In its recent decision in Friends of Tumblebee Incorporated v ATB Morton Pty Limited (No 2)  NSWLEC 16, the Land and Environment Court found a development consent to be invalid following the failure to prepare a Species Impact Statement in connection with a proposed development. In this case note, we highlight key features of the decision and implications of the decision for developers and consent authorities alike.
ATB Morton Pty Limited (ATB) obtained development consent for the construction of an industrial warehouse on land in the Hunter Economic Zone (HEZ) including clearing of 3.2 hectares of potential habitat for the Regent Honeyeater (RH). Friends of Tumblebee Incorporated (Tumblebee) commenced proceedings seeking to have the development consent declared invalid on the basis that the development application (DA) was not accompanied by a Species Impact Statement (SIS), as required under section 78A(8)(b) of the Environmental Planning and Assessment Act 1979 (EP&A Act).
The development site forms part of the HEZ which was previously rezoned to allow employment generating development. Whilst ecological studies were undertaken as part of the rezoning, including consideration of impacts on the RH, in 2007/2008 a significant breeding event occurred within the HEZ.
The Court's decision
The Court noted the legal principles which apply in determining whether or not a SIS is required, including:
- whether a SIS is required is an essential precondition to the granting of consent;
- as a mandatory requirement, the Court must consider the factors in s 5A of the EP&A Act, known as the "seven part test"; and
- other relevant factors include the cumulative impacts of the proposed development and the potential application of the precautionary principle.
Applying the relevant factors of the seven part test the Court concluded that:
- Paragraph (a) of the seven part test relates to whether the proposed action is likely to place the RH at risk of extinction. Although the experts agreed that in the short term, the direct effect of the proposed development was unlikely to lead to extinction, the Court adopted a cumulative approach including impacts from approved clearing granted for other developments in the HEZ which amounted to 135.2 hectares. In conjunction with the application of the precautionary principle, the Court found that the development posed a threat of serious or irreversible environmental damage and at worst, extinction of the RH.
- Paragraph (d) relates to impacts on habitat, including its removal, modification, fragmentation and the importance of the habitat to the long term survival of the RH. The Court determined that a more nuanced approach to 'habitat' should be adopted and contemplated the further fragmentation of the RH habitat more generally within NSW, particularly with regard to other approved clearing the HEZ. For example, because of the highly mobile nature of the RH, the proposed clearing may remove a 'stepping-stone' in the chain of productive habitat in the RH's annual cycle of movement.
- Paragraph (g) relates to whether the development is a key threatening process. The clearing of native vegetation and the "aggressive exclusion of birds from woodland and forest habitat by abundant Noisy Miners" are both key threatening processes under schedule 3 of the Threatened Species Conservation Act 1995.
The Court held that the clearing, although relatively small in area, will indirectly or in the long-term be likely to significantly affect the RH or its habitat. As such, because a SIS was required but did not accompany the DA, the subject development consent was declared to be invalid.
What this case means
Ensuring a SIS is prepared, if required
It is well settled that whether or not a SIS is required is a particular finding of fact, which enlivens a consent authority's ability to exercise its decision making power. As such, if it is found that a SIS was required based on the threshold test under the EP&A Act, and one was not provided with the DA, the consent authority's decision in relation to that DA may be exposed to a risk of challenge. Therefore, careful consideration should be given to whether an SIS is required.
Considering cumulative impact
The case also recognises the relevance of cumulative impact and the application of the precautionary principle when dealing with threatened species, populations or ecological communities (and their habitats). For example, although the proposal involved clearing of a small area, in the context of the large amount of land already cleared in the HEZ and the importance of the HEZ for the habitat of the RH, the cumulative impact was held to be "significant". Importantly, the Court said that the cumulative impact is a relevant matter for not only the seven part test, but as a separate factor given the broad discretion of the decision-maker in section 78A(8)(b).
Choosing the right experts
For applicants, the choice of experts can be critical in any Court proceedings. The Court in this case was critical of ATB's expert witness. For example, ATB's expert was a general ecologist and not a specialist ornithologist. In addition, the Court was critical of the expert's association with the extractive and development industries being, until recently, the general manager of a coal mining company. The expert was also found to have applied the wrong meaning to phrases in the threshold test, including "likely" and demonstrated a "degree of carelessness" in preparing certain evidence.
Considerations for decision makers
For decision makers, as is highlighted by this case, careful consideration needs to be given to each mandatory requirement when determining a DA. Here, although the town planner had prepared a report recommending refusal of the DA, the Council resolved to approve the DA on the basis that extensive ecological studies had been undertaken at the rezoning stage and the area to be cleared was small. However, because of the 2007/2008 breeding event, the ecological status of the HEZ had changed since the rezoning. In addition, the cumulative impacts meant that, because of the land already approved for clearing in the HEZ, the likely impact of the proposed development on the RH was significant. Therefore, it was not enough that the Councillors had turned their minds to the impact on the RH based on previous ecological reports.
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