 139(1) applies when a person has reasonable cause to suspect that an
activity will cause harm to a relic, unless there is an excavation permit in place.
Section 139(2) requires a relic to have actually been discovered or exposed. If
the Court is satisfied that in January 2018 Winten had reasonable cause to
suspect that the inferred gravesite related to settlement and was of local
heritage significance then the actions it took were unlawful under s 139(1).
225 The evidence easily meets that standard as Winten’s own consultants were
advising it that the inferred gravesite had heritage significance. Everick
concluded that the site was an “early contact period burial (1840-1890)” and
that it was “highly likely that it will hold significance for one or more cultural
groups within the local or Strata area”. Recommendation 2 (see [212] above)
was based on the moderate-to-high likelihood of archaeological features or
deposits being present at the site. As such deposits have potential local
heritage significance, Everick warned that “ground disturbance works may only
proceed… after first obtaining an excavation permit” (TB vol 1 tab 16).
226 The GPR report by Dr Yelf was similarly forthright, identifying the features
characteristic of historic graves as either definitely or probably present in the
inferred gravesite. The uncertainty over direct evidence of decomposed human
remains was partly explained by the variable water table at the location. The
clear conclusion was that Dr Yelf interpreted the feature as representing the
burial of two bodies (TB 1 tab 15).
227 At the time of Casey & Lowe carrying out the excavation work in January 2018,
there was nothing to contradict the aforementioned reports. Winten therefore
had reasonable cause to suspect the presence of a relic. Winten had also been
told that it could not proceed with ground disturbing investigations without
permission from the OEH (Ex G).
228 Winten replaced its heritage consultants with Casey & Lowe without
explanation. Nobody from Everick or the local Aboriginal community was
informed of the intention to dig up the inferred gravesite, or invited to be
present when it happened.
229 Dr McCardle’s unchallenged evidence revealed the inadequacy of the steps
taken in the excavation carried out by Casey & Lowe on 12 January 2018.
Even if the work was performed at the highest archaeological or heritage
standards it would have been unlawful as no permit had been obtained.
Despite Winten’s attempt to use police presence to defend its actions, the
Heritage Act does not contain any exception from the permit requirement for
police action. The role of the police on 12 January 2018 was unclear. Winten
did not call any evidence to clarify this. It can be inferred from this that any
evidence given by the police would not have assisted Winten with the
allegation that it had reasonable cause to suspect a relic and that a permit was
required. It is not logical to assume that the police were interested in the grave
due to a real suspicion of a modern illicit burial because the inferred gravesite
was not consistent with a surreptitious burial – it was clearly delineated by
rocks and a depression in the ground.
230 Under s 154(1) of the Heritage Act the Court may make any order it thinks fit to
remedy or restrain a breach. The Applicant seeks relief in the terms suggested
in the “Terms of Relief in relation to the Grave Destruction Issue” (MFI 2). Dr
McCardle endorsed the course of action outlined in MFI 2 in her oral evidence.
Winten’s submissions
231 Winten accepted that Dr Yelf’s conclusions were that the inferred gravesite was
a possible burial site for two people, that decomposed remains were not visible
and were likely obliterated by the site’s variable water table, and that the site
was probably the grave of an early settler from the period 1850-1890.
However, Dr McCardle concluded that GPR cannot identify skeletal remains
and that it was “unusual for Dr Yelf to report additional information such as the
number of remains, age and antiquity”. Summarising Everick’s results, Dr
McCardle observed that rocks as a grave marker was a common practice for
both Aboriginal people and early settlers and that without exhumation of the
deceased it was unlikely that any further information regarding the identity of
the individuals could be determined.
232 On the basis of the material available to it at 12 January 2018, Winten did not
know whether the inferred gravesite contained remains at all, or if it had
contained remains, whether there would be any left due to the impact of the
water table, or, assuming there were remains, the ethnicity of any remains. Any
suspicion regarding the possibility of unearthing a “relic” was not, on balance,
reasonable. For an item to be a “relic” as defined in the Heritage Act it must be
identified as a non-Aboriginal item that is of local or State heritage significance.
Winten only had a finding that there was an anomaly in the soil demonstrated
by the GPR and speculation as to what the source of that anomaly might be.
That no permit was obtained under the Heritage Act prior to the excavation of
the inferred gravesite is not an issue if the Court concludes there was no
reasonable suspicion for the purpose of s 139(1).
233 Winten submitted that the development footprint was amended to avoid the
inferred gravesite in accordance with the first recommendation of the Everick
report, see [212] above. The plan showing this was in evidence, see [218]
above.
234 If the Court finds there was a reasonable suspicion for the purpose of s 139(1),
failure to find any relics upon excavation means there was no relevant breach.
The test under s 139(1) of the Heritage Act is whether the excavation “will or is
likely to result in a relic being discovered, exposed, moved, damaged or
destroyed”.
235 Should the Court find that there was a breach of s 139(1), the Court’s power
under s 154 of the Heritage Act to remedy or restrain the breach would be
enlivened. The orders sought by the Applicant set out in MFI 2 are beyond the
scope of orders to “remedy or restrain” available to the Court under s 154 –
they are for further investigation of the inferred gravesite.
236 The Court should not exercise its discretion to make orders upon finding a
breach under s 139(1) of the Heritage Act in these circumstances for several
reasons. Firstly, Dr McCardle considered that the correct procedures were
already followed in respect of the possible exhumation of remains. Secondly,
the excavation was managed by Lismore Crime Scene detectives meaning
Winten, having changed the development footprint to exclude the site as
recommended by Everick, had no need to further investigate the inferred
gravesite other than to comply with a request of Lismore Police. Thirdly, Dr
Denise Donlon, physical anthropologist, was present during the excavation and
did not identify any remains. Fourthly, the excavated spoil was backfilled into
the excavated area meaning the land has been reinstated and no further order
is appropriate.
Consideration of Heritage Act ground
237 Under s 153 of the Heritage Act any person can bring proceedings seeking to
challenge a suspected breach of that Act. Under s 154 the Court can make
orders remedying a breach or suspected breach. The Applicant relies on
s 139(1) to submit Winten had reasonable cause to suspect that the inferred
gravesite related to non-Aboriginal settlement of the area and was of local
heritage significance and therefore within the definition of “relic” in s 4, in
January 2018 before Casey & Lowe acted. Winten’s action of engaging Casey
& Lowe to excavate was unlawful as, according to the Applicant, the work
required a permit under s 139(1) which prohibits disturbance or excavation,
and this was not obtained.
238 Section 139(1) states that a person must not disturb or excavate land knowing
or having reasonable cause to suspect that such work is likely to result in a
relic being discovered, exposed or damaged inter alia. The Applicant does not
rely on s 139(2). Section 139(2) applies if a person has discovered or exposed
a relic, in other words where the existence of the relic is known. Section 139(1)
is directed to, in this case, the reasonable suspicion of the presence of a relic.
239 The Applicant bears the onus of proof of establishing that a breach of the
Heritage Act has occurred. Inferences must be drawn from the documentary
record in evidence. The Applicant seeks to establish that Winten had
reasonable cause to suspect a relic was in the inferred gravesite location at the
time that Casey & Lowe undertook the excavation work which Winten paid for
in January 2018. It relies on the Georadar report of January 2017 and the
November 2017 Everick report which Winten commissioned. The Georadar
report is summarised in [206] above and the summary in [207] above states
that two people may be buried. The Everick report summarised in [209]-[212]
above referred to a possible historic gravesite, identified the location and the
relevant legislative framework including the Heritage Act. It accepted the
Georadar report interpretation and identified the grave may have significance
for one or more local cultural groups. The report’s conclusions are identified in
[212] above and state the project will impact on the inferred gravesite and that
its heritage significance is unknown at this stage. Two recommendations are
made that (i) the project footprint be altered; or (ii) if the project proceeds, an
archaeological permit be obtained. Winten accepts that it had the reports. It
made two alternative submissions. It submitted in writing the reports did not
establish the presence of a relic. The Georadar report was not evidence of the
presence of a relic. It submitted orally that the inference arises that Winten
adopted Everick’s first recommendation and changed the development
footprint to avoid the inferred gravesite as identified on the plan dated 1 March
2019 in [218] above. That action does not confirm knowledge of the presence
of a relic on Winten’s part.
240 As Winten submitted, the Georadar report does not establish that a relic as
defined in s 4 was present. That is not the relevant consideration in relation to
s 139(1) which refers to having reasonable cause to suspect the presence of a
relic. I accept the Applicant’s submission that these two reports do give rise to
a reasonable suspicion of the presence of a relic on Winten’s part.
241 The challenging circumstance to consider from a legal perspective in light of
s 139(1) is the involvement of Lismore Police in causing Winten to engage
Casey & Lowe. The Applicant submitted that the role of the police was unclear.
The Applicant’s counsel submitted that the statements in the Casey & Lowe
report that the police requested work to be undertaken could not be taken at
face value and that there was an onus on Winten to better demonstrate the role
of the police if it wanted to rely on their involvement as exculpating. A Jones v
Dunkel (1959) 101 CLR 298 submission was not put expressly but was
strongly inferred, essentially suggesting the absence of further evidence from
Winten about police involvement would not have assisted Winten.
242 Winten relies on the text of the Casey & Lowe report extracted in [213] above.
The first sentence states that the company was engaged by Winten at the
request of Lismore Crime Scene detectives to test the “Early Settler’s Grave”.
The second sentence states that Dr Donlon a physical anthropologist and Mr
Lowe, director, were contacted by the same police unit who wished to
determine if the site was a grave at all, and if so, whether it was of modern or
historic internment. The third sentence states “whether it was connected to
crime scene, or was a European or Aboriginal burial was relevant to whether
the NSW police or NSW State Coroner needed to be involved, or whether
appropriate permits from the OEH needed to be obtained”. Dr McCardle
referred to these statements in her evidence without criticism. Given the clear
statements in these documents, there is no lack of clarity about why Casey &
Lowe did what they did and why Winten engaged them to do it, namely at the
request of Lismore Police.
243 In Gold and Copper Resources Pty Limited v Hon Chris Hartcher MP, Minister
for Resources and Energy, Special Minister (No 2) [2014] NSWLEC 30 at [75] I
stated:
The principle in Jones v Dunkel recognises that an inference may be drawn about the absence of a witness but only where evidence already gives rise to an inference. In New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2012] NSWLEC 174; (2012) 190 LGERA
171 I held similarly at [93] citing Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5 where the High Court stated:
In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture (see per Lord Robson, Richard Evans & Co Ltd v Astley [1911] AC 674 at 687). But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise: cf per Lord Loreburn, above, at p 678
244 The clear and definite inference arises that the reason Winten paid Casey &
Lowe to do work, which Casey & Lowe determined the scope of, was because
of the request of Lismore Police that work of that nature be done. There is no
conjecture or speculation necessary in so concluding. No Jones v Dunkel
inference arises that in the absence of evidence of, for example, a police officer
from Lismore Police, such evidence would not have assisted Winten. But for
that police request the strong inference arises that Casey & Lowe would not
have been employed by Winten at all to do the excavation. As the Applicant
submitted, that is strictly irrelevant to whether s 139(1) of the Heritage Act has
been breached, but if it has been that would clearly be an exculpating
circumstance for Winten.
245 While the role of Lismore Police is clear, the legal framework which applies is
not. The OEH letter dated 31 October 2017 (Ex G) relied on by the Applicant
provides no guidance on the circumstances that arose here where Lismore
Police requested further action intended to determine whether the NSW
Coroner should become involved or other law enforcement action was
required. According to the OEH letter the Coroners Act Pt 5, if it applies,
renders the application of the Heritage Act permit provisions inapplicable. I was
not taken to the Coroners Act by Winten meaning it was not relied on. There
would appear to be some tension between the two separate schemes in that
investigation of some sort may well be required to determine if the Coroners
Act applies which may well be work which the Heritage Act regulates, as
seems to be the case here.
246 The Council’s Delegated Determination Report extracted at [216] above states
expressly that the police had carriage of the investigation in accordance with
the Coroners Act. That is not conclusive evidence of the legal position which
applies.
247 Dr McCardle’s evidence set out above in [221] was to similar effect, that on this
occasion the statutory scheme had been followed. It is not obvious that is the
case in relation to s 139(1) of the Heritage Act. A request from Lismore Police
alone to do excavation work does not overcome the requirement to obtain an
excavation permit if there is reasonable cause to suspect the presence of a
relic, as there was. As at 18 January 2018 before Casey & Lowe commenced
work, I consider there was reasonable cause to suspect a relic may have been
present given the findings in the Georadar and Everick reports. One of the
reasons given by Casey & Lowe for doing the work was to establish if a permit
was required from OEH. That is too late given s 139(1) refers to whether
reasonable cause exists to suspect that an excavation is likely to result in a
relic being discovered. It is not appropriate to ask the question after Casey &
Lowe completed the work at the inferred gravesite. That the result of their
investigation was that there was no indication of human burial and no other
form of relic was otherwise recovered is not relevant to establishing whether a
breach of s 139(1) occurred before the excavation took place. It is relevant to
the exercise of discretion whether to grant relief, as I discuss below.
248 There was also criticism of Winten by the Applicant for not involving the experts
Everick and Georadar earlier employed by them. Nothing relevant to any legal
issues arises from this criticism. How Casey & Lowe came to be engaged is
clear. Casey & Lowe specialise in work of the kind requested by Lismore Police
according to their director. The work was undertaken by Mr Lowe in the
presence of Dr Donlon a qualified physical anthropologist. That Dr McCardle
was critical of the excavation undertaken by Mr Lowe in terms of the
methodology applied does not assist in the construction of the statutory
scheme.
249 A permit under the Heritage Act in these circumstances was required before
the excavation commenced on 18 January 2018. The Applicant has
established that Winten, in engaging Casey & Lowe to do the excavation work,
acted in breach of s 139(1) the Heritage Act. No mention has been made of the
Fifth Respondent by the Applicant in its substantive submissions. My finding
does not apply to it. The circumstances surrounding that engagement are
entirely exculpating. In addition, Casey & Lowe did not find any evidence of a
relic including human remains and Dr Donlon a suitably qualified anthropologist
was present during the excavation. Dr McCardle, while critical of some of the
procedures applied, stated that the correct procedures were used. These
matters are relevant to the exercise of my discretion as to whether any
declaration of a breach of the Heritage Act is made as set out in the Third
Further Amended Summons and whether relief ought be granted in the terms
sought by the Applicant in MFI 2. The Court has wide discretion in determining
whether to grant relief and if so on what terms: Warringah Shire Council v
Sedevcic (1987) 10 NSWLR 335; ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987)
11 NSWLR 67. These matters suggest that no declaration of a breach ought be
made and that the relief sought in MFI 2 is unwarranted in the exercise of my
discretion.
250 I appreciate and acknowledge from the affidavits read by the Applicant
summarised above at [26]-[29] that protection of Aboriginal heritage is an
understandably significant concern for the Applicant and his supporters. The
evidence before me does not suggest that such harm has been caused and no
breach of the NPW Act was pressed.
Construction certificate ground
251 The parties identified the following issues:
9. Does the Construction Certificate permit construction of a haul road [on Precinct 1 and 2]?
10. Is the construction of the borrow pit [on Precinct 2] permitted by the Construction Certificate?
11. If yes, was the construction of the haul road and/or the borrow pit permitted by the Construction Certificate “not inconsistent” with the development consent for the purpose of cl. 145(2) of the Environmental Planning and Assessment Regulation 2000 (as in force at the time of the grant of consent for the Construction Certificate on 12 February 2019)?
12. If yes, is the haul road and borrow pit nevertheless incorporated into the development consent by operation of s. 4.16(12) of the Environmental Planning and Assessment Act 1979?
13. Does a breach of cl. 145(2) of the Environmental Planning and Assessment Regulation 2000 result in the invalidity of the Construction Certificate?
14. What is the appropriate relief, if any?
252 As already noted in [9]-[10] above there is no debate that s 4.16(12) operates
and reg 145(2) of the EPA Regulation applies. Section 6.32 came into force
after the relevant events occurred.
Amended Points of Claim
253 The Amended Points of Claim stated:
Construction Certificate
33 The Applicant seeks a declaration that Construction Certificate CC 14.2017.270.1 granted on the 12th February 2019 by the Second Respondent to the Fourth Respondent [sic] (“the Construction Certificate”) is invalid and thereby void and of no effect.
Particulars
i) The Second Respondent granted Civil Works Construction Certificate (CCC) 14.2017.270.1 to the Fourth Respondent [sic] on 12 February 2019 in non-compliance with the consent conditions for DA No 5.2017.270.1
ii) Further or in the alternative the CCC approval purportedly allowing the construction of a Haul Road and the excavation of a “borrow pit” was not a matter applied for in the DA, underwent assessment or contemplated in the consent conditions.
iii) Civil Construction Works Certificate 14.2017.270.1 purportedly approves the construction of a haul road from the Plateau to the floodplain through an area of vegetation that had not been assessed for the presence of stone wall, evidence of Aboriginal heritage and/or threatened species which the Applicant knows to be present.
iv) Further the Second Respondent approved Civil Construction Works Certificate 4.2017.270.1 purportedly marks out excavation of a 'borrow pit' on the plateau within precinct 2.
v) No assessment to excavate an unquantified amount (apparently up to 108,000 cubic metres of material) of the impact on the geo hydrology, ecology or cultural heritage. There is no evidence in any of the assessment documents of the specific dimension or layout of the Borrow Pit.
vi) The Applicant claims that the scale of the borrow pit, if it were not for a possible protection afforded by Para 37A of Schedule 3 of the EP&A Regulation would be designated development pursuant to clause 19 of Schedule 3.
vii) There is no information by which the First Respondent could assess impacts, such as:
• truck and machine movements,
• whether explosives will be utilised,
• is there to be dewatering
• noise and dust Impacts
viii) The drawings by Planit Consulting issued for Civil Construction Works Certificate 14.2017.270.1, mark out a haul road from an area of an excavation pit on the Plateau to the floodplain were not part of the development application as approved by the First Respondent.
ix) The Applicant claims the construction of the haul road and the borrow pit will likely cause significant adverse environmental impact particularly on threatened species.
x) The initial clearing for the borrow pit has seen 10 nesting and 11 hollow bearing trees removed and all but two destroyed.
254 The issues identified in particulars (v), (vi), and (vii) above in the Amended
Points of Claim were not pressed at hearing.
Evidence
255 The evidence relied on is all documentary being business records apart from
some photographs relied on by the Applicant. The parties relied in part on
different documents as indicated at the end of each paragraph by [A] or [W].
256 On the map below, a road between Precincts 1 and 2 is labelled “Road 01”.
The contested “borrow pit” area is in north-western Precinct 2.
Road
257 Development Consent 5.2016.7.1 granted 14 April 2016 (2016 DC) and
Development Consent 2017/270 granted 17 October 2018 (2018 DC) are both
relevant to the road issue in light of Winten’s arguments.
258 A set of plans approved in the 2016 DC was tendered by Winten and marked
Ex 4. These plans show a road referred to as “internal access road” traversing
Precinct 1 and ending in a cul-de-sac in northern Precinct 2 [W] (vol 3 tab
24(b); Ex 4).
259 The SEE prepared in August 2017 for the 2018 DC included an aerial
photograph of the Land (folio 863). Winten submitted that an existing track
visible in this photograph is the access track and location of the road approved
in 2016 and the haul road intended to be used to move material cut from
Precinct 2 to Precinct 1 for fill as part of the bulk earthworks referred to in the
CC [W] (vol 2 tab 20 p. 863).
260 On 18 September 2017 the Council wrote to Planners North (engaged by
Winten) requesting additional information relating to the DA, specifically
concerning a road it called “the road connecting Precinct 1 to Precinct 2”. The
Council requested Planners North provide details of this road including long
section and cross section and an indication of time frame for construction of the
road by reference to the proposed DA staging of works [W] (vol 3 tab 22 p
1374).
261 Planit Consulting responded to this request for information on 12 January 2018
noting that the final road design would be confirmed during the detailed design
phase of the development (vol 3 tab 24 p. 1382). Copies of the 2016 DC plans
were attached to this letter from Planit Consulting, which it said showed the
preliminary design of the road connecting Precincts 1 and 2 (TB vol 3 tab
24(b)] [W]).
262 The 2018 DC (Ex A) was granted on 17 October 2018 with a schedule of
conditions of consent.
263 Condition 44 of the 2018 DC provides [W], [A]:
The person acting upon this consent shall provide the following road works with associated stormwater drainage structures that have been designed and constructed in accordance with Council’s Development, Design and Construction Manual (as amended). Design details of the required works are to be submitted to and approved by Council prior to the issue of a Civil Works Construction Certificate. The proponent shall be responsible for any costs, including maintenance, for a period of six months from the date of approval of completion of the work.
Note: * the width may be reduced to 12.5m subject to approval at Civil Works Construction Certificate stage as this road is adjacent to Hairy Joint Grass and reduction In road reserve width may be beneficial
Intersection Works
(1) Construction of an Auxiliary Left Turn (AUL) lane and Basic Right Turn (BAR) lane at the Junction of Dunoon Road and Road 1 (Development Consent 5.2016.7.1) in accordance with AUSTROADS Part 5 “Intersections at Grade” giving particular attention to sight distance.
(2) Construction of an intersection at the junction of Road 2 and Road 1 (Development Consent 5.2016.7.1) 1 in accordance with AUSTROADS Part 5 “Intersections at Grade” giving particular attention to sight distance.
(3) Construction of a roundabout at the junction of Road 2, Road 5, and Road 8 in accordance with AUSTROADS Part 5 “Intersections at Grade” giving particular attention to sight distance.
(4) A temporary turning circle shall be constructed at any road termination pending the completion of the road.
A certificate prepared by an appropriately qualified and practising Civil Engineer, shall be provided to the Certifying Authority to certify compliance with these requirements.
Reason: To facilitate suitable road access for vehicular traffic and to ensure appropriate access and infrastructure protection that is integral with infrastructure on surrounding sites.
264 Condition 49 of the 2018 DC provides: [W]
Traffic calming shall be designed and installed along proposed Road 1 (Development Consent 5.2016.7.1) to maintain the signposted speed in accordance with the Austroads Guide to Traffic Management Part 8: Local Area Traffic Management. Design details of the required works are to be submitted to and approved by Council prior to the issue of the relevant Civil Works Construction Certificate.
265 The 2018 DC conditions required certain plans be submitted to Council prior to
commencement of work. An “Integrated Construction Management Plan”
(ICMP) dated 27 October 2017 was prepared. The ICMP contained the
following appendices: “Safety Management Plan” (Appendix A); “Environmental
Management Plan” (the EMP) (Appendix B); “Quality Management Plan”
(Appendix C); “Traffic Management Plan” (Appendix D); “Community
Management Plan” (Appendix E); and “Emergency Response Plan” (Appendix
F). In its description of the construction methodology, the ICMP said Stage 1
works would include the upgrade of an existing track to borrow pit in Precinct 2
to be an all-weather haul road, suitable for construction traffic, including
passing bays, berms, drainage and adequate erosion and sediment controls
(TB vol 4 tab 60) [A].
266 The EMP dated 2 October 2019 described the scope of work as including the
development of an existing track to borrow pit for all-weather haul road (TB vol
4 tab 59) [A].
267 A “Dilapidation Report” dated February 2019 identified the public infrastructure
that may be affected by the proposed development. In Appendix B (“Precinct 1
Construction Staging”), Portion 1 “Site Establishment and Main Access Road
Preloading” listed works including “clearing and grubbing of borrow pit area and
Precinct 1” and “upgrade haul road to borrow pit” (TB vol 4 tab 53 [A].
268 Approved 2018 DC plans labelled “Ultimate Overall Proposal Plan” shows a
road labelled Road 1 travelling from Precinct 1 across Precinct 2 and
integrating into the road system by way of a roundabout joining Road 1 to Road
12 and Road 13 in northern Precinct 2 (TB vol 4 tab 37) [W].
269 A staging diagram was prepared which showed the stages of construction for
the planned development and the approximate dates on which each
construction task would be carried out. Under the heading “Upgrade of existing
track to haul road between Precinct 1 and Borrow Pit” works were described as
including “cut from roadside hill to build up road camber and fill existing drain”
[A].
270 Civil Works CC 14.2017.270.1 was issued by Lismore City Council on 12
February 2019. Plans issued with the CC show a road labelled Road 1,
between Precincts 1 and 2 (for example, Earthworks Construction Staging Plan
Month 1). Winten submitted that was in the same position as Road 1 in the
2016 DC plans (vol 4 tab 50) [W].
271 A report titled “NLP Precinct 1 – Post Clearing Report” dated 6 November 2019
annexed to the affidavit of Ms Vanessa Walsh dated 27 November 2019 was a
report of clearing supervision by GeoLink totalling 41.5 hours over five
separate days in October and November 2019. Habitat clearing on a road
referred to as the “haul road” was reported. Winten objected to Ms Walsh’s
affidavit on the basis that it did not go to any pleaded issue or matter of
relevance. Only par 14 and the annexed GeoLink report were read (TB vol 5
tab 72) [A].
272 The photograph in Ex K taken at the Land sometime after 6 November 2019
shows a “Keep Left” sign on a track that the Applicant said showed that the
haul road had been upgraded. Drone photographs 1-3 of Ex D taken on or
about 13 January 2020 show a track on the Land from an aerial perspective.
The Applicant said photograph 1 of Ex D was taken by a drone facing south
towards Lismore and showed a road partially on Precinct 1, departing
Precinct 1 and ascending an escarpment onto Precinct 2. The Applicant said
photograph 2 of Ex D was taken from the opposite direction and showed part of
the same road ascending a hill substantially on Precinct 2. The Applicant said
photograph 3 of Ex D showed substantially the same subject matter, including
material being brought along the road from higher ground [A].
Borrow pit
273 Photograph 4 of Ex D captured on or about 13 January 2020 shows a cleared
and scraped area on Precinct 2. This is what the parties referred to as the
“borrow pit” on Precinct 2.
274 Prior to the grant of the 2018 DC, materials submitted with the DA in August
2017 contemplated the earthworks required for the development. Plans
prepared by TGM Group Pty Ltd (TGM Group) lodged with the DA included an
“Earthworks Plan” on Precinct 1. The words “Precinct 1” do not appear on the
Earthworks Plan. The Applicant submitted that by comparing this plan with
plans of the whole Land that show the shape and area of all three precincts, it
can be inferred that only Precinct 1 is shown on the Earthworks Plan. The
indicative cut and fill volumes estimated by TGM Group on the Earthworks Plan
were 35,239 cubic metres of cut and 82,810 cubic metres of fill. The Applicant
relied on the fact that no similar plans were prepared and submitted with the
DA for earthworks on Precinct 2, where the contested borrow pit is located (vol
2 tab C pp. 816-817) [W], [A].
275 The SEE also contemplated earthworks and estimated the volumes of cut and
fill that would be required (vol 2 tab 20) [W]:
The subject site ranges in level from 10m AHD to 130m AHD. Significant sections of cut and fill are required for the site in order to maintain maximum grade requirements for the proposed road network. Preliminary earthworks plans have been prepared to estimate total cut and fill volumes. These estimate that the volume of cut will be in the order of 410,138m3 and the fill volume will be in the order of 491,280m3, resulting in a balance of 81,142m3 (fill).
276 A “Balance Land Report” was prepared in June 2017 by TGM Group to provide
an engineering assessment on the balance of the land and a discussion of
critical design components of the development. The Balance Land Report
estimated the total cut and fill volumes that would result from the earthworks in
the course of carrying out the development. Annexed cut/fill plans displayed
the extent of cut and fill planned on the Land, including on Precinct 2. Winten
said the borrow pit can be identified on these plans by reference to the extent
of cut on Precinct 2 (vol 2 tab 20(a)) [W], [A].
277 The Council’s request for information in September 2017, referred to above in
[260], sought clarification of the total volume of fill required for Precincts 1, 2
and 3, and details of any proposed fill material including the source and
primary haulage routes [W].
278 In its response to the Council’s request, referred to above in [261], Planit
Consulting prepared a report dated 12 January 2018 which specified revised
cut and fill figures for all three Precincts: 47,500 cubic metres fill on Precinct 1,
108,000 cubic metres cut on Precinct 2, and 74,000 cubic metres fill on
Precinct 3. The response included a revised set of Precinct 2 and 3 drawings
including a cut/fill plan [W] (vol 3 tab 24(c) folio 1460).
279 An updated version of the Balance Land Report was provided to the Council in
September 2018 to reflect these updated figures provided by Planit Consulting
in its response to the Council’s request for information. The updated total
estimates were 391,151 cubic metres cut and 357,253 cubic metres fill, with a
balance of 33,898 cubic metres cut. The Report annexed the same plans
provided by Planit Consulting to the Council with its letter of 12 January 2018
[W].
280 The Council’s own assessment of the DA (“Development Assessment Report”)
included an engineer’s assessment which reflected the revised figures of cut
and fill volume provided by Planit Consulting and incorporated into the revised
Balance Land Report. The engineer’s assessment acknowledged that
earthworks would be required on Precinct 2. The Development Assessment
Report stated “Council is satisfied that the earthworks are acceptable” (vol 4
tab 34 p 2043, p 1951) [W].
281 Plans issued with the CC included the locality of bulk earthworks, site layout,
planned construction stages, sediment and erosion control plans, cut/fill
depths, and sections of work (vol 4 tab 50). A plan titled “Earthworks
Construction Staging Plan Month 1” showed an area of planned cut in north-
western Precinct 2. A plan titled “Earthworks Construction Staging Plan Month
3-6 – Stage 1” showed an area of planned cut in the same location in north-
western Precinct 2, bearing the label “earthworks borrow area” [W].
Applicant’s submissions
282 The Applicant contended that (1) Winten constructed a haul road on Precinct 2
outside the terms of the development consent and the CC and (2) the civil
earthworks (borrow pit) which the CC purported to authorise on Precinct 2 were
inconsistent with the 2018 DC.
Road
283 Winten maintained it did not construct a (haul) road but was using an existing
track for haul purposes. Both photographic and documentary evidence
demonstrate the opposite – a haul road was constructed and developed on
Precinct 2. Photographs 1-3 of Ex D and Ex K depict a widened, developed
road.
284 The 2018 DC conditions referred to Roads 2-11 but omitted Road 1. The haul
road, being Road 1, was therefore constructed without the benefit of the 2018
DC or a CC.
285 Dilapidation Report Appendix B Construction Staging report (above in [266])
expressly refers to clearing the borrow pit area and upgrading the haul road to
the borrow pit.
286 The construction staging/programming diagram (above in [269]) included items
of work being the upgrade of the existing track to the haul road between
Precinct 1 and the borrow pit and cut from roadside hill to build up road camber
and fill the existing drain (extend the existing road width to five metres).
Another version of this staging diagram appeared in the evidence with slightly
different dates also including references to upgrade of the existing haul road
between Precinct 1 and the borrow bit.
287 The EMP shows that the existing track to the borrow pit is to be upgraded to an
all-weather haul road, as also indicated in the ICMP referred to above in [265].
288 The contested GeoLink report (above in [271]) refers to clearing of the haul
road. A road has been constructed or was intended to be constructed but for
the interlocutory application and undertaking.
Borrow pit
289 Material supplied to the Council with the 2018 DA shows earthworks only on
Precinct 1, see DA plans above in [274] and TGM Group report above in [276].
Nothing was provided to the Council at the time of the DA that could have
disclosed to even the most prescient of consent authorities that a borrow pit
was intended on Precinct 2. The Council cannot be deemed to have given
consent to the borrow pit. The CC, which does purport to authorise the borrow
pit, is therefore inconsistent with the 2018 DC because it purports to permit the
carrying out of a major earthwork, which would be designated development in
any other circumstance. The earthworks on Precinct 2 are development
purportedly approved by the CC inconsistent with what was approved by the
2018 DC.
290 The Court must determine objectively whether a development approved by the
CC inconsistent with the development consent.
291 The Applicant accepted that if successful on this issue the CC will not be
automatically void: Burwood Council v Ralan Burwood Pty Ltd and Others (No
3) (2014) 206 LGERA 40; [2014] NSWCA 404 (Burwood v Ralan) at [165],
[182]. This does not mean that the Court’s power to declare the CC
prospectively invalid is removed. The relief sought is a prospective order,
setting aside the CC and so preventing further work unless and until a valid
consent is obtained. The Applicant does not seek a declaration the CC is void
ab initio. If an order is made, the work done to date stands.
Winten’s submissions
Road
292 Winten submitted plans and reports prepared prior to the grant of the 2018 DC
are relevant as there is a dispute about what was considered by the consent
authority in granting the 2018 DC. There is no difference between the haul road
and Road 1 as approved in the 2016 DC and amended in the 2018 DC. A
previous iteration of Road 1 which ended in a cul-de-sac on Precinct 2 was
approved in the 2016 DC. Details of the integration of Road 1 into the wider
road network were provided to the Council in response to its request for further
information in September 2017. Condition 44 of the 2018 DC refers to the
construction of an intersection of the junction of Road 1 (2016 DC) and Road 2.
Condition 49 of the 2018 DC was imposed to modify the requirements for Road
1 referred to as approved in Development Consent 5.2016.7.1 by requiring the
installation of traffic calming devices and speed signposts.
293 References to a haul road relied on by the Applicant are to an existing track
between Precincts 1 and 2 used by Winten’s contractor to move material cut
from Precinct 2 onto Precinct 1 for fill as part of the bulk earthworks. The haul
road is in approximately the same location as Road 1 referred to in plans
approved by the 2016 DC. The CC provides for bulk earthworks on part of
Road 1 on the southern part (Vol 4 tab 50). That is the work being undertaken,
referred to as a haul road in the documents relied on by the Applicant. That
work is consistent with the 2016 DC and 2018 DC.
Borrow pit
294 Regarding earthworks, documents originally submitted with the DA referred to
requirements for cut and fill on Precinct 1, by reference to indicative drawings
provided by Planit referred to above in [278].
295 The Council’s request for further information on 18 September 2017 in relation
to proposed earthworks demonstrated that Council was aware of proposed
earthworks and had turned its mind to an assessment of those earthworks. The
response to this request by Planit Consulting in a letter dated 12 January2018
included a revised set of engineering plans for Precinct 1.
296 The revised plans provided in January 2018 included cut/fill on Precincts 2 and
3 including an area of cut in the area of the borrow pit.
297 On 21 September 2018 Planit Consulting provided to the Council an updated
report by TGM Group which amended the volumes of cut and fill so as to
reflect the updated Planit drawings.
298 Council’s own engineer examined the predicted quantity of cut and fill detailed
in the DA and concluded that Council was satisfied the earthworks were
acceptable. The CC plans reflected the location of the cut on Precinct 2 in the
plans submitted to Council and approved as part of the 2018 DC. The CC
provides for the excavation of a borrow pit on Precinct 2. Critical design
components of earthworks were specified by TGM Group and the borrow pit
was identified on drawings by Planit Consulting by reference to the extent of
cut.
299 There is no inconsistency between the 2018 DC and the CC as the 2018 DC
permitted the construction of Road 1 (the haul road in the CC) and the borrow
pit.
300 Even if there is an inconsistency, the road and borrow pit are nevertheless
incorporated into the development consent by operation of s 4.16(12) EPA Act.
A breach of reg 145(2) of the EPA Regulation does not result in the invalidity of
the CC: Burwood v Ralan and Bunderra Holdings Pty Ltd v Pasminco Cockle
Creek Smelter Pty Ltd (2017) 226 LGERA 54; [2017] NSWCA 263 (Bunderra)
at [52].
Consideration
301 The Applicant bears the onus of proof on the balance of probabilities of
establishing the invalidity of the CC issued by the Council as the certifying
authority. As identified at [252] above and as accepted by the Applicant, reg
145(2) of the EPA Regulation applies. The Applicant alleges that, firstly, no
development consent or CC approval was granted for work on the haul road
and, secondly, the borrow pit on Precinct 2 in the CC was not approved in the
2018 DC so that the CC is inconsistent with the 2018 DC. The statutory
provisions in force at the relevant time were considered in Burwood v Ralan
and Bunderra.
302 In Burwood v Ralan plans for a large residential and commercial development
including a particular facade treatment were approved by the relevant local
council. The plans submitted by the developer to the certifier to enable the
mandatory CC to be issued varied substantially from the approved plans
including in relation to the facade treatment. The CC was issued by the private
certifier in relation to the changed plans. At issue was whether the CC plans
were not inconsistent with the development consent plans and, if they were,
what the legal consequence was. At [147] Sackville AJA (Leeming, Payne JJA
agreeing) said the ordinary meaning of inconsistent includes “lacking in
harmony between different parts or elements” or “self-contradictory”,
“discrepancy” or “incongruity”. Not every difference between a development
consent and plans and specifications furnished to the certifying authority and
approved in a CC amounts to an inconsistency, at [148]. The judge must
determine objectively whether there is inconsistency (and not consider the
subjective view of the certifier who issued the CC as determinative), at [149].
Findings must be made about the nature and extent of variations, at [151]. On
the assumption that the plans and specifications provided to the certifier were
inconsistent with the development consent, the issue arose of whether this did
give rise to invalidity of the CC, considered at [154]-[193]. The conclusion was
no, the CC was not void and of no effect in the circumstances.
303 In Bunderra the Court of Appeal confirmed the application of Burwood v Ralan
that inconsistency did not necessarily result in the invalidity of a CC applied to
more than minor differences in plans, at [77]. Whether invalidity arises need
only be considered if the Applicant can demonstrate inconsistency between the
development approved in the DA and the CC.
Road
304 The questions posed at the outset in relation to a haul road were (i) does the
CC permit its construction between Precincts 1 and 2 and (ii) if yes, is the CC
inconsistent with the development consent. The Applicant’s case as presented
at the hearing varied to the effect that there was no development consent
granted for the haul road and no approval for it in the CC. For the reasons
given by Winten, supported by extensive reference to the documents produced
in the various stages of the development application, assessment and approval
for the 2016 DC and the 2018 DC in evidence in [258]-[264] and [268] above,
the haul road between Precincts 1 and 2 referred to in the CC is, in all the
documents relied on by the Applicant in [265]-[269], being documents prepared
to comply with the 2018 DC including a staging diagram, the CC in [270] and
report in [271] above, in the same location as Road 1. Road 1 was consented
to in the 2016 DC and incorporated into and amended in the 2018 DC as
Winten identified. The incorporation of Road 1 into the 2018 DC occurred
through Conditions 44 and 49 set out above in [263] and [264]. The plans
referred to in evidence for the 2016 DC, the 2018 DC and the CC all show a
road in the same location. The Applicant’s photographs in Exhibits D and K
confirm that work has been undertaken on the haul road but do not otherwise
assist in construing the documents in evidence.
305 The CC is not inconsistent with the 2018 DC applying reg 145(2) of the EPA
Regulation and Burwood v Ralan at [147]. The reference to a haul road rather
than Road 1 in the CC documents and other documents relied on by the
Applicant including an EMP (in [266] above), Dilapidation Report (in [267]
above) and GeoLink report (in [271]) above) does not give rise to a finding of
inconsistency between the 2018 DC and the CC.
Borrow pit
306 The questions posed in relation to the borrow pit are (i) is the construction of
the borrow pit permitted by the CC; and (ii) if yes, is the CC inconsistent with
the development consent. Photograph 4 (Ex D) captured on or about 13
January 2020 shows a cleared and scraped area on Precinct 2. This is the
contentious earthworks referred to by the parties as the “borrow pit”.
307 Having considered carefully the different documents the parties relied on in
light of the different emphasis given to the documentary record of the DA
process and the CC process as set out above in [273]-[281], I agree with
Winten for the reasons it gives that the CC does permit the construction of the
borrow pit. There is no relevant inconsistency between the 2018 DC plans and
the CC plans in relation to the borrow pit. The only absence (which does not
suggest an omission) is that the words “borrow pit” do not appear in
development consent plans showing cut and fill areas on Precinct 2. The area
to be cut which accords with the borrow pit is clearly depicted in the Balance
Land Report in [276] above. That the approved CC plan titled “Earthworks
Construction Staging Plan Month 3-6 – Stage 1” referred to the borrow pit,
using that terminology for the first time apparently, does not give rise to
inconsistency applying its usual and ordinary meaning as identified in Burwood
v Ralan at [147].
308 As I have not found the CC to be inconsistent with the 2018 DC whether the
CC should be declared invalid does not arise. The Applicant is unsuccessful on
this ground.
Declarations and Orders
309 The Applicant has been successful in relation to the SIS ground. As already
identified above at [201], it is appropriate that a declaration be made as
identified in prayer 2 of the summons to the effect that Development Consent
2017/270 granted on 17 October 2018 by the First Respondent to the Second,
Third, Fourth and Fifth Respondents (“the Consent”) was invalidly made, void
and of no effect as the development application when lodged failed to comply
with s 78A(8) of the Environmental Planning and Assessment Act 1979.
Whether consequential orders need be made as identified in prayers 5 and 6 of
the summons will be discussed further with the parties. I will not make the final
declaration in this judgment to enable discussion about consequential orders.
The declaration and any orders will be made shortly following submissions by
the parties.
310 There have been no submissions on costs. The usual costs order in Class 4
proceedings is that costs follow the event. The Applicant has been successful
in relation to one of its substantial grounds. I will provide the parties with an
opportunity to make submissions on costs if a different costs order from the
order that Winten is to pay the Applicant’s costs is sought. A timetable for doing
so will be discussed with the parties.
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Amendments
23 July 2020 - Typographical - omission of (No 4) in Medium Neutral Citation
case name
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